I write for and maintain this site to combat the volumes of misinformation out there about Texas nursing home Medicaid laws and regulations. One all too common misinterpretation or misunderstanding about the law involves the Texas Medicaid Estate Recovery Program (MERP) and how it applies in the case of a child that was living with the Medicaid recipient and providing caretaking services before they entered a nursing home.
If you were a caretaker child living with your parent before they entered a nursing home and successfully applied for Medicaid benefits, will you still have a MERP problem after they pass away?
Some of you may be surprised to learn the answer in most cases is yes, you will still have a Texas MERP problem even if you meet the narrow legal requirements to qualify as a “caretaker child.”
But how is this possible?
It is simple, MERP claims are based on what assets the Medicaid recipient was the owner of record of at the time of their death. If they were still the record owner of the house at the time they passed away then you are looking at a MERP claim to recover the Medicaid benefits that the State paid out during their lifetime.
Now there are some very specific and very limited exceptions that can be used to avoid a MERP claim. As of the time of this writing, Texas only pursues MERP claims if none of the following facts exist:
- There is a surviving spouse;
- There is a surviving child or children under 21 years of age;
- There is a surviving child of any age who is blind or disabled as defined by 42 U.S.C. §1382c; or
- There is an unmarried adult child residing continuously in the decedent’s homestead for at least one year prior to the time of the Medicaid recipient’s death.
What you do not see in that list is an exception for a caretaker child. This is right out of the Texas Administrative Code so if you think there is some phantom rule a friend of a friend of a friend told you about that protects you I urge you to get your head out of the sand and deal with the reality of the situation. If you are a married adult child that is not disabled there is no exception for you and you will have to deal with a Texas MERP claim if your parent does not take the appropriate steps while they are alive to avoid MERP.
Can You Act Now To Avoid MERP?
The Medicaid Home Protection Deed avoids all MERP claims, including in cases where there is an adult married child or anyone else that is living in the parent’s homestead. If you want to protect a homestead from MERP, consider the Medicaid Home Protection Deed.