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."
>>>It was my mothers dying wish not to die, but that didn't happen either.
That's the best point I've seen raised on this thread. LOL.>>>
Sad, ain't it?
I do agree that there is alot of unfairness in the way the laws are applied. However, the answer is not to give more freebies, but to stop giving the really blatant ones we now subsidize.
susie
"There are laws on the books governing how many years previous to the death the title must have been transferred. If the son had title prior to that time limit the state wouldn't have a claim."
__________________________________
That's my only concern.
When we admitted my dad to a nursing home, they started to hand us the Medicaid forms and we told them he didn't need them. They smirked and said, "He will". Really gives you that warm and fuzzy feeling.
**
Rather crass of them to give you the forms. But they are often right. My mother turned over her bank accounts to my brother and me some years before she went into the home; so those assets could not be touched. However, turning over one's home or money can be a risky proposition -- I've seen and heard of children squandering all the money; so when the time comes for Mom or Dad to require care, there is no money to pay for it. But, as in our case, even if the assets are preserved, often the money does run out.
This feels like a slippery slope. In a welfare society the individual can be viewed as owing everything to the state. Therefore once you pass on everything you own is sold to compensate the state for "services provided".
Services provided can be viewed as simple government functions once funded by taxes but now very costly due to the disparity between the public sector and private sector pay. To fund public sector wages the government starts confiscating private property to pay for services.
They just gave the house back to her. I was against the evasion from the start, my mother is not poor and neither am I or my siblings.
Maybe you could email the writer of the article for clarification? I would like to know, but I suspect that he did not go thru the process and now is complaining. However, I could be wrong.
susie
Something I have to wonder about. When the patient is given or ask to sign forms to authorize treatment, are they made aware that receiving the treatment will cost their children the home they're living in? If I'm ever in that position, I might want to know that.
Agreed.
That free stuff sure costs a lot.
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.
Yes PA is pretty generous as far as the house goes. My Grandparents home is still in our family even after my Grandmother was in a nursing home after two years or so. I am not sure if it is because everything was paid or not though. With how expensive nursing care is I sorta doubt it to be honest with you.
Your grand parents may have had long term care insurance.
This is the last big issue with health care. Since your home is basically your biggest savings asset....I believe that if the government is taking care of you, they have a right to it. There's a whole industry set up to make sure the elderly do not lose their homes when they need to pay for their healthcare. IT'S WRONG.
The old man should have transferred the title to the family and the govt can go pound salt for allowing health care to become unaffordable.
I believe that the government is able to force the return of the property and invalidate the sale if it's done less than 2 years before going on medicade.
I know that's the case if it's transferred to family member. I'm not so sure if it's transferred to a non-relative.
Mark
I absolutely agree. I do Medicaid and Medicare billing, and we get a lot of money from both programs. But we also have employees whose kids and families are on Medicaid, and every time one of them gets sick, they go to the ER on Medicaid. Doesn't cost them a dime. And I'm working my butt off to pay costs over and above my insurance for my second bout with lung cancer. The problem really started when we let the government take our money and use it as it sees fit. We opened the door and let the crooks in, and we're paying for it now. Oops, sorry, I guess you pushed on of my buttons! :^)
Carolyn
Yes PA is pretty generous as far as the house goes. My Grandparents home is still in our family even after my Grandmother was in a nursing home after two years or so. I am not sure if it is because everything was paid or not though. With how expensive nursing care is I sorta doubt it to be honest with you.
***
The home in which my mother resided had assured my brother and me that regardless of circumstances, they would still provide care for my mother. Didn't matter whether she had insurance, was eligible for Medicare or Medicaid, whatever. It was a Catholic home, so they may have had some kind of "free care" fund for those who could not pay. Or there may have been some law or internal regulation that stated they could turn no one out for inability to pay. I don't really know the law -- just what we were told. And as I said, it turned out we didn't have to face the situation since my mother passed on before our application for Medicaid was even submitted.
"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"
was same way in MO with my folks
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