This blog was written by Tavi Wolfwood, an intern in our office this summer, in response to constituent questions and concerns and our office’s prioritization of work on so-called estate recovery. Tavi is a district native, growing up in Amherst, MA. Tavi is in his fifth of a 5 year joint BA/MPH program at Yale University’s School of Public Health and is interested in policy focused on racial health equity and health justice, particularly equity in health care access and data equity, universal health care policy, and LGBTQIA+ health policy. Interns in our office take on important policy research projects like this one, and much more. Apply for an internship with our office here.
About MassHealth Estate Recovery
This blog is meant to inform residents about the process of estate recovery, a process where MassHealth recoups money from the estates of MassHealth members after they die. The recovered money is used to pay back the state and federal government for the cost of care that MassHealth paid for the member.
People who receive notices from MassHealth informing them about estate recovery are worried and confused: What is estate recovery? Am I at risk? Should I drop my benefits rather than risk leaving my family unprotected after I’m gone?
We’ve attempted to compile an FAQ to help constituents find answers to pressing questions.
How does estate recovery work?
Medicaid is the only public benefit program that requires correctly paid benefits to be recouped from a deceased MassHealth enrollee’s “probate estate.” This is called “estate recovery.” Federal law requires MassHealth to seek recovery of payments for nursing facility services, home and community-based services, and hospital and prescription drug services related to long-term care for members over 55 years old. However, MassHealth (the program that administers Medicaid in Massachusetts) goes beyond federal requirements and chooses to recoup expenditures for all services rendered to members over the age of 55, with some exceptions.
Practically, estate recovery can mean that MassHealth will look for members’ assets like their homes to pay off expenses for services used while the member was alive. Members’ families may also incur significant legal fees attempting to protect their estate.
Medicaid estate recovery is triggered by turning age 55. Most MassHealth members have income well under 100% of the poverty level ($12,888 in 2021). Those 65 and over have countable assets of $2000 or less ($3000/couple). Yet it is these very individuals for whom affordable health insurance is just a loan repayable after death. Estate recovery has contributed to perpetuating poverty, especially in communities of color and for people living with disabilities, by forcing families to relinquish a home that could be instrumental in addressing intergenerational poverty and wealth inequality.
Who is potentially at risk of estate recovery?
MassHealth can recover the total cost of care (not just long-term care) it paid for members after they turned 55 and at any age while the member was receiving long-term care in a nursing home or other medical institution. Estate recovery applies to all MassHealth beneficiaries, including those who are covered through Managed Care (MCO) or Accountable Care (ACO) plans. These members are impacted only if they leave a “probate estate” with over $25,000 of assets that they owned before their death.
What is a probate estate?
A probate estate includes assets that were owned by the MassHealth member at the time of death. Any property or assets that are part of the member’s probate estate are subject to estate recovery.
Are there exceptions?
Currently, MassHealth will not pursue any estate recovery if the member leaves a probate estate worth less than $25,000, if the member had certain long-term care insurance, or if the estate includes certain resources belonging to American Indians or Alaska Natives. Even if the member does leave a probate estate worth over $25,000, their estate still may qualify for an exception from estate recovery like a deferral or hardship waiver. (source)
MassHealth will delay estate recovery if there is a surviving spouse, a surviving child who is under age 21, or a child of any age who is blind or permanently and totally disabled.
MassHealth will waive (not seek to recover) all or part of its estate recovery amount if the estate qualifies for an undue hardship waiver. There are three hardship waivers that may apply if any heir to the estate of the MassHealth member meets certain criteria:
- Had income below 133% of the federal poverty level for two years while living in the member’s home and meeting other criteria;
- Provided care to the member for two years while living in the member’s home and meeting other criteria; or
- Had income below 400% of the federal poverty level for two years.
Jo’s Bill (H.1246 / S.749)
Since taking office, Senator Comerford has heard about the hardships surrounding MassHealth estate recovery. She and her team have made this work a top priority.
In May 2021, MassHealth made a series of policy changes – in part as a result of Senator Comerford’s advocacy in the 2019/2020 session. These changes can be found here.
Sen. Comerford has introduced legislation for this session (2021/2022) to further protect MassHealth beneficiaries from the harms of estate recovery. Her bill would:
- Limit MassHealth to only federally mandated recovery for nursing home care and home-and-community based-services & some related services—instead of all services received after age 55.
- Limit recovery for managed care premiums to the lesser of the premium or the actual cost of services.
- Establish broader criteria and a fairer process for when MassHealth will grant undue hardship waivers from estate recovery.
- Waive estate recovery for people who received benefits under CommonHealth, a MassHealth work incentive program for disabled adults.
What should you do if you have questions or concerns?
Contact Jo at email@example.com and our team will jump in to help. This is a complicated area of law, and we may refer you to free lawyers who are experts in this field.