DEPARTMENT OF HEALTH & HUMAN SERVICESCenters for Medicare & Medicaid Services7500 Security Boulevard, Mail Stop S2-26-12Baltimore, Maryland 21244-1850
Center for Medicaid, CHIP and Survey & Certification
SMDL # 11-006June 10, 2011
RE: Same Sex Partners and Medicaid Liens,Transfers of Assets, and Estate Recovery
Dear State Medicaid Director:The purpose of this letter is to ensure that States are informed of the existing options andflexibilities regarding the application of Medicaid liens, transfer of assets, and estate recovery.Specifically, this letter is intended to advise States of existing choices and options regardingspousal and domestic partner protections related to liens, transfer of assets, and estate recovery.
Section 1917(a) of the Social Security Act (the Act) allows, but does not require, States toimpose liens on the property of a Medicaid beneficiary under certain circumstances.More specifically, liens are permitted in two instances prior to a beneficiary’s death:1)
when there has been a court judgment that benefits were incorrectly paid; or2)
when the lien is imposed against the real property of an individuala.
who is an inpatient in a nursing facility, intermediate care facility for thementally retarded, or other medical institution, if the individual is required tospend for medical care all but a minimal amount of his or her income, andb.
with whom the State determines that the individual cannot reasonably beexpected to be discharged from the institution and return home.State plans must specify the medical assistance services that are subject to recovery.Section 1917(a)(2) of the Act provides important beneficiary protections from liens. Liens maynot be imposed in instances where certain people are lawfully residing in the home. Theseindividuals include:1)
a spouse (as defined in the Defense of Marriage Act of 1996 [DOMA] Pub. L. No. 104-199),2)
a child under age 21,3)
children who are blind or totally/permanently disabled, and4)
siblings residing in the beneficiary’s home who have an equity interest in such home andwere residing in the home for at least 1 year immediately before the date the individualwas admitted to the medical institution.