Medicaid – same-sex spouse or domestic partner beneficiary – Estate Recovery

Estate Recovery:

Sections 1902(a)(18) and 1917(b)(1) of the Act require States to pursue estate recovery when a Medicaid beneficiary received medical assistance under the State plan:

1) in cases where a lien has been imposed under the State’s lien authority, and

2) for recipients age 55 and over, who received nursing facility services, home and community-based services, or related hospital and prescription drug services.

States may optionally seek recovery to pay for costs of other approved State plan services provided to those 55 and over, except Medicare cost sharing paid on behalf of Medicare Savings Program beneficiaries on or after January 1, 2010, as provided in Section 115 of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), Pub. L. 110-275).

Per section 1917(b)(2) of the Act, Medicaid estate recovery may be made only when there is no surviving spouse (subject to the provisions in DOMA) and when there is no surviving child under age 21, or blind or disabled child of any age. When estate recovery occurs pursuant to a lien, protections are afforded for siblings still lawfully residing in the home, as well as for sons or daughters who provided care to the parents and who continue to lawfully reside in the home.

In addition, States are required by section 1917(b)(3) of the Act to have procedures to waive estate recovery where it would create an undue hardship for the deceased Medicaid recipient’s heirs. States have flexibility to design reasonable criteria for determining what constitutes an undue hardship and who may be afforded protection from estate recovery in such instances. At the State’s discretion, this may include establishing reasonable protections applicable to the same-sex spouse or domestic partner of a deceased Medicaid recipient. The State plan need only specify the criteria for waiver of estate recovery claims due to undue hardship.

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