In Re the Estate of Barg

OPINION

The Mille Lacs County Family Services and Welfare Department (County) filed a claim against the Estate of Francis E. Barg (Estate), seeking to recover Medicaid benefits correctly paid on behalf of his predeceased wife, Dolores Barg. The Estate partially allowed the claim, and disallowed the other part. The district court, concluding that Dolores Barg’s interest in the couple’s property was limited because she had conveyed it to her husband before her death, evaluated her interest as a life estate, and upheld the partial disallowance. The County appealed, arguing that it was entitled to recovery from the full value of the property. The court of appeals reversed and remanded, partially allowing the claim and evaluating Dolores Barg’s interest in the property as a joint tenancy interest equivalent to one-half the value of the property. In re Estate of Barg, 722 *57 N.W.2d 492, 497 (Minn.App.2006). We affirm in part and reverse in part.

Factual and Procedural Background.

The parties have stipulated to the facts in this case. Dolores J. Barg was born in 1926, married Francis E. Barg in 1948, and remained married to him until her death in 2004. In 1962 and 1967, in two separate transactions, the Bargs took title as joint tenants to real property in Princeton, Minnesota. Their home was located on this property. On October 24, 2001, Dolores Barg entered a nursing home in Mille Lacs County, at first paying the costs herself. In December 2001, she applied for long-term Medicaid benefits. 1

An asset assessment for Dolores Barg was completed in February 2002. The Bargs’ marital assets including their homestead totaled $137,272.63. 2 Approval for long-term Medicaid benefits was given retroactive to December 1, 2001.

On February 27, 2002, Francis Barg executed his will, nominating the couple’s son Michael F. Barg as personal representative, leaving his estate to his surviving descendants, and making no provision for his wife. Dolores Barg transferred her joint tenancy interest in the homestead property to Francis Barg on July 2, 20.02, when her daughter and guardian of her estate, Barbara Anderson, executed a Guardian’s Deed. Also in July 2002, Barbara Anderson deleted Dolores Barg’s name from certificates of deposit the couple held jointly at Bremer Bank. There is no allegation that these actions were improper or fraudulent.

On January 1, 2004, Dolores Barg died, having received - $108,413.53 in Medicaid benefits. At the time of her death, assets belonging to either Dolores or Francis Barg included three certificates of deposit, a checking account, and an IRA account, all in the name of Francis Barg alone; one certificate of deposit payable to the funeral home for Dolores Barg’s funeral; two vehicles, together worth approximately $9,000; the homestead titled in Francis Barg’s name, valued at $120,800; and miscellaneous household goods and furniture. All of these assets had been jointly held at some time during the couple’s 55-year marriage.

On May 27, 2004, Francis Barg died, never having received Medicaid benefits. On July 30, 2004, the County filed a claim against Francis Barg’s estate, seeking to recover $108,413.53, the full amount Dolores Barg had received in Medicáid bené-fits.

Michael Barg disallowed $44,533.53 of the claim, and allowed $63,880. The County petitioned for an allowance of the full claim, arguing that the entire value of the marital property, both the homestead and the certificates of deposit, was subject to its claim because Dolores Barg’s joint tenancy interest gave her a right to use of the entire property. The district court concluded that Dolores Barg’s interest in the property at the time of her death was *58 equivalent to a life estate, and upheld the partial disallowance.

The County appealed. The court of appeals explained that, based on In re Estate of Gullberg, 652 N.W.2d 709 (Minn.App.2002), the County’s ability to recover against Francis Barg’s estate was limited to Dolores’s interest in marital or jointly owned property at the time of her death. Barg, 722 N.W.2d at 496. The court decided that property law principles should be applied to determine the nature of that interest and that under federal law and Gullberg, Dolores Barg retained a joint tenancy interest in the homestead at the time of her death. Id. at 497. The court valued that interest as an undivided one-half of the property’s value, and remanded the case to the district court for a recalculation of the amount of the claim that was allowable. Id.

