42 USC 1396 - Liens, adjustments and recoveries, and transfers of assets

Editorial Notes

References in Text

The Internal Revenue Code of 1986, referred to in subsecs. (span)(1)(C)(iii)(II) and (c)(1)(G)(i), is classified generally to Title 26, Internal Revenue Code.

Amendments

2018—Subsec. (a)(1)(A). Puspan. L. 115–123, § 53102(span)(1), repealed Puspan. L. 113–67, § 202(span)(3), and provided that the provisions amended by section 202(span) shall be applied and administered as if such amendment had never been enacted. See 2013 Amendment note below.

2016—Subsec. (d)(4)(A). Puspan. L. 114–255 inserted “the individual,” after “for the benefit of such individual by”.

2013—Subsec. (a)(1)(A). Puspan. L. 113–67, § 202(span)(3), which directed amendment of subpar. (A) to read as follows: “pursuant to—

“(i) the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or

“(ii) rights acquired by or assigned to the State in accordance with section 1396a(a)(25)(H) of this title or section 1396k(a)(1)(A) of this title, or”,

was repealed by Puspan. L. 115–123, § 53102(span)(1).

2009—Subsec. (span)(3). Puspan. L. 111–5 designated existing provisions as subpar. (A) and added subpar. (B)

2008—Subsec. (span)(1)(B)(ii). Puspan. L. 110–275 inserted “(but not including medical assistance for medicare cost-sharing or for benefits described in section 1396a(a)(10)(E) of this title)” before period at end.

2006—Subsec. (span)(1)(C)(ii). Puspan. L. 109–171, § 6021(a)(1)(A)(i), inserted “and which satisfies clause (iv), or which has a State plan amendment that provides for a qualified State long-term care insurance partnership (as defined in clause (iii))” after “1993,” in introductory provisions.

Subsec. (span)(1)(C)(iii) to (vi). Puspan. L. 109–171, § 6021(a)(1)(A)(ii), added cls. (iii) to (vi).

Subsec. (span)(5). Puspan. L. 109–171, § 6021(a)(1)(B), added par. (5).

Subsec. (c)(1)(B)(i). Puspan. L. 109–171, § 6011(a), inserted “or in the case of any other disposal of assets made on or after February 8, 2006” before “, 60 months”.

Subsec. (c)(1)(D). Puspan. L. 109–171, § 6011(span), designated existing provisions as cl. (i), substituted “In the case of a transfer of asset made before February 8, 2006, the date” for “The date”, and added cl. (ii).

Subsec. (c)(1)(E)(iv). Puspan. L. 109–171, § 6016(a), added cl. (iv).

Subsec. (c)(1)(F). Puspan. L. 109–171, § 6012(span), added subpar. (F).

Subsec. (c)(1)(F)(i). Puspan. L. 109–432 substituted “institutionalized individual” for “annuitant”.

Subsec. (c)(1)(G). Puspan. L. 109–171, § 6012(c), added subpar. (G).

Subsec. (c)(1)(H). Puspan. L. 109–171, § 6016(span), added subpar. (H).

Subsec. (c)(1)(I). Puspan. L. 109–171, § 6016(c), added subpar. (I).

Subsec. (c)(1)(J). Puspan. L. 109–171, § 6016(d), added subpar. (J).

Subsec. (c)(2). Puspan. L. 109–171, § 6011(e), substituted period for semicolon at end and inserted concluding provisions.

Subsec. (e). Puspan. L. 109–171, § 6012(a), added subsec. (e). Former subsec. (e) redesignated (f).

Subsec. (f). Puspan. L. 109–171, § 6014(a), added subsec. (f). Former subsec. (f) redesignated (g).

Puspan. L. 109–171, § 6012(a), redesignated subsec. (e) as (f).

Subsec. (g). Puspan. L. 109–171, § 6015(span), added subsec. (g). Former subsec. (g) redesignated (h).

Puspan. L. 109–171, § 6014(a), redesignated subsec. (f) as (g).

Subsec. (h). Puspan. L. 109–171, § 6015(span), redesignated subsec. (g) as (h).

1993—Subsec. (span)(1). Puspan. L. 103–66, § 13612(a), substituted “except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:” and subpars. (A) to (C) for “except—” and former subpars. (A) and (B) which read as follows:

“(A) in the case of an individual described in subsection (a)(1)(B) of this section, from his estate or upon sale of the property subject to a lien imposed on account of medical assistance paid on behalf of such individual, and

“(B) in the case of any other individual who was 65 years of age or older when he received such assistance, from his estate.”

