Who the state recovers from
Estate recovery applies to two groups of Medicaid recipients. Under Ohio Administrative Code 5160:1-2-07, the Ohio Attorney General’s office seeks recovery for the Ohio Department of Medicaid from:
- a permanently institutionalized person of any age, for all Medicaid benefits correctly paid, including managed care payments;
- a person 55 or older who was not permanently institutionalized, for benefits paid after age 55. Medicare premium assistance paid on or after January 1, 2010, is excluded.
The person responsible for the estate must notify the Attorney General’s office when the decedent was 55 or older or permanently institutionalized. In probate, that is done on the Medicaid estate recovery notice, Form 7.0, which both the Summit and Stark County probate courts include in their estate filings. Ohio Legal Help lists money owed to Medicaid among the debts a fiduciary pays.
Ohio’s estate includes non-probate property
Ohio uses an expanded definition of “estate” for recovery. The rule covers two kinds of property:
- Property administered in probate, including property that would have been administered there except for a release from administration under R.C. 2113.03 or 2113.031.
- Any other property the person held a legal title or interest in at death, including assets passing through joint tenancy, tenancy in common, survivorship, life estate, living trust or similar arrangements.
So a survivorship deed, a living trust or a transfer on death designation affidavit keeps the house out of probate, but not out of reach of a recovery claim. For TOD property, R.C. 5302.221 requires the county recorder to hand the beneficiary a Medicaid form before recording the transfer. The beneficiary then sends a copy to the recovery program when the owner, or a spouse who died first, had been on Medicaid, or when the beneficiary isn’t sure.
When recovery is deferred
The state has to wait in some family situations. Under the rule, recovery may be sought only:
- after the death of the recipient’s surviving spouse, if there is one; and
- when the recipient has no surviving child under 21, and no child who is blind or permanently and totally disabled.
A deferral is not a cancellation. When the spouse later dies, the claim can be pursued against what remains, which can include the same house.
Protections for a sibling or caregiver child living in the home
For recovery from a permanently institutionalized person, the rule bars recovery against the home while either of these people lives there:
| Who lives in the home | Requirement |
|---|---|
| A sibling | Lived in the home at least one year before the institutional admission and continuously since |
| A son or daughter | Lived there at least two years before admission, continuously since, and provided care that delayed the parent’s institutionalization, documented with a physician’s statement and a level-of-care assessment |
These protections depend on the family member still living in the house. If the house is sold, the protection does not follow the sale proceeds.
Undue hardship waivers and deadlines
Heirs can ask the Ohio Department of Medicaid to waive recovery when it would cause undue hardship. The director decides case by case. Situations the rule recognizes include:
- the estate is the survivor’s sole income-producing asset;
- without the proceeds, the survivor would become eligible for public assistance;
- recovery would deprive the survivor of necessary food, shelter or clothing;
- the survivor can show by clear and convincing evidence that they made substantial financial contributions creating an equity interest;
- the survivor is 65 or older and financially dependent on the proceeds.
Losing an expected inheritance is not hardship on its own. The deadlines are short:
- Waiver request: within 30 calendar days after the Attorney General’s office mails the recovery notice.
- Department decision: within 60 calendar days of receiving the request.
- Review of a denial: request within 30 calendar days.
What to do when the recovery notice arrives
The 30-day window for a hardship waiver starts when the notice is mailed, so act quickly:
- Note the mailing date and calendar the 30-day deadline.
- Read the notice for the amount claimed and the benefit period it covers.
- Gather proof of any deferral or exemption: a surviving spouse, a child under 21, a blind or disabled child, or a sibling or caregiver child living in the home.
- If hardship applies, collect records showing it, such as income, the survivor’s age, or proof of money the survivor put into the house.
- Send any waiver request in writing, and keep a copy and proof of mailing.
- Tell the title company and the estate’s attorney about the claim before signing a purchase agreement.
How a recovery claim affects selling the house
A pending claim usually has to be resolved before a title company will insure a sale. In practice:
- The claim gets paid from the sale. The fiduciary or heirs sell, and the claim is paid at closing or from the estate account, after higher-priority costs.
- Payment terms are possible. When the estate asks to satisfy the claim without selling a non-liquid asset, the Attorney General’s office may set up a payment schedule, promissory note or lien.
- Real-estate-only shortcuts close. Summit County’s Local Rule 57.4 and Stark County’s Local Rule 75.6 allow a certificate of transfer without a full estate only when the decedent was not subject to Medicaid estate recovery.
The claim can’t be larger than the estate, so a house with a mortgage and little equity may leave little to recover. An Ohio elder law or probate attorney can review the notice before you agree to anything. If a parent is moving into care and the house will need to be sold, see our page on selling when moving to assisted living, and the probate sale guide for selling after a death.