The County petitioned for review. The Estate opposed review but sought conditional cross-review on the issue of whether federal law permits the State to recover at all from a surviving spouse’s estate. We granted review, as well as cross-review, and asked for briefing on whether the Estate had adequately preserved for review the issue of “whether the county may recover Medicaid benefits correctly paid on behalf of a predeceased spouse from the estate of a surviving spouse.” We granted requests by the Minnesota Commissioner of Human Services to file an amicus curiae brief aligned with the County and to participate in oral argument. 3 We also granted requests by the Elder Law Section of the Minnesota State Bar Association and the National Senior Citizens Law Center to file an amicus curiae brief aligned with the Estate. After oral argument, we asked the parties for supplementary briefing on the relationship of the 2003 and 2005 amendments of Minn.Stat. § 256B.15, subds. 1 and lc-lk (2006), to the authority the County argues exists under Minn.Stat. § 256B.15, subd. la (2006) and Minn.Stat. § 256B.15, subd. 2 (2006), and how that relationship affects preemption analysis and the scope of recovery permissible under Minnesota law.

Statutory Framework.

Congress enacted Medicaid in 1965 as Title XIX of the Social Security Act to ensure medical care to individuals who do not have the resources to cover essential medical services. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn.2002). Medicaid was intended to be the payor of last resort. Id. The program is jointly funded with the states as a “cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons.” Harris v. McRae, 448 U.S. 297, 308, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). Participating states enact legislation and rules, incorporate them into state medical assistance plans, and submit those plans to the U.S. Secretary of Health and Human Services for approval. 42 U.S.C. § 1396a(a)-(b) (2000 & Supp. Ill 2003). After this, the states can receive federal payments. 42 U.S.C. § 1396 (2000). Each state administers its own program within the federal requirements, and the Centers for Medicare and Medicaid Services (CMS) 4 ad *59 minister the program and approve state plans. Martin, 642 N.W.2d at 9. One of the requirements imposed on state plans is that they must “comply with the provisions of [42 U.S.C. § 1396p] with respect to liens, adjustments and recoveries of medical assistance correctly paid, transfers of assets, and treatment of certain trusts.” 42 U.S.C. § 1396a(a)(18) (2000).

To receive Medicaid, a person must qualify as either “categorically” or “medically” needy. Estate of Atkinson v. Minn. Dep’t of Human Servs., 564 N.W.2d 209, 210-11 (Minn.1997). A person is “categorically needy” if he is eligible for other specified federal assistance programs. Id. at 211. A person is “medically needy” if he incurs medical expenses that reduce his income to roughly the level of those who are categorically needy. Id. To qualify as medically needy a person may have income no higher than a defined threshold and may own assets of no more than a defined value. Id. If the assets of a Medicaid applicant and her spouse exceed the qualifying threshold, they must “spend down” their assets until they are at or below the qualifying threshold. Id. If a potential Medicaid recipient transfers assets below fan market value within a certain period of time before eligibility, the recipient is deemed ineligible for benefits for a time period mandated by statute. 42 U.S.C. § 1396p(c) (2000). This provision prevents people who are not needy from becoming eligible for Medicaid by transferring their assets away.

When determining the eligibility of a married person to receive Medicaid, states consider assets of both husband and wife as available to the spouse requesting benefits. 42 U.S.C. § 1396r-5(c) (2000). But there are several provisions in place to protect the community spouse 5 from being impoverished as a result of the spend-down of assets needed to qualify the applicant for Medicaid. See Atkinson, 564 N.W.2d at 211; 42 U.S.C. § 1396r-5 (2000). The value of the couple’s home is not included among assets considered eligible to pay for medical care. Id. § 1396r-5(c)(5); 42 U.S.C. § 1382b(a)(l) (2000). The community spouse of a Medicaid recipient is also entitled to an allowance of income and assets designated for his or her needs that is not considered available to pay for the recipient spouse’s medical care. 42 U.S.C. § 1396r-5(d). Furthermore, the recipient spouse has the right to transfer assets, including an interest in the homestead, to his or her community spouse. 42 U.S.C. § 1396p(c)(2). Medicaid thus balances the obligation of community spouses to contribute to the payment of medical expenses for their recipient spouses against the accommodation of the community spouse’s need to provide for his or her own support.

Federal Medicaid Recovery Provisions.

