[WSBAPT] DSHS Medicaid Estate Recovery

Wed Jun 22 14:46:04 PDT 2022

Nick,
Thank you for providing your wisdom - I appreciate your thoughtful consideration and legal research!
There are two distinct, but intertwined issues as I see it:

  1.  Does DSHS have to follow the CC statutes; and
  2.  Can DSHS after 20+ years, now file a lien claim (which they have so far not done).

I am going to put #2 aside.
As to #1, I pose the question in response to your post – How would any estate know that done is done in this situation if the CC statute time limitations do not apply to DSHS? If they don’t apply, then estates will not have certainty in being able to close. They were given legal notice. They filed a CC. We filed a rejection. They didn’t sue in 30 days. What if we had distributed and closed it out? Are we supposed to wait longer than the statutory period? How long? They are 5+ months following notice of rejection and no lawsuit filed yet. I suppose I could file a TEDRA Petition to have a judicial determination made, but that is an expensive proposition and I don’t want to be the one to start the fight.

I am not looking to be controversial or cutting edge. I am not interested in litigating an issue of first impression against DSHS. I am just trying to figure out what the estate is legally obligated to pay, if anything, under this fact pattern. 😊

Jennifer L. White, Esq.
[cid:image001.jpg at 01D8862D.D38AD110]

jen at appletreelaw.com<mailto:jen at appletreelaw.com>
PO Box 11037
Yakima, WA 98909
509.225.9813

From: Nick Pleasants <npleasants at ohswlaw.com>
Sent: Tuesday, June 21, 2022 7:44 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Cc: Jennifer L White <jen at appletreelaw.com>
Subject: RE: DSHS Medicaid Estate Recovery

Hi Jennifer,
Generally speaking, the State of Washington and its agencies are not subject to any statute of limitations. RCW 4.16.160. Creditor claims do not fall under this rule as they are nonclaim statutes rather than statutes of limitation. Bellevue Sch. Dist. No. 405 v. Brazier Const. Co., 103 Wash. 2d 111             , 119, 691 P.2d 178 (1984), citing State v. Evans, 143 Wash. 449, 255 P. 1035 (1927). I couldn’t find a case on point on whether the 30-day requirement of RCW 11.40.100 would be enforced against the state on a rejected claim. Perhaps an issue of first impression.
Even if you prevailed on the rejected creditor claim theory, it seems DSHS could still file a lien against the real property. I believe the twenty-year rule would apply from time the lien is filed, not the time the services were rendered. If a lien has not been filed, I don’t think the twenty years would have begun. Remember that the Department is not allowed to file the lien until after the patient dies. RCW 43.20B.080(3).
I don’t think it is practical to try to fight DSHS on this claim. Unless you have a solid statute on why Medicaid services are uncollectable after twenty years despite the fact that DSHS was required to wait until the patient died to collect against her estate, I think you need to deal with the DSHS claim. Just my two cents.
Best,
Nick
Nicholas Pleasants | Shareholder

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Jennifer L White
Sent: Tuesday, June 21, 2022 10:40 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] DSHS Medicaid Estate Recovery

Good Morning Listserv:
This is a follow up post with my ongoing saga with DSHS and this particular recovery claim.
Facts: Decedent receives hospital and pharmacy services in 1999 – Jan of 2003. Medicaid pays them. She was over age 55 (in her 70’s). She lives on until July 2021. Dies intestate. DSHS has never to this day filed a lien. We file probate and send DSHS actual Notice to Creditors with decedent’s SS#. They timely file a creditor’s claim for about $50,000. All but a few thousand dollars of that amount is now 20+ years old. On January 21, 2022, I file a notice of rejection with the court and send it per the statute, certified mail RRR. I have the green postal ticket with the DSHS mailroom stamp indicating they received it January 28, 2022. Last week I get the following email (redacted for privacy).

Good evening, Ms. White:

I am writing in receipt of your Rejection received today.  You stated “The statute of limitations on this debt ran out years ago (RCW 43.20B.030).”  That RCW does not pertain to Estate Recovery, please review RCW 43.20B.080 Recovery for paid medical assistance- estate recovery costs, terms, and conditions.

Since a Creditor’s Claim was filed and not a lien, please reference RCW 11.40.010 claims against the estate.

The Department can file a lien up to two years from the date of death.  The SOL on a lien is 20 years.

The Department can file a Creditor’s Claim up to two years from the date of death.  The SOL for a Claim is six years.

Federal law requires the state to recover certain medical and long term care expenses from a person’s estate after they expire.

_______ received $50,267.20 in Medicaid Services which are recoverable under both state (RCW 43.20B.080) (RCW 41.05A.090) and federal (42 U.S.C. Sec. 1396p) law.

____ received Medicaid services dating back to 1999 – there is no SOL for medical provided.  Some people are on Medicaid their whole life while others only for a few months.

I am preparing to send this file to our attorneys at the Attorney General’s Office since a rejection was filed.  If you would like to review the information provided and decide to withdraw your rejection, I would need your rescission within five business days.

I hope this clears up any further questions you or ____, Co-PR’s, may have.

I have never heard of any extension of the CC rejection statute for DSHS? They received notice of rejection and did not file a lawsuit within 30 days of January 21, 2022, so they should be out of luck on the creditor claim, right?

What about them now trying to file a lien on debt that old? I looked at 43.20B.080. Is there no SOL in this instance? Does the 43.20B.030 SOL not apply here?  I would refer this out to a Medicaid/DSHS specialist, but these folks have no cash to pay fees, so there might as well only be one of us not getting paid…. 😊 (yes, this is the same estate with the drug addled relative that is STILL camping out in the house; and with the new surprise great grandchildren “right of representation” takers I queried a couple of weeks ago. Some estates just have problem, after problem, after problem….).

Any wisdom would be much appreciated!

Best,

Jennifer L. White, Esq.
[cid:image001.jpg at 01D8862D.D38AD110]

jen at appletreelaw.com<mailto:jen at appletreelaw.com>
PO Box 11037
Yakima, WA 98909
509.225.9813

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