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."
"The assets were not those of the relatives. The offspring lived in the home, but it was still owned by Dad."
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That's what I thought was conveniently vague in the article. The smart thing would have been to buy the property, put the money from the transaction in the father's account and pay the costs out of that.
I'm familiar with long term care insurance because my husband, sister and b-i-l, and parents have it. You have to be relatively healthy, but certain conditions will disqualify you (or force you to buy a policy from a company that is for a higher-risk group and more costly). One example of a condition that will put you in a higher risk group is diabetes, or having had a heart attack. You can get it, though, if you have conditions like high blood pressure or high cholesterol. Generally, the younger and healthier you are, the lower your premiums will be.
The best insurance that my relatives found, by far, was from GE Financial -- they have been in the business longer than any other company. I think that division goes by a different name now -- Genworth, or something like that? My parents shopped around a lot and even talked to assisted living facility managers to get their opinion.
Shopping policies from multiple companies is like comparing apples and oranges -- they all have different features. What you want is a premium that stays flat for the rest of your life and covers you for a minimum amount per day (that amount depends on what nursing home costs are where you live) with an automatic coverage increase of the daily benefit of 3% or so every year to cover cost of living increases.
To give you an idea, my sister is 49 years old and bought a policy 2 years ago. Her policy is between $1300 and $1400 per year -- she is healthy, overweight but not obese, so her risk is lower and her premium reflects that. Her yearly premium will never increase. Should she need it, she will get what started out as up to $150 per day, but that payout increases every year by 3% (so if she were to need it today, here daily payment, 2 years later, is now up to $159.13). It will cover in-home care if she prefers. (Imagine that -- being able to stay in your own home). If she gets ill and her long term care coverage kicks in, then the yearly premium ($1300) is waived while the coverage is in effect -- indefinitely. The policy will cover he for as long as she needs it. You can get variations, such as only 2 years instead of unlimited, and the cost is less. The older you are when you buy the insurance, the more your yearly premium will be.
Long term care insurance is something to be seriously considered if you have assets to protect (unless you are very wealthy, and you've got enough money to bear that risk). Without protection, long term care costs can drastically draw down someone's assets. Personally, I would rather be covered and not see everything that I've saved go towards a nursing home. I want to give it to whomever or whatever I choose.
If you take my sister's cost for 37 years (until she's 85), that $1300 per year amounts to $48,100 -- except there's no telling what one year in a nursing home will cost 37 years from now. That's about the cost of one year in a decent nursing home. (It's much higher in some localities, and lower at the poorly run facilities but you DON"T want to end up at one of those). Hopefully we all croak in our sleep when were old but still relatively healthy and don't ever have to deal with these issues, but we don't get any control over that!
I hear ya on the illegals, but two wrongs don't make a right. In this case, the taxpayers of TN are shelling out a lot of money to care for people who have salable assets. It's only right that those assets should be sold FIRST before the taxpayers are made to ante up.
Thanks for the info! I guess the bottom line is one should get it when they are younger. I'll tell you tho, I wonder what nursing home care will even be like in 30 years!
Hopefully none of us will need it (my Mom died in 2000 and my Dad was able to care for her at home while she was ill) and my inlaws both died this January, and my FIL had been able to take care of my MIL at home (she had alzheimers and was bedridden for about 6 years). Neither had nursing home care.
My Dad is in his 80s, but should he need care he will likely come live with my brother or I, hopefully he will not end up with something that cannot be cared for at home (I realize there are those conditions--however, I think alot of people could be cared for by family but are not for one reason or another).
susie
"It should be a means tested benefit with no free lookback period."
I absolutely agree. Before the state kicks in one penny, people should have to spend all their assets on their care--no transferring stuff to the kids just under the wire to avoid it being sold. If that means the grown children get nothing, so be it. It's grotesque to try to save your elderly parents' assets so you get some sort of inheritance by sticking the taxpayers with their bills. It's the parents' money to be used for their care.
The adult children in this article should be ashamed. Some peoples' sense of entitlement amazes me.
Let me ask you. If I owe you money, but I conveniently transfer my assets to someone else and then die, is that ok with you?
susie
I can tell you that in the state I'm in (Texas), once a person is indigent (down to just a couple of thousand dollars in assets, but that doesn't count their house), then they qualify to go on Medicaide, which is what pays for indigent nursing home care. Medicaide (the State, or you and I, the taxpayers) only reimburses a nursing home about $90 per day for basic care, so that is all that Medicaid can come after when a person dies -- only if a home exists to "go after," since the patient has already established that they are indigent.
It isn't an "inflated amount," if anything it is minimal. Two patients, side by side in a nursing home will get the same care. The facility will get $90 per day from the state for the indigent patient, but the person that still has assets has to pay the private patient rate -- which in my f-i-l's case was $147/day at the facility where he stayed after he broke his hip and his regular insurance dropped off. Luckily we were able to get him out of there -- the place was terrible.
The "inflated" amounts that you are talking about are witih hospital care, and that is covered by Medicare for all persons over 65, not Medicaide for indigent patients that need nursing home care.
Some people give their money/estate to their children before they die so that the state can't touch it. That is not fair to all the working folks who play honest.
How we as a culture treat our parents and grandparents is a crime.
If you reread the posts you will find that I simply said that "inflated costs" were not the issue of this article. I was pointing that out to a poster who impied that it was the issue.
"Inflated costs" have nothing whatsoever to do with this article and that is all I was pointing out.
I was neither agreeing or disagreeing with her about costs.
I have only been to two different ones and they were excellent. I'm sure the type you describe exist but I haven't seen them.
You mean the government can confiscate and sell your home to pay for it?
The state pays these hellholes, within people wishing to die, feces and the stench of rotting flesh.
The homes get their money with little oversight. Then the state demands repayment even though the victims of this horrid system payed into it with their taxes all their working life.
We could easily ask that question about all law. The alternative is no law at all. I think this is quite fair. I'm not willing to have no law on the chance it might be taken too far. I would rather cross that bridge as it arises.
susie
Oh honey, I notice in spades.
Right now my frail, elderly, WWII vet father is dying in the room next to me.
I spend my days looking after his needs and trying to make him as comfortable as possible in the time he has left.
It's the hardest thing I've ever done and I wouldn't give up a moment of it.
The family could have helped pay the NH bill along with the parents SS check. But they did not want to do that. They could have mortaged the house and used to money and made house payments. People need to plan for these things. I bet the Son that got the home did not pay a dime to the NH for his parents care. I do understand the anguish however but most people think they will just get their neighbor to pay (taxes)and they will not have to.
If you want the home talk to a lawyer now. I think if you take legal possession 3 years before they enter a NH they can not take the home. That is how it is in Arkansas. But you have to own the house legally. Your parents of coarse can still live there.
If you take the government's money, you take the government's rules and regulations.
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