51 RI Bar J., No. 5, Pg. 17 (March, 2003). Everything You Always Wanted To Know About The Department of Human Services' Medicaid Lien And Probate Cases, But Were Afraid To Ask.

Rhode Island Bar Journal

Volume 51.

51 RI Bar J., No. 5, Pg. 17 (March, 2003).

Everything You Always Wanted To Know About The Department of Human Services' Medicaid Lien And Probate Cases, But Were Afraid To Ask

Everything You Always Wanted To Know About The Department of Human Services' Medicaid Lien And Probate Cases, But Were Afraid To AskJACQUELINE G. KELLY, ESQ.Jacqueline G. Kelley, Assistant Director of the Department of Human Services, has worked as an attorney for the State of Rhode Island since 1992.

Rhode Island General Law § 40-8-15. "Lien on deceased recipient's estate for assistance. - (a) Upon the death of a recipient of medical assistance....the total sum of medical assistance so paid on behalf of a recipient who was fifty-five (55) years of age or older at the time of receipt of the assistance shall be and constitute a lien upon the estate, as defined herein, of the recipient in favor of the department of human services. The lien shall not be effective...against the estate of a recipient who is survived by a spouse or a child who is under the age of twenty-one (21), or a child who is blind or permanently and totally disabled...the lien shall not be effective...unless the department has filed a claim for reimbursement in the probate court in accordance with § 33-11-5 [against] all real and personal property and other assets included or includable within the individual's probate estate."

Q. When does lien attach?

A. The lien attaches at death. See R.I. Gen. Laws § 40-8-15 (a). Q. Who is responsible for the total claim by the Department of Human Services? A. The Department of Human Services only has a claim on what is in the probate estate. The heirs are not responsible for any amounts over and above what remains in the estate. Consequently, frequently the Department of Human Services is not made whole and merely collects in accordance with the probate priority statute. Q. Is the Department of Human Services willing to compromise liens? A. No. The Department of Human Services reports to the federal government (CMS) with regard to its recovery. In cases where there is enough to pay the Department's lien in accordance with the probate priority statute (R.I. Gen. Laws 33-12-11), the Department of Human Services will not compromise. However, the Department recognizes that in most instances its lien is larger...