Subsec. (span)(3). Puspan. L. 103–66, § 13612(span), added par. (3).

Subsec. (span)(4). Puspan. L. 103–66, § 13612(c), added par. (4).

Subsec. (c)(1). Puspan. L. 103–66, § 13611(a)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “In order to meet the requirements of this subsection (for purposes of section 1396a(a)(51)(B) of this title), the State plan must provide for a period of ineligibility for nursing facility services and for a level of care in a medical institution equivalent to that of nursing facility services and for services under section 1396n(c) of this title in the case of an institutionalized individual (as defined in paragraph (3)) who, or whose spouse, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual (if the individual is entitled to medical assistance under the State plan on such date) or, if the individual is not so entitled, the date the individual applies for such assistance while an institutionalized individual, disposed of resources for less than fair market value. The period of ineligibility shall begin with the month in which such resources were transferred and the number of months in such period shall be equal to the lesser of—

“(A) 30 months, or

“(B)(i) the total uncompensated value of the resources so transferred, divided by (ii) the average cost, to a private patient at the time of the application, of nursing facility services in the State or, at State option, in the community in which the individual is institutionalized.”

Subsec. (c)(2)(A). Puspan. L. 103–66, § 13611(a)(2)(A), substituted “assets” for “resources” in introductory provisions.

Subsec. (c)(2)(B). Puspan. L. 103–66, § 13611(a)(2)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “the resources were transferred (i) to or from (or to another for the sole benefit of) the individual’s spouse, or (ii) to the individual’s child described in subparagraph (A)(ii)(II);”.

Subsec. (c)(2)(C). Puspan. L. 103–66, § 13611(a)(2)(C), in introductory provisions, substituted “with regulations” for “with any regulations”, in cl. (i), substituted “assets” for “resources” and struck out “or” at end, in cl. (ii), substituted “assets” for “resources” and “, or” for “; or”, and added cl. (iii).

Subsec. (c)(2)(D). Puspan. L. 103–66, § 13611(a)(2)(D), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: “the State determines that denial of eligibility would work an undue hardship.”

Subsec. (c)(3). Puspan. L. 103–66, § 13611(a)(2)(E), added par. (3) and struck out former par. (3) which read as follows: “In this subsection, the term ‘institutionalized individual’ means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title.”

Subsec. (c)(4). Puspan. L. 103–66, § 13611(a)(2)(F), inserted at end “In the case of a transfer by the spouse of an individual which results in a period of ineligibility for medical assistance under a State plan for such individual, a State shall, using a reasonable methodology (as specified by the Secretary), apportion such period of ineligibility (or any portion of such period) among the individual and the individual’s spouse if the spouse otherwise becomes eligible for medical assistance under the State plan.”

Subsec. (d). Puspan. L. 103–66, § 13611(span), added subsec. (d).

Subsec. (e). Puspan. L. 103–66, § 13611(c), added subsec. (e).

1989—Subsec. (c)(1). Puspan. L. 101–239, § 6411(e)(1)(A), inserted “or whose spouse,” after “an institutionalized individual (as defined in paragraph (3)) who,”.

Subsec. (c)(2)(B)(i). Puspan. L. 101–239, § 6411(e)(1)(B)(i), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “to (or to another for the sole benefit of) the community spouse, as defined in section 1396r–5(h)(2) of this title,,”.

Subsec. (c)(2)(B)(ii), (iii). Puspan. L. 101–239, § 6411(e)(1)(B)(ii), struck out “, or” after “subparagraph (A)(ii)(II)” in cl. (ii) and struck out cl. (iii) which read as follows: “to (or to another for the sole benefit of) the individual’s spouse if such spouse does not transfer such resources to another person other than the spouse for less than fair market value”.

1988—Subsec. (c). Puspan. L. 100–360, § 303(span), amended subsec. (c) generally, substituting pars. (1) to (4) relating to taking into account certain transfers of assets, for former pars. (1) to (3) relating to denial of medical assistance, period of eligibility, and exceptions.

