Every adult in Massachusetts must now buy health insurance or face a penalty—at first a relatively light penalty, then heavier ones to come. The principle of forcing people to buy anything is a dangerous one, but many here have been willing to keep their misgivings to themselves in the hope that the new program would succeed in being helpful to many and fair to all.
As the deadline looms, however, there are signs that certain features of the program haven't been clearly thought out. Still up in the air is the question of whether the state might use estate recovery rules that now apply to Medicaid (MassHealth) to recoup part of its subsidy to Commonwealth Care, the program for low-income people.
An entire legal subspecialty has grown up to assist people who can afford help to protect their assets from Medicaid. As of today, the estate recovery rules that gave rise to that industry don't apply to Commonwealth Care. Jennifer Kritz, a spokeswoman for the Massachusetts Executive Office of Health and Human Services, told the Advocate earlier this month, "The estate recovery rules do not apply to Commonwealth Care. As of now they do not apply."
But, added Kritz, "That's not to say that someone may not be studying whether to apply them."
So people can enroll today with the assurance that those rules don't apply. But in another six months, another two years, who knows?
Even now, short of estate recovery, there's something everyone who applies for Commonwealth Care should know. It's that if you are ill or injured and receive payments from a third party—workers' comp payments, payments from someone who caused their injury, or benefits from some specialized insurance that pays even if the policyholder has broader coverage—the state can take that money as payment for treatments for that illness or injury that are covered through Commonwealth Care. That warning is already in the documentation for Commonwealth Care.
But the estate recovery question is more farreaching, and exposes confusion about what is permissible when a program combines features of public assistance with features of the market. The state is saying that people must in effect buy a policy with terms its spokespeople admit might change—i.e., the estate recovery rules might come into effect—without the purchaser's having a right to terminate the policy if they do change. That would hardly be acceptable in the world of private insurance. Does the state have a right to recover assets from people who are paying premiums, no matter how low? (Commonwealth Care requires premiums and some copayments on a sliding scale.)
The estate recovery rules for MassHealth (Medicaid), which are likely the same rules that may (or may not) be applied to Commonwealth Care, are extremely complicated, with multitudes of conditions and exceptions. They apply to people who receive benefits after age 55. Medicaid doesn't throw your spouse out of your house after you die, but suppose you are a 60-year-old widow on Commonwealth Care and you become terminally ill. Your child comes to live with you, not as a caretaker two years before your death, in which case the child can go on living in the house, but for the last few months of your life. If the state decides it's owed all or part of the value of your house, your child might not be able to go on living in the house or inherit all the proceeds from the sale of it.
These things are worth knowing before you enroll, but it appears that they have not even been decided. If the estate recovery rules are applied to people forced to buy Commonwealth Care coverage by a certain date, those people may be worse off than Medicaid recipients, many of whom are at least free to make their own choices about how to balance their health needs with the management of their assets, and to time their enrollment as advantageously as they can.
