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In a piece published yesterday, Consumer Reports advises readers in 10 states to contact their legislatures and work for changes in the estate recovery laws:

Tell these 10 states: Don't let Medicaid take my house after I die
Federal government doesn't like the idea but can't stop it
Published: February 28, 2014 04:00 PM

Thanks to the new health care law, millions more people now qualify for free health care under an expansion of the Medicaid program. Unfortunately, some of those people may end up having their homes seized by their state goverment after they die. Specifically, that risk applies to new Medicaid recipients 55 and older who live in 10 states: California, Colorado, Iowa, Massachusetts, Nevada, New Jersey, New York, North Dakota, Ohio, and Rhode Island.

This represents a substantial shift from their previous dismissive attitude. Thanks are due to all those who have worked to get recognition for this issue from Consumer Reports and every other entity who ought to be concerned about it - we are making progress.

To go back through the history of the Consumer Reports position, let's start here:

How do I estimate income if it varies from year to year?
Advice for the self-employed
Published: October 22, 2013 03:30 PM

Q. I’m self-employed but my income varies wildly. I usually won’t know until midyear whether it’s going to be $20,000 or $100,000 or somewhere in between. What income should I put down when shopping on the health insurance marketplace for my family of four? If it’s too low, will I have to pay the subsidy back? What if I take Medicaid and end up making too much to qualify for it?

A. (..)

Say you estimate your 2014 income is going to be $50,000, which would qualify you for a premium tax credit based on your family size. If after a few months you’re running ahead of or behind that pace, you should go back to your marketplace and revise your income projection. The marketplace will adjust your subsidy accordingly. You can do this as often as you need to.

In addition, if you have a bad stretch with hardly anything coming in, you can claim Medicaid benefits for that period. “Medicaid isn’t based on future income, it’s based on your current income month to month,” said Karen Pollitz, a health insurance expert at Kaiser. If your income pops back up, you can exit Medicaid and get back onto a marketplace plan. And no matter what your income ends up being at the end of the year, you won’t have to repay your Medicaid benefits.

(my bold) That sounded pretty definitive, didn't it? And also, in many cases, incorrect. I wrote the author, Nancy Metcalf, at the time, to suggest that this was not doing a good job of informing the public about a very large financial issue affecting consumers, but heard nothing back from her. I know I have not been alone in doing this - there are spome good rants going on over at Naked Capitalism. Those reference the next stage in the evolution:
Will Medicaid take my house when I die?
In theory, it could. But it seems unlikely, and you should enroll anyway.
Published: January 27, 2014 12:30 PM

Q. If I enroll in the new expanded Medicaid program, when I die and try to leave something to my kids, can the government attach those assets to repay the benefits I received?

A. When I first started getting questions like this a few weeks back, I figured it was just another Obamacare urban legend like many others I’ve heard.

It isn’t, although at this point the possibility of the government snatching your house out from under your heirs is more theoretical than real and should not stop you from enrolling in Medicaid if your income qualifies you for it.

This article goes on to assert with no tangible basis whatever that states are "unlikely" to follow through on estate recovery, but that if you are worried, a consultation with an elderlaw attorney should get you all fixed up.

Well, pesky agitators that we are, some of us were not satisfied with this stance either. That brings us back to yesterday's article:

If you live in one of the 10 states and think this is a terrible idea, as we do, let your elected state officials know about it. But if you are eligible for Medicaid, don't even think of turning it down for this reason. Going without health insurance is an even more terrible idea. Granted, you can enroll in Medicaid at any time (whereas you can only purchase regular insurance during open enrollment). But without health coverage, you’ll be missing out on important preventive and routine care.

The one encouraging thing about the government’s guidance: if you’re getting expanded Medicaid, the state government can’t put a lien on your house while you're still alive, as it can for people whose nursing home bills are being paid by Medicaid. That means that once you’re off Medicaid and onto Medicare, and live in a state that’s still determined to take your house, you can get around it by signing it over to your children before you die.

So, Ms. Metcalf still wants everyone to sign on to this terrible deal, but at least she recommends that we work to change it. The advice at the end looks deeply suspect to me: I am not an elderlaw attorney, but I would be surprised if it turns out to be as simple as represented above: what about the lookbacks Medicaid applies? And we haven't even gotten started with the filial support laws, but that's a topic for another time.

For now - keep up the pressure, folks. This issue is finally getting some attention, and that's the only way better decisions will be made about it. And thanks to all my correspondents - keep those (virtual) cards and letters coming in!

