Medicaid Estate Recovery

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Medicaid Estate Recovery

• Current Protections for Certain Indian Property
  from Medicaid Estate Recovery
•  
•  
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• COB/TPL Technical Advisory Group Webinar
• October 2009

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BACKGROUND 

• Certain American Indian/Alaska Native income,
  resources, and property have been exempt from
  Medicaid estate recovery since April 1, 2003.
• Specific exempted income, resources and property
  are listed in the State Medicaid Manual at
  section 3810.A.7.
•  
• Section 5006(c) of the American Recovery and
  Reinvestment Act of 2009, Public Law 111-5,
  amends section 1917(b)(3) of the Social Security
  Act (the Act) to incorporate

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• incorporate the State Medicaid Manual text into
  the Act by reference.
• This amendment is effective July 1, 2009.

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INCOME, RESOURCES, AND PROPERTY EXEMPTED FROM
MEDICAID ESTATE RECOVERY FOR AMERICAN INDIANS AND
ALASKA NATIVES 

• Certain income and resources (such as interests
  in and income derived from Tribal land and other
  resources currently held in trust status and
  judgment funds from the Indian Claims Commission
  and the U.S. Claims Court) that are exempt from
  Medicaid estate recovery by other laws and
  regulations
•  

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• 2. Ownership interest in trust or non-trust
  property, including real property and
  improvements
• Located on a reservation (any federally
  recognized Indian Tribes reservation, Pueblo, or
  Colony, including former reservations in
  Oklahoma, Alaska Native regions established by
  Alaska Native Claims Settlement Act and Indian
  allotments) or near a reservation as designated
  and approved by the Bureau of Indian Affairs of
  the U.S. Department of the Interior or

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• For any federally-recognized Tribe not described
  in a, located within the most recent boundaries
  of a prior Federal reservation.
• c. Protection of non-trust property described
  in a and b is limited to circumstances when it
  passes from an Indian (as defined in section 4 of
  the Indian Health Care Improvement Act) to one or
  more relatives (by blood, adoption, or marriage),
  including Indians not enrolled as members of a
  Tribe and non-Indians, such as spouses and
  step-children, that their culture would
  nevertheless protect as family

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• members to a Tribe or Tribal organization
  and/or to one or more Indians
• Income left as a remainder in an estate derived
  from property protected in 2 above, that was
  either collected by an Indian, or by a Tribe or
  Tribal organization and distributed to Indian(s),
  as long as the individual can clearly trace it as
  coming from the protected property.

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• Ownership interests left as a remainder in an
  estate in
• rents, leases, royalties, or usage rights
  related to natural
• resources (including extraction of natural
  resources or
• harvesting of timber, other plants and plant
  products,
• animals, fish, and shellfish) resulting from the
  exercise of
• Federally-protected rights, and income either
  collected by
• an Indian, or by a Tribe or Tribal organization
  and
• distributed to Indian(s) derived from these
  sources as long
• as the individual can clearly trace it as coming
  from
• protected sources and

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• Ownership interests in or usage rights to items
  not covered by 1-4 above that have unique
  religious, spiritual, traditional, and/or
  cultural significance or rights that support
  subsistence or a traditional life style according
  to applicable Tribal law or custom.

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DEFINITION OF AN INDIAN IN THE INDIAN HEALTH CARE
IMPROVEMENT ACT, PUBLIC LAW 94-437 As Amended
Through November 1, 2000

• Section 4(c) Indians or Indian, unless
  otherwise designated, means any person who is a
  member of an Indian tribe, as defined in
  subsection (d) hereof, except that, for the
  purpose of section 102 and 103, such terms shall
  mean any individual who (1) irrespective of
  whether he or she lives on or near a reservation,
  is a member of a tribe, band, or other organized
  group of Indians, including those tribes, bands,
  or groups terminated since 1940 and

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• those recognized now or in the future by the
  State in which they reside, or who is a
  descendant, in the first or second degree, of any
  such member, or (2) is an Eskimo or Aleut or
  other Alaska native, or (3) is considered by the
  Secretary of the Interior to be an Indian for any
  purpose, or (4) is determined to be an Indian
  under regulations promulgated by the Secretary.
• Section 4(d) Indian tribe means any Indian
  tribe, band,
• nation, or other organized group or community,
  including any
• Alaska native village or group or regional or

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• village corporation as defined in or established
  pursuant to the Alaska Native Claims Settlement
  Act
• (85 Stat. 688), which is recognized as eligible
  for the special programs and services provided by
  the United States to Indians because of their
  status as Indians.
• Sections 102 and 103 pertain to the health
• professions recruitment program for Indians
  and
• the health professions preparatory scholarship
• program for Indians and are not relevant to
• Medicaid estate recovery.

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• This definition applies to circumstances when
  non-trust
• property described in 2.a. and 2.b. above
  passes from an
• Indian to one or more relatives and/or to one
  or more
• Indians.

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For Additional Information, Contact

• Centers for Medicare Medicaid Services
• Barry Levin [phone]
• Barry.Levin_at_cms.hhs.gov
•  
• Nancy Dieter [phone]
• Nancy.Dieter_at_cms.hhs.gov
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•