Legal: I am not a lawyer. I am providing information as best as I understand it, and it is conceivable that I have an error or omission. There are complicated issues at hand, and you really ought to seek specialized lawyers, perhaps estate and health-insurance specialist attorneys, to help you figure out precise legal details.

Unfortunately, many people affected by the issues here discussed will not be able to afford attorneys, and also possibly afford the actions they may recommend. Don't blame me. It's from how MA has set up its laws, and how the MA Health Connector has chosen to handle its procedures and its informing of the public.


(Written 7/16/19 by Norm Spier, Easthampton, MA)

THE COVERAGE YOU GET WHEN GOING THROUGH THE MA HEALTH CONNECTOR ACA/OBAMACARE ENROLLMENT PROCESS IS OFTEN DANGEROUS -- IT'S NOT INSURANCE OF ANY KIND

FULL MEDICAL COSTS PAID OUT CAN BE RECOVERED FROM YOUR ESTATE

Your MA Health Connector application has fine print indicating MA will do this recovery.

At least 8 other large states operate differently and do not do the recovery under their laws and regulations: NY, CT, CA, OR, WA, MN, PA, WI
All Affordable Care Act Coverage is Real Insurance And Nothing Has to Be Paid Back to the Government In Those States

The Recovery Applies to All People Who Got most forms of Medicaid (MassHealth), including ACA's expanded Medicaid, from the Connector (or directly from MassHealth) at Age 55 or Older

And Would Also Seem to Apply to People 55 or Older of the people who Got That Special Temporary Medicaid Given to Everyone Who Used the Connector the First Year of ACA, 2014, When the Connector Site Was Completely Non-Functional




Further note: Massachusetts is Choosing, By Not Amending Its Laws and Procedures, to Keep This ACA Insurance as a Financial Bomb

It's a Bomb That will Prevent Many People Who Cannot Afford to do Anything About It From Passing On Modest Amounts of Savings to Their Children.

At least 7 Other large Medicaid-expansion states: NY, CA, MN, WA, OR, CO, PA have amended procedures and laws post-ACA to not do the recovery of Medicaid expenses, other than non-long-term-care-related, (or did not do it in the first place), so that all of their ACA insurance is real insurance. (CT also, but missing a small fraction of people in the correction.)

(Many: NY, CT, OR, WA did the amending 6 years ago, before the ACA main provisions started in 2014. The rest, CA and MN, did the amending in 2017, or else did not did not do the recovery pre-ACA.)


-->There are currently (8/2019) 2 Bills in the MA Legislature designed to correct this, and make MA like NY, CA, OR, WA, MN, OR and PA. The are S734 and H1197, but are ill-publicized and likely not to pass without extensive support. See here.






DETAILS:

When you apply for "coverage" through the MA Health Connector, if your Modified Adjusted Gross Income (MAGI) is <=138% of the Federal Poverty Level (FPL), either by your estimate, or as redetermined by MA Health or the Health Insurance Processing Center subsequently, you will get MassHealth. That is, a form of Medicaid or the expanded Medicaid that is part of the ACA.

(People above 138% of the FPL get an on-exchange plan, subsidized if MAGI is <=400% FPL, and are not affected by this recovery issue.)

Federal law gives states the option to recover full medical expenses paid out for any form of Medicaid or expanded Medicaid for people who were 55 or older when they got the Medicaid / Expanded Medicaid. (Federal Medicaid law from the 1990s requires states to recover long-term-care-related expenses, but gives states the option of also recovering non-long-term-care related medical expenses from people who were 55 and older when they got the Medicaid, and MA does this.)

Some states have tried to make the ACA be real insurance, and have rewritten laws and regulations post-ACA to not allow the recovery of non-long-term-care-related expenses.

MA is not one of them.

In fact, in 2017 Governor Baker attempted to expand the scope of the recovery (to beyond "probate estates"), but the legislature stopped him.


It's important to understand that the amount of money that has to be paid back if the person gets sick. It can be the full medical expenses. If a person gets cancer at 57, has $700,000 in bills curing the cancer, then the full $700,000 has to be paid back. The person had no insurance at all.

It's not just that they had insurance that was free, but premiums had to be paid back at death. If that were the case, maybe over 10 years, from 55-64, premiums for insurance would have been $80,000, and the estate would pay back the $80,000.

But the person had no insurance at all. They were going without insurance. If they got sick, "insurance" would have protected them from those expenses. They had no insurance, and the person's estate has to pay $700,000.

(I'm not the first person to bring this recovery issue. I have links below. Its make of the ACA insurance in MA, and some other states, a complete con. The people have no insurance at all, and are on the line for all medical expenses.)


(below): From the MA Health Connector facebook page. It says sign up for "insurance". But what tens of thousands of people get is not insurance at all. It's a loan.



Your MA ACA signup fine print: On the current 2019 MA ACA paper application, in the midst of 2 pages of conditions, most of which look benign if you have nothing to hide from them, we have on adobe p. 22:

"9. To the extent permitted by law, MassHealth may place a lien against any real estate owned by eligible persons or in which eligible persons have a legal interest. If MassHealth puts a lien against such property and it is sold, money from the sale of that property may be used to repay MassHealth for medical services provided.

10. To the extent permitted by law, and unless exceptions apply, for any eligible person age 55 or older, or any eligible person for whom MassHealth helps pay for care in a nursing home, MassHealth will seek money from the eligible person's estate after death."

(The Connector has indicated to me that these conditions hit in the on-line application process as well, in the Rights & Responsibilities/signature page of the online application, after you've entered all of your income and other information, just before you receive an eligibility determination.)

I believe that most people will not read every condition on this total of 4 or 5 pages of conditions in the on-line application. In the section with (9) and (10), one sees first benign and reasonable conditions saying the Connector can check on you, etc. Few people will expect a hidden bomb that all of the bills paid for you will be taken back from you when you die. The ACA is represented as giving everyone affordable insurance. "Affordable insurance" does not suggest they will take $700,000 from you when you die if you needed $700,000 of care. Neither half, the expanded Medicaid half of the ACA, nor the on-exchange half, has any sort of requirements that assets be low. You can have unlimited amounts of assets, and still get expanded Medicaid (i.e. MassHealth) from the ACA when you apply at the Connector.