Although it is not applicable to the facts before us, it is useful to start with the pre-1993 federal law on Medicaid recovery, because it is relied on in the parties’ arguments and is the basis for the rationale of several relevant cases. Prior to amendments adopted in the Omnibus Budget Reconciliation Act (OBRA) of 1993, the federal Medicaid statute stated a general principle that there should be no recovery of correctly paid Medicaid benefits, subject *60 to several exceptions, one of which is relevant here:

No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except—

* * * *

(B) in the case of any other individual who was 65 years of age or older when he received such assistance, from his estate.

42 U.S.C. § 1396p(b)(l) (1988). Under this pre-1993 law, states were allowed, but not required, to recover Medicaid benefits paid to recipients 65 or older, and the statute specified the recovery would be from the recipient’s estate. The statute also provided that this recovery from the recipient’s estate could only be made after the death of the recipient’s surviving spouse. Id. § 1396p(b)(2) (1988). Despite this prohibition against recovery before the death of a surviving spouse, there was no express mention of recovery from the estate of a surviving spouse. The pre-1993 federal law contained no definition of “estate.”

Section 1396p(b) was amended as part of the OBRA amendments of 1993. Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, § 13612(a), (c), 107 Stat. 312, 627-28 (codified as amended at 42 U.S.C. § 1396p(b)(l), (4) (2000)). As amended, the federal law retained the general prohibition against states attempting to recover Medicaid payments correctly paid on behalf of an individual, with limited exceptions. 42 U.S.C. § 1396p(b) (2000). But the 1993 amendments changed section 1396p(b) in several ways. First, they lowered the age criterion for recovery from 65 to 55. Second, they made recovery allowed by the exceptions mandatory rather than permissive. Third, they added a definition of “estate,” which itself had both mandatory and permissive elements. As amended, the general nonrecovery rule and the relevant exception read as follows:

(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:

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(B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual’s estate * * *.

Id. The amended version of section 1396p(b)(l)(B) retained the express reference to recovery from the recipient’s estate. Furthermore, as was true pre-amendment, this recovery from the recipient’s estate is only permitted after the death of the recipient’s surviving spouse: “Any adjustment or recovery under paragraph (1) may be made only after the death of the individual’s surviving spouse, if any * * *.” 42 U.S.C. § 1396p(b)(2) (emphasis added). And like the pre-1993 version, the amended federal statute contains no express authorization for, or reference to, recovery from a surviving spouse’s estate.

The 1993 amendments added a definition of “estate” for purposes of Medicaid recovery, with a mandatory provision that looks to state probate law and an optional provision that authorizes states to expand the definition beyond the scope of probate law:

[T]he term “estate”, with respect to a deceased individual—

(A) shall include all real and personal property and other assets included within the individual’s estate, as de *61 fined for purposes of State probate law; and

(B) may include, at the option of the State * * * any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

42 U.S.C. § 1396p(b)(4) (emphasis added). Under this provision, a state has the option to adopt a definition of “estate”' for Medicaid recovery purposes that includes some assets which, under ordinary probate law, would not be part of the Medicaid recipient’s estate, because they would pass immediately to someone else on the recipient’s death. For example, when two persons hold property in joint tenancy with a right of survivorship and one dies, the deceased joint tenant’s interest ordinarily passes directly to the surviving joint tenant and is not part of the probate estate. Under the optional expanded definition allowed by federal law, for Medicaid recovery purposes the interest of a deceased joint tenant who had received Medicaid would be included in his estate, rather than passing directly to the surviving joint tenant.

Minnesota’s Medicaid Recovery Laws.

Minnesota has long had a policy of requiring participants in the Medicaid program and their spouses to use their own assets to pay their share of the cost of care during or after enrollment. Minn.Stat. § 256B.15, subd. 1(a) (2006). To implement this policy, since 1987 Minnesota law has provided for recovery of Medicaid benefits paid from the estate of a recipient or the estate of the recipient’s surviving spouse. Minn.Stat. § 256B.15, subd. la (originally enacted as Act of June 12, 1987, ch. 403, art. 2, § 82,1987 Minn. Laws 3255, 3347). As relevant here, subdivision la provides that, “on the death of the survivor of a married couple, either or both of. whom received medical assistance, * * * the total amount paid for medical assistance rendered for the person and spouse shall be filed as a claim against the estate of the [recipient] or the estate of the surviving spouse.” Id. (emphasis added). A claim against the estate of a surviving spouse for medical assistance provided to the recipient spouse may be made up to “the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage.” Id., subd. 2 (emphasis added).

