Here's why dropping the asset test got the BINGO -- Estate Recovery! You won't find the following info in the ACA. It's in the Omnibus Reconciliation Act of 1993 (OBRA 1993) -- a federal statute which applies to Medicaid, and, if you are enrolled in Medicaid, it will apply to you depending on your age.
a) OBRA 1993 requires all states that receive Medicaid funding to seek recovery from the estates of deceased individuals who used Medicaid benefits at age 55 or older. It allows recovery for any items or services under the state Medicaid plan going beyond nursing homes and other long-term care institutions. In fact, The Centers for Medicare & Medicaid Services (CMS) site says that states have the option of recovering payments for all Medicaid services provided. The Department of Health and Human Services (HHS) site says at state option, recovery can be pursued for any items covered by the Medicaid state plan.
b) The HHS site has an overview of the Medicaid estate recovery mandate which also says that at a minimum, states must pursue recoveries from the "probate estate," which includes property that passes to the heirs under state probate law, but states can expand the definition of estate to allow recovery from property that bypasses probate. This means states can use procedures for direct recovery from bank accounts and other funds.
c) Some states use recovery for RX and hospital only as required by OBRA 1993; some recover for a few additional benefits and some recover for all benefits under the state plan. Recovery provides revenue for cash-strapped states and it's a big business.
Your estate is what you own when you die -- your home and what's in it, other real estate you may own, your bank account, annuities and so on. And even if you have a will, your heirs are chopped liver. Low-income people often have only one major asset -- the home in which they live and, in some cases, this has been the family home through several generations.
So what this boils down to is: if you are put into Medicaid -- congratulations -- you just got a mandated collateral loan if you use Medicaid benefits at age 55 or older! States keep a running tally.
Estate recovery can be exempted or deferred in certain situations after your death, but the regulations for this are limited and complicated with multitudes of conditions. You may not have an attorney on speed dial, but with regard to this hundred pound gorilla, it sure would be handy.
Should you decide to ask your congresscritter about estate recovery, be prepared for responses such as:
-- "Estate recovery doesn't apply to you." (Great news. Please overnight a copy of the amendment to OBRA 1993 that stipulates estate recovery is no longer required and no longer allowed. Here's my address.)
-- "Oh, estate recovery is state, I'm federal." (Wrong -- estate recovery is federally mandated although the estate recovery program itself is administered by each state.)
-- "I don't know anything about this." (Highly unlikely because the expansion of Medicaid is an integral part of the ACA and estate recovery is not a secret.)
-- "The ACA wasn't about revamping Medicaid." (As explained above, Medicaid regs were revised in order to expand Medicaid.)
-- "I'll look into that and get back to you." (Don't hold your breath -- they don't want to go there.)
If you ask about estate recovery when you contact an Exchange or speak with an outreach agency, you'll probably run into a brick wall or be told it doesn't apply to you -- whatever. But, it doesn't matter because what you are told is not legally binding. What is legally binding is your signature on the Medicaid application which indicates that you agree to the terms of the contract -- which brings us to another item in OBRA 1993. Read on.
OBRA 1993 also contains procedural rules intended to ensure that individuals are informed about Medicaid program requirements including disclosure of estate recovery before they complete the application process and also during the annual re-determination process. Notification of estate recovery should be on the signature page of your state's Medicaid application and is usually a one-liner: I understand that if I am aged 55 or older, (name of your state's Medicaid plan) may be able to get back money from my estate after I die. (Use of the word "may' doesn't mean if the state feels like it -- it means recovery will take place unless there are specific circumstances for exemption or deferment as mentioned above.) There are also strict recovery/repayment clauses for injury-related settlements disclosed on the signature page and a few other ditties that apply to you or a family member who is enrolled in Medicaid. All of these items must also be disclosed in your state's Medicaid handbook.
Under the ACA and proposed federal rules for implementation, states will be required to provide a single, simple application to apply for and enroll in Exchange plans, Medicaid and CHIP, and consumers must be able to apply by phone, in person or online. The Secretary (HHS) is charged with this task and it's in the works. This begs an answer to the following questions:
-- Will Medicaid applicants be diligently informed about estate recovery and other rules that apply to Medicaid enrollees on this single application? Failure to do so would be in non compliance with OBRA 1993 and would also be deceptive.
-- Will applicants be provided with a signature page that contains appropriate disclosure of these rules so they can be reviewed before signing on the dotted line?
-- How will appropriate disclosure and obtaining a signature work for those who are bumped into Medicaid due to a decrease in income or who might be auto-enrolled because they were presumed eligible through a database?
If an applicant or someone who has been bumped or auto-enrolled in Medicaid is not satisfied with the terms of the Medicaid contract, lack of another health insurance option that is in the best interest of low-income earners represents undue and unconscionable advantage being taken of this segment of the population under a law that mandates health insurance or a penalty.
Do the health insurance policies enjoyed by lawmakers on Capitol Hill and paid for by taxpayers include an estate recovery program?
Medicaid is poor, underfunded, overstretched and constantly bombarded by state budget cuts -- even before an ACA expansion. It offers a low quality of care in many states, and, in general, represents inequities in care. Office-based doctors typically refuse to accept Medicaid patients, thus, millions thrust into this plan will have difficulty finding a primary-care doctor or a specialist.
A perfect example is the December 2012 federal appeals court decision that allowed California to cut reimbursements by 10 percent to doctors, pharmacies and others who serve low-income residents under the state's Medi-Cal plan (a version of Medicaid) due to state budget issues. California was already at the bottom of the rate-reimbursement heap which made finding doctors difficult for residents in Medi-Cal. This decision will further reduce the number of health care providers willing to take new Medi-Cal patients, thus jeopardizing their access to primary and specialized care. Under the ACA's expansion of Medicaid, state budget crises across the nation will exacerbate the ongoing problems regarding access to care for Medicaid patients, particularly in states that have a high low-income population.
6. INSURANCE PLANS AT THE EXCHANGES