Section 50961 - Estate Claims(a) The Department shall claim against the estate of a decedent, or against any recipient of the decedent's property by distribution or survival, an amount equal to the lesser of:(1) All payments made by the Medi-Cal program on behalf of the decedent, except for those payments specified under subsection (c) that are not included in the claim; or,(2) The decedent's equity interest in the property at the time of death (to the extent of such interest).(b) All payments made by the Medi-Cal program on behalf of decedents: (1) Age 65 and older, who died prior to July 11, 1994, shall include all payments made for services provided at age 65 and older;(2) Age 65 and older, who died on or after July 11, 1994, shall include all payments made from age 65 and older, in addition to any payments made from age 55 to 64 that were paid on or after October 1, 1993;(3) Age 55 to 64, who died on or after July 11, 1994, shall include only those payments made on or after October 1, 1993.(c) The Department's claim shall include all payments made by the Medi-Cal program on behalf of the decedent, including nursing facility and other long-term care services, home and community based services, inpatient/outpatient services, durable medical equipment, related hospital and prescription drug services, health care and insurance premiums, and payments to managed care plans. The Department's claim shall not include payments made for personal care services provided under In-Home Supportive Services, or the cost of premiums, co-payments, and deductibles paid on behalf of Qualified Medicare Beneficiaries (QMBs), Specified Low-Income Medicare Beneficiaries (SLMBs), Qualifying Individuals, Qualified Disabled and Working Individuals, QMB Plus, and SLMB Plus who are categorized as groups of dual eligibles as defined by Section 2602(f) of the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111-148).(d) An exemption from the Department's claim exists in any of the following circumstances: (1) Where the decedent was under age 55 when the Medi-Cal services, as specified in subsection (c), were received, except if the individual is/was an inpatient in a nursing facility, intermediate care facility for individuals with intellectual disabilities, or other medical institution, and both of the following conditions are met: (A) The provisions under Title 22, California Code of Regulations, Section 50428 apply to the individual; and(B) The individual spends for costs of medical care all but a minimal amount of his/her income required for personal needs.(2) During the lifetime of a surviving spouse, after the documentation specified in paragraphs (A) and (B), below, is submitted to, and approved by, the Department at the address specified in Section 50966(a). However, upon the death of the surviving spouse, the Department shall assert its claim against the estate of the surviving spouse, in accordance with subsections (a), (b) and (c) of this section. (A) Proof that the surviving spouse was married to the decedent at the time of death; and(B) Proof of identity of the surviving spouse including name, social security number, and date of birth.(3) During the lifetime of a surviving person, as specified in subsections (b) and (c) of Section 50963, who qualifies for a waiver due to a substantial hardship. However, upon the death of the surviving person, the Department shall assert its claim against the estate of the surviving person, in accordance with subsections (a), (b) and (c) of this section.(4) When, as of the date of decedent's death, there is a surviving child of the decedent who is under age 21, and who can provide the Department with the documentary evidence specified in Section 50966(a)(2), to the address specified in Section 50966(a);(5) When, as of the date of the Department's notice of claim, there is a surviving child of the decedent who is blind, or disabled, within the meaning of Section 1614 of the federal Social Security Act (42 USC Section 1382c), and who qualifies for a claim exemption under Section 50966.(e) The Department shall waive the proportionate share of its claim against any applicant who qualifies for a waiver due to a substantial hardship, as specified in Section 50963(a).(f) The Department shall not enforce collection of the proportionate share of its claim for any applicant who is awaiting the resolution of a hardship waiver request or an estate hearing. However, the Department shall enforce collection of its claim from the remaining dependent(s), heir(s), or survivor(s) for his or her proportionate share of the claim.(g) The Department shall reduce its claim in accordance with Section 50453.7(b) for insurance benefits received under the California Partnership for Long-Term Care.