CMS responded evasively to the concerned citizen's question. CMS claimed that the Health Insurance Marketplace application at healthcare.gov does not disclose Medicaid's right to claim against the estate, because CMS wanted to provide flexibility to state Medicaid agencies as to how each one notifies applicants about estate recovery. Some states have developed pamphlets to address common estate recovery questions or devote a portion of a general Medicaid pamphlet to the subject. Some states also post their state plans, perhaps with additional explanatory text, on their web sites.
Even if we take this claim at face value, it reflects a cavalier attitude. As health insurance is mandated with low-income earners and the very poor having no alternative to Medicaid, certainly those subject to estate recovery have a right to be notified in advance of being herded into this insurance plan.
It is well worth knowing about estate recovery before you sign up at an Obamacare exchange so you can make an informed choice as to whether or not you want to get trapped in this Byzantine sinkhole or steer clear, particularly if you think your income may relegate you to coverage under Medicaid now or in the future. Unfortunately, it appears that CMS as well as some of the state-based exchanges, such as Covered California, decided you don't deserve to know about this particular term of the Medicaid contract when you apply and sign on the dotted line. So, as of this writing, there is no mention of estate recovery on the Obamacare application at healthcare.gov that services residents of the 36 states which use the federal exchange nor for Californians, residents of a state with a robust estate recovery program! Some states disclose estate recovery on their state exchange applications for Obamacare, and others do not.
Non-disclosure of estate recovery on an Obamacare application does not mean that the state in which you reside will not bill your estate for the cost of your medical treatment under Medicaid. It merely means that a conscious choice was made not to let you know that one consequence of signing up for Obamacare could be the loss of your home.
There are a few states that recover for long-term care only. It would be in your best interest to find out your state's recovery policy so you know where you stand. You should also remain alert to changes.
Here is what you need to know:
When you complete the application at healthcare.gov, it is assumed that when you submit it, you are fully informed and agree to all terms. Submission of the application is akin to signing a contract. Your signature not only means you have provided true answers to all the questions under penalty of perjury, but also that you understand and agree to all the rules and conditions. However, by not disclosing estate recovery CMS expunged your right to make an informed decision. Therefore, you may not realize that your estate can become government property because Obamacare forces you into Medicaid if your income is less than the threshold for a subsidized premium.
When you sign a loan note at a bank, you are agreeing to the terms and conditions of the contract between you and the bank, and these are disclosed in the note. The banker doesn't say to you, "Just sign here and we'll let you know the terms later. You can pick up a pamphlet at our local office or request that one be mailed to you. Or, you can visit our website and see if you can find the page that tells you what you just signed yourself into. Thank you. We appreciate your business."
Even if your circumstances change such that you are no longer eligible for Medicaid and you are shifted into a subsidized Obamacare plan, any Medicaid expenditures you incurred remain as claims on your estate.
According to the federal procedural rules, the state should notify Medicaid recipients about the estate recovery program during their initial application for Medicaid eligibility. Initial is the operative word. It does not mean after an individual has been put into Medicaid. Since healthcare.gov is the initial point of contact for applicants who reside in one of the 36 states using the federal exchange, there is no legitimate excuse for nondisclosure of estate recovery. Healthcare.gov is where the buck stops. The application should contain notification of estate recovery. The same is true for state-based exchanges that omitted this disclosure on their Obamacare applications.
Like terms of a contract, laws are supposed to be known. In Western civilization people are not supposed to be accountable to secret laws or to secret clauses in contracts that they sign. Clearly, if Western legal practice holds, estate recovery is impermissible due to the lack of notice. Only the corrupt architects of Obamacare believe that it is fair to confiscate the assets of an individual or a family without notification that the health care they receive can be charged to their estate.
Liens
Some state-based exchanges requested permission from CMS to add information to their application and chose to include disclosure of estate recovery. The Massachusetts Health Connector application not only includes disclosure of estate recovery, but also goes above and beyond, notifying applicants of liens. "To the extent permitted by law, MassHealth (Medicaid) 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 that property and it is sold, money from the sale of that property may be used to repay MassHealth for medical services provided."
There are pre-death liens and post-death liens, and whether or not placement of a lien is disclosed on an Obamacare application, this practice is permitted in all states. For more on liens, you should consult an attorney -- if you can afford one -- or seek information online. It's not pretty.
Renewal Of Coverage and Auto-enrollment
Note that Obamacare applications contain a section titled Renewal of Coverage in Future Years. An applicant can agree to allow an exchange to use income data, including information from tax returns to automatically renew eligibility for 1, 2, 3, 4 or 5 years, or applicants can check "Do not use information from tax returns to renew my coverage." Exchanges have access to the federal data hub which keeps track of your income and other personal data. If you gave unfettered access to your data by choosing auto-renewal, they have all the information needed to determine whether you are still eligible for your subsidized policy or should be moved into Medicaid.
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