The state is being deceptive by not having the recovery of uninsured medical payments be so prominent that it cannot be missed. The Connector just sends you a letter telling you to put in your updated income numbers in around September, and then do open enrollment if it doesn't auto-enroll you in November.

The other thing to note about the two clauses (9) and (10), besides that they're a bit hidden, and you'd never expect anything so dangerous to you, is that the Connector is doing a terrible job in explaining them. They both have "to the extent permitted by law" in them.

So, they're telling everyone who might get MA Health, who does read all the fine print, that they'd better hire special lawyers before proceeding.

But most of the people who the two clauses (9) and (10) apply to, <=138% FPL, don't have the money for special lawyers. (I would guess you need two lawyers. One, an estate lawyer, to know the details of the recovery, and perhaps another health insurance lawyer to figure out if there is any possibility to get insurance without the recovery since your ACA "coverage" has the recovery.)



The Two Conditions:

The first condition, (9), actually is beyond the scope of estate recovery. It would seem to say they'll take full medical expenses when you sell your current or next house, even if you're still alive. And, even if you were under 55 when you had the "coverage".

I'm no lawyer. Check with your own lawyer. I think it doesn't even apply for ACA. I'm getting this from comment by Health Affairs expert lawer Tim Jost from 2014, here).

(10) Does seem to apply, and it's the estate recovery for medical ACA. (The regulations referred to in "to the extent permitted by law", according to the Health Connector, are: MassHealth General Policies. See 515.011-.012. These were sent to me 7/15/19 by the Health Connector. You may need booklet describing MassHealth types to figure out which estate recovery rules apply to which varieties of MassHealth.)

You might decide you want to find out what bills your estate has already run up at MassHealth, which there is a procedure for: MassHealth Personal Records Request. You might also want to dispute charges accruing to your estate because either they were accrued when the Connector and/or MassHealth incorrectly assigned you to MassHealth, or for the year 2014, when numerous people got the temprorary MassHealth regardless of income. If you contact the Estate Recovery Unit (=Third Party Recovery Unit) MassHealth Third Party Recovery Unit Contact, I'm told they won't tell you anything, or let you dispute anything, until you are deceased and turn into an estate.


Compare to NY State, Which Has Fixed its Law, and has no non-long-term-care related Estate Recovery, and You Don't Need Lawyers when You Apply

An application covering a number of programs, including the Medicaids and Expanded Medicaids (NY multipurpose application), which is one way to apply On p. 23, says,

"I understand that effective April 1, 2014, if I get Medicaid through New York State of Health:
No lien will be placed on my real property prior to my death;
Recovery from assets in my estate upon my death is limited to the amount Medicaid paid for the cost of nursing home care, home and community-based services, and related hospital and prescription drug services received on or after my 55th birthday."

NY also has an application process for all ACA medical coverage (on-exchange and expanded Medicaid) like our Health Connector and some other medicals, paper-version: NY unified health insurance application paper, and you see, on the last 2 pages: no mention of recovery of money at death, because it's not needed under NY State Laws, and everything can be understood without you hiring lawyers. (The only not-so-clear thing I find in the conditions is "I have read how to find out whether my county requires Medicaid enrollees to join a health plan, and how to find out what health plans are available to me in Medicaid managed care", which is not a threat of a bomb, and you can make a phone call to NY Medicaid to find out.)

So in New York State, (a)You don't have to worry about getting this "loan for uninsured medical expenses until death". You get insurance. (b)You don't need to run to specialized lawyers.



Table Showing The No-Insurance Bomb in Red, and a Little More:
<=138% Federal Poverty Level (FPL) 138% FPL to 400% FPL >400% FPL
Age <55 Expanded Medicaid acting as real insurance On exchange subsidized,

0%-<10% of your MAGI for second lowest cost silver plan;

you get real insurance

On exchange unsubsidized.

Due to loss of subsidy, price may jump $10,000 on you for crossing 400% FPL.

It may be well over 10% of your MAG income, and unaffordable.

At least you get real insurance.

Age 55-<65

You get a BOMB

Expanded Medicaid acting as a loan for uninsured medical expenses to be payed back at death!

Except in states that have corrected: (MA has not corrected.)
You have no insurance at all. You are going bare.

On exchange subsidized,

0%-<10% of your MAGI for second lowest cost silver plan;

you get real insurance
On exchange unsubsidized.

Due to loss of subsidy, price may jump say $10,000 a year on you for a family, for crossing 400% FPL.

It may be well over 10% of your MAG income, and unaffordable.

At least you get real insurance.
Age 65 and Up

You get Medicare

You have real Insurance



You get Medicare

You have real Insurance



You get Medicare

You have real Insurance

What a goofy thing is the ACA in Massachusetts, with that big red cell there. It's there because there is perhaps a little less money around than is needed. But in a crazy, inept fashion, the state has really botched it, and made some people completely uninsured!
Not to mention, MA still has a mandate to carry coverage, the pretext of which is to make insurance work with less adverse selection. But MA forces people with no alternative into the red no-insurance bomb zone, and makes people pay a penalty if they refuse to go!



There are currently (8/2019) 2 Bills in the MA Legislature designed to correct this, and make MA like NY, CA, OR, WA, and MN, PA, CO. The are S734 and H1197, but are ill-publicized and likely not to pass without extensive support. See here.



What Can A Person do To Protect Themselves from This (given that MA hasn't change the recovery law)?

Well, if you are eligible for any form of Medicaid, you can't get a subsidized on exchange plan. But, if you can afford it, you can pay full price, and get an unsubsidized one. (You can get the full price plan either from the Connector, by checking "I don't want help from the government paying", or, directly from the same insurers that are listed on the Connector. The direct option is for some insurers only.)

People who are between jobs and early retired may look low income on paper, but have decent assets, and be able to pay full price. (And if they have enough assets, it's reasonable to expect them to pay full price, because they're not at all needy. But, for chrissakes, why doesn't the Connector point this uninsured recovery out conspicuously, and point out the full price option conspicuously".)