(h) The Department shall claim against annuities as part of a decedent's estate. The Department's claim shall be recovered from the value of an annuity, annuity payments, or distributions receivable by any person or entity from the date the annuity payments or distributions are designated to be made. The Department's claim shall apply to the annuity, annuity payments, or distributions regardless of the funding source for the annuity.(i) Where the decedent made an irrevocable transfer of a remainder interest in property with a retained life estate, the Department's claim shall not apply against the life estate or the remainder interest. Where the decedent held a life estate and made a revocable transfer of the remainder interest in the property, the Department's claim shall apply to the fair market value of the property as if title to the property had remained solely with the decedent. Where the decedent made a revocable transfer of a remainder interest in property and made an irrevocable grant of a life estate in the property, the Department's claim shall apply to the fair market value of the remainder interest. Where the decedent made a revocable transfer of a remainder interest in property and made a revocable grant of a life estate in the property, the Department's claim shall apply to the fair market value of the property as if title to the property had remained solely with the decedent.(j) The Department's claim shall not apply against property interests that the decedent irrevocably transferred before death.(k) A voluntary post death lien shall be proposed, in accordance with Section 50965, to secure the unpaid portion of the Department's claim until the claim is paid in full.(l) Except for claims governed by Probate Code Sections 9203 and 19203, the Department shall charge simple interest, at the rate of seven percent per annum, on the unpaid portion of its claim until the claim is fully satisfied. (1) Where there has been no claim exemption sought pursuant to Section 50961(d) or a substantial hardship waiver requested in accordance with Section 50963, simple interest shall begin to accrue on the date of notice of claim or the date of distribution, whichever is later.(2) Where a claim exemption has been sought pursuant to Section 50961(d) or a substantial hardship waiver has been requested in accordance with Section 50963, simple interest shall begin to accrue on the 15th day following the date of the final determination of the claim exemption or substantial hardship waiver request.Cal. Code Regs. Tit. 22, § 50961
1. Relocation of article 19 heading and new section filed 5-2-94 as an emergency; operative 5-2-94 (Register 94, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-30-94 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 92, No. 39.
2. Repealed on 8-31-94 by operation of law.
3. New section filed 4-27-95 as an emergency; operative 4-27-95 (Register 95, No. 17). Exempt from OAL review pursuant to Chapter 147, Statutes of 1994, section 32. A Certificate of Compliance must be transmitted to OAL by 10-24-95 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 11-22-95 as an emergency; operative 11-22-95 (Register 95, No. 47). Exempt from OAL review pursuant to Chapter 147, Statutes of 1994, section 32. A Certificate of Compliance must be transmitted to OAL by 3-21-96 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 4-27-95 order, including amendment of subsection (c)(2), repealer of subsections (c)(3)-(d) and new subsection (d), transmitted to OAL 2-6-96 and filed 3-19-96 (Register 96, No. 12).
6. New subsection (g) and amendment of NOTE filed 7-27-2004 as an emergency; operative 7-27-2004 (Register 2004, No. 31). Exempt from OAL review pursuant to Welfare and Institutions Code section 14043.75. A Certificate of Compliance must be transmitted to OAL by 11-24-2004 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-27-2004 order transmitted to OAL 11-19-2004 and filed 1-3-2005 (Register 2005, No. 1).
8. New article 2 heading and repealer and new section filed 3-23-2005; this filing is deemed an emergency and is exempt from review by OAL pursuant to Welfare and Institutions Code section 14043.75(a); effective 3-23-2005 (Register 2005, No. 12). A Certificate of Compliance must be transmitted to OAL by 7-21-2005 or emergency language will be repealed by operation of law on the following day.
9. Repeal of new article 2 heading and section and reinstatement of section as it existed prior to 3-23-2005 emergency by operation of Government Code sections 11346.1(f)-(g) (Register 2005, No. 41).
10. New article 2 heading and repealer and new section filed 5-10-2006; operative 5-10-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 19).
