If you are 55 or older and receive Medicaid, the state can use estate recovery and liens to recover any and all Medicaid costs, but the practice is rare. Let’s look at the facts and myths behind Medicaid estate recovery, who it applies to, and the involvement (or non-involvement of the ACA).
The gist (in some states, for those who are 55+, for those who would use specific types of care, the estate rule is a real consideration; but this is only true for that demographic). Estate recovery rules are real, but are sometimes blown out of proportion as a way to deter people from signing up for Medicaid. After reading CMS clarifications, looking at past laws, and reading other sources, it seems clear that Medicaid estate recovery is about recovering the costs of long-term care and other specific spending provided by Medicaid, but not covered by Medicare. It is not about recovering costs from those who qualify for Medicaid based on income under ObamaCare (the Affordable Care Act) in general. For instance, if you are on Medicare and need to go into a nursing home, and you need $100,000 in long-term care not covered by Medicare, the remainder may be paid for by Medicaid. The state is then supposed to collect the money paid for by Medicaid if you aren’t survived by a spouse, children, or a disabled child. This isn’t about Joe-the-citizen who enrolled in Medicaid under Medicaid expansion having their estate taken by the state, it is about recouping costs not covered by Medicare. In practice, the states rarely enforce this rule as it’s costly and is just about as popular with your state legislators as it is with you. Only 10 of the 50 states even enforce the law. Still, the law can be enforced, and this shouldn’t be dismissed. With all of that covered, there is a potential pitfall here for people who are 55+, do qualify for Medicaid, but don’t qualify for Medicare in states that do enforce the rule. In these instances, Medicaid may be a lackluster healthcare solution due to estate recovery rules, and premium costs of private insurance to protect against potential estate recovery may be a better option. In short, there is truth to estate recovery, but the truth is complex. You can learn more about Medicaid estate recovery on Medicaid.Gov.
Long-term care (nursing facility services, home and community-based services, and related hospital and prescription drug services) is expensive, and Medicaid is a state obligation. Every dollar spent on long-term care is a dollar less for state budgets. Most states didn’t enforce this rule or only enforced it for expensive long-term care. However, in 1993, a new law mandated that all states must start enforcing the law.
There is a constant debate over this, and today some states like Washington and Oregon have changed their rules to limit estate recovery to Medicaid costs related to long-term care. Most other states haven’t changed their state rules but never enforce the law. Aside from estate recovery being in conflict with the way in which Americans view their country, and the way states view their role, it requires a lot of state spending to go after any estate.
State spending on debt recovery should be addressed. Unfortunately, it was not addressed in the ACA. It would have been hard to ask states to expand Medicaid while at the same time asking them to stop recovering tax dollars spent through Medicaid on long-term care. That would have been two big hits to state budgets at once. Medicaid expansion was rejected by many states who saw expansion as an extra expense.
GAO, March 7, 1989: “GAO believes the Congress should consider making mandatory the establishment of programs to recover the cost of Medicaid assistance provided to nursing home residents of all ages either from their estates or from the estates of their surviving spouses.” Read more at factcheck.org.
It would be simpler if this law, which goes mostly unenforced, were removed from the books. Maybe the GOP could deal effectively with that rather than focusing entirely on “repeal-repeal-repeal.” In the meantime here is how you can avoid Medicaid estate recovery.
AARP, June 2005: “OBRA ’93 allows recovery for “any items or services under the state plan,” going beyond what is required by federal law (nursing facility services, home- and community-based services, and related hospital and prescription drug services). Twenty-five states reported recovery of “all other items under the state plan”; 10 states recover “some other items”; 10 states do not recover for any other services beyond what is required; and 1 state was DK/NR. A few states reported specific additional items for recovery as follows: ambulance, funeral, and burial costs (Illinois); costs of technological assistance such as motorized wheelchairs and readers for eye gestures (Kansas); transportation, dental services, and other services (Minnesota, New Jersey); physical therapy (Nevada); durable medical equipment, dental and vision services (Ohio); and PACE (Program of All-Inclusive Care for the Elderly) (Tennessee).” – read more at factcheck.org
“States are required to seek recovery of payments from the individual’s estate for nursing facility services, home and community-based services, and related hospital and prescription drug services. States have the option to recover payments for all other Medicaid services provided to these individuals, except Medicare cost-sharing paid on behalf of Medicare Savings Program beneficiaries.
Under certain conditions, money remaining in a trust after a Medicaid enrollee has passed away may be used to reimburse Medicaid. States may not recover from the estate of a deceased Medicaid enrollee who is survived by a spouse, child under age 21, or blind or disabled child of any age. States are also required to establish procedures for waiving estate recovery when recovery would cause an undue hardship.
States may impose liens for Medicaid benefits incorrectly paid pursuant to a court judgment. States may also impose liens on real property during the lifetime of a Medicaid enrollee who is permanently institutionalized, except when one of the following individuals resides in the home: the spouse, child under age 21, blind or disabled child of any age, or sibling who has an equity interest in the home. The states must remove the lien when the Medicaid enrollee is discharged from the facility and returns home.” – Medicaid.Gov
Article CitationsThomas DeMichele is the head writer and founder of ObamaCareFacts.com, FactsOnMedicare.com, and other websites. He has been in the health insurance and healthcare information field since 2012. ObamaCareFacts.com is a.
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