People with ample assets have an option to hire lawyers and investigate legal options to insulate them from estate recovery, because currently the recovery is limited to probate estates. But Baker tried to expand this recovery beyond probate estates, so I don't know how durable that solution is.

(A few people, who may be lawyers or have experience with the issue, have commented in the Globe comments section that, for owned housing, the insulation from recovery, at least under current MA Law, the solution may be "deeding your house to your child ... and perhaps leaving yourself a life estate interest to live there" or "life estate deed". Again, I don't know if these will work if the estate recovery in MA is expanded beyond probate estates (as Baker attempted). It seems like a bad solution to me, if you have other ways of avoiding the recovery, because you have to do it for the rest of your life if you've had expanded Medicaid once.)

Now, a lot of people with incomes <=138% of FPL really are financially very tight, and they can't afford full-price unsubsidized insurance. And they can't afford the lawyers to get around the recovery.

Those people might have an option of seeking charitable care rather than having health insurance, or getting ER treatment in emergencies (they may have to evade the bills, which are legally responsible for). Though I would never do it myself, and don't condone it, they might choose civil disobedience, and go to an ER in an emergency using a false name.

Some of those people also might be able to postpone non-emergency medical treatment to Medicare at 65. Some of those people could move to CA, MN, CO, CT, OR, WA, PA, or NY and get real-insurance no-recovery expanded Medicaid.

But those people were encouraged by the Connector every year to just sign up, and further, they were told there is a mandate to be covered. MA still has its mandate.

Those people also might be pretty angry, because people with incomes a little higher, above 138% FPL, can get almost-free insurance, which is real insurance, allowing a pass on of assets to children. (It must be that potential anger that is causing the MA Government and the Connector to be so non-forthcoming about the truth in the MA ACA application process.)


Checking Your MA Health Running Tab that Will Be Paid from Your Estate

The MassHealth Estate Recovery Unit, technically Third Party Recovery Unit, contact info down at the bottom of the page here, will tell you they won't give you any information until you are dead (i.e. other than to an estate), but did direct me to the method to get a running tab on MassHealth charges to your estate, from the MassHealth personal records request.

The MassHealth personal records request process is here. (I initiated this myself by email, following instructions on Ms. Young's voicemail. I will see how it goes.)

For me, there's an issue of 2014, when my income would have given me on-exchange, but the Connector was busted, and everyone got a MassHealth, which the law seems to say MA will fully-estate-recover all medical expenses paid out for.

Additionally, for me, 2015, when my income again should have given me on exchange. The Connector gave me MassHealth instead. I tried to correct immediately and numerous times. A special contact from the Connector was assigned to my case. Every time I called he just said "let me try and send another email to IT and see if they will respond".

Is there a process to correct your MA estate recovery running tab before you are dead? I suspect the answer is no. The Estate Recovery Unit won't talk to you until you are deceased. I suspect there is no process. (8/2/19: I will report what I find here.) If there is no process, to correct errors, and remove charges from when the Connector erroneously gave you MassHealth, like 2014 for everyone, then everyone has to keep records for their estate, to be argued by attorneys after your death. This would seem to include all people 55 or older of the 321,000 who got that special temporary MassHealth in 2014 when the Connector site was completely non-functional.


The Mandate to carry coverage in MA: It still exists, even though the Federal mandate was stopped effective start of 2019. This raises some issues:

1)The mandate is for pooling of risk, so that people can be insured.

The pooling of risk from the penalty for not carrying coverage encourages healthy people and people not sick now to pick up insurance now, rather than just when they get sick, so that risk is pooled, and the costs people have to pay (premiums plus out-of-pocket), whether they get sick or not, is kept low.

But under current law, Massachusetts make ACA Expanded Medicaid covered people over 55 have to carry coverage, with the penalty, but there is no pooling of risk for them. If they get sick, they have the $700,000 in medical bills for their kids to lose. No insurance at all. Payments taken from estates not even limited to the higher-than-current premiums that on-exchange plans would have with no mandate.

2)There is an argument that it is unethical to force people to carry coverage, including Medicaid or expanded Medicaid if that is all they can afford, when it exposes them to both the risk of capitation payments payed back by their estate even if they use no medical services, and large medical payments paid back by their estates if they get very sick.

Indeed, at start of 2014 in Oregon, as detailed in a 2014 Washington Post article, the Oregon State Medicaid Director said "We needed to take another look at heath insurance coverage from the point of view of it not being a public benefit that's voluntary", and indicated that the estate recovery of non-long-term-care-related expenses would be stopped. And it was. (See my links for Oregon somewhat below for proof.)


Note the issue causes a second big discontinuity in how people are treated, in addition to the more publicized first.

It is somewhat well publicized in that there is an inequity in the ACA, in that people just below 400% of the FPL get subsidized on-exchange plans, net premium capped at around 9.5% of MAGI for second lowest cost silver plan. (See this ref.)

When people cross from below 400% of the FPL to above, the subsidy stops, and this can lead to having to pay $5,000 or $10,000 more for health insurance just due to crossing over--a discontinuity. (I think the Biden 7/2019 proposal fixes this, if I'm not mistaken, with a cap on after-subsidy premium of about 12% for everyone for second lowest cost silver plan.)

The second, less-well-known discontinuity is the estate recovery--my "issue 1". In states which maintain the recovery, people just above 138% FPL get almost-free insurance, that's real insurance. They don't have to pay bills back when they die.

But people just below 138% don't get insurance. They get a loan, and they have to pay back all the expenses when they die, to the extent they have the money.

So, that's a pretty big discontinuity.

The American way of doing things is full of such discontinuities. (See, for example the 2012 CT high-risk-pool rates, $1000 stop-loss plan, here. If you are 60-64, and your income is $32,670 or less for a household of 1, you get the pool coverage for just $1214.14 a month. If your income is a dollar higher, $32,671, you pay $3908.02 a month. So that's a $32,326.56 a year per person discontinuity. That's kind of big.)

But, if you have the ACA expanded Medicaid in most states, and you got sick, to the tune of $900,000, you have a $900,000 discontinuity for going from 137.99% of FPL to 138.01% of FPL. We have to be careful in comparing American-crazy-patchwork discontinuties here, because one is per year, and the other is one-time, but the ACA discontinuity might be record-setting if you got sick enough.

