Introduction to Medicaid Estate Recovery

Medicaid, as opposed to Medicare, is a health insurance program, jointly funded by the state and federal governments that pays for health care for America’s poor. See Medicaid Act (Title XIX of the Social Security Act), 42 U.S.C. § 1396 et seq. Not everyone is eligible for medical assistance; only those persons who fall within a defined “class of assistance” (COA) receive Medicaid. For certain COAs, primarily nursing home care and related long-term care, medical assistance is treated as a loan. Following the death of a Medicaid recipient on such a COA, Medicaid seeks reimbursement of funds it paid. The collection process is called estate recovery.

Since 1993, federal law has required that States pursue Medicaid estate recovery. In mandating estate recovery, Congress sought a way “to stymie the growth in state Medicaid expenditures without depriving eligible recipients of much-needed care.” West Virginia v. United States HHS 132 F.Supp.2d 437, 440 (S.D. WV 2001). The general public, however, is typically confused and incensed when the State makes an estate recovery claim. Recently, a pro se Plaintiff, proceeding in forma pauperis, described estate recovery as “nothing more than a vast, unlawful conspiracy to deprive the Plaintiff, an American who is Black, of his property, his dignity and his constitutional rights, simply because they could.” Drake v. Miller, 2009 U.S. Dist. LEXIS 45052 (W. D. KY May 29, 2009). Adding to the confusion, it has become commonplace for States to overreach when pursuing estate recovery, making claims that go beyond the permissible limits of federal law.

One might ask, if estate recovery is so distasteful, why not reject Medicaid. Some people do exactly that. The Medicaid Act does not “forcibly expose citizens to estate recovery. Persons subject to estate recovery receive notice of the estate recovery requirement before they decide whether to accept or reject Medicaid benefits.” California Advocates for Nursing Home Reform v. Bonta, 106 Cal. App. 4th 498, 511 (Cal. App. 1st 2003). Even so, Medicaid applicants often feel little choice when the question is to accept the potential of estate recovery and receive necessary care, or reject estate recovery and die.

This page and the pages that follow provide a brief overview of Georgia’s Medicaid Estate Recovery Program. It is not meant as an exhaustive survey of the law. Further, the law in Georgia continues to develop since implementation of the program as of May 3, 2006. We will update this as possible, but some updates are more easily found by searching this website or by using the “estate recovery” when reviewing other Blog articles.