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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.

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Overview of Virginia’s Medicaid Estate Recovery Program

Under federal and Virginia law, the Department of Medical Assistance Services (DMAS) may seek recovery from the estate of a deceased Medicaid recipient for long-term care or home- and community-based services provided after age 55. In Virginia, this authority is codified at Va. Code § 32.1-363. Recovery typically takes the form of a lien on real property, including any home or land the recipient owned at death.

Hardship Waiver Authority

Federal Medicaid law permits states to waive recovery if it would cause undue hardship to certain heirs or dependents. See 42 U.S.C. § 1396p(b)(2)(B). In Virginia, DMAS implements this through its Estate Recovery Unit. A hardship waiver can relieve your family of DMAS’s claim on inherited property when enforcement would create an extreme financial or medical burden.

Key Definitions

• Undue hardship: When enforcing the lien would deprive a needy spouse, child under age 21, or other dependent of the ability to live in their home or to meet basic living expenses.
• Estate: Includes all real and personal property owned by the Medicaid recipient at death.

How to Apply for a Hardship Waiver

1. Confirm Estate Recovery Notice
   You must receive a Notice of Estate Recovery from DMAS identifying the date of lien and the estate claim amount. If you have not received notice, request a status update from DMAS in writing.
2. Gather Supporting Documents
   Collect the following:
   • Death certificate of the Medicaid recipient.
   • Copy of the estate recovery lien or notice.
   • Proof of relationship (e.g., marriage certificate, birth certificate).
   • Evidence of hardship: medical records, income statements, expense ledgers, or affidavits detailing why sale or lien enforcement would impose undue hardship.
3. Draft a Hardship Waiver Request Letter
   Include:
   • The estate file number and recipient’s Medicaid ID.
   • Description of the property subject to recovery.
   • Explanation of why enforcement causes undue hardship (medical, financial, or family circumstances).
   • List of enclosed supporting documents.
4. Submit to DMAS Estate Recovery Unit
   Send your letter and attachments to:
   DMAS Estate Recovery Unit
   Virginia Department of Medical Assistance Services
   P.O. Box 1998
   Richmond, VA 23218-1998
   

   Use certified mail or another trackable service.

5. Follow Up in Writing
   If you do not receive acknowledgment within 30 days, send a written follow-up referencing your initial submission date and tracking number.
6. Await Decision and Next Steps
   DMAS aims to respond within 90 days. If your waiver is approved, DMAS will release the lien or reduce the claim amount. If denied, you may appeal.

Appeal and Hearing Process

If DMAS denies your waiver request, you can file an appeal under Virginia’s Administrative Process Act. Submit a written request for a fair hearing within 30 days of the denial. See Va. Code § 2.2-4019. You may represent yourself or hire counsel. The hearing officer will review the record and decide if undue hardship exists.

Helpful Hints

• Start early: Estate recovery liens can attach quickly after death.
• Be thorough: Detailed financial and medical documentation strengthens your case.
• Keep copies: Retain duplicates of all correspondence and certifications.
• Watch deadlines: Timely filing of waiver requests and appeals is critical.
• Seek assistance: Nonprofit legal aid programs may offer help at low cost.