We just won another Medical Assistance appeal issue. In this case, Medical Assitance was initially denied for nursing home benefits and the son of the Medical Assistance applicant was handed an invoice from the nursing home for over $100,000. Needless to say, he was upset. We were able to successfully argue that that the transactions at issue were not Medicaid Penalty transfers and that full Medical Assistance benefits should have been granted from day 1. We received the Administrative Law Judge opinion today removing approximatley 98% of the penalty. Client is happy.
A very common situation for my clients (or potential clients) find themselves in is the chaotic situation of transferring their parent from a hospital to an area nursing home for rehabilitation. It is in this situation, when emotions are high, people are tired, that the nursing home will, at the last second, wants the son or daughter admitting the parent to sign a 60+ page nursing home contract. Of course, the nursing home contact (usually the nursing home admissions director) is very friendly and advises that “don’t worry” this is just for your parent’s assets and does not obligate you to use your own funds for nursing home expenses. Often times the nursing home will demand that the contract be signed before admission (even if the hospital is in the process of discharging from the hospital). Often times this is an extremely hectic situation and the last thing that is on the son’s or daughter’s mind is a careful review of the nursing home contract. To be clear: under no circumstances should the contract be signed until an elder law attorney reviews the contract. It is a very routine question to ask the nursing home to allow time for their elder law attorney to review the contract. No matter how friendly the director of admissions person is, if there is a shortfall in payment or the Medical Assisstance application goes awry, the nursing will look for however signed the contract to pay the nursing home bill in full. I had a recent case where the nursing home assured the son that there was nothing to worry about and had him sign the contract in his name. The nursing home handeled the Medical Assistnace application. Unfortunately, the Medical Assistance application was denied. The next day, the nursing home delivered an invoice to the son for immediate payment for $100,000 for unpaid nursing home bills. Nursing home contracts are sophisticated documents with good attorneys hired by the nursing home that will use this contract against you. It is absolutely critical that an elder law attorney review that contract as soon as possible. If the contract is already signed, then the situation becomes more complex. In either event, a competent elder law attorney should be immediately contacted.
Medicaid Spousal Impoverishment Figures for 2012
The new minimum community spouse resource allowance (CSRA) is $22,728, and the new maximum CSRA is $113,640. The new maximum monthly maintenance needs allowance is $2,841. The minimum monthly maintenance needs allowance remains $1,838.75. This has yet to be implemented for Maryland. It is expected to come out shortly. It is unclear if this will be retroactive to January 1, 2012.
In part, what this means is that the community spouse of a Medical Assistance applicant can have no more than $113,640 in countable assets at the point when she is seeking eligiblity for the nursing home spouse. The prior maximum amount allowed was $109,560.
According to the newly published survey by Metlife, the average cost of long term care continues to rise. According to the report the average room nursing home rates rose nationwide by 4.4 percent to $87,235 a year or $239 a day, while assisted living facility costs jumped 5.6 percent on average to $41,724 a year or $3,477 a month.
According to the Metlife survey, Baltimore area nursing homes ranged in monthly costs (for a semi private room) from $6,944 to $9,424 a month. The Baltimore area average assisted living costs grew to $3,830 a month. The Baltimore area average home health aide charged $19/hour.
From a Maryland perspective, once an individual is eligible for long term care Medical Assistance, all of his or her income must go to the nursing home except for certain deductions. Notably, the deductions are health insurance, personal needs allowance (currently at $71/month), and possibly a spousal allowance. While there may be other needs for the nursing home resident, a question often poised is can the resident’s income be used to pay for private nurses? The answer here in Maryland is “no.” If private duty nurses or aids are going to be employed they must be paid for by other resources, typically, the surviving spouse or other family members.
So, it came as no surprise that in a recent out-of-state case, that this court also held that private nurse costs could not be deducted from the nursing home resident’s income (once they were on Medicaid). In Re Pitman v. Daines (N.Y. Sup. Ct., App., Div., No. 2011 NY Slip Op 08681, Dec. 1, 2011). In that case, the nursing home resident paid for private nurses to provide 24-hour care. After the resident died, the resident’s executor sought to have the decedent’s net available monthly income reduced for Medicaid eligibility purposes by the amount the decedent paid for
the nurses, but the state refused.
After a hearing, New York State Department of Health found for the state, and the executor appealed.
The New York Supreme Court, Appellate Division, held that the amount the resident paid for private nurses could not be subtracted from his monthly income for Medicaid eligibility purposes. According to the court, “private 24-hour nursing care may have provided the deceased with ‘optimal care’ but was not ‘essential’ care that was ‘medically necessary’ for purposes of Medicaid reimbursement.”
If this same case were heard here in Maryland, it is my opinion that the court here would come to the same conclusion.
What is cited below is another jurisdictional case which illustrates the limits of what a State may do to accomplish a Medical Assistance (i.e. Medicaid) recovery on community spouses’ assets. In this case, an attempt was made to put a Medicaid lien on the estate of a recently deceased community spouse at a time when the nursing home spouse continued to receive Medicaid benefits. In this case the court ruled that the State was prohibited from reaching into the spouses’ estate for recovery.
