Medicaid Estate Recovery in New Hampshire

What is recovered

DHHS recovers the cost of medical assistance provided to the recipient.¹

The age-55 rule limits recovery of medical assistance. DHHS states that cash assistance (Old Age Assistance, Aid to the Needy Blind, and Aid to the Permanently and Totally Disabled) must be repaid to the state regardless of the recipient's age when it was provided.¹

Who is subject to recovery

RSA 167:16-a, IV limits recovery of medical assistance to recipients who were age 55 or older when it was provided, and then only after the death of the surviving spouse, if any.²

What counts as the estate

Under RSA 167:14-a, the recoverable estate includes property held in a revocable trust and, for interests established on or after July 1, 2005, joint-tenancy and life-estate interests.³

Recovery is limited to the recipient's ownership interest and cannot exceed the medical assistance provided.³

When recovery is deferred or barred

Under RSA 167:16-a, IV and 42 U.S.C. 1396p(b)(2), there is no recovery while the recipient is survived by a spouse, a child under 21, or a blind or permanently and totally disabled child.²

Liens on real property

RSA 167:13, I bars enforcing a lien or forcing a sale of the recipient's real estate while a surviving spouse occupies it as a home.⁴

How the state files its claim

RSA 167:13, I allows the total amount of assistance paid as a claim against the estate.⁴

RSA 554:19, I ranks the claim fourth: behind administration costs, reasonable and necessary funeral, burial and cremation expenses, and federally preferred debts and taxes, but ahead of the decedent's ordinary debts and any legacy or distribution to heirs.⁵

Under RSA 167:14-a, VI(b), for property that passed outside probate by joint tenancy or life estate, DHHS sends its claim to the surviving joint owner or remainderman no sooner than 45 days after the death.³

That notice must state the exemptions and how to request a hardship waiver. The surviving owner has 30 days from receiving it to acknowledge it and either pay the value of the deceased recipient's interest or agree in writing to pay.³

When the state does not pursue a claim

RSA 167:13, III lets DHHS waive recovery where it is not cost-effective. Under He-W 895.02(b), that is where the recovery would exceed the department's cost of pursuing it by less than $500.^{4, 6}

Undue-hardship waiver

RSA 167:13, III lets DHHS waive recovery where recovery would be an undue hardship, as determined under its rules.⁴

DHHS states that the family and/or the administrator of the estate can apply for a hardship waiver and have the debt forgiven if the hardship criteria are met.¹

He-W 895.04 sets six grounds. The first three: a business or farm at the heir's primary residence producing more than half the heir's livelihood; other income-producing property the heir has maintained with personal funds; and a personal-property-only estate where recovery would push the heir onto public assistance.⁶

Also: the recipient's home where an adult child or grandchild gave uncompensated daily care for at least 2 years before institutional admission and still lives there; the home where a sibling lived for at least a year before admission and still does; and a life estate or joint tenancy the applicant paid value for.⁶

Exemptions and protected assets

Under He-W 895.07, a surviving joint tenant or life-estate remainderman who paid out of pocket for a shortfall in the recipient's necessary burial expenses gets a dollar-for-dollar reduction of the claim. Flowers, music, meals after the service, travel, telephone and postage do not count.⁶

Governing law: RSA 167:13; RSA 167:14-a; RSA 167:16-a; N.H. Code Admin. R. He-W 895

Written request for an undue-hardship waiver, filed with DHHS

within 30 calendar days of the death, or the department's claim filing in probate court, whichever is later⁶

Request for an administrative appeal of a hardship waiver decision

within 30 calendar days of the date of the decision; the decision is final⁶

Surviving joint owner's acknowledgment of the claim, with payment or a written agreement to pay

within 30 days of receipt of the department's notice of claim³

1. 1.Estate Recoveries (New Hampshire Department of Health and Human Services)
2. 2.RSA 167:16-a, Limitations on Recovery of Assistance
3. 3.RSA 167:14-a, Recovery of Assistance
4. 4.RSA 167:13, Recovery for Assistance Furnished
5. 5.RSA 554:19
6. 6.N.H. Code Admin. R. He-W 895, Undue Hardship