Medicaid provides health care coverage to approximately one in every five individuals living in the United States. The program insures some of the country’s most economically disadvantaged populations, including low-income seniors and low-income individuals living with disabilities. Yet, Medicaid is the only federal public assistance program in the United States that requires certain recipients to pay back the amounts spent on their behalf. Under the Medicaid estate recovery program, states are required to pursue recovery of payments made for long-term care services from the estates of individuals who received such services at age fifty-five or older or who were determined permanently institutionalized. The estate recovery program essentially transformed what was once an entitlement into a loan that must be repaid from Medicaid enrollees’ estates.

Currently, Medicaid applicants and enrollees are often unaware of the financial consequences of estate recovery loans, as federal law does not require states to provide notice of estate recovery costs to applicants and enrollees. Likewise, a review of all states’ estate recovery laws, Medicaid applications, and publicly available estate recovery brochures indicates that no state proactively provides notice to enrollees of their accrued estate recovery costs. Instead, states typically send the first notice of estate recovery costs after the enrollee dies at the time of collection. This delayed notice leads to devastating emotional and financial distress for affected families and deprives enrollees of the ability to make informed health care decisions. To solve this problem, this Article proposes a federal requirement that states provide the costs of estate recovery to Medicaid applicants and enrollees. As the number of individuals needing long-term care is expected to rapidly grow during the next three decades, the detrimental impact of the program’s lack of transparency will become more widespread. To safeguard the ability of older and disabled individuals to make informed decisions regarding their health care, estate recovery costs should be brought to light when such individuals are better able to make health care decisions rather than after their death.

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