May 29

State Can Recover Non-Medical Expenses From Medicaid Recipient’s Estate

Herman Vollmann received Medicaid benefits while he resided at two different nursing homes. After he died, the state filed a claim against his estate for $22,978.35 to recoup Medicaid benefits paid on his behalf. The amount was based on the per diem rate calculated under the state’s Medicaid plan.

Mr. Vollmann’s estate disallowed the claim, and the state petitioned the court. Both parties asked for summary judgment. The estate argued that the state was entitled to recover only medical expenses, which totaled $360.45. The trial court granted summary judgment to the state, and the estate appealed.

The Nebraska Supreme Court affirms, holding that the state can recover nursing home services that include non-medical expenses. According to the court, “‘medical assistance’ provided to a Medicaid recipient includes costs for his room and board and other ‘nonmedical’ expenses at nursing facilities.”

To read an article from the Omaha World Herald about the case, click here

For the full text of this decision, click here.

May 15

Nursing Home’s Claim Against Resident’s Spouse Under Necessaries Statute Can Continue

Cora Sue Bell’s husband, Robert, resided in a nursing home for a few months before he died, accruing $1,678 in unpaid nursing services.

The nursing home sued Mrs. Bell under Ohio’s necessaries statute. The statute requires a married person to pay for a spouse’s necessities if the spouse is unable to support him- or herself. Mrs. Bell argued that Mr. Bell could support himself because he had 54 days of skilled nursing home Medicare coverage remaining. The trial court granted summary judgment to Mrs. Bell, ruling that the nursing home was required to pursue a claim against Mr. Bell’s estate before pursuing a claim under the necessaries statute. The nursing home appealed.

The Ohio Court of Appeals, 12th District, reverses, holding that summary judgment is not appropriate because more facts are needed to determine whether Mr. Bell could support himself. The court rules that the necessaries statute creates a separate cause of action that is not dependent on pursuing a claim against the estate. According to the court, the fact that Mr. Bell had insurance policies through Medicare that may have covered the nursing costs is not enough to affirmatively demonstrate that the nursing home “could not establish the inability to support element of its necessaries claim.”

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2017/2017-Ohio-1499.pdf

May 9

State Not Required to Deduct Pre-Eligibility Nursing Home Expenses From Patient Amount

A Florida appeals court rules that the state is not required to deduct all of a Medicaid applicant’s pre-eligibility nursing home expenses from the applicant’s income when calculating the applicant’s monthly contribution to nursing home costs. Goodwin v. Florida Agency for Health Care Administration (Fla. Ct. App., 1st Dist., No. 1D12-4430, April 4, 2016).

After Gabrielle Goodwin injured her spinal cord, she entered a nursing home. She applied for Medicaid through a program that required her to contribute to her cost of care by paying a monthly co-pay that was based on her income. To calculate Ms. Goodwin’s patient responsibility amount (PRA), the state is required to deduct unpaid medical expenses from Ms. Goodwin’s income. The state calculated Ms. Goodwin’s PRA at $1,000.

Ms. Goodwin appealed, arguing that the state should have deducted all of her unpaid, pre-eligibility nursing home expenses — about $70,000 — from her income. The state denied her appeal, ruling that federal regulations require the state to deduct medical care not covered under the state’s Medicaid plan and that Ms. Goodwin’s care was covered. Ms. Goodwin appealed to court, arguing that covered care only included care the state actually paid for.

The Florida District Court of Appeal, First District, affirms, holding that the state is not required to deduct all of Ms. Goodwin’s pre-eligibility nursing home expenses. According to the court, because the state’s “Medicaid program routinely includes and covers the nursing home care that Ms. Goodwin received” before becoming eligible for Medicaid, the state considers them Medicaid-covered expenses.

