Posted on 10/23/2006 10:24:56 AM PDT by SmithL
To foot the bill for Mary and Lawrence Henkel's nursing home care, her children sold everything their parents owned except for the Donelson, TN home the couple had lived in since 1967.
"That was my father's dying wish - to hold onto the house, live in it, take care of it," said Nashville resident Judy Clifford, 66, one of three Henkel children. "That's what he told me, and he gave the house to me."
Now TennCare wants to sell the home to help recoup the roughly $288,000 that the state says it paid to take care of Mary Henkel in the nursing home before she died in February 2003 at the age of 81. Her husband had passed away years earlier.
The Henkel children, who value the home at $110,000, aren't alone. They're among families across the state being asked to give up the family home as TennCare redoubles its efforts to recoup some of the roughly $1 billion a year that the state pays for nursing home and other long-term care.
State officials say they're merely doing what is required by the federal government. And they point out that Tennessee isn't nearly as aggressive as some other states in recouping the money spent on long-term care.
"We're talking about a very emotional time in someone's life or in the family situation, and of course it's something that we wouldn't be unsympathetic to," said Marilyn Wilson, a spokeswoman for TennCare. "If we are going to provide Medicaid coverage, we must actively engage in estate recovery efforts."
It's a common practice for TennCare, the state's expanded Medicaid program, to go after the family homes of nursing home patients who have passed away. Generally, by the time a nursing home or long-term-care recipient gets on TennCare, the patient's family has spent down all of the family assets, except for the home.
TennCare tries to recover money when patients are 55 or older and received long-term care. It will not go after a property if a surviving spouse still lives in the house or a minor child or a child who is considered disabled by certain federal requirements lives there.
Bigger push
The state is stepping up its efforts to get properties on at least two fronts.
In April, TennCare hired an Atlanta-based outside consulting firm to help find properties that deceased long-term-care recipients passed on to their heirs without going through probate. And when it does find the property, it's going to force open an estate.
Under Tennessee law, the property can pass to the heirs without going through a probate court. But if TennCare finds out about the property, it can petition the court to force open an estate, which is what happened in the Henkel case.
The Tenncare Bureau also is looking to the state's highest courts to extend the time that it has to petition a court to get the property.
State law says all creditors have 12 months to file a claim on an estate.
Last month, Davidson County Probate Court Judge Randy Kennedy sided with another family in a fight over a home because he said TennCare waited too long to make a claim. The case was the first of several different ones in Nashville, including the Henkel case, in which TennCare forced open an estate more than 12 months after the patient died.
"We are going to appeal these cases, and the reason why is that of course both federal and state law requires that the state engage in estate recovery, and so as lawyers for the state we are duty-bound to assert all of the legal arguments available to us that support the right to recovery," said acting Attorney General Michael Moore. Moore, whose own mother is in a private nursing home, said he knew how exorbitant the cost of long-term care was.
TennCare argues that it shouldn't be bound by the statute of limitations because it involves public funds.
But experts in probate law disagree and say the one-year rule applies to TennCare.
"I don't know anybody who would disagree with Judge Kennedy's ruling," said Jeff Mobley, a Nashville attorney and an expert in probate. TennCare, he said, has asked the legislature in the past to extend the statute of limitations and is always asking for more ways to recover the money.
Paying for care
The money the Bureau recovers is only a tiny fraction of what the state pays into long-term care.
About 32,000 people on TennCare receive long-term care on any given day, spokeswoman Wilson said. On average, TennCare recoups $14 million a year of the money spent on that population. Last year, more than $1 billion of the program's overall $7 billion budget went toward long-term care.
The state generally has about 500 estate recovery cases per year, Wilson said. It's too early to gauge how successful the outside consultant will be in efforts to recover money.
Tennessee's estate recovery program is actually middle-of-the-road and nowhere near as aggressive as some states, Wilson said, specifically citing others that require nursing home patients to sell their property before they die.
But the practice of taking the family home still comes as a devastating blow to the children of the patients, one legal expert said.
"There is a sense of unfairness about it," said Tim Takacs, a Hendersonville attorney and expert on elder law. "People will come into the office here before Mama's on Medicaid and it's like, 'All she's got is this little house, and she lost her health, she lost her husband, she lost everything else, and now they want the house, too.' ''
Takacs thinks there should be an honest debate about what people should pay and what the government should pay.
He and Mobley, the probate lawyer, say people also need to do a much better job of planning for the high costs of long-term care and not wait until a family member is in a nursing home.
"We like to have people come in before they are in a crisis," Takacs said. "It's never too late to do something. It's just when they don't do anything, that's when they're likely to get an estate recovery claim."
I may be in the minority here but I see nothing wrong with the state trying to recover some of the care costs of patients. It's taking nothing from the patients, only their heirs and at that, only money that's owed to the state.
It's a heartbreak, nothing but a heartbreak.
When we were contemplating long term care for a family member, the nursing homes made it abundantly clear that Medicaid did not mean "free" care. It meant Medicaid would go after every dollar in assets from the patient both while alive and after death.
Me, neither.
I have no sympathy for the kids in any case like this.None.
While I see your point, it's still sad when you consider that these folks probably played by the rules their whole lives and yet are still in a position to lose their home. While many in this country use medical services for free and no one goes after their heirs or family members.
When my mother was in a nursing home, my brother applied for Medicaid. Mom passed on before the application was process was completed. But it surprised me when my bro told me Medicaid here in PA did not demand the house. Now, this was a few years ago; perhaps the law has changed. But that's the way it was back then.
That's the part that's wrong. If there are any assets available the free loaders should pay too.
Why would they if the process was not completed?
Poor estate planning. If the family had done its homework, and consulted with an expert, this could have been avoided, all legally.
If so, shouldn't it come out of the big tobacco settlement to pay for health care costs for smokers? /SARC
When I get to the point where someone feels the need to warehouse me, I'll sell my house. For a buck or two, maybe even five.
Here's the problem I have with this.
They're trying to recoup money for nursing home care...no problem. But then why not keep a running tab on all kinds of care given through the "system" and try to recoup that money too.
Why single out nursing home care? If the patient was on long term dialysis or chemotherapy under the program, why not try to recoup that too.
Why just try to recoup the money of those that were in nursing homes?
"I have no sympathy for the kids in any case like this.None."
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I think your right. If the children wanted the house, buy it. Pay their parents for the house. The parents then put the money in the bank and the state can collect for treatment from the parents accounts.
>>>"That was my father's dying wish - to hold onto the house, live in it, take care of it," said Nashville resident Judy Clifford, 66, one of three Henkel children. "That's what he told me, and he gave the house to me." >>>
Then your father should have purchased long term care insurance. It should not be for the tax payers of Tennessee to pay for your fathers care with a perfectly good way to pay sitting there so he can have a dying wish of holding to a house. It was my mothers dying wish not to die, but that didn't happen either.
Because they aren't getting it from the deceased patients but from their heirs.
I do agree that they should go after all assets available from any patient. I pay my bills and tend to believe that everybody else should too.
I am also going to presume that the elderly persons who recieved the care had been tax payers for most of their lives. It is my understanding that insurance for long term care is of course available but may be too costly for a person on a restricted income. In many cases the only way for an elderly person on a fixed income to receive long term care is through medicaid.
I understand the State's wanting to recoup expenses. However I think more is probably lost through fraud then through legitimate care given to those who have paid taxes and are faced with no alternative but to go on Medicaid.
Go after the illegals, the deadbeats, the doctor's who write fraudalent reports and others who are bilking the system. They are the real criminals.
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