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."
Me neither...but I would indeed be concerned about how they tally the amounts - undoubtedly just like hospitals, racking up $40.00 for a pair of disposable bedroom slippers, etc., etc.
My sibs and I are facing this with my parents right now - altho we're not quite at the point where they're institutionalized yet....be it either the current caregivers or "the home", they'll run out of funds - except for their home - in around three years.
"If there are any assets available the free loaders should pay too."
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Isn't the issue, who's assets are they. Should the state be able to take the assets of all relatives to pay for someone's care?
You are correct but it's a different issue.
I agree. The so called family home is the property of the person being cared for. I don't know why the taxpayer is more obligated for their care than they are.
susie
Give your real estate to your kids. If you do it more tham 60 months prior to being deemed eligible for Medicaide, then it will not be looked at when you die.
Where did you read that they are doing that?
Not everyone can qualify for longterm health care !!
I WANT MY FREE STUFF!
What would happen if the family home was passed on, and then sold? Would they go after the value of the sale, or what was left after the mortgage was paid off? Or could they go after the new homeowners?
Don't think about it as losing their homes, think about it as paying for their care. It is very arduous, but the children usually can take care of the parent. They just don't want the sacrifice, all too often. It's too easy to let Big Daddy Gov't do it (that would be out of OUR pockets)
My mother signed over her house to my two sisters several years ago, I wanted nothing to do with it. Now mom wants to sell the house and move. My sisters have found out they will owe capitol gains tax if mom sells the house. Since it's not my sisters primary residence.
"... if you are aging and think you might need TennCare (or Medicaid in other states) some day to pay for your nursing home care, but you don't want your house to be sold to repay TennCare or Medicaid, you can transfer the house to your heirs before you go on TennCare or Medicaid. I believe you need to do it at least five years before you accept TennCare or Medicaid funding of your nursing home care. (I'm not an expert, but there are financial planners and consultants who can help you learn the details.)"
Transferring or gifting assets would have avoided this situation. It is all legal, and if you have aging parents this is something that should be planned and completed well in advance.
Yes, all you have to do is put the house into a trust. The state can't touch it then because it's not an asset of the patient.
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.
"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."
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My only concern is that the line of ownership doesn't get blurred. IOW, we aren't talking about the state having the power to take the assets of other relatives to pay for someone's care are we? As I read this, the house got taken because the son didn't bother to buy it from his dad and it was still in his father's name. If the son had purchased the house from the dad, for whatever price they agreed to, and transfered title the state would not have had a right to go after that property.
Hardly, if they're coming after $280,000 when the "real costs" are likely a fraction of that.
The house in question, apparently belonged to the parents. Also, apparently, in TN you cannot pass it on to your kids to avoid having it as an asset. I suspect they could have sold it to the kids, but I'm not sure. They should have had someone who does trust or estate stuff give them better advice.
susie
I don't know much about long term care insurance. Can you tell us what it takes to qualify?
susie
All I've ever wanted was a free pony but I found out years ago that I am not the free pony recipient, I am the free pony provider.
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