Can DHS or county agencies answer questions about estate planning?

No. DHS and county agencies cannot answer “What if…?” questions about possible estate recovery or liens. DHS and counties are government agencies whose role prohibits them from giving legal advice to the public. Answering questions about how hypothetical future events may affect estate recovery or liens is legal advice.

Who can answer my questions about estate planning?

Private attorneys and legal aid attorneys can answer questions about estate planning.

Whom does estate recovery apply to?

Estate recovery applies to Medical Assistance members who:

• At 55 years old or older, receive Medical Assistance long-term services and supports (LTSS)
• At any age permanently reside in a medical institution and receive MA services

If either of these situations occur, a local agency must claim against an estate after the member dies to recover what Medical Assistance paid for LTSS. In addition, if the member was permanently institutionalized, the claim must attempt to recover the costs of all Medical Assistance services (not just LTSS) that the member received during the period of institutionalization.

What are long-term services and supports (LTSS)?

For the purpose of Medical Assistance estate recovery, LTSS are the following:

• Nursing home services
• Home and community-based services:
  • Alternative care (AC)
  • Brain injury (BI)
  • Community alternative care (CAC)
  • Community access for disability inclusion (CADI)
  • Developmental disabilities (DD)
  • Elderly waiver (EW)
  • Home care nursing
  • Home health aide services
  • Medical supplies and equipment
  • Personal care assistance (PCA)
  • Physical therapy, occupational therapy and speech therapy, when the service is provided by a home health agency
• Hospital and prescription drug services received during the time the MA member was provided nursing facility services or home and community-based services

If a member receives any of these LTSS at 55 years old or older, the cost of these LTSS can be recovered from the member’s estate after the member dies.

If a member permanently resided in a medical institution at any age, the cost of all Medical Assistance services received during the period of institutionalization, not just the cost of LTSS, can be recovered from the member’s estate after the member dies.

Is Medical Assistance managed care subject to estate recovery?

When does estate recovery happen?

Generally, estate recovery happens after a member dies. But, local agencies delay recovery if the deceased member is survived by a spouse or has a child who is under 21 years old, blind or permanently disabled.

Once a deceased member’s surviving spouse dies, local agencies are required to recover Medical Assistance costs from the spouse’s estate. But recovery can be further delayed if a child who is under 21 years old, blind or permanently disabled is still living in the home when the surviving spouse dies.

Can estate recovery happen before a Medical Assistance member dies?

How does estate recovery happen?

Generally, local agencies make a Medical Assistance estate claim when the property of a deceased person is being distributed after death. Sometimes this happens in a court setting, but sometimes it does not.

Why can a local agency recover from the estate of a spouse who survived a Medical Assistance member?

Federal and state law require local agencies to try to recover from the estate of a surviving spouse.

This requirement comes out of a protection for the surviving spouse of a deceased Medical Assistance member. When a member dies, local agencies cannot collect on an estate claim if a spouse survives the deceased member. If the surviving spouse receives assets from the deceased member’s estate, the surviving spouse can use the assets without having to repay Medical Assistance for the deceased member’s health insurance costs while the surviving spouse is still alive.

Once the surviving spouse dies, though, a local agency can claim against the surviving spouse’s estate for repayment to the Medical Assistance program.

Do the children of an Medical Assistance member have to pay back what Medical Assistance paid for their parent’s care?

No. An member’s children do not have to use their own assets to reimburse the state for any Medical Assistance services the member received.

Local agencies that recover on an Medical Assistance estate claim do so with priority over distributions to heirs. This means that Medical Assistance should be repaid before heirs receive assets from the estate. Repayment of Medical Assistance costs ensures that future members have funding to receive health care services.

Does estate recovery apply to MinnesotaCare?

Whom do liens for Medical Assistance repayment apply to?

Liens for Medical Assistance repayment apply to two main populations of MA members:

• First, liens may apply to members who permanently reside in a medical institution. For this situation, DHS may file a lien called an “Medical Assistance lien.”
• Second, liens apply to members who receive LTSS at 55 years old or older. For this situation, DHS files a lien called a “notice of potential claim” (NPC).

What types of liens does DHS file?

DHS files two types of liens to secure repayment of Medical Assistance: Medical Assistance liens and notices of potential claim (NPCs). Medical Assistance liens and NPCs have different impacts on members and their estates.

Medical Assistance liens

An Medical Assistance lien is a lien filed against a member’s real property interest before the member dies to secure repayment of all Medical Assistance costs of the member’s permanent stay in a medical institution. The lien allows DHS to collect on the Medical Assistance lien when real property is sold or transferred, which may happen before or after the member dies.

DHS files Medical Assistance liens only after a member enters a “medical institution,” and the member’s attending physician, advanced practice registered nurse or physician assistant certifies in writing that the member is never expected to be discharged and return home.

Medical institutions include the following:

• Nursing facilities
• Skilled nursing facilities
• Intermediate care facilities
• Intermediate care facilities for people with developmental disabilities

An Medical Assistance lien is enforceable for 10 years from the date of its filing. DHS may renew the lien for another 10 years.

NPCs

An NPC is a lien filed against a member’s real property interest to secure repayment of Medical Assistance costs subject to estate recovery. DHS can file an NPC before, or within one year after, a member’s death.

An NPC is not a lien until the member dies. Until the member dies, the NPC serves only as notice that an Medical Assistance estate claim could be made against a specific interest in real property in the future.

NPCs are enforceable for 20 years from the date of filing, or from the date of the member’s death, whichever is later.

Can DHS collect on a lien before a Medical Assistance member dies?

Yes, DHS can collect on an Medical Assistance lien before a member dies, but only for a member permanently residing in a medical institution.

Even if a member is permanently residing in a medical institution, the law prohibits DHS from filing a lien against the member’s real property in certain situations. For example, DHS cannot file a lien against the member’s real property if the property is the home of the member’s spouse.

Also, DHS cannot file a lien if a child who is under 21 years old, blind or permanently disabled lives in the home or if a child, who provided documented care that kept the member in the home and out of a nursing home for two years while living in the home, lives in the home.

Does DHS file liens against estates?

No. Because a deceased person’s estate can include many assets that are not real property, DHS does not file liens against a person’s “estate.” DHS files liens only against real property that may or may not be included in a person’s estate.

Do liens apply to MinnesotaCare?

No. MinnesotaCare is not the same program as Medical Assistance and liens do not apply to MinnesotaCare.

If I move into my parent or grandparent’s house to take care of them, can DHS put a lien on the house?

If the member dies and a caretaker child has continuously lived in the home since at least two years immediately before the parent's or grandparent's institutionalization and proves that the child provided care that permitted the parent or grandparent to reside at home rather than in an institution, then estate recovery on the home will not happen until the child moves out of the home.

If the member is still living, and the child (but not grandchild) meets the criteria in the previous paragraph, DHS will not put a lien on the home while the member is alive. Eligibility criteria may allow the member to give the house to the caretaker child, if certain criteria are met.

After the member passes away, DHS will place a lien on the home, but the child or grandchild may continue to reside in the household and neither DHS nor local agencies will recover on the home until the child or grandchild no longer lives in the home.