Chapter 50. Liens and Estate Recoveries
TITLE 25
Property
Mortgages and Other Liens
CHAPTER 50. LIENS AND ESTATE RECOVERIES
§ 5001. Definitions.
(a) "Department" means the Delaware Department of Health and Social Services.
(b) "Discharge from a long-term care service" means the release of a person from a long-term care facility for the purpose of returning to the home for permanent residence or discontinuance of home and community-based services.
(c) "Estate" means all real property, as well as all personal property which constitutes assets of the individual's estate as described in Chapter 19 of Title 12.
(d) "Lawfully residing in the home" means residing in the home with the permission of the owner or, if under guardianship, the owner's legal guardian.
(e) "Long-term care" means a service provided in a long-term care facility or in the home, under federally approved home and community-based services, as an alternative to institutionalization.
(f) "Medical assistance" means payment by the State's program under Title XIX of the Social Security Act [42 U.S.C. §§ 1396-1396w-1], or Medicaid Program, administered by the Department.
(g) "Real property" means land, including houses or immovable structures or objects attached permanently to the land. The terms "real estate," "realty," and "real property" are used synonymously with one another and designate real property in which an individual has ownership rights and interests.
(h) "Residing in the home on a continuous basis" means using the home as the principal place of residence.
69 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 545, §§ 1, 2.;
§ 5002. Liens; notice.
(a) Subject to the provisions of subsections (b) and (c) of this section, for any individual who is 55 years of age or older when the individual receives services in a long-term care facility under the auspices of the Department, a lien shall be created against all real property of such individual, prior to the individual's death, upon approval of such individual for, and receipt of, services that will be paid on that individual's behalf, fully or in part by the Department, and only after notice and opportunity for a hearing before the Department to establish that the person cannot reasonably be expected to return home.
(b) No lien may be imposed on an individual's home under subsection (a) of this section if any of the following persons is lawfully residing in the home:
(1) The spouse of the individual;
(2) The individual's child who is either under the age of 21, blind or permanently and totally disabled; or
(3) A sibling of the individual who has an equity interest in the home and who was residing in the home for a period of at least 1 year immediately prior to the date of the individual's admission to the long-term care facility.
(c) The lien shall attach to real property upon the recording of a notice of lien being recorded by the Department at the Recorder of Deeds office in the county where such real property is located.
(d) The lien may be released by the Department recording a release of lien form at the Recorder of Deeds office in the county where the real property is located.
(e) Any lien imposed pursuant to this section shall dissolve and be null and void upon the individual's discharge from the long-term care facility and return home. Any such lien shall be released by the Department upon such discharge.
69 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 545, §§ 3-5.;
§ 5003. Estate recovery.
In the case of any individual receiving long-term care from the Department, the Department shall seek recovery for any disbursements made on behalf of such individual under the State Plan for Medical Assistance, from the individual's estate or upon sale of property subject to a lien. The Department will seek recovery of moneys expended for correctly paid medical assistance from all periods of eligibility for medical assistance on behalf of the individual only:
(1) After the death of the individual and the death of a surviving spouse who was residing in the home on a continuous basis; and
(2) In the case of liens on an individual's home, when there is no:
a. Surviving child who is blind or disabled as defined in accordance with the disability rule of the federally administered Supplemental Security Income (Title XVI of the Social Security Act [42 U.S.C. §§ 1381-1383f]) who was residing in the home on a continuous basis immediately prior to the death of the individual; or
b. Nondisabled child or sibling of the individual lawfully residing in the home, who has resided there for a period of at least 2 years immediately prior the date of the individual's admission to a long-term care service, who has lawfully resided there on a continuous basis since that time, and who can establish to the Department's satisfaction that the person provided the care that permitted the individual to reside in the home rather than in a long-term care facility; or
c. Minor child who was residing in the home on a continuous basis immediately prior to the death of the individual, until that child reaches majority.
69 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 186, § 1.;
§ 5004. Voluntary reimbursement.
The Department shall accept reimbursement for medical assistance it has rendered when voluntarily offered by a current or former recipient of long-term care or someone acting on the recipient's behalf to offset any recovery under § 5003 of this title.
69 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 186, § 1.;
§ 5005. Undue hardship.
The Department shall, by October 13, 1994, establish procedures under which the Department shall waive the application of § 5003 of this title if it would work an undue hardship. However, a waiver granted pursuant to this section shall remain in effect only as long as the undue hardship condition continues.
69 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 545, §§ 6, 7.;
§ 5006. Rules and regulations.
The Department shall establish rules and regulations by which it can carry out the terms of this law.
69 Del. Laws, c. 392, § 1.;