Subsec. (c)(1). Puspan. L. 100–485, § 608(d)(16)(B)(i), substituted “period of ineligibility for nursing facility services and for a level of care in a medical institution equivalent to that of nursing facility services and for services under section 1396n(c) of this title in the case of an institutionalized individual (as defined in paragraph (3)) who, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual (if the individual is entitled to medical assistance under the State plan on such date) or, if the individual is not so entitled, the date the individual applies for such assistance while an institutionalized individual” for “period of ineligibility in the case of an institutionalized individual (as defined in paragraph (3)) who, at any time during the 30-month period immediately before the individual’s application for medical assistance under the State plan”.

Subsec. (c)(2)(A)(ii). Puspan. L. 100–485, § 608(d)(16)(B)(ii), inserted subcl. (I) and (II) designations.

Subsec. (c)(2)(A)(iii). Puspan. L. 100–485, § 608(d)(16)(B)(iii), substituted “the individual becomes an institutionalized individual” for “of the individual’s admission to the medical institution or nursing facility”.

Subsec. (c)(2)(A)(iv). Puspan. L. 100–485, § 608(d)(16)(B)(iv), substituted “the individual becomes an institutionalized individual” for “of such individual’s admission to the medical institution or nursing facility”.

Subsec. (c)(2)(B). Puspan. L. 100–485, § 608(d)(16)(B)(v), inserted cl. (i) designation, substituted “section 1396r–5(h)(2) of this title,,” for “section 1396r–5(h)(2) of this title, or the individual’s child who is blind or permanently and totally disabled”, and added cl. (ii).

Subsec. (c)(2)(B)(ii). Puspan. L. 100–360, § 411(l)(3)(I), amended Puspan. L. 100–203, § 4211(h)(12)(B), see 1987 Amendment note below.

Subsec. (c)(3). Puspan. L. 100–485, § 608(d)(16)(B)(vi), substituted “in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title” for “in a medical institution or nursing facility”.

Subsec. (c)(5). Puspan. L. 100–485, § 608(d)(16)(B)(vii), added par. (5).

1987—Subsecs. (a)(1)(B)(i), (c)(2)(B)(i). Puspan. L. 100–203, § 4211(h)(12)(A), substituted “nursing facility, intermediate care facility for the mentally retarded” for “skilled nursing facility, intermediate care facility”.

Subsec. (c)(2)(B)(ii). Puspan. L. 100–203, § 4211(h)(12)(B), as amended by Puspan. L. 100–360, § 411(l)(3)(I), substituted “a nursing facility” for “a skilled nursing facility” in two places each in subcls. (I) and (II).

1983—Subsec. (span)(2)(B). Puspan. L. 97–448, § 309(span)(21), substituted “who” for “and” before “has lawfully resided”.

Subsec. (c)(2)(B)(iii). Puspan. L. 97–448, § 309(span)(22), substituted in subcl. (I) “can” for “cannot” and struck out from subcl. (IV) the introductory word “if”.

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Puspan. L. 115–123, div. E, title XII, § 53102(span)(1), Fespan. 9, 2018, 132 Stat. 298, provided that the repeal of section 202(span) of Puspan. L. 113–67 is effective Sept. 30, 2017, and the provisions amended by section 202(span) shall be applied and administered as if such amendments had never been enacted. In addition, such repeal by section 53102(span)(1) of Puspan. L. 115–123 applicable with respect to any open claims, including claims pending, generated, or filed, after Sept. 30, 2017, see section 53102(span)(3) of Puspan. L. 115–123, set out as a note under section 1396a of this title.

Effective Date of 2016 Amendment

Puspan. L. 114–255, div. A, title V, § 5007(span), Dec. 13, 2016, 130 Stat. 1197, provided that: “The amendment made by subsection (a) [amending this section] shall apply to trusts established on or after the date of the enactment of this Act [Dec. 13, 2016].”

Effective Date of 2009 Amendment

Amendment by Puspan. L. 111–5 effective July 1, 2009, see section 5006(f) of Puspan. L. 111–5, set out as a note under section 1396a of this title.

Effective Date of 2008 Amendment

Puspan. L. 110–275, title I, § 115(span), July 15, 2008, 122 Stat. 2507, provided that: “The amendment made by subsection (a) [amending this section] shall take effect as of January 1, 2010.”

Effective Date of 2006 Amendment

Puspan. L. 109–432, div. B, title IV, § 405(span)(2), Dec. 20, 2006, 120 Stat. 2998, provided that: “The amendment made by paragraph (1) [amending this section] shall be effective as if included in the enactment of section 6012 of the Deficit Reduction Act of 2005 [Puspan. L. 109–171].”