The broad estate recovery authority contained in subdivisions la and 2 was supplemented in 2003 by amendments to the statute expanding subdivision 1 and adding subdivisions lc-lk. Act of June 5, 2003, ch. 14, art. 12, §§ 40-50, 2003 Minn. Laws 1st Spec. Sess. 1751, 2205-17. These amendments implement the optional expanded definition of “estate” authorized in the 1993 amendments to the federal law. See MinmStat. § 256B.15, subd. 1(a)(2) (2006); 42 U.S.C. § 1396p(b)(4)(B). The 2003 amendments to the Minnesota estate recovery law modify common law to provide for continuation of a recipient’s life estate or joint tenancy interest in real property after his death for the purpose of recovering medical assistance, MinmStat. § 256B.15, subd. 1(a)(3) (2006), and include that continued interest in the recipient’s estate. Minn.Stat. § 256B.15, subds. lg, lh(b), li(a), lj. The 2003 amendments also establish specific procedures for exercising claims' against these continued life estate and joint tenancy interests, as well as procedures and waiting periods that differ according to whether the recipient’s spouse, dependent children, or other rela *62 tives living in the homestead survive the recipient. Act of June 5, 2003, ch. 14, art. 12, §§ 48-49, 2003 Minn. Laws 1st Spec. Sess. 1751, 2213-17 (codified as amended at Minn.Stat. § 256B.15, subds. li and lj). In this case, the County filed its claim under subdivisions la and 2 and did not rely on provisions added in the 2003 amendments.

The issues presented in this case involve several questions about the relationship between the recovery provisions of federal and Minnesota Medicaid law. The court of appeals held that a partial disallowance of the County’s claim was proper, relying on its earlier decision in Gullberg that the broad authorization in subdivision 2 for recovery up to the value of all assets of the estate that were marital property or jointly owned at any time during the marriage was partially preempted by the 1993 amendments to the federal law that limit the expanded estate to assets in which the recipient spouse had a legal interest at the time of her death. Barg, 722 N.W.2d at 595-96 (citing Gullberg, 652 N.W.2d at 714).

The County, and its supporting amicus curiae the Commissioner of the Department of Human Services, argue that the court of appeals was wrong, both here and in Gullberg, in finding any preemption of the broad estate recovery authorized in subdivisions la and 2. They contend that there was nothing in the federal statute prior to the 1993 amendments that limited the states’ authority to pursue estate recovery of Medicaid benefits paid, and that the 1993 amendments were intended by Congress to expand state options, not limit them. Alternatively, the County argues that even if recovery is limited to the assets in which the recipient had an interest at the time of her death, Dolores Barg had an interest in the property notwithstanding the conveyance to her husband, and the court of appeals erred in valuing that interest as only one-half the value of the homestead.

The Estate and its supporting amici curiae counter that federal law authorizes recovery only from a recipient’s estate, and Minnesota law that allows recovery from a surviving spouse’s estate is therefore preempted. 6 The Estate argues that recovery is also barred because, to the extent recovery is allowed from the estate of a surviving spouse, federal law limits that recovery to the value of assets in which the recipient had a legal interest at the time of her death, and subdivision 2 of section 256B.15 is preempted to the extent it allows broader recovery. Finally, the Estate argues that there should be no recovery here because Dolores Barg had no legal inter- *63 est in the homestead or the certificates of deposit at the time of her death, having conveyed her interest to her husband during her lifetime.

Thus, the issues presented are as follows. First, does federal law preempt the authorization in Minn.Stat. § 256B.15, subd. la, for recovery of Medicaid benefits paid for a recipient spouse from the estate of the surviving spouse? Second, if such recovery from a surviving spouse’s estate is not preempted, does federal law limit the recovery to assets in which the recipient had an interest at the time of her death, preempting the broader recovery allowed in MinmStat. § 256B.15, subd. 2, as to assets owned as marital property or in joint tenancy at any time during the marriage? Third, if recovery is limited to assets in which the recipient had an interest at the time of her death what, if any, interest did Dolores Barg have in the homestead or the certificates of deposit at the time of her death, and specifically, was the court of appeals correct in holding that Dolores Barg had a joint tenancy interest for purposes of estate recovery even though she transferred that interest to her husband during her lifetime? We address these issues in turn, after first reviewing basic preemption principles.