This diary is part of a series. My previous diaries on this subject start here: Medicaid Estate Recovery + ACA: Unintended Consequences?

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Comment Preferences

  •  Here is more information (3+ / 0-)
    Recommended by:
    cohenzee, gmats, hazey

    Implementing Health Reform: Medicaid Asset Rules And The Affordable Care Act

     

    <...>

    The Affordable Care Act creates a new category of Medicaid recipients — adults with incomes under 133 percent of the poverty level. It also changes income and asset eligibility rules for parents, children, and pregnant women, who were already eligible for Medicaid. Eligibility for these categories of recipients is now calculated based on “modified adjusted gross income,” or MAGI. There are no asset requirements for persons who become eligible for Medicaid under MAGI rules. The question thus arises as to how existing rules regarding asset transfers, liens, estate recoveries, and post-eligibility income apply to persons eligible for Medicaid based on MAGI.... Although the federal and state law governing Medicaid liens and estate recoveries are primarily concerned with recipients who receive high-cost long-term care services, federal law that existed prior to the ACA allows states to recover from the estates of any Medicaid recipient age 55 or over for the cost of any Medicaid services, and a number of states have existing laws that would allow such recoveries. ACA opponents have been spreading the word that if people age 55 or over sign up for expansion Medicaid, the government will recover from their estate when they die. The Memorandum attempts to address these concerns.

    <...>

    Medicaid rules prohibit Medicaid coverage of LTSS for persons who have equity in a home that exceeds a certain value, which for 2014 is set at $543,000 (or, at a state’s option, at $814,000). Although, again, there are no asset restrictions on MAGI eligibility, the home equity requirement applies to eligibility for LTSS services, not for Medicaid, and thus applies to MAGI-eligible individuals who receive LTSS services.

    Individuals who receive institutional and home and community-based LTSS services as traditional categorically- or medically-needy Medicaid recipients must generally spend all of their income on LTSS, except for a small personal needs allowance and funds necessary to maintain their spouse or family in the community, with Medicaid paying for the additional cost of the services. These post-eligibility treatment of income (PETI) rules do not explicitly apply to MAGI-eligible individuals. CMS recognizes, however, that it is inequitable to apply these rules to other Medicaid recipients but not MAGI individuals. It is contemplating rulemaking, therefore, to extend these rules to MAGI eligible individuals...most of the rules that apply to traditional Medicaid recipients with respect to LTSS (except for lien requirements) are likely to apply to MAGI-eligible individuals who receive LTSS. CMS intends, however, to take steps to avoid applying estate-recovery rules to MAGI-eligible individuals who do not receive LTSS to keep this from becoming a barrier to Medicaid expansion eligibility.

    http://healthaffairs.org/...

    It would help if this information is shared with people who are needlessly being scared away from Medicaid.
    •  which information, and who do you mean? (2+ / 0-)
      Recommended by:
      Skyye, tardis10

      I wrote about that letter here: Estate Recovery: CMS speaks, confusion remains

      It appears that this letter confirms that MAGI/ACA Medicaid enrollees are in fact subject to estate recovery; that CMS is not sure whether it can do anything about that; that they hope states will take action to exempt MAGI/ACA Medicaid enrollees who are not receiving long term care from estate recovery.
      Who are you talking about when you say "people who are needlessly being scared away from Medicaid"?

      If you act out of anger, the best part of your brain fails to function. - the Dalai Lama

      by beverlywoods on Sat Mar 01, 2014 at 05:58:46 AM PST

      [ Parent ]

    •  That is a GREAT Link (6+ / 0-)

      First of all very fresh since it was published on the Feb 24 of this year. Also very comprehensive.

      What I appreciate is the validation that this was not some made up concern:

      This is not a mere theoretical concern.  Although the federal and state law governing Medicaid liens and estate recoveries are primarily concerned with recipients who receive high-cost long-term care services, federal law that existed prior to the ACA allows states to recover from the estates of any Medicaid recipient age 55 or over for the cost of any Medicaid services, and a number of states have existing laws that would allow such recoveries.  ACA opponents have been spreading the word that if people age 55 or over sign up for expansion Medicaid, the government will recover from their estate when they die.  
      I have to quibble with the assertion that ACA opponents are the only ones spreading the word about this. I have been spreading the word about this because I see it as a flaw that needs to be corrected and because this shouldn't be an unpleasant surprise that someone 55 or older finds out about after the fact when they might have made other choices if they had been better informed.

