Medicaid Estate Recovery in Delaware

Medicaid Estate Recovery in Delaware: key facts

Recovery scope

For an individual receiving long-term care, the Department seeks recovery "for any disbursements made on behalf of such individual under the State Plan for Medical Assistance, from the individual's estate or upon sale of property subject to a lien" (Del. Code tit. 25, § 5003). Medicaid payments for Medicare cost-sharing (Part A and B premiums, deductibles, coinsurance, co-payments) with a date of service on or after January 1, 2010 are exempt from estate recovery (DSSM 20500.1).

Who is subject

The estate recovery and lien policy applies to individuals age 55 and over who are applying for DHSS long-term care services — nursing facility services, home and community-based waiver services, and community-based long-term care services and supports (DSSM 20500.1).

Recovery deferred or barred

Recovery happens only after the death of the individual and the death of a surviving spouse who was residing in the home on a continuous basis (Del. Code tit. 25, § 5003(1)). DHSS does not seek recovery while there is a surviving spouse; a surviving blind or disabled child (SSI disability rule) who was residing in the home on a continuous basis immediately before the death; or a child under age 21 (DSSM 20500.5.1).

Caretaker child and sibling exceptions

DHSS does not recover against a lien on the home where a son or daughter over 21 lawfully resided in the home for at least 2 years immediately before the recipient's admission to long-term care, has lived there continuously since, and can establish that they provided the care that let the recipient stay at home; or where a sibling lawfully resided in the home for 1 year (12 months) immediately before admission. DHSS can still recover from other estate assets (DSSM 20500.5.2).

Undue hardship waiver

The Department waives estate recovery where it would work an undue hardship, and the waiver remains in effect only as long as the hardship condition continues (Del. Code tit. 25, § 5005). Hardship applies to a civil union partner, child, grandchild, parent, or sibling who lived in the recipient's home continuously for at least 2 years (24 consecutive months) before the recipient entered long-term care AND who either receives federal or state assistance for living expenses with no other home to return to, or has family income at or below 200% of the federal poverty level with resources convertible to cash of $3,000 or less (DSSM 20500.5.3.1, 20500.5.3.2).

Governing law: Del. Code tit. 25, ch. 50 (Liens and Estate Recoveries), §§ 5002, 5003, 5005; DSSM 20500

Frequently asked questions