For the full text of this decision, go to: https://edca.1dca.org/DCADocs/2012/4430/124430_DC05_04042016_094233_i.pdf

May 5

Lawsuit to Prevent State from Recovering Medicaid Benefits from Spousal Annuity May Proceed

A U.S. district court rules that a case by the family of a Kentucky Medicaid recipient challenging the state’s adherence to federal law regarding spousal annuities rather than to a less restrictive state regulation may proceed against the secretary of Kentucky’s Medicaid agency because the secretary does not have qualified immunity. Singleton v. Commonwealth of Kentucky (U.S. Dist. Ct., E. D. Ky., No. 15-15-GFVT, March 31, 2016).

Claude Singleton entered a nursing home and applied for Medicaid. His wife, Mary, purchased an annuity with herself as annuitant. Ms. Singleton wished to name the state as remainder beneficiary up to the amount of Medicaid paid on her behalf. State regulations provide that the state must be named remainder beneficiary for the amount of Medicaid benefits paid on behalf of the annuitant, and this did not change even after federal Medicaid law was amended in 2006 to require that states be named as a remainder beneficiary for Medicaid benefits paid on behalf of the institutionalized individual.  However, Ms. Singleton’s attorneys – the ElderLawAnswers member firm of McClelland & Associates, PLLC —  informed her that the state Medicaid agency’s branch manager would view structuring the annuity pursuant to the state’s regulation as a transfer for less than market value, so Ms. Singleton changed the state’s remainder beneficiary amount to Medicaid paid on behalf of Mr. Singleton.  

After Ms. Singleton died, her children, the annuity’s secondary beneficiaries, sued the secretary of the state Medicaid agency, along with other parties, arguing that state regulations may be less restrictive than federal law and that the branch manager’s alleged policy of rejecting annuities drafted pursuant to Kentucky’s own statute was improper. The state filed a motion to dismiss, arguing, among other things, that the secretary has immunity.

The United States District Court for the Eastern District of Kentucky denies the motion to dismiss the claim against the secretary in her official capacity. The court holds that because the Ms. Singleton’s children are seeking prospective injunctive relief by seeking to prevent the state from collecting any more than the amount paid by the state on behalf of Ms. Singleton, the secretary is not entitled to immunity.

For the full text of this decision, go to: http://cases.justia.com/federal/district-courts/kentucky/kyedce/3:2015cv00015/77278/39/0.pdf?ts=1459523955

December 24

Activities of Daily Living Measure the Need for Long-Term Care Assistance

Most long-term care involves assisting with basic personal needs rather than providing medical care. The long-term care community measures personal needs by looking at whether an individual requires help with six basic activities that most people do every day without assistance, called activities of daily living (ADLs). ADLs are important to understand because they are used to gauge an individual’s level of functioning, which in turn determines whether the individual qualifies for assistance like Medicaid or has triggered long-term care insurance coverage.   

The six ADLs are generally recognized as:

  • Bathing. The ability to clean oneself and perform grooming activities like shaving and brushing teeth.  
  • Dressing. The ability to get dressed by oneself without struggling with buttons and zippers.
  • Eating. The ability to feed oneself.
  • Transferring. Being able to either walk or move oneself from a bed to a wheelchair and back again.
  • Toileting. The ability to get on and off the toilet.
  • Continence. The ability to control one’s bladder and bowel functions.

There are other more complicated tasks that are important to living independently, but aren’t necessarily required on a daily basis. These are called instrumental activities of daily living (IADLs) and include the following:

  • Using a telephone
  • Managing medications
  • Preparing meals
  • Housekeeping
  • Managing personal finances
  • Shopping for groceries or clothes
  • Accessing transportation
  • Caring for pets

Long-term care providers use ADLs and IADLs as a measure of whether assistance is required and how much assistance is needed. In order to qualify for Medicaid nursing home benefits, the state may do an assessment to verify that an applicant needs assistance with ADLs. Other state assistance programs also may require that an applicant be unable to perform a certain number of ADLs before qualifying. In addition, long-term care insurance usually uses the inability to perform two or more ADLs as a trigger to begin paying on the policy.