Puspan. L. 109–171, title VI, § 6011(c), Fespan. 8, 2006, 120 Stat. 62, provided that: “The amendments made by this section [amending this section] shall apply to transfers made on or after the date of the enactment of this Act [Fespan. 8, 2006].”

Puspan. L. 109–171, title VI, § 6012(d), Fespan. 8, 2006, 120 Stat. 64, provided that: “The amendments made by this section [amending this section] shall apply to transactions (including the purchase of an annuity) occurring on or after the date of the enactment of this Act [Fespan. 8, 2006].”

Puspan. L. 109–171, title VI, § 6014(span), Fespan. 8, 2006, 120 Stat. 65, provided that: “The amendment made by subsection (a) [amending this section] shall apply to individuals who are determined eligible for medical assistance with respect to nursing facility services or other long-term care services based on an application filed on or after January 1, 2006.”

Puspan. L. 109–171, title VI, § 6016(e), Fespan. 8, 2006, 120 Stat. 67, provided that:

“(1)In general.—Except as provided in paragraphs (2) and (3), the amendments made by this section [amending this section] shall apply to payments under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) for calendar quarters beginning on or after the date of enactment of this Act [Fespan. 8, 2006], without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

“(2)Exceptions.—The amendments made by this section shall not apply—

“(A) to medical assistance provided for services furnished before the date of enactment;

“(B) with respect to assets disposed of on or before the date of enactment of this Act; or

“(C) with respect to trusts established on or before the date of enactment of this Act.

“(3)Extension of effective date for state law amendment.—In the case of a State plan under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) which the Secretary of Health and Human Services determines requires State legislation in order for the plan to meet the additional requirements imposed by the amendments made by a provision of this section, the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session is considered to be a separate regular session of the State legislature.”

Effective Date of 1993 Amendment

Puspan. L. 103–66, title XIII, § 13611(e), Aug. 10, 1993, 107 Stat. 627, provided that:

“(1) The amendments made by this section [amending this section and sections 1396a and 1396r–5 of this title] shall apply, except as provided in this subsection, to payments under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after October 1, 1993, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

“(2) The amendments made by this section shall not apply—

“(A) to medical assistance provided for services furnished before October 1, 1993,

“(B) with respect to assets disposed of on or before the date of the enactment of this Act [Aug. 10, 1993], or

“(C) with respect to trusts established on or before the date of the enactment of this Act.

“(3) In the case of a State plan for medical assistance under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendment made by subsection (span) [amending this section], the State plan shall not be regarded as failing to comply with the requirements imposed by such amendment solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act [Aug. 10, 1993]. For purposes of the preceding sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature.”

Puspan. L. 103–66, title XIII, § 13612(d), Aug. 10, 1993, 107 Stat. 628, provided that:

“(1)

(A) Except as provided in subparagraph (B), the amendments made by this section [amending this section] shall apply to payments under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after October 1, 1993, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

“(B) In the case of a State plan for medical assistance under title XIX of the Social Security Act which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendments made by this section, the State plan shall not be regarded as failing to comply with the requirements imposed by such amendments solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act [Aug. 10, 1993]. For purposes of the preceding sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature.

“(2) The amendments made by this section shall not apply to individuals who died before October 1, 1993.”

Effective Date of 1989 Amendment

Amendment by Puspan. L. 101–239 applicable to transfers occurring after Dec. 19, 1989, see section 6411(e)(4) of Puspan. L. 101–239, set out as a note under section 1396a of this title.

Effective Date of 1988 Amendments

Amendment by Puspan. L. 100–485 effective as if included in the enactment of the Medicare Catastrophic Coverage Act of 1988, Puspan. L. 100–360, see section 608(g)(1) of Puspan. L. 100–485, set out as a note under section 704 of this title.

Amendment by section 303(span) of Puspan. L. 100–360 applicable to payments under this subchapter for calendar quarters beginning on or after July 1, 1988 (except in certain situations requiring State legislative action), without regard to whether or not final regulations to carry out such amendment have been promulgated by such date, and subsection (c) of this section, as amended by section 303(span) of Puspan. L. 100–360, applicable to resources disposed of on or after July 1, 1988, but not applicable with respect to inter-spousal transfers occurring before Oct. 1, 1989, see section 303(g)(2), (5) of Puspan. L. 100–360, set out as an Effective Date note under section 1396r–5 of this title.