I invite anyone to find examples of even larger discontinuities and send them to me, for fun.


Note the Goofy Effect In States Such as MA Not Correcting: Medicaid Expansion is Actually a Bad Thing for people 100%-138% of FPL

Because, in non-expansion states, people down to 100% FPL get on-exchange plans. For 100%-138% FPL, the insurance is almost free, like expanded Medicaid. And it's real insurance. People don't have to worry about the state coming after their estates for $900,000 at death. (A few other people below 100% FPL for MAGI would be helped as well. Those who take the expanded Medicaid in expansion states, unaware that they have no insurance. People who can afford on-exchange subsidized, say early retirees with assets, will be protected from the noninsurance that they thought was insurance, by the unavailability of expanded Medicaid. And they'll pick up on-exchange subsidized.)

I'm certainly not telling states not to expand Medicaid, because what happens to people 0%-100% of FPL is important. But I note this pernicious consequence of expanding Medicaid. (I think I did spot in Forbes some columnist pointing out that people with incomes 100%-138% are worse off in Medicaid expansion states, trying to fool the people without a grip on the problem into forgetting about the 0%-100% FPL class of people, and thinking it's just an overall bad idea for states to expand Medicaid.)


The Confused Thinking that Has Estate Recovery on a Non-Asset-Tested Benefit

Estate recovery is something that was designed for benefits that are asset tested. The purpose is to take a benefit that a person is only supposed to get if they have very low assets, and make a temporary exception so they can hang on for a while to the asset if is vital to the life of the person, or their spouse, such as a home.

It's awfully bad thinking that it has come to be used on a non-asset tested benefit, ACA coverage, the idea behind which is supposed to be that everyone gets insurance, premium dependent on income, without any kind of asset test, so that everyone is covered.


Added Bonus if You Can Afford to Do It, and Get Real Insurance By Paying Full Price:

If you pay full price for coverage, either on the Connector by checking "I don't want any help paying from the government", or by going directly to an insurer, there can be an added bonus, in MA, besides just having real insurance. Due to coordination issues between the Health Connector and MassHealth, and other inoptimal and excessively inflexible work at the agencies, if your income is anywhere near the 138% FPL crossover between expanded Medicaid and on-exchange plans, you may find your health insurance being switched often, and often unpredictably, and on financially dangerous short notice of like 6 days, between the expanded Medicaid and on-exchange halves of the ACA. There may be coverage gaps at the time of switch, and the switches, since they force a change of provider networks and an undoing of approval of insurer-approved procedures, may impair your ability to schedule medical procedures, etc. If you are sick enough, this could actually kill you.

So, since I can afford it, my recent switch up to unsubsidized on-exchange, though it costs me every year a definite $6K in premiums (for one person), plus up to a $7K a year in copays on the higher copay and stop-loss plan, I get relief from being flailed back and forth between the two halves of the ACA and related complications. In the last year: I've had a forced change of plans 5 times, with short notice, like 6 days, two times (could have wiped me out financially if I had been in the hospital or on vacation), and 50 hours of labor on the phone one particularly difficult time finding a new Medicaid subplan and PCP combination.


Why Medicaid non-long-term-care-related expenses Need Now to Be Treated As Different From Medicaid Long Term Care / Nursing Home Expenses

Because the principle of the ACA is that everyone is supposed to be able to get health insurance (for medical expenses) at a price they can afford. It's a new principle for our country, in effect since 2014. An attempt at progress.

However, we have not established a principle that everyone can get long-term care insurance at a price they can afford. Long-term care / nursing homes is a problem for another day.

(Note that if we allow Medicaid non-long-term-care-related expenses to be estate recovered, then, as I pointed out (a)ACA expanded Medicaid and other non-long-term-care-related Medicaids are not insurance, and just a bomb of a loan for people, and (b) the only alternative to avoid the bomb under the ACA is for people to pay full price for an on-exchange plan. But alternative (b) is not in reach of most people with expanded Medicaid.)

Thus, with the ACA as it is, the Medicaid recovery of non-long-term-care-related expenses winds up perniciously missing its goal: some people get not insurance, but a bomb. It winds up being a case of governments not up to the task having produced an inept, defective solution.

Combining the prior two: Having non-long-term-care-related expense recovery represents a double failure in analysis. Estate recovery does not belong on non-long-term-care-related expenses post-ACA, and it does not belong on anything not asset tested.


Taking Advantage of Expanded Medicaid Recipients when The Federal Government Pays the States 90% of Medical Costs.

Even expanding up to all non-long-term-care-related Medicaids, virtually all of the traditional Medicaids have an asset test. So there will be virtually no assets to collect from non-long-term-care-related Medicaid estates, with the exception of expanded Medicaid. But the state is already getting 90% of costs payed by the Federal Government. Come on.


Beware the false assumption that people under 138% of the Federal Poverty Level have no assets to lose worth worrying about.

Some of the reaction I've been getting to my concerns over the expanded Medicaid recovery is that people under 138% of the Federal Poverty Level pretty much are a class of people who will never accumulate any assets worth mentioning.

I find this to be false, sloppy thinking. Here is a table with 2019 138% FPL cutpoints.

Household of 1: $$17,236 2: $23,336 3: $29,435 etc.

Particularly in people 55 and older, there are lots categories of people who, either for a single year, or a fraction of a year, or a few years, will get expanded Medicaid by virtue of being under that cutpoint.

For example, older rust-belt workers, retraining, or a bit too sick to work full time, or working minimum wage jobs.

Or: people who retired early with modest or substantial savings and pensions. If they don't receive pensions yet, Social Security yet, and don't tap any IRAs yet, they can be living on savings from non-tax-deferred financial accounts. Only income from the non-tax-deferred accounts will count as MAG income, and this can easily be under 138% FPL.

Or: a family of a parent and two children, with the parent working at a minimum wage job. They will be on expanded Medicaid, missing the $29,435 cutpoint.


