SB64 - Revises provisions governing the recovery of certain benefits paid under Medicaid. (BDR 38-479)

S.B. 64 - *SB64* SENATE BILL NO. 64–COMMITTEE ON HEALTH AND HUMAN SERVICES (ON BEHALF OF THE STATE TREASURER) PREFILED NOVEMBER 20, 2024 ____________ Referred to Committee on Health and Human Services SUMMARY—Revises provisions governing the recovery of certain benefits paid under Medicaid. (BDR 38-479) FISCAL NOTE: Effect on Local Government: No. Effect on the State: Yes. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to Medicaid; prohibiting the State Government from the recovery of Medicaid benefits from an account established under the Nevada ABLE Savings Program in certain circumstances; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing federal law allows for the creation of a tax-advantaged savings account 1 for a person who has certain qualifying disabilities, which is commonly known as 2 an ABLE Account. Under the program, any person may make a contribution to the 3 ABLE Account of a person with a qualified disability. Any interest or other growth 4 in the value of the ABLE Account is not taxed, and any distribution from the ABLE 5 Account is not taxed if the distribution is used to pay expenses related to living a 6 life with a disability, including, without limitation, education, housing, 7 transportation, health care, employment training and support, and assistive 8 technology and personal support services. Money in an ABLE Account or 9 distributions from an ABLE Account do not affect the eligibility of a person for 10 certain public benefits such as Social Security disability payments, Supplemental 11 Nutrition Assistance Program benefits and Medicaid. To qualify for these 12 advantages of an ABLE Account, the savings account into which contributions are 13 made on behalf of a qualified person must be established and maintained by the 14 qualified person’s state of residence or another state that has adopted a qualified 15 program and entered into a contract with the qualified person’s state of residence. 16 (26 U.S.C. § 529A) Existing state law requires the State Treasurer, in cooperation 17 with the Aging and Disability Services Division of the Department of Health and 18 Human Services, to establish or otherwise ensure the establishment of the Nevada 19 – 2 – - *SB64* ABLE Savings Program as a qualified program under federal law. (NRS 20 427A.882-427A.896) 21 Existing federal and state law provide that under certain circumstances, the 22 Department is required to recover benefits correctly paid under Medicaid from the 23 estate of a deceased person who received those benefits or any recipient of money 24 or property from the estate of such a deceased person. (42 U.S.C. § 1396p; NRS 25 422.29302) Under existing federal law, upon the death of the designated 26 beneficiary of an ABLE Account, a state is authorized to file a claim for payment 27 from the ABLE Account to recover benefits paid under Medicaid on behalf of the 28 designated beneficiary that are recoverable by the state. (26 U.S.C. § 529A(f)) 29 Sections 1 and 3 of this bill provide that unless federal law otherwise requires, 30 the Department or any other officer or agency of State Government is prohibited 31 from seeking to recover benefits correctly paid under Medicaid for a designated 32 beneficiary of an ABLE Account: (1) from any money remaining in the ABLE 33 Account upon the death of the designated beneficiary; or (2) by filing a claim for 34 recovery from the ABLE Account. Section 1 additionally requires the Director of 35 the Department to apply for any necessary federal approval to carry out these 36 provisions. Section 2 of this bill authorizes the Director to administer the 37 provisions of section 1 in the same manner that the Director administers existing 38 law governing the recovery of benefits paid under Medicaid. 