I.

Whether federal law preempts state law is primarily an issue of statutory interpretation, which we review de novo. Martin, 642 N.W.2d at 9. The application of law to stipulated facts is a question of law, which we also review de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

Congressional purpose is “ ‘the ultimate touchstone’ ” of the preemption inquiry. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). Our primary focus in the analysis must be to ascertain the intent of Congress. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280-81, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). The United States Supreme Court has explained that “[Consideration of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Thus, preemption is generally disfavored. Martin, 642 N.W.2d at 11 (citing Cipollone, 505 U.S. at 516, 518, 112 S.Ct. 2608).

Congress may preempt state law in several ways. Cal. Fed. Sav. & Loan Ass’n, 479 U.S. at 280, 107 S.Ct. 683. First, it may do so with express language preempting state law. Id. Second, it may do so by fully occupying the field, that is, “congressional intent to pre-empt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” Id. at 280-81, 107 S.Ct. 683 (quoting Rice, 331 U.S. at 230, 67 S.Ct. 1146). Here, it is clear that Congress neither expressly preempted state law nor so completely occupied the field as to leave no room for state action, because the Medicaid program specifically permits and even requires action by participating states. Martin, 642 N.W.2d at 11.

The third kind of preemption is at issue in this case. Even when Con *64 gress has not chosen to displace state law expressly or by fully occupying the field, “federal law may nonetheless pre-empt state law to the extent it actually conflicts with federal law.” Cal. Fed. Sav. & Loan Ass’n, 479 U.S. at 281, 107 S.Ct. 683. Conflict preemption occurs when compliance with both state and federal laws is impossible, Fla. Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or when the state law is “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

II.

We now turn to the question of whether Minn.Stat. § 256B.15, subd. la, which requires Medicaid recovery against the estate of a surviving spouse, is preempted by federal law, particularly 42 U.S.C. § 1396p(b)(l)(B). Because only conflict preemption may be applicable, we seek to determine whether compliance with both statutes is impossible or whether the state law stands as an obstacle to accomplishment of the purposes of the federal law.

The County seeks recovery here under subdivision la of section 256B.15, which authorizes — indeed requires — recovery of Medicaid benefits from the estate of the surviving spouse of a recipient. The Estate argues that this state law authorization to recover from the estate of the surviving spouse is preempted because it conflicts with 42 U.S.C. § 1396p(b)(l), which prohibits recovery of correctly paid Medicaid benefits except from the estate of the recipient of the benefits.

The federal statute establishes a general prohibition against recovery of correctly paid Medicaid benefits, subject to three specified exceptions:

(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:

42 U.S.C. § 1396p(b)(l) (emphasis added). Only one exception potentially applies to the circumstance of this case:

(B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual’s estate * * *.

Id. § 1396p(b)(l)(B) (emphasis added). Because this express exception to the general rule against recovery of Medicaid benefits directs that recovery come from the recipient’s estate and makes no reference to a surviving spouse’s estate, the Estate argues that recovery from the surviving spouse’s estate is not allowed under federal law. Because exceptions to a general statement of policy are to be construed narrowly, Comm’r v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989), it appears on its face that recovery from the surviving spouse’s estate is not permitted by federal law.

Two courts have agreed with this analysis and concluded that section 1396p(b)(l)(B) authorizes recovery only from the recipient’s estate and does not allow recovery from the estate of a surviving spouse. Hines v. Dep’t of Pub. Aid, 221 Ill.2d 222, 302 Ill.Dec. 711, 850 N.E.2d 148, 152-53 (2006); In re Estate of Budney, 197 Wis.2d 948, 541 N.W.2d 245, 246 (1995), rev. denied 546 N.W.2d 471 (Wis.1996). The Wisconsin Court of Appeals explained that the federal statute never “countered] the initial blanket prohibi *65 tion” on recovery by authorizing recovery from the surviving spouse’s estate. Budney, 541 N.W.2d at 246. The Illinois Supreme Court noted that under federal and Illinois law, the state had authority to seek reimbursement from the recipient’s estate after the death of his surviving spouse. Hines, 302 Ill.Dec. 711, 850 N.E.2d at 153. But instead, as here, the state sought recovery from the estate of the surviving spouse. Id. The court explained that federal law allows only three exceptions under which a state may seek reimbursement and “[a]ll are specifically directed to the estate of the recipient. No provision is made for collection from the estate of the recipient’s spouse.” Id. The court declined to add to the unambiguous language of the federal statute or to recognize exceptions beyond those specified in the federal law. Id.