SOME USEFUL LINKS:

That other Medicaid expansion states have done away with the recovery for non-long-term-care-related Medicaid expenses post-ACA, or did not do it prior and still don't. (Note that the recovery is required for long-term-care-related expenses by Federal law to the extent of probate estates. Non-long-term-care-related is optional, as is the option to recovery from all estates beyond probate estates. As I understand it, a beneficiary arrangement on a financial account makes the account not part of a probate estate, and there is something you can do with a house, but you may not technically own it.)

OR: As detailed in a 2014 Washington Post article, people in Oregon seeing the estate recovery were refusing to sign up for the ACA at ACA start in 2014. The Oregon Medicaid director indicated they were looking at the problem in light of the mandate to carry coverage ("We needed to take another look at heath insurance coverage from the point of view of it not being a public benefit that's voluntary"), and he indicated recovery of non-long-term-care related expenses would be stopped soon.

The resolution mentioned by the Medicaid director did take affect, at ACA start in 2014, as shown this article.

You can also verify this from the Oregon State Estate Recovery document.

WA: Just before the ACA started, the Seattle Times picked up the problem: this article. The problem was resolved, apparently 3 days after the Seattle Times article. This was 7 years ago, just before the ACA went into effect this article.

You can also verify this from the current Washington State Estate Recovery document. You may need to verify that Apple Health is Washington's term for Medicaid, which you can do here.

Here's also the current WA ACA application (see pp. 4 and 12, and the referenced document 182-527-2742 ) .

NY: At ACA start: this NY state government post. See "Estate Recovery" at the bottom of the page. (Thanks to Denise T Rochon for finding this link for me.)

This is confirmed by the text on the NY multipurpose application, which is one way to apply for all Medicaids. On p. 23,

"I understand that effective April 1, 2014, if I get Medicaid through New York State of Health:
No lien will be placed on my real property prior to my death;
Recovery from assets in my estate upon my death is limited to the amount Medicaid paid for the cost of nursing home care, home and community-based services, and related hospital and prescription drug services received on or after my 55th birthday."

NY also has an application for all ACA medical coverage (on-exchange and expanded Medicaid) and some other Medicaids: NY unified health insurance application paper, and you see, on the last 2 pages: no mention of recovery of money at death, because it's not needed under NY State Laws.

CT: Within 6 months of ACA start, retroactive to start, but with holes. (Leaving a small Husky A--adults with dependent children--subgroup, as well as possibly non-negligible Husky C--disabled employees--group, out): Initially reported in April 2014 CT Mirror story here as an interim step while the government formally changes its policy.

An internal CT Department of Social Services document corroborates this, indicated a state plan amendment CT-14-022 will be filed with the feds for Husky D, the new CT Medicaid designed for expanded Medicaid people.

And here we see it on the Federal website, approved on 6/5/14, retroactive to 1/1/14.

You may want to verify what the various CT Medicaid HUSKY programs are. You can do that here. You can see that that Husky A is limited to adults with minor children, so a person 55 or older, the people subject to non-long-term-care-associated estate recovery, would have to have had kids at age 37 or older to be in the group. People do have kids at that age, women and men. The group is not negligible. I don't why they didn't include Husky A. I consider that a mistake or laziness by the CT government. For Husky C, it sounds like some of this is care beyond ACA. But some of it is within the scope of ACA, and it seems like defeating the intent of ACA to estate recover for that within-ACA-scope care. (Also, it is not 100% clear from the website whether a person who does qualify for Husky C and reject it, and get the Husky D.)

(Thanks to Denise T Rochon for much of this.)

MN: That state actually was asset recovering ACA. They were honest enough to send every Medicaid / Expanded Medicaid recipient an explicit notice of intent to collect assets from their estate. This provoked a public outrage, such as this article, and this MN StarTribune editorial and the practice was stopped (here). There is also confirmation of current practices on the MN state site here.

However, there is a valid concern for MN that it may retroactively decide to collect expanded Medicaid medical expenses for current years in the future. Because, on the MN MNSURE application (combined ACA expanded-Medicaid and on-exchange plan), there is one place an explicit statement (adobe p. 28) that that MN must collect nursing-home related expenses (this doesn't mess up ACA), but it also has (adobe p. 21) "If anyone on this application is eligible for Medical Assistance, I have read and understand that the state may claim repayment for the cost of medical care, or the cost of the premiums paid for care, from my estate or my spouse's estate". This seems to indicate MN may be allowing itself the freedom to retroactively decide to collect from estates for current ACA expanded Medicaid recipients, despite not doing it under current procedures. (Thank you Rick Rayburn for pointing this out to me.)

CA: A 2015 story from KQED which was part of the impetus for change: here. And also another 2015 story, from the Orange County Register here. And the recovery was stopped in 2017: this pamphlet. See p. 5. You can also verify this from the California State Estate Recovery document. Also, within this article about MA.

Detail on CA. The CA articles that prompted change dropping of the non-long-term-care-related estate recovery discuss particular cases where an annual premium was taken from the estate, not a catastrophic amount like $900,000 for extensive hospitalization. It is unclear from those articles (all that I could find on search) whether if there would have been extensive hospitalizations, etc., whether those bills, uninsured, would have been passed along to the estate.

It may depend on the particular state, and how it manages its Medicaids. In MA, most definitely, the law says all "payment for all services that were provided", and my understanding is that hospitalizations, etc., and paid directly by MassHealth, and not through an intermediary insurer, plus there may be an annual per-person payment for the primary care provider. Thus, the payment for services would seem to include, or potentially include, the full hospital bills, etc., plus an annual fixed payment to a primary care provider.

The second article, from 2015, also has this quote "But California is among 10 states that seeks repayment beyond the federal minimum, says Anthony Wright, executive director of Health Access California." Since CA and MN have subsequently stopped, it must be at most 8 states that now, in 2019, seek repayment beyond the federal minimum. (The Federal minimum is long term care only.) But, since the quote is from an advocate, we can't count 100% on it being correct.

CO: This document shows that Colorado is no longer doing non-long-term-care-related estate recovery. (See the last column on p. 2.)

