With few exceptions (such as the existence of an interstate compact), a Medicaid applicant must be a resident of the State where benefits are provided. 42 CFR § 435.403. [Note 10]. The “duration” of residence cannot be a condition of eligibility. See 42 CFR § 435.403(j)(1); Shapiro v. Thompson, 394 U.S. 618 (1969). HCFA 64 provides the following guidance in determining the State of residence for those who are 21 and older:

3230.2 Residence Criteria Specific To Individuals Age 21 and Over.–

A. Determining State Residence for an Individual Not Residing in an Institution.–The State of residence is the State where the individual is living with the intention to remain there permanently or for an indefinite period, or where the individual is living and which he/she entered with a job commitment, or seeking employment whether or not currently employed.

B. Institutionalized Individuals Who Became Incapable of Indicating Intent Before Age 21.–For an individual who became incapable of indicating intent before age 21, use one of the following to determine the State of residence except when a State places the individual in an institution. (See §§3230.C and 3230.3B.)

• • If a legal guardian is appointed and parental rights are terminated, the State of residence of the guardian is used instead of the parent(s).
  • The parents’ or legal guardian’s current State of residence at the time of placement. In determining the parent(s’) or guardian’s State of residence, apply the same rules for determining residence for an applicant or recipient over 21 and noninstitutionalized (See §3230(D)(1).

C. Determining State of Residence for an Institutionalized Individual Who Became Incapable of Indicating Intent at or after Age 21. –The State of residence is the State where the individual is physically present, except where another State makes a placement. ( See §§3230.D and 3230.3B.)

D. Determining State of Residence for an Institutionalized Individual Capable of Indicating Intent.–The State of residence is the State where the individual is living with the intention to remain there permanently or for an indefinite period.

Note 10: When two or more States cannot resolve which State is the State of residence, the State where the individual is physically located is the State of residence for Medicaid purposes. HCFA 64, § 3230.6.

Tennessee and Georgia have entered into an interstate agreement providing that residents from either State may receive benefits in the other without establishing residency. [Note 11]. HCFA 64 addresses those agreements as follows:

3230.4 Interstate Agreements.–States and Territories are permitted to enter into a written agreement with another State to resolve cases of disputed residence. You may establish criteria other than the criteria set forth defining ” who is a State resident” at 42 CFR 435.403(d), and 436.403(d). Do not include criteria that are prohibited, as specified in §3230.3, or that result in loss of residency in both States. The agreement must also contain a procedure for providing Medicaid to individuals pending resolution of the case.
The regulations established the provision for interstate agreements to deal with cases of disputed residence, and allows you to expand the use of such agreements for reasons other than cases specifically related to disputed residence.

You may use interstate agreements to facilitate the placement and adoption of title IV-E individuals when the child and his/her adoptive parent(s) move into another State. However, you may not use interstate agreements to override the provisions added to §1902(a) of the Act by §9529 of COBRA.

If you enter into interstate compacts as provided for under P.L. 96-272, you may establish reciprocal agreements for providing medical assistance for individuals receiving adoption assistance payments.

An agreement may be very limited or very broad at your option, e.g., an agreement can pertain to one individual, all institutionalized individuals, or all individuals.

Note 11: 42 CFR § 435.403(k).