The Commissioner argues that Hines and Budney were wrongly decided, misinterpreting the federal statute, particularly in light of the presumption against preemption. The County contends that this statutory exception to the nonrecovery principle allows recovery generally against individuals who received benefits after age 55, and does -not narrowly limit the sources of recovery. The County asserts that the reference to the individual’s estate is merely a designation of the timing for recovery rather than a limit on the scope of recovery, because the language does not say that the state may recover “only” from the individual’s estate. The County argues that, absent such express limiting language, and applying the presumption against preemption, section 1396p(b)(l)(B) merely specifies one potential source of recovery, the recipient’s estate, and does not preclude others, such as a spouse’s estate.

In our view, the plain language of section 1396p(b)(l)(B) comports far more closely with the interpretation of the Illinois Supreme Court in Hines than with the County’s expansive view of the authority imparted by that provision. Moreover, we know of no court that has adopted the County’s broad view of that language alone. Indeed, in explaining the then-existing law in a report on proposed OBRA amendments in 1993, a House Report referred only to the possibility of recovery from the estate of the recipient, even when describing recovery after the death of a surviving spouse:

Under current law, a State has the option of seeking recovery of amounts correctly paid on behalf of an individual under its Medicaid program from, the individual’s estate if the individual was 65 years or older at the time he or she received Medicaid benefits. The State may not seek recovery from the beneficiary’s estate until the death of the surviving spouse, if any, and only if the individual has no surviving minor or disabled child.

H.R.Rep. No. 103-111, at 208 (1993), as reprinted in 1993 U.S.C.C.A.N. 378, 535 (emphasis added). In contrast, describing the proposed 1993 amendments to the Medicaid recovery law passed by the House, the same House Report stated that newly-required state estate recovery programs would have to “provide for the collection of the amounts correctly paid by Medicaid on behalf of the individual for long-term care services from the estate of the individual or the surviving spouse.” Id. Thus, when the House wanted to describe recovery from the surviving spouse’s estate, it said so clearly.

Nevertheless, despite the seemingly plain language providing only for recovery from the recipient’s estate, we acknowledge that several courts have interpreted the federal recovery provisions to allow recovery from the estate of a surviving *66 spouse. The courts reaching this conclusion have for the most part relied on the 1993 amendments to the federal law that allow the states to adopt an expanded definition of estate for purposes of Medicaid recovery. For example, the New York Court of Appeals explained, in dicta, that although federal law did not expressly provide for recovery of Medicaid payments from the “secondarily dying spouse’s estate,” the 1993 amendments gave the states power to recover against the spouse’s estate for certain categories of assets. In re Estate of Craig, 82 N.Y.2d 388, 604 N.Y.S.2d 908, 624 N.E.2d 1003, 1006 (1993). The North Dakota Supreme Court agreed with the Craig interpretation that the 1993 expanded estate provision gave the states the option to recover against a surviving spouse’s estate assets conveyed through joint tenancy or right of survivorship. In re Estate of Thompson, 586 N.W.2d 847, 850 (N.D.1998). Indeed, the court in Thompson rejected the ruling in Budney that recovery against a surviving spouse’s estate is not allowed under federal law on the basis that the Budney court had not considered the optional expanded definition of “estate.” Thompson, 586 N.W.2d at 850. The North Dakota court concluded that “consideration of all the relevant statutory provisions, in light of the Congressional purpose to provide medical care for the needy, reveals a legislative intention to allow states to trace the assets of recipients of medical assistance and recover the benefits paid when the recipient’s surviving spouse dies.”