PA: Appears not to have had non-long-term-care-related estate recovery pre-ACA, and the status still persists. See this document and this document

Site with some (as of July 2014) by-state data on non-long-term-care estate recovery here. It reports "Currently, 15 of the 26 states plus the District of Columbia, which expanded Medicaid in 2014, target both LTSS and non-LTSS benefits in their estate recovery programs: California, Colorado, District of Columbia, Hawaii, Iowa, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, and Rhode Island."

My own table of by-state non-long-term-care-related Medicaid estate recovery here. (It is not complete, as of 8/2019, but does link to some state documents detailing estate recovery practices which are not on the current page.)


Showing that in 2014, the Obama Administration attempted to have all states not recover non-long-term-care-related expenses to at least the extent of expanded Medicaid enrollees, but apparently lacked the authority.

2014 Health Affairs Tim Jost blog post here. Quoting from the letter sent by the Obama Administration's Center for Medicaid and Medicare Services (CMS), "CMS intends to thoroughly explore options and to use any available authorities to eliminate recovery of Medicaid benefits consisting of items or services other than long term care and related services in the case of individuals who are determined eligible for Medicaid benefits using the MAGI methodology."

It is important to note that the request is limited to MAGI-methodology Medicaid recipients. It's short of what should be the full request, to eliminate the recovery of all services other than long term care and related services. That is, it omits many people who have a non-long-term-care-related services Medicaid that would have existed prior to the ACA. This is what is needed post ACA, where the law of the land should be that everyone gets real medical insurance at a price they can afford. The reason for the limitation to MAGI-methodology enrollees must be that those are the ones for whom the Federal government pays at least 90% of the medical cost, so the CMS figured the states could swing any financial losses.


Showing that in 2017, Governor Baker tried to expand estate recovery (beyond just probate estates) but failed

Expand: here.

Failed this time around: here.

The exact law change that Baker proposed and failed: A Globe commenter, not a lawyer, said it's this: here. (For those interested. I myself have no skill to verify it's the actual proposal, nor to read and see exactly what it entails, since it involves other sections of the MA code.)


Some outrage in general, across all states that permit it, about this estate recovery of non-long-term-care-related expenses under ACA

Huffington Post: here.

Paul Craig Roberts: Although you might, and I do, disagree with Dr. Roberts' general opposition to the ACA (here), and on other issues, his 2014 look at the estate recovery aspect of the ACA here is pretty sharp.

In fact, his detail-oriented Ph.D.-in-economics-level mind has picked up a subtle issue that I thought I was the only one who noticed. The issue that you may apply for ACA thinking you'll get real insurance, because your income is above 138% FPL, (where there is a clause about the medical expenses recovery no matter buried it is) but then in subsequent automatic0by-state-agency processes, you may be thrown down to non-insurance expanded Medicaid, without time to decline the bomb. (This actually happened to me in MA twice in the last year. The first time, for income verification, the MA Health Insurance Processing Center over-rode my honest estimate via straight-line extrapolation of two successive year 1040 MAGIs, and used the year's MAGI. The second time, for expanded Medicaid, updated FPL cutpoints were inserted in May.)

He also mentions that whatever notification is in the fine print of your state's ACA and Medicaid is there because of a federal requirement under 1990s Medicaid law, and your state might not even have put that in there, buried in the fine print, if they didn't have to.

(I certainly wish some of the many other detail-oriented Ph.D.-in-economics-level minds who regularly write columns in the mainstream media would point about this recovery thing, that must affect at least 5 million people--those people 55 and over get some sort of medical-expenses Medicaid. I think Paul Roberts is alone on among that class pointing it out to us.)

MA Resident Richard Hugus writing in 2017 about MA: here.




Some of the Relevant MA Regulations:

This is the link to it, taken from the MA Live post some distance above. (the Health Connector itself, when I asked about if there was disclosure on the on-line application, sent also the same link, on 7/15/2019, so it must be current as of that later date.)

To see the estate recovery part of the code, go to section 515.011 on adobe pp 18-19.

It has: "The MassHealth agency will recover the amount of payment for medical benefits correctly paid from the estate of a deceased member. Recovery is limited to payment for all services that were provided (a) while the member was 65 years of age or older, except on or after October 1, 1993, while the member was 55 years of age or older; ..."

You will see there is an exception (later on below my quoted extract) that they will not recover for MassHealth Standard, so you have to figure out what that is, that it is not the MassHealth that most ACA people get.

It is not: on my brief ACA expanded Medicaid eligibity enrollment, the approval letter said I got MassHealth CarePlus.

Alternatively, if you go to this doc, you see that MassHealth Standard is limited to kids, pregnant women, disabled people, etc. If you go through everything, people getting expanded Medicaid get the MassHealth CarePlus, for which the code provides no exception.

And as I've pointed out, what will be recovered, says the MA law, is "the amount of payment for medical benefits correctly paid", not some kind of premium. $700,000 if the person was sick to the tune of $700,000. That's not insurance. That's a bomb for a person who the state government gave the impression they had health insurance.


Paper MA ACA application (with also an old one, with with "may" instead of "will"):

From BMC health, their file name 3/21/19: here

From the Connector, their date from their file name 6/28/19: here. (This link was not populated when I prepared this page. I used the BMC version. The text I quoted, items (9) and (10), appear identical.)

Note: The application links above are "for help paying costs". There is a different application on paper if you don't want help paying costs. Which is, I guess, how, on paper, you would get an on-exchange unsubsidized plan.

An old paper application from 2015. I caught this has, for item (10), (adobe p. 16), there is one difference only. In 2015, the paper application said may seek recovery. The current application says will seek recovery. (Old 2015 application.) Since Governor Baker came into office January 8, 2015, this could mean MA was not intending to do the non-long-term-care-related- / ACA-expanded-Medicaid- estate recovery under prior Governor Patrick, but decided to switch under Governor Baker, possibly at his direction. (Note his failed attempt to expand recovery beyond non-probate estates in 2017.)


State Legislator Contact:

Find your legislator, if you don't already know who it is, by typing in your address: here.

A link with phone number, email, and contact address will show up. (If you email, don't forget to add your contact info and address.)