11. Amendment of section and NOTE filed 7-16-2007; operative 8-15-2007 (Register 2007, No. 29).
12. Amendment of subsections (c)-(d)(1), new subsections (d)(1)(A)-(B), amendment of subsection (d)(2), new subsections (d)(2)(A)-(d)(3), subsection renumbering, amendment of subsection (f) and amendment of NOTE filed 9-3-2015; operative 1-1-2016 (Register 2015, No. 36). Note: Authority cited: Section 20, Health and Safety Code; and Sections 10725 and 14124.5, Welfare and Institutions Code. Reference: Sections 1382 c,1396p(a) and 1396p(b), 42 USC; Section 14009.5, Welfare and Institutions Code; Sections 9203 and 19203, Probate Code; Sections 297, 297.5, 299.2 and 308, Family Code; Sections 1916- 1 and 3287, Civil Code; California Constitution, Article I, Sections 1 and 7 and Article XV, Section 1; Belshé v. Hope (1995) 33 Cal. App. 4th 161; Dalzin v. Belshé (N.D. Cal. 1997) 993 F. Supp. 732; California Advocates for Nursing Home Reform v. Bontá (2003) 106 Cal. App. 4th 498; Shewry v. Begil (2005) 128 Cal.App.4th 639; In re Marriage Cases (2008) 43 Cal.4th 757; Perry v. Brown (9th Cir. 2013) 725 F.3d 1140; Section 2602(f) of the Patient Protection and Affordable Care Act of 2010, (Pub. L. No. 111-148); Section 115, Medicare Improvements for Patients and Providers Act of 2008 (Pub. L. No. 110-275); Hollingsworth v. Perry (2013) 570 U.S. 12-144; and United States v. Windsor (2013) 570 U.S. 12-307.
1. Relocation of article 19 heading and new section filed 5-2-94 as an emergency; operative 5-2-94 (Register 94, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-30-94 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 92, No. 39.
2. Repealed on 8-31-94 by operation of law.
3. New section filed 4-27-95 as an emergency; operative 4-27-95 (Register 95, No. 17). Exempt from OAL review pursuant to Chapter 147, Statutes of 1994, section 32. A Certificate of Compliance must be transmitted to OAL by 10-24-95 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 11-22-95 as an emergency; operative 11-22-95 (Register 95, No. 47). Exempt from OAL review pursuant to Chapter 147, Statutes of 1994, section 32. A Certificate of Compliance must be transmitted to OAL by 3-21-96 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 4-27-95 order, including amendment of subsection (c)(2), repealer of subsections (c)(3)-(d) and new subsection (d), transmitted to OAL 2-6-96 and filed 3-19-96 (Register 96, No. 12).
6. New subsection (g) and amendment of Note filed 7-27-2004 as an emergency; operative 7-27-2004 (Register 2004, No. 31). Exempt from OAL review pursuant to Welfare and Institutions Code section 14043.75. A Certificate of Compliance must be transmitted to OAL by 11-24-2004 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-27-2004 order transmitted to OAL 11-19-2004 and filed 1-3-2005 (Register 2005, No. 1).
8. New article 2 heading and repealer and new section filed 3-23-2005; this filing is deemed an emergency and is exempt from review by OAL pursuant to Welfare and Institutions Code section 14043.75(a); effective 3-23-2005 (Register 2005, No. 12). A Certificate of Compliance must be transmitted to OAL by 7-21-2005 or emergency language will be repealed by operation of law on the following day.
9. Repeal of new article 2 heading and section and reinstatement of section as it existed prior to 3-23-2005 emergency by operation of Government Code sections 11346.1(f)-(g) (Register 2005, No. 41).
10. New article 2 heading and repealer and new section filed 5-10-2006; operative 5-10-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 19).
11. Amendment of section and Note filed 7-16-2007; operative 8-15-2007 (Register 2007, No. 29).
12. Amendment of subsections (c)-(d)(1), new subsections (d)(1)(A)-(B), amendment of subsection (d)(2), new subsections (d)(2)(A)-(d)(3), subsection renumbering, amendment of subsection (f) and amendment of Note filed 9-3-2015; operative 1/1/2016 (Register 2015, No. 36).