39 Section 4 of this bill provides that upon the passage and approval of this bill, 40 the Department and any other officer or agency of the State Government are 41 required to terminate any attempt to recover Medicaid benefits from an ABLE 42 Account, unless recovery from an ABLE Account is required by federal law. 43 THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 422 of NRS is hereby amended by adding 1 thereto a new section to read as follows: 2 1. Except to the extent required by federal law, upon the 3 death of a designated beneficiary of a savings trust account 4 established under the Nevada ABLE Savings Program pursuant to 5 NRS 427A.889, the Department or any other officer or agency of 6 the State Government shall not: 7 (a) Seek recovery under NRS 422.29302 of any amount 8 remaining in the savings trust account for any benefits that were 9 correctly paid under Medicaid after the savings trust account was 10 established; or 11 (b) File a claim for payment from the savings trust account 12 pursuant to 26 U.S.C. § 529A(f). 13 2. The Director shall: 14 (a) Apply to the Secretary of Health and Human Services for 15 any waiver of federal law or apply for any amendment of the State 16 Plan for Medicaid that is necessary to carry out the provisions of 17 subsection 1. 18 (b) Fully cooperate in good faith with the Federal Government 19 during the application process to satisfy the requirements of the 20 – 3 – - *SB64* Federal Government for obtaining a waiver or amendment 1 pursuant to paragraph (a). 2 Sec. 2. NRS 422.29301 is hereby amended to read as follows: 3 422.29301 The Director: 4 1. Shall administer the provisions of NRS 422.29302, 5 422.29304 and 422.29306 [;] and section 1 of this act; 6 2. May adopt such regulations as are necessary for the 7 administration of those provisions; and 8 3. May invoke any legal, equitable or special procedures for 9 the enforcement of those provisions. 10 Sec. 3. NRS 422.29302 is hereby amended to read as follows: 11 422.29302 1. Except as otherwise provided in this section 12 and section 1 of this act and to the extent it is not prohibited by 13 federal law and when circumstances allow, the Department shall 14 recover benefits correctly paid for Medicaid from: 15 (a) The undivided estate of the person who received those 16 benefits; and 17 (b) Any recipient of money or property from the undivided 18 estate of the person who received those benefits. 19 2. The Department shall not recover benefits pursuant to 20 subsection 1, except from a person who is neither a surviving spouse 21 nor a child, until after the death of the surviving spouse, if any, and 22 only at a time when the person who received the benefits has no 23 surviving child who is under 21 years of age, blind or disabled. 24 3. Except as otherwise provided by federal law, if a transfer of 25 real or personal property by a recipient of Medicaid is made for less 26 than fair market value, the Department may pursue any remedy 27 available pursuant to chapter 112 of NRS with respect to the 28 transfer. 29 4. The amount of Medicaid paid to or on behalf of a person is a 30 claim against the estate in any probate proceeding only at a time 31 when there is no surviving spouse or surviving child who is under 32 21 years of age, blind or disabled. 33 5. The Director may elect not to file a claim against the estate 34 of a recipient of Medicaid or the spouse of the recipient if the 35 Director determines that the filing of the claim will cause an undue 36 hardship for the spouse or other survivors of the recipient. The 37 Director shall adopt regulations defining the circumstances that 38 constitute an undue hardship. 39 6. Any recovery of money obtained pursuant to this section 40 must be applied first to the cost of recovering the money. Any 41 remaining money must be divided among the Federal Government, 42 the Department and the county in the proportion that the amount of 43 assistance each contributed to the recipient bears to the total amount 44 of the assistance contributed. 45 – 4 – - *SB64* 7. Any recovery by the Department from the undivided estate 1 of a recipient pursuant to this section must be paid in cash to the 2 extent of: 3 (a) The amount of Medicaid paid to or on behalf of the recipient 4 after October 1, 1993; or 5 (b) The value of the remaining assets in the undivided estate, 6  whichever is less. 7 Sec. 4. 1. The Department of Health and Human Services 8 and other officers and agencies of the State Government shall 9 terminate all efforts for recovery or claims for payment from an 10 ABLE savings trust account which are prohibited by the provisions 11 of section 1 of this act. 12 2. As used in this section, “ABLE savings trust account” means 13 a savings trust account established under the Nevada ABLE Savings 14 Program pursuant to NRS 427A.889. 15 Sec. 5. This act becomes effective upon passage and approval. 16 H