Many legislators also have a formal portal for email contact, which is just a form version of email, with spots to fill in your contact info, which sometimes gets automatically done by your browser's auto-fill-in. You can find this by searching on the web for the name of your legislator.)


There are Two Bills Around for MA which would Fix the Problem:

S734, and its House Counterpart H1197. "S734 seeks to limit estate recovery in Massachusetts to the federally mandated costs", (which are basically long-term-care only).

These are the bills
S734 and H1197.

Thanks to Springfield CPA Denise T. Rochon for working on them over the last few years to get them introduced.

7/29/19: The bills are currently under consideration by the MA Joint Committee of Health Care Financing (Joint Committee contact info). The bills are ill-publicized, and are unlikely to pass without your extensive support.


Appearance in the mainstream media is rare. I found nothing in the Boston Globe on search. I caught on video story on the PBS Newshour from a few years ago. (Also, see the WA Seattle Times article and MN Pioneer Press and StarTribune articles and editorial that provoked the correction, above.)

PBS Newhour Story: here.


Legal Reference for All States, beyond MA: That, in general, as state can recover all medical expenses for Medicaid or Expanded Medicaid for people 55 and older if it chooses

This is the clearest. See paragraph 1 here.

This is pretty clear, too. Paragraph 1 here.

This is an nice official source: Medicaid.gov page. (Paragraph 1.)

This is a little muddy. But it's factcheck.org, and people trust that source. Here.

This link clarifies the exact scope of the minimum estate recovery required by Federal law: HHS ASPE Document. It is "Nursing home or other long-term institutional services, home- and community-based services, and hospital and prescription drug services provided while the recipient was receiving nursing facility or home- and community-based services."

That it can be fully all medical expenses to be paid back: Many of the documents I link to talk about "medical expenses" being paid back, and so do some of the laws (e.g the MA recovery regulation). The most explicit I can find on the matter is the current MN ACA application, where, though MN currently does not recover other than long-term-care, they are apparently leaving open the option to retroactively recover, and thus, MN MNSURE application (combined ACA expanded-Medicaid and on-exchange plan ;adobe p. 21) "If anyone on this application is eligible for Medical Assistance, I have read and understand that the state may claim repayment for the cost of medical care, or the cost of the premiums paid for care, from my estate or my spouse's estate". (Thanks to Rick Rayburn for this reference.)

Also, as a technical detail, note that after the state does the recovery, it is split between the Federal government and the state by some formula. (Thank you Rick Rayburn for pointing this out to me.)


A quote:

When the MA government is effectively tricking a ton of expanded Medicaid and Medicaid recipients to think they have insurance, when they really don't, and do often have alternatives if only the government would not trick them, I am sadly inclined to bring up that this a case of apparent truth in the Reagan quote: "The most terrifying words in the English language are: I'm from the government and I'm here to help." (here).


Some People are Definitely Misreporting What's Happening in MA with Health Insurance:

Here it says only 3.3% of people in MA are uninsured. That's false. About 1/4 of the people in MA have some form of MassHealth for non-long-term-care-related expenses. Perhaps 1/5 of those are 55 and older. So 5% of people in MA have "a loan until death for uninsured medical expenses". I get 8.3% uninsured for MA. WA, CA, OR, MN all have real insurance for all of ACA. They have WA 7.1%. CA 8.1%. OR 8.2%. MN: 5.1%. They all beat us. Minnesota is the winner.:


Another Page of Mine, Where I Try to Collect a General List of ACA Problems for consideration in repair or replacement.

Here. There's a lot of overlap with the contents of this page. I add a few things, like a counter to what some people have asserted to me: that people who get expanded Medicaid are overwhelmingly people who are never going to be able to save anything, and therefore the estate recovery for ACA expanded Medicaid won't hurt anyone. (I find it a very harmful and intellectually clumsy oversimplification.)


Some Other Notes about the ACA as administered in MA:

1)I'm still finding excessive technical problems, even now, under late Baker, with the "New Health Connector".

I have particular serious issues that seem to come from having a MAGI right now that is near the 138% dividing line from ACA expanded Medicaid to on-exchange plans.

I believe these problems were preventable.

Let me illustrate with my coverage history here in MA, where, in the 12 months through Aug 2019, I have been switched 4 times. With serious problems many of those times.

1):Around 10/2018: Continued On exchange, subsidized. (The MA exchange requests people update income pre-open-enrollment. The exchange software accepts my honest estimated future income, above 138% FPL, and continues my on-exchange subsidized plan which I had had for several prior years.)

2)Around 11/2018: -->Expanded Medicaid: (the MA agencies asked for my 1040s to verify income. They insist on using last 1040 MAGI, and not my reasonable estimate. The number they use is below 138% FPL.)

The switch is on dangerously short notice. If I were in the hospital, or on vacation, I could have been bankrupted. (E.g. in in-network hospital, approved procedures, in-network surgeon and anaesthesiologist. When I get out of the hospital, I see the notice in my mail that I had a new plan, and in-network and approved procedures are out-of-network and unapproved for the new plan.)

There is an additional, subtle issue with the short notice change which exists because the change happened when the MA agencies over-rode my own honest estimate of future income. When I applied, I believed I would be getting on-exchange insurance, which is real insurance, with no recovery. I got that insurance temporarily, after plugging in my numbers at the Connector website. But then, the MA agency disagreed, and, without giving me an option to switch to real-insurance on-exchange non-subsidized, for maybe $1000 a month, it gave me a bomb of a plan, that I could not change quickly, where, if I got really sick in the first month, I'd owe the state of MA maybe $800,000 at death.

3)Mar 2019: -->On exchange, subsidized: I do my 2018 1040 in Feb, notice the MAGI on the last 1040 is 138.9% FPL. I see that the 138.9% would cause two future churns, down in Jan 2020, and up in Mar 2020, and use a straight line extrapolation estimate, which was about 150% FPL. I put the number into the exchange website, and thus, on-exchange, subsidized.

The MA agencies request verification of income. I see the potential two churns. With my last two 1040s, I beg them to avoid two churns, and use the extrapolation of 150%, rather than the 138.9% from the last 1040. I point out that if they think my income is lower than what I am asking them to use, it just means I pay more. (Lower advance of subsidy.) They insist on last 1040, and continue, for now, my on-exchange, subsidized.

