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."
thanks!
I agree. It is sad that the last thing of any monetary value can be taken away.
The entire system is broken. I work in a pediatric hospital and it makes me furious to see the "destitute" welfare moms walk around in designer clothing, draped in jewelry, with their hair and nails done, talking on their cell phones. These are the same moms who can't "afford" to buy food or formula for their kids, or "don't have transportation" to take their kids in to the free clinic we provide for immunizations.
These people get everything you can imagine at no cost. Transportation, clothing, food, medical and dental care, help with bills, etc. And then we have the elderly, who have usually worked the majority of their lives, having their homes and other assets taken to pay for the very things we provide for free to the welfare moms.
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 think that period varies from state to state. Here in PA, someone told me it's now five years -- was three years.
I don't think long-term care insurance existed when they would have been planning for retirement and to purchase it anytime after age 55 would have been prohibitively expensive. Long-term care insurance is a relatively new concept and the vast majority of people don't have it. It's a great idea if you start young enough, but even then you better plan on checking out pretty quickly once you hit the home.
In another lifetime I was an Eligibility Worker in California for a county welfare office. Once a week I had to work I&R (intake and referral) for those exact welfare moms. They transferred me to a Medi-cal caseload of mostly old people. Some of the old people's cases broke my heart......... and then I would have to go work I&R. I couldn't take it anymore and quit.
YEAH, just charge the government. That way, you and I don't have to pay for it.
I see a lot wrong, when the state interferes with patients choices as to when to die. If someone would rather leave the family home to the next generation, and die a few months earlier via assisted suicide, tough. The government says you have to stay alive whether you want to or not, and it will decide what medical care you must receive at a minimum, and it will hire unionized healthcare workers to deliver the care you don't want, and then it will take your family home after you die on the grounds that "you owe the government". 50% of our nation's colossal health care tab is spent on the last 6 months of life, in many cases on patients who are so demented that they don't even know who they are. It's absolutely insane, and refusal to face the real costs can't continue indefinitely.
I'm in Ohio and my planner had me put everything into my trust...my house, my investments, my bank accounts...ALL OF IT!
The advantages for me is it avoids Probate when the time comes, but it also protects all my assets should I get remarried.
Interesting thing these "Trusts." Talk to a professional regarding your own personal situations!
It's the status of a structure just before the kids sell it and split the proceeds.
BTW-Year 2005 Federal legislation makes anyone with a residence worth over $500k (higher in some states) ineligible for Medicaid Long Term Care.
If a private company or a corporation were doing these things, the state would shut them down instantly.
So much wrong here; but it really all boils down to a single word in one sentence:
"If we are going to provide Medicaid coverage, we must actively engage in estate recovery efforts."
If.
If it were truly a matter of IF, people would be discussing the alternative.
Instead we have no one questioning the merit of socialized medicine, and therefore they actively engage in estate recovery efforts that would be called criminal atrocitites if committed by anyone except the holy gubmint.
What makes you think the "real costs" are a fraction of $288,000? Nursing home care for seriously disabled and/or demented patients involves paying a large staff for 24/7 coverage, lots of medical equipment including single-use supplies, maintaining a building, liability insurance, and on and on. And whenever a problem requiring hospital treatement arises, the patient is transported to the hospital and the tab get an extra bundle tacked on. It doesn't say how many years this woman spent in a nursing home, but many patients spend 5-10 years or even more.
If I understand this correctly. That's not the case. The parents still own the home. Had they deeded it to the children with a provision for a lifetime residence, I don't believe the state could get their hands on it.
This is really nothing new. Medicaid has had similar requirements for nursing home care for years.
I don't remember all the rules, but for a while just out of college I did nursing home placements. The most I remember anyone being able to keep was prepaid funeral expenses. But that was in the early 80s so 1) rulse could have changed and 2) my memory could be faulty.
Usually there's a length of time when assets are transferred. It's been a few years since I've heard the info first hand, but here in Oregon I believe transfers of assets that took place less than 2 years prior to the individual requiring Medicaid were invalid. I'm sure there are some estate planning and/or attorney freepers that have better, more current info.
The family can't have their possessions grabbed by the state, but I don't see any problem in using the ill person's assets to pay the tab. Otherwise you and I would be paying it.
I don't see it that way, I see it as a creditor making sure they were not scammed. Your mileage may vary.
susie
Can/do states go after these welfare queens to recoup their ADC payments, welfare payments, food stamp monies, WIC, Medicaid, etc.?? Seems to me, if they go after the sick elderly, they should go after the young, able-bodied leeches who are able to work.
Sorry to have pushed your buttons Carolyn. ;-) I'm happy you are with us and hope the cancer goes into remission and never troubles you again.
I lost my Mom to lung cancer so it means a lot to me when anyone overcomes any form of cancer. God bless you and may He keep you always strong and healthy.
That's interesting, I haven't kept up with the laws.
susie
I agree with you.
The lesson is: a government that is powerful enough to give you everything (including long term care) it is strong enough to take everything.
Get 'long term health insurance' and keep the state out of it.
Assets of only $1500 allowed to receive any government benefits like these here in Ohio.
In this case the assets were the patients'. They were transferred to the relatives to avoid losing them to the state, as partial payment for long term care.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.