What is “estate recovery”?
When a Medicaid-recipient dies, Medicaid may seek reimbursement from his or her estate for the benefits paid on his or her behalf. This is known as “estate recovery”. Each state has rules detailing how, and to what extent, such recovery is possible.
Historically, NY limited estate recovery to probate assets
Until 2011, New York limited such recovery to the Medicaid-recipient’s probate assets — i.e., only those assets titled solely in the Medicaid-recipient’s own name. Other assets — including assets held jointly with another person, a “life estate” reserved in a deed, and assets held in revocable and irrevocable trusts — were excluded from estate recovery.
New rules and regulations expanded estate recovery
On April 1, 2011, New York enacted “expanded” estate recovery rules. These new rules were made subject to regulations that were to be enacted by the New York State Department of Health, and on September 8, 2011 the Department of Health finally enacted these much-anticipated regulations. The regulations were actually enacted as “emergency regulations”on an expedited basis, with a built-in expiration date if not extended or otherwise converted into permanent regulations. then, on September 26, 2011, an Administrative Directive was issued by the New York State Department of Health to clarify the scope of the regulations.
These new rules and regulations expanded the definition of “estate” to specifically include as assets subject to estate recovery those owned by the decedent “through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement, to the extent of the decedent’s interest in the property immediately prior to death” (emphasis added). Both the expansion into these categories of assets, and the express wording “immediately prior to death”, were quite significant. As explained below, they were also very troubling.
For example, a very popular planning tool is the use of a life estate in a deed for the primary residence. It is a powerful tool because it accomplishes a number of things, notably: (1) it removes the property from the Medicaid-applicant’s name; and (2) the life estate causes the tax basis in the real estate to be “stepped up” to the Fair Market Value upon the Medicaid-recipient’s death, thereby saving tens of thousands — even hundreds of thousands — of dollars in capital gains tax once the Medicaid-recipient dies. As you might imagine, the life estate deed — which is relatively easy, quick, and inexpensive to implement — has been very popular and widespread as a planning tool.
In New York, the theory was that a life estate extinguishes at the moment of death, so that there is nothing for Medicaid to put a lien on or pursue after the Medicaid-recipient’s death. But once the definition was expanded to include life estates and the value of the life estate “immediately prior to death”, Medicaid intended to pursue recovery against the life estate. Consequently, whereas before the critical calculation was the value of the life estate based on the life expectancy of the recipient at the time of the deed transfer, now the key concern became the amount recoverable, which is the value based on the Medicaid-recipient’s age just prior to the moment of death.
The problems with the new rules and their enforcement
Right from the start, the new rules were opposed based on constitutional and other legal grounds — in fact, the New York State Bar Association filed a lawsuit challenging them. Among the problems with the new rules:
1. There was no clear effective date and no grandfathering. Children who had real estate transferred to them by their parents years ago could have faced the dilemma of reimbursing the State for care provided to their parents decades after the transfer was done, even if the property was no longer owned by the family and even if the proceeds (if any) were long gone. Similarly, the parents and others who did their planning under the laws that were in effect at the time of the transfers, could have had all their planning — even if done decades ago — unraveled by the new law;
2. The duration of the Medicaid Lien was not stated;
3. Title companies could have had many problems and possible financial exposure stemming from the ensuing title issues.
Due to the pressure from the Bar Association, and the problems and inconsistencies pointed out, the regulations were not extended, were not made permanent, and instead were allowed to expire after December 6, 2011.
Expanded estate recovery is repealed
Finally, on March 27, 2012, New York repealed the regulations that had expanded the definition of “Estate” for Medicaid recovery purposes; therefore, the old rules governing estate recovery now remain in effect and life estates are no longer vulnerable to recovery.
While this outcome is a relief for seniors and their families in New York, and brings the law back in line with established constitutional and legal principles, it is fair to conclude that the “writing is on the wall” that Medicaid will be tightening up and the legislature will learn from this misadventure. Future laws will surely have a grandfathering provision and will adhere to established law. The recommendation is clear: Do your planning now, while it is still possible.
 As part of the New York State 2011 budget legislation, Chapter 59 of the Laws of 2011, Medicaid estate recovery was expanded, amending the definition of “Estate” in Section 369(6) of the Social Services Law.
 The Regulations at 18 NYCRR 360-7.11 were amended, effective September 8, 2011, to implement this change.
 11 OHIP/ADM-8, made effective as of September 8, 2011,”Expanded Definition of Estate for Medicaid Recoveries”, regarding enforcement of the regulations and the method to use in evaluating life estate interests.
 GIS 11 MA/028 provided: “This GIS is to inform local districts that effective 12/6/2011, the revised regulation at 18 NYCRR 360-7.11 that implemented the expanded definition of estate for Medicaid recovery purposes expired. Effective immediately, districts must not include assets that pass outside of the probate estate as part of the decedent’s estate for recovery purposes.”
 Governor Cuomo and the State Legislature agreed upon the New York State Health Budget Bill for 2012-2013, which repeals the expanded definition of a Medicaid recipient’s “estate”.