Medicaid – same-sex spouse or domestic partner beneficiary – LIENS

Section 1917(a) of the Social Security Act (the Act) allows, but does not require, States to impose liens on the property of a Medicaid beneficiary under certain circumstances. More specifically, liens are permitted in two instances prior to a beneficiary’s death:

1) when there has been a court judgment that benefits were incorrectly paid; or

2) when the lien is imposed against the real property of an individual

a. who is an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution, if the individual is required to spend for medical care all but a minimal amount of his or her income, and

b. with whom the State determines that the individual cannot reasonably be expected to be discharged from the institution and return home.

Section 1917(a)(2) of the Act provides important beneficiary protections from liens. Liens may not be imposed in instances where certain people are lawfully residing in the home. These individuals include:

1) a spouse

2) a child under age 21,

3) children who are blind or totally/permanently disabled, and

4) siblings residing in the beneficiary’s home having an equity interest in and residing in the home for at least 1 year

The Federal beneficiary protections listed above represent the minimum level of protection. States have considerable flexibility to determine the “ceiling” for such protection and to develop their own rules regarding when they will impose/pursue liens, as long as the Federal beneficiary protections noted above are fully implemented. A State can have a policy or rule not to pursue liens when the same-sex spouse or domestic partner of the Medicaid beneficiary continues to lawfully reside in the home.

States choosing not to pursue liens when the same-sex spouse or domestic partner beneficiary continues to lawfully reside in the home would exercise their existing discretion in determining the scope or circumstances, either prior to, or when pursuing liens. States are encouraged to incorporate their criteria for determining when to impose a lien in the Medicaid State plan.