An Idaho district court rules that the state cannot recover assets from the estate of a Medicaid recipient’s spouse that were transferred to the spouse before the Medicaid recipient died. In Re: Estate of Perry (Idaho Dist. Ct., 4th Dist., No. CV-IE-2009-05214, March 16, 2011).
Martha and George Perry owned property together. Mrs. Perry entered a nursing home, and Mr. Perry transferred the property into his name. Mrs. Perry then began receiving Medicaid benefits. Mr. Perry died before Mrs. Perry, and the property was sold. After Mr. Perry’s death, the state filed a claim against his estate seeking recovery of more than $100,000 in Medicaid benefits it had so far paid on Mrs. Perry’s behalf.
The state asserted that, because Mrs. Perry previously had an interest in the property during the marriage, the state could recover an amount equal to her ownership interest. The estate’s personal representative countered that the state was entitled only to recover an amount equal to Mrs. Perry’s interest in the home at the time of her death. Because Mrs. Perry was still alive at the time of the transfer, the personal representative argued the state could not recover any amount. The magistrate ruled that the state’s ability to recover costs was limited to assets that were transferred to the recipient’s spouse at death, not to inter vivos transfers. The state appealed. (Mrs. Perry died while the appeal was pending.)
The Idaho District Court affirms, holding the definition of “estate” in federal Medicaid law does not permit the state to recover property interests the Medicaid recipient divested before death. The court determines that there is a conflict between state and federal law because state law would allow the state to recover from the spouse’s estate so long as the property was once community property, but the court concludes that federal law preempts state law.
Metlife recently released their study confirming that nursing and assisted living rates increased nationwide between 2009 and 2010. For Maryland, in the Baltimore region nursing home costs for semi-private rooms ranged from $6,200/month to $8,742/month. Nursing home costs for private rooms ranged from $6,510/month to $11,005/month. Statewide, assisted living costs in 2010 ranged from $2,800/month to $$8,250/month with the average assisted living cost at $4,122/month.
The Department of Health and Mental Hygiene released the newest Medical Assistance eligibility update which went into effect on August 10, 2010 (MR 154). The changes in this update are profound. It now allows a nursing home Medical Assistance recipient to use her income to pay for nursing home related expenses (up to 3 months retroactive) to the extent Medical Assistance does not cover said expenses (i.e. she has resources in excess of $2,500). This is a profound change by the Department and took many years of litigation by another respected elder law attorney to finally achieve this result. Bottom line, however, is that this can be a benefit for many families that are faced with outstanding nursing home expenses with no normal Medical Assistance coverage for said expenses.
The issue is this, your mother has outstanding nursing home bills and when the application was made for Medical Assistance, she did not have enough assets to pay these invoices. Given the size of nursing home costs, the outstanding expenses could well be thousands, even tens of thousands of dollars. The nursing home is going to look for payment of these invoices and may well start the involuntary discharge process unless they are paid. This new Medical Assistance provision allows for mom’s income to be used to offset these expenses for the three months prior to eligibility. Since this is a brand new provision, it is unclear at present at how efficiently such a request will be implemented by the Department of Social Services. If you find yourself in this position, it is best to contact an elder law attorney to guide you through this process.
Update: The Department of Health and Mental Hygiene will likley apply the allowance for three months prior to the application date which will overlap the current retroactive Medical Assistance eligibility period. However, there will be some instances where retroactive Medical Assistance eligilbity may not be available and where this new provision may be of profound help to many individuals.
Once a resident is settled in a nursing home, being told to leave can be very traumatic. Nursing homes are required to follow certain procedures before discharging a resident, but a facility may occasionally attempt to “dump” an undesirable resident by transferring the resident to a hospital and then refusing to let the him or her back in. However, residents can fight back and challenge such discharges.
According to federal law, a nursing home can discharge a resident only for the following reasons:
- The resident’s health has improved
- The resident’s needs cannot be met by the facility
- The health and safety of other residents is endangered
- The resident has not paid after receiving notice
- The facility stops operating
Unfortunately, sometimes nursing homes want to get rid of a resident for another reason–perhaps the resident is difficult, the resident’s family is difficult, or the resident is a Medicaid recipient. In such cases, the nursing home may not follow the proper procedure or it may attempt to “dump” the resident.
If the nursing home transfers a resident to a hospital, Maryland law requires that the nursing home hold the resident’s bed for a certain number of days. Before transferring a resident, the facility must inform the resident about its bed-hold policy. If the resident pays privately, he or she may have to pay to hold the bed, but if the resident receives Medicaid, Medicaid will pay for the bed hold. In addition, if the resident is a Medicaid recipient the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed.
In addition, a nursing home cannot discharge a resident without proper notice and planning. In general, the nursing home must provide written notice 30 days before discharge, though shorter notice is allowed in emergency situations. Even if a patient is sent to a hospital, the nursing home may still have to do proper discharge planning if it plans on not readmitting the resident. A discharge plan must ensure the resident has a safe place to go, preferably near family, and outline the care the resident will receive after discharge.