Why Medicare Savings Program help is protected
Federal Medicaid law lets states recover two kinds of Medicaid from the estates of people who were 55 or older: long-term care and related services, and, at the state's option, other Medicaid services, "but not including medical assistance for medicare cost-sharing" (42 U.S.C. 1396p(b)(1)(B)). Congress added that exclusion in 2008 (Pub. L. 110-275). QMB, SLMB and QI1 pay only Medicare premiums and cost sharing, so that help isn't recoverable.
Florida's Medicaid Estate Recovery Act, s. 409.9101, Florida Statutes, says recovery "shall be made pursuant to federal authority" in 42 U.S.C. 1396p(b)(1). Florida's statute doesn't list programs one by one, but it operates within that federal limit.
What Florida's law does reach
Under s. 409.9101(3), accepting Medicaid creates a debt for the "total amount paid to or for the benefit of the recipient for medical assistance after the recipient reached 55 years of age." Medicaid paid before 55 creates no debt. The state's Medicaid agency, AHCA, files a claim against the estate in probate. So if you also had full Medicaid after 55, for example nursing home care or long-term care services, those payments can be claimed. See Florida Medicaid long-term care.
Florida's protections
- Survivors. The debt isn't enforced if you're survived by a spouse, a child under 21, or a blind or permanently and totally disabled child (s. 409.9101(6)).
- Homestead and exempt property. No debt is enforced against property exempt from creditors under Florida's constitution or laws (s. 409.9101(7)), and only property that isn't protected homestead can be sold to pay a claim (s. 409.9101(10)). Real property is never transferred to the state.
- Hardship. Heirs can ask AHCA to waive recovery. Florida's criteria include an heir who lived in the home for the 12 months before the death and owns no other home, and a son, daughter or sibling who lived with the person for a year and gave full-time care that delayed nursing home entry (s. 409.9101(8)).
Whether a home is protected homestead depends on Florida probate law and who inherits it; a Florida probate or elder law attorney can tell you how it applies to your family.
What it means for you
Don't let fear of estate recovery stop you from applying for QMB, SLMB or QI1. Apply through ACCESS Florida; read how to apply and the full guide, Medicare Savings Programs in Florida.
Related questions
Does Florida count my house or car for Medicare Savings Programs?
Your home doesn't count.
What is QMB in Florida?
What QMB pays.
How do I apply for a Medicare Savings Program in Florida?
ACCESS Florida, step by step.
Sources
- Florida Statutes — s. 409.9101, Medicaid Estate Recovery Act
- U.S. Code — 42 U.S.C. 1396p, Liens, adjustments and recoveries (including the 2008 amendment note)
- Florida DCF — ESS Program Policy Manual, Chapter 2000, 2040.0817–2040.0819 (what QMB, SLMB and QI1 pay) (PDF)
- Medicare.gov — Medicare Savings Programs
More questions in this guide
- What documents do I need to apply for a Medicare Savings Program in Florida?
- How do I apply for Extra Help with Medicare drug costs in Florida?
- How do I apply for a Medicare Savings Program in Florida?
- What are the Medicare Savings Program income limits in Florida?
- Does Florida count my house or car for Medicare Savings Programs?
- What is QMB in Florida?
Part of the guide: Medicare Savings Programs in Florida · All questions
Frequently asked questions
Does Florida estate recovery apply if I have full Medicaid too?
It can. Section 409.9101, Florida Statutes, creates a debt for Medicaid paid after age 55, so full Medicaid services such as nursing home care can be claimed. The Medicare cost-sharing part paid for you stays excluded under federal law.
Can Florida take my home if my spouse is still living?
No. Florida's law says the debt isn't enforced if you're survived by a spouse, a child under 21, or a child who is blind or permanently and totally disabled (s. 409.9101(6)).
How does Florida collect from an estate?
Section 409.9101(2) says AHCA files a statement of claim against the estate in probate after the Medicaid recipient dies. QMB, SLMB or QI1 help isn't part of a recoverable claim, and Florida's statute says real property is never transferred to the state.
Medicare in your Florida county
Plans, local agents and help, county by county: Miami-Dade · Broward · Palm Beach · Hillsborough · Orange · Duval · Pinellas · Lee · Polk · Pasco · Brevard · Volusia · Seminole · Sarasota · Osceola · Manatee · Lake · Marion · Collier · St. Lucie · All 67 counties →
