Changes in the Medicaid Law Over Time

We have seen Congress attempt to restrict Medicaid planning through the years.

COBRA, OBRA ’93 and the current attempt, the Deficit Reduction Act, are the major congressional changes since I have been practicing law.

Janice Chapin and I have discussed these numerous changes in our ICLE programs, particularly the Final Medicaid Regulations Finally, Hot Topics in Medicaid Planning, and The Impact of the Final Medicaid Regulations on Planning.

As I am not a constitutional lawyer, I do not feel that I can comment on the constitutionality of a federal statute. However, the most egregious changes have occurred in the Deficit Reduction Act (except for a limited time when Congress actually attempted to eliminate the possibility of a lawyer giving Medicaid advice, struck down on First Amendment basis) in that a transfer is deemed to be made not on the date the property is shifted, but rather at the date when the applicant would be “otherwise eligible” for Medicaid but for the transfer. Examples that would ruin the “otherwise eligible” requirement would be prior transfers or a non-excludable home.

The 60-month look-back (Post 15) is terrible in itself, but the problem is that it catches all transfers during the time period and moves them to the above-forward date.

Perhaps more important than the federal changes are the state regulations. Reference is the aforementioned ICLE publication, the Final Medicaid Regulations Finally. As mentioned in a prior blog, the book basically discusses New Jersey’s Medicaid law under OBRA ’93 and its violation of the federal law (i.e. federal pre-emption).

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 98