      This class of individual who now qualifies for Medicaid is completely new - 55 or older with low income but WITH assets (like a house or savings) that would not have passed the asset test previously.

      I really believe that beverlywoods has been a very large part of bringing this issue to the forefront and I personally thank her very much for it. And now it looks like steps will be taken to clearly take this issue off the table.

      “Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.” FDR

      by Phoebe Loosinhouse on Sat Mar 01, 2014 at 06:03:29 AM PST

      [ Parent ]

      •  I second your quibble (5+ / 0-)

        There are many people - I don't think it would be inaccurate to say, at least in my neighborhood, a majority of the very active Democrats - whose main "quibble" with the ACA is that it did not go far enough, since there was no public option. Going around a room in a meeting discussing the ACA after it passed, about 90% of the attendees said they had really hoped there would be a public option.

        The fact that what there is instead of a public option is a program which removes assets from low income families is a very large drawback. One can support health care reform and still work to change a set of laws that has this outcome.

        Other glitches have been fixed - recently in NH and other states, parents found that their children who qualified for Medicaid could not be covered under subsidized family plans they had signed up for. Then Medicaid would not accept the children. Result: insured parents, with children who could not be covered anywhere.

        Looks like that was fixed in a hurry when it came to light. Let's do our best to get this fixed too.

        If you act out of anger, the best part of your brain fails to function. - the Dalai Lama

        by beverlywoods on Sat Mar 01, 2014 at 06:15:51 AM PST

        [ Parent ]

        •  I know. I get so annoyed when someone (7+ / 0-)

          says x% of the population doesn't approve of the ACA without revealing that a significant number of that percentage is people who feel it didn't go far enough.

          Kaiser has done lots of good studies that show there will be a significant number of working poor who make too much to qualify for Medicaid and for whom even subsidized premiums and out-of-pockets will be unaffordable. Much of this population is older single working women.

          Should we throw out the ACA because of that? No, but right now we should recognize that this gap exists and start working to make sure that no one falls through the cracks.

          “Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.” FDR

          by Phoebe Loosinhouse on Sat Mar 01, 2014 at 07:07:47 AM PST

          [ Parent ]

      •  and thank YOU, Phoebe (3+ / 0-)
        Recommended by:
        Skyye, Orj ozeppi, Phoebe Loosinhouse

        Whatever I've done, I couldn't do it alone. You've been there from the start, bringing attention to the issue and helping to clarify it. Thank you!

        If you act out of anger, the best part of your brain fails to function. - the Dalai Lama

        by beverlywoods on Sat Mar 01, 2014 at 06:44:26 AM PST

        [ Parent ]

    •  Submitting this to Top Comments. (1+ / 0-)
      Recommended by:
      beverlywoods

      It's an important post that needs wider viewership.

      Stop by tonight at 10pm (use link in sig).

      I must end each day with a dose of Top Comments. A TC diary is a must for developing the calmness I need to get the required eight hours of sleep. - cohenzee

      by cohenzee on Sat Mar 01, 2014 at 09:13:46 AM PST

      [ Parent ]

  •  I'm in Cal, 62, Medi-Cal eligible, turned it down (4+ / 0-)

    There is little information about how the state can steal my house to pay for all medical expenses.  There was an article about it in the LA Times, link here, recently but no other media coverage.  The staff of my state assemblywoman, Nancy Skinner, did not know about the issue when I called her.  

    Does anybody know of any organizing going on in California to change this abominable provision of Obamacare?

    •  Time to start organizing! (3+ / 0-)
      Recommended by:
      Phoebe Loosinhouse, gmats, kurt

      In CA and the 9 other states mentioned in the CR story - and in NH, which is about to expand Medicaid, probably, once some kind of compromise is hashed out. And that will be true of other places as well. Plus those states most dragging their feet on Medicaid expansion may be the most likely to collect for every expense, not just long term care.

      CA does worse than provide little information - I have here a copy of a mailing sent by the State of CA HHS to a CA resident over 55, urging her to sign up for "free" coverage:

      "Good News! You Can Get Free Health Coverage From Medi-Cal!"

      Nowhere in 4 pages does it mention estate recovery. An Information Officer in the Public Affairs office of the CA Department of Health Care Services, whom I contacted by phone, expressed disbelief that any such mailing could be coming from an official state source, but the mailing says it's from the CA Department of Health Care Services.  I have sent it to that employee  for review and comment.

      Californians - any of you want to start your own diaries or organizations about this?

