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      What is Estate Recovery?

On May 3, 2006, the State of Georgia implemented “estate recovery” for certain individuals who were receiving Medicaid benefits for nursing home or community based services at the time of their death.  Estate Recovery is a part of a federal program that was established with the Omnibus Budget Reconciliation Act of 1993.  Georgia implemented Estate recovery to be in compliance with this mandate.  Estate recovery regulations allow the Georgia Department of Community Health to place a claim against the estate of the Medicaid recipient if it has a value of more than $25,000 at the time of their passing and they leave no spouse.  The claim amount will be equal to the amount that the Department of Community Health expended on behalf of the Medicaid recipient while living.

     Who is subject to Estate Recovery?

Estate Recovery will be pursued for payments for medical care on or after May 3, 2006 against the following individuals:

–    Medicaid Members of any age who are in a nursing home, intermediate care facility or other mental institution that have their medical care paid by Medicaid.

–    Medicaid members who are 55 years of age or older who receive home and
community based services or are enrolled in and receive services through a waiver
program.

     When does Estate Recovery not apply?

If the total value of the Medicaid member’s estate is less than $25,000 then there will be no Estate Recovery.

Estate Recovery may be delayed or deferred in the following circumstances:

–    The Medicaid member left a surviving spouse,
–    The Medicaid member has children under 21 years of age,
–    The Medicaid member has children who are blind or permanently and totally disabled,
–    A sibling of the Medicaid Member is currently residing in the home and had previously provided care to the Medicaid member for at least one year immediately prior     to a move to the nursing home, or
–    A child of the Medicaid member is currently residing in the home and had previously provided care to the Medicaid member for at least two years immediately prior to a move to the nursing home.

If Estate Recovery is delayed under one of the above conditions, that delays is valid until one of the following below things occur:

–    The surviving spouse is deceased
–    The children turn 21 years of age or decease, whichever occurs first
–    The blind or totally disabled children decease
–    The sibling/child deceases or no longer resides in the home

     How does Estate Recovery work?

After receipt of notice of the death of a Medicaid member who is subject to Estate Recovery the Department of Community Health (DCH) will send a formal notice of their claim to the personal representative of the estate.  This notice explains Estate Recovery, advises of DCH’s intent to recover the claim, and states the amount of the claim.  The personal representative will have a certain period of time to respond.  In this response the personal representative will assert any of the conditions described above which would exempt the estate from Estate Recovery or delay recovery.

Later, DCH will file their claim against the estate with the probate court.  A claim filed for recovery of Medicaid assistance has a very high priority for repayment versus other types of claims.  However, the following types of claims can be paid or satisfied before the Estate Recovery claim:

–    Year’s support for the family;
–    Funeral expenses in an amount not to exceed $5,000;
–    Necessary expenses of administration of the estate;
–    Reasonable expenses of the deceased Member’s last illness; and
–    Unpaid taxes or other debts due the state or the United States.

     What types of assets are subject to Estate Recovery?

Per DCH rules and policy the Estate Recovery claim can be recovered against a broad range of assets.  All real and personal property in the “probate” estate are subject to Estate Recovery.  Excess funds from a burial trust or contract, promissory notes, cash, and personal property are all subject to Estate Recovery.  DCH also purports that real property, belonging to someone other than the Medicaid member, which passed outside of the probate estate by way of joint tenancy or right of survivorship, is also subject to Estate Recovery.

Our attorneys have been very successful in handling Estate Recovery claims for our clients.  We have successfully challenged claims and/or negotiated significantly reduced compromises in full satisfaction of claims.  If you have a loved one who is on Medicaid and have questions or if you have received notice of an Estate Recovery claim and are unsure how to proceed please call.  We can help you understand this process and protect your rights.

*Please note that the Georgia Department of Community Health’s rules and policies are subject to change.  Do not rely on the information contained herein without making sure that Estate Recovery rules and policies have not changed since this was written.

Legal Disclaimer: This information has been provided for informational purposes only.  It does not constitute legal advice.  Proper legal advice can only be given based upon the specific facts and relevant law for each individual.  Therefore, you should always seek appropriate counsel before acting upon the information contained herein.