Medicaid Liens, Recoveries, and Transfer of Assets after TEFRA
![handle is hein.journals/clear18 and id is 136 raw text is: Medicaid Liens, Recoveries,
and Transfer of Assets After TEFRA
by Gill Deford
Introduction
Prior to September 3, 1982, the federal Medicaid statute
strictly limited the states' right to impose liens on the property
of Medicaid recipients and to attempt to recover the cost of care
provided.' Similarly, only a year before, states were first given
the right to impose transfer of assets rules.2 Before that, federal
law had been interpreted to prohibit the imposition of such
rules; in practice, however, many states did employ these rules
despite the absence of a specific federal law on the issue.3
With TEFRA, though, Congress has
established in detail the right of
states to impose liens, to recover for
the cost of care, and to punish those
who attempt to avoid these events by
disposing of their assets.
With TEFRA, though, Congress has established in de-
tail the right of states to impose liens, to recover for the cost of
care, and to punish those who attempt to avoid these events by
disposing of their assets. It is no coincidence that the three
methodologies were passed and codified as part of the same
subsection of TEFRA,4 for they are complementary parts of a
whole, intended to ensure that the property is held onto by the
recipient until the state has an opportunity to take its bite at the
apple.5
The complexity of these provisions, both for advocates
of the poor and state officials attempting to apply them, has
created considerable confusion. This confusion has been in-
creased by the Health Care Financing Administration's (HCFA's)
refusal, in the three and one-half years since the Boren-Long
Amendment was passed, even to propose Medicaid transfer of
assets regulations.6 Even with the regulations such as those
promulgated immediately for the new lien and recovery rules,7
the area is especially complex. This article will simply detail
what the statutes and regulations appear to say and offer some
comments on their effect. In addition, the article will analyze
some potential problems that may prompt litigation if a state
makes the wrong interpretation.
3. (cont'd).
The author, Gill Deford, is a staff attorney at the National Senior
Citizens Law Center, 1636 W. Eighth St., Suite 201, Los Angeles, CA
90017.
I. See Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA),
Pub. L. No. 97-248, § 132(d), 96 Stat. 324, 373 (1982), the
effective-date provision for the portions of TEFRA under discussion.
2. See Pub. L. No. 96-611, §§ 2, 5(b), 94 Stat. 3566, 3568 (1980)
[hereinafter referred to as Boren-Long.]
3. See, e.g., Caldwell v. Blum, 621 E2d 491 (2d Cir. 1980), cert.
denied 452 U.S. 909 (1981); Dokos v. Miller, 517 F Supp. 1039
(N.D. I11. 1981); but see Synesael v. Ling, 691 E2d 1213, 1215
(7th Cir. 1982), cert. denied, 103 U.S. 3092 (1983) (implying that,
prior to Boren-Long, section 209(b) states could employ transfer
prohibitions).
4. Pub. L. No. 97-248, § 132(b), codified as 42 U.S.C. § 1396p(a)
[liens], (b) [recoveries], (c)[transfer of assets].
5. See 47 Fed. Reg. 43644 (Oct. 1, 1982) [hereinafter cited as 47
Fed. Reg. 43644].
6. By contrast, SSA, in a relative burst of energy, proposed and
finalized transfer regulations in less than three years for the SSA
portion of Boren-Long, § 5(a). 20 C.ER. § 416.1246, proposed at
46 Fed. Reg. 51779 (Oct. 22, 1981), and finalized at 48 Fed. Reg.
40886 (Sept. 12, 1983).
7. 42 C.ER. § 433.36, proposed and fimalized on October 1, 1982, at
47 Fed. Reg. 43644.
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Medicaid Liens, Recoveries, and Transfer of Assets after TEFRA
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