      If you act out of anger, the best part of your brain fails to function. - the Dalai Lama

      by beverlywoods on Sat Mar 01, 2014 at 08:49:58 AM PST

      [ Parent ]

  •  O rly? srsly? (1+ / 0-)
    Recommended by:
    beverlywoods

    from http://www.factcheck.org/...

    Q: Does the Affordable Care Act allow states to confiscate the estates of seniors on Medicaid when they die?
    A: No, but a 1993 federal law requires states to recover Medicaid costs for long-term care from the estates of deceased Medicaid beneficiaries over the age of 55.
    Sorry for the snark in the title, tired and still have this evil bronchitis, need sleep and to get rid of this cough

    ''The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.'' - Justice Hugo L. Black of the Supreme Court

    by geekydee on Sat Mar 01, 2014 at 08:56:01 AM PST

    •  Sorry, forgot to say great diary, (1+ / 0-)
      Recommended by:
      beverlywoods

      still a timely reminder in today's economy, maybe moreso with the increasing number of baby boomers out here

      ''The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.'' - Justice Hugo L. Black of the Supreme Court

      by geekydee on Sat Mar 01, 2014 at 08:58:53 AM PST

      [ Parent ]

    •  that's a rather odd piece at Factcheck (3+ / 0-)
      Recommended by:
      geekydee, Phoebe Loosinhouse, gmats

      Compare the excerpt above with this from the same article:

      The Affordable Care Act did nothing to change existing federal law. It did, however, expand the number of people who are eligible for Medicaid, so there will be more people on Medicaid between the ages of 55 and 65, and, therefore, potentially more estates on the hook for Medicaid expenses after the beneficiary dies.
      If you just read the lead-in at the top you might think estate recovery only applied to long term care, and that the ACA has no effect on estate recovery and who is subject to it. And that, unfortunately, is a common misconception.

      The fact that the ACA does nothing to limit the estate recovery laws that were already in place, while putting millions of people into the system who will be subject to estate recovery, makes their comment technically true, but only in a hair-splitting way. Which you can see reflected once you read the balance of the article.

      This piece is typical of the kind of coverage this issue has been getting: articles wherein the authors seem to be saying, "I see it, but I don't see it."  When I have time, I may do a diary on that phenomenon.

      If you act out of anger, the best part of your brain fails to function. - the Dalai Lama

      by beverlywoods on Sat Mar 01, 2014 at 09:25:38 AM PST

      [ Parent ]

  •  beverlywoods, (0+ / 0-)

    Do you live in L.A. There is an L.A. Kossacks meet up that I have been attending and I would like to invite you to attend. This subject would be great for a discussion there. You can find info about the meet ups at today's diary by catilinus, Unite* Act*. Or Dave in Northridge writes a diary about the events.

  •  ALSO: http://canhr.org/ (0+ / 0-)

    Good site, with links for help.

    Bronchitis has me by the lungs. Over and out.

  •  What a shock! (1+ / 0-)
    Recommended by:
    PresstitutesOrg

    Not really.

    ACA is, at the very best an overly optimistic enthusiast can muster, a very bad plan based on an even worse republican idea, that was foisted on us through a thoroughly evil bipartisan effort on the behalf of the worst parasites in the U.S.

    In view of the fact that the ACA is just barely better than nothing at all, do you really think this potential is at all surprising?

    "Those who can make you believe absurdities can make you commit atrocities." - Voltaire

    by Greyhound on Sat Mar 01, 2014 at 11:24:07 PM PST

  •  Thanks again (0+ / 0-)

    ...for your tireless efforts on this.  I'm getting really fatigued with being attacked (often viciously) by Obama fanatics who believe that any criticism of the ACA must surely mean that one is a kool-aid drinking, frothing-at-the-mouth Fox News viewer.  

    It's been illuminating for me to become subject to these attacks--and they are well-orchestrated--and I don't mean that the illumination has been a pleasure.  I used to be in favor of single-payer, but now I'm beginning to wonder.  

    I'd like to share your enthusiasm that this and other 'anomalies' in the ACA can be rectified, but as things stand I'll just have to wait and see.  

    •  And might I add.. (0+ / 0-)

      in relation to this quote:  "This article goes on to assert with no tangible basis whatever that states are "unlikely" to follow through on estate recovery, but that if you are worried, a consultation with an elderlaw attorney should get you all fixed up."

      Some of the most vociferous attacks (in favor of the status quo) have been coming from 'elderlaw advocates'. I'm not sure why.  

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