Except as specifically provided in section 411 of Puspan. L. 100–360, amendment by section 411(l)(3)(I) of Puspan. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Puspan. L. 100–203, effective as if included in the enactment of that provision in Puspan. L. 100–203, see section 411(a) of Puspan. L. 100–360, set out as a Reference to OBRA; Effective Date note under section 106 of Title 1, General Provisions.

Effective Date of 1987 Amendment

Amendment by Puspan. L. 100–203 applicable to nursing facility services furnished on or after Oct. 1, 1990, without regard to whether regulations implementing such amendment are promulgated by such date, except as otherwise specifically provided in section 1396r of this title, with transitional rule, see section 4214(a), (span)(2) of Puspan. L. 100–203, as amended, set out as an Effective Date note under section 1396r of this title.

Effective Date of 1983 Amendment

Amendment by Puspan. L. 97–448 effective as if originally included as a part of this section as this section was added by the Tax Equity and Fiscal Responsibility Act of 1982, Puspan. L. 97–248, see section 309(c)(2) of Puspan. L. 97–448, set out as a note under section 426–1 of this title.

Effective Date

Puspan. L. 97–248, title I, § 132(d), Sept. 3, 1982, 96 Stat. 373, provided that: “The amendments made by this section [enacting this section and amending section 1396a of this title] shall become effective on the date of the enactment of this Act [Sept. 3, 1982], but the provisions of section 1917(c)(2)(B) of the Social Security Act [42 U.S.C. 1396p(c)(2)(B)] shall not apply with respect to a transfer of assets which took place prior to such date of enactment.”

Availability of Hardship Waivers

Puspan. L. 109–171, title VI, § 6011(d), Fespan. 8, 2006, 120 Stat. 62, provided that: “Each State shall provide for a hardship waiver process in accordance with section 1917(c)(2)(D) of the Social Security Act (42 U.S.C. 1396p(c)(2)(D))—

“(1) under which an undue hardship exists when application of the transfer of assets provision would deprive the individual—

“(A) of medical care such that the individual’s health or life would be endangered; or

“(B) of food, clothing, shelter, or other necessities of life; and

“(2) which provides for—

“(A) notice to recipients that an undue hardship exception exists;

“(B) a timely process for determining whether an undue hardship waiver will be granted; and

“(C) a process under which an adverse determination can be appealed.”

Expansion of State Long-Term Care Partnership Program

Puspan. L. 109–171, title VI, § 6021, Fespan. 8, 2006, 120 Stat. 68, as amended by Puspan. L. 111–148, title VIII, § 8002(d), title X, § 10801(c), Mar. 23, 2010, 124 Stat. 847, 1015; Puspan. L. 112–240, title VI, § 642(span)(3), Jan. 2, 2013, 126 Stat. 2358, provided that:

“(a)Expansion Authority.—

“(1)In general.—

[Amended this section.]

“(2)State reporting requirements.—Nothing in clauses (iii)(VI) and (v) of section 1917(span)(1)(C) of the Social Security Act [42 U.S.C. 1396p(span)(1)(C)(iii)(VI), (v)] (as added by paragraph (1)) shall be construed as prohibiting a State from requiring an issuer of a long-term care insurance policy sold in the State (regardless of whether the policy is issued under a qualified State long-term care insurance partnership under section 1917(span)(1)(C)(iii) of such Act) to require the issuer to report information or data to the State that is in addition to the information or data required under such clauses.

“(3)Effective date.—A State plan amendment that provides for a qualified State long-term care insurance partnership under the amendments made by paragraph (1) may provide that such amendment is effective for long-term care insurance policies issued on or after a date, specified in the amendment, that is not earlier than the first day of the first calendar quarter in which the plan amendment was submitted to the Secretary of Health and Human Services.

“(span)Standards for Reciprocal Recognition Among Partnership States.—In order to permit portability in long-term care insurance policies purchased under State long-term care insurance partnerships, the Secretary of Health and Human Services shall develop, not later than January 1, 2007, and in consultation with the National Association of Insurance Commissioners, issuers of long-term care insurance policies, States with experience with long-term care insurance partnership plans, other States, and representatives of consumers of long-term care insurance policies, standards for uniform reciprocal recognition of such policies among States with qualified State long-term care insurance partnerships under which—

“(1) benefits paid under such policies will be treated the same by all such States; and

“(2) States with such partnerships shall be subject to such standards unless the State notifies the Secretary in writing of the State’s election to be exempt from such standards.

“(c)Annual Reports to Congress.—

“(1)In general.—