January 6, 1994
Barbara D. Matula Director, Division of Medical Assistance North Carolina Department of Human Resources Kirby Building 1985 Umstead Drive Raleigh, North Carolina 27603-2001
RE: Advisory Opinion; 42 U.S.C. § 1396p(b) [Omnibus Budget Reconciliation Act of 1993, Pub.
L. No. 103-66, Title XIII, Ch. 2, Subch. B, Part 2, § 13612
Dear Mrs. Matula:
The following is in response to your inquiry as to whether or not North Carolina law must be changed in order to implement the estate recovery provisions of 42 U.S.C. § 1396p(b) [OBRA 93 § 13612].
It is the opinion of this office that North Carolina must enact enabling legislation in order to implement the estate recovery provisions of § 1396p(b). There currently is no state statutory mechanism under which the Division of Medical Assistance could initiate an estate recovery program. Because Medicaid is an entitlement program, the state may not recover correctly paid benefits from the estates of deceased Medicaid recipients unless the General Assembly enacts legislation expressly authorizing it to do so. Furthermore, legislation will be necessary in order to make the state a priority creditor of the estate of a deceased former Medicaid recipient.
For your convenience, attached are copies of N.C. Gen. Stat. § 28A-19-6, which lists the order of payment of claims against decedents’ estates. Also attached are copies of former N.C. Gen. Stat. §§ 108-29 to 108-37, which created a lien on the property of, and a claim against the estates of, recipients of Aid to the Aged and Disabled. These provisions, which were repealed in 1973, might be of some use to you in formulating the Division’s new estate recovery program.
Ann Reed Senior Deputy Attorney General
Jane T. Friedensen
Assistant Attorney General