4)June 2019: -->Expanded Medicaid. (As a complete surprise to me, the MA Medicaid department reran its eligibility program in May 2019, with FPL values about 2% higher than they did in Feb.)

The switch is on dangerously short notice, just like switch (2). I received a notice in the mail on 5/25/19 that the last day of my on exchange coverage would be 5/31/19.

This short-notice switch, besides the financial danger, was a bit physically dangerous, because I was sick when they did it, and physicians were trying to diagnose the problem. There was a gap of four days where I had no network of providers.

It also worked that the Medicaid subplan that my PCP told me they were in, the only one they were in, Partner's Healthcare Choice, could not find the PCP in its database. Even after I got the National Provider Index (NPI) of my PCP for Partners. They had to spend a fews days arguing it out, and consulting agencies. Meanwhile, since the notice was so short, and I was sick, I had to in the meanwhile try to piece together an alternate PCP with one of the 9 Expanded Medicaid subplans. And then the subplan databases when queried by name were inaccurate, and I had to go calling every provider's billing office to get the more reliable NPI.

So, for this switch, the find-a-provider took 50 hours.

5)Aug 2019: -->On exchange, unsubsidized. (This one I initiated myself. To have real insurance, not just a loan for uninsured medical services until death, and also to avoid future short-notice churns, which apparently cannot be controlled.)

When I inquired about doing this hopefully last switch with the MA exchange ombudsperson office (the most knowledgeable people around the Connector for customer service), they told me they are completely separate from the Medicaid agency, and couldn't say whether my Expanded Medicaid would be dropped before my new coverage kicked in.

I had to call the MA Medicaid ombudpeople, who didn't know, but they thought there was a person at a non-profit who might know. The person did know. She told me I had to make the change in the on-line website no sooner than the 18th of the month, and pay no later than the 22nd of the month. I did this. I am in the middle of the process, waiting for the new on-exchange unsubsidized. I hope what she told me was correct, and there is no gap in coverage.

I've noted the procedures that the Federal exchange apparently uses are different than those that the MA Health Connector used, and might have, but would not necessarily have, avoided the pair of short-notice loss of an on-exchange-policy being relied on that I reported on in (2) and (4).

Note: The Federal exchange will not explicitly cancel an on-exchange policy upon approval of the applicant for Medicaid by the state Medicaid agency, but rather will wait for the applicant to explicitly cancel it. (If the on-exchange policy is not explicitly cancelled, the Federal exchange will keep the on-exchange plan in effect, but will withdraw the subsidy. See this Healthcare.gov page and this Healthcare.gov page.) The non-cancellation might seem to have avoided the loss of coverage, but there still could have been an issue of eventual cancellation while away due to insufficient funds in the bank account to which autopays were withdrawn, due to the loss of subsidy.


A LINK RELATING TO WHETHER MA COULD DO BETTER ON THE ISSUES THAT I'VE HAD IF IT HAD BETTER SYSTEMS AND REGULATIONS:

This 2011 document, from the just after the ACA was passed, but before it was implemented, showing the Federal government and states trying to prepare for and deal with coordination-between-halves issues.

I haven't read it all.

I did notice, on p. 6, text alerting the states about coordination issues, giving them some flexibility to craft skillful rules, and hoping they use the flexibility to "prevent coverage gaps and minimize individuals cycling between programs". (It seems to me that MA may have failed here.)

"Although MAGI is determined on an annual basis, states still must determine Medicaid eligibility based on income as of the point in time of application. Thus, initial Medicaid eligibility for new applicants and other individuals not receiving Medicaid at the time of their eligibility determination will continue to be based on the current income actually available to an individual in a given month. For current Medicaid beneficiaries subject to MAGI, CMS proposes that states may elect to base financial eligibility determinations on either current monthly income or projected annual income, taking into account reasonably anticipated changes in income. Actual changes in income still must be reported by applicants and beneficiaries and acted upon by the state Medicaid agency. The option to rely on projected annual income for current beneficiaries enables states to align Medicaid income counting rules with the rules used to determine eligibility for premium tax credits through the Exchanges. This would, if adopted by states, prevent coverage gaps and minimize individuals cycling between programs."

Obviously, the stated goal "prevent coverage gaps and minimize individuals cycling between programs" could be impossible if Federal rules in fact make it impossible. Not knowing the exact Federal rules binding people, I can't say for sure. Seeing the flexibility in the quoted text, and seeing the problems that occured, I am inclined to believe the state could have done better. (But, perhaps, the complexity of the ACA, with the division into two halves, and with pre-existing Medicaids as well, makes the whole thing so complicated that 50 states can't be expected to have the resources to manage it. That would mean the whole system has to be overhauled Federally, to make it like Canada or the UK, to get the bugs out.)

There were some other articles, as well. Including this 2010 document, by Tim Jost (See "administering subsidies and mandates" on adobe p. 6.)


-->Let me be clear that the ombudspeople at both agencies, particularly the Connector, have helped me a lot, very conscientiously, with recent issues. They are conscientious and able, and unlike a few of the customer service representatives I've dealt with at the agencies, they have the ability to figure out that they don't know something, and will tell you that.

There are still excessive limits to what those ombudspeople can do, apparently due to higher levels of management at the agencies, or elsewhere in the state goverment.


-->I did catch in my new autopay setup today (7/19) that they fixed the very uninspired way they were doing it -- collecting all autopays, including the first, on the 22nd of the month. Because, when you put in your autopay information, you really want to make sure everything is set up to go through correctly as soon as possible, before it is too late, and when you might be out of town.

So they do have it much better, now. The first autopay is done like a day after you enter it. The autopay process could possibly be improved by allowing subsequent autopays to be on an arbitrary selectable date before the 22nd, in case one accidentally has too little in the account, etc., to allow time to correct and get money in the account. (I think there is probably at least a one-month grace period for all on-exchange plans as long as the first payment is on time, though.)




CONTACT INFO: email: normanaspier@gmail.com

Repeat of Disclaimer: I'm not a lawyer. Check info with lawyers or by other methods before relying on it.