The Maine Estate Recovery Act

After the death of a MaineCare recipient, if the decedent was fifty-five years or older when he received MaineCare benefits, the Department of Health and Human Services (DHHS) will assert a claim against the estate of the decedent or against the beneficiary of the decedent's estate.  The claim is limited to the amount paid by MaineCare for the decedent.

Estate includes all real and personal property in the decedent's probate estate and all other real and personal property in which the decedent had a legal interest at the time of death, to the extent of that interest.  This includes assets conveyed through survivorship, life estates, living trusts, and  joint tenancy.  Jointly held interests, however, in real property are specifically excluded from the definition of estate.  Hence, the State will not pursue a claim against real estate that was owned by the MaineCare recipient and another in joint tenancy.   

The Estate Recovery Act is very broad and claims may be filed against the probate estate in probate court; and in any court of competent jurisdiction against any property that the decedent had an interest as of the date of death.  If claims are filed in probate court, then they are subject to the creditor claims provisions of the probate code, the time period limitation of claims.

    A claim will not be enforced by the State until the decedent has no surviving spouse and no surviving child who is younger than 21 years of age or who is blind or disabled. 

A claim may be waiver if enforcement of the claim would create an undue hardship or if the costs of collection are likely to exceed the amount recovered.  A waiver may not be granted if the decedent or the waiver applicant had acted to lose, diminish, divest, encumber or otherwise transfer any value of the asset for the purpose of preventing recovery.

The person requesting the waiver must hold a beneficial interest in the member's estate.

The person requesting the waiver must either be a child of the decedent or must be over the age of 18.

If the State determines that a hardship exists, then the State may waive all or a portion of the claim.

An undue hardship exists when:

The collection would place the income of the person requesting the waiver below 180% of the current federal poverty level and the total value of the  household's assets is equal to or less than 180% of the current annual federal poverty level; or

The estate real property is the primary income-producing resource for the person requesting the waiver and enforcement of the claim would result in placing that person's income below 180% of the federal poverty level and the total value of household assets is less than 180% of the federal poverty level.

The request must be made within six months from the date of death or within thirty days from the notice of the State's claim, whichever is later.

The request must contain a written statement of the circumstances constituting the hardship waiver and all supporting documentation.

A portion of the decedent's estate will be exempt from estate recovery if a person can demonstrate that health care maintenance activities or personal  care services were provided to the decedent.

The person requesting the exemption must have provided health maintenance activities or personal care services during all or part of the two years immediately prior to the decedent's death  or institutionalization, which enable to the decedent to remain at home and avoid placement in an institution for care.  There must be corroborating statements from the decedent's medical care providers.

Personal Care Services are defined as activities of daily living or instrumental activities of daily living that were  provided to the decedent who at that time did not reside in a facility.  This includes bed mobility, transfer, locomotion, eating, toilet use, bathing, and dressing, meal preparation, routine housework, grocery, shopping and storage or purchased groceries, and laundry.

Health Maintenance Activities are defined as to include nursing, personal care services and additional activities that helped the individual life in the home and community and include catheterization, ostomy care, preparation of food and tube feedings, bowel treatments, administration of medications, care of skin with damaged integrity, occupations and physical therapy activities and transportation.

The request must be made within six months from the decedent's death or within thirty days from the notice of the State's claim, whichever is later.

The request must contain a written statement detailing the activities and services provided and all supporting documentation describing the care frequency and duration.

If the decedent received care, as defined in Section 5.01-9 and 5.01-10, the State may grant an exemption not to exceed $32,000 per year, prorated for each month of approved care.

If the decedent received care less than those services as described in the Estate Recovery rules, the State may grant an exemption not to exceed $12,000 per year, prorated for each month.

If the State's claim would otherwise deplete the estate, the State at its discretion may reduce its claim to permit whole or partial reimbursement of an heir of devisee who used his personal funds/resources to protect the value of the decedent's real property.  This request must be in writing and be supported by proof of payments made and the reasonableness of such payments. 

The request must be made within six months from the decedent's death or within thirty days of the State's claim, whichever is later.