Bankruptcy Court Refuses to Discharge Granddaughter’s Debt to Nursing Home- Lessons for Caregivers

A U.S. bankruptcy court refused to discharge an Ohio woman's debt to a nursing home for the cost of her grandmother's care, finding there exist questions regarding whether the woman knew a gift she had received from her grandmother was an improper transfer of assets for Medicaid purposes and whether the woman intended to defraud the nursing home. In re Donley (Bankr. N.D. Ohio, No. 13-60758, April 17, 2014).

On October 6, 2011, Michele Donley signed an agreement admitting her grandmother, Virginia Carnes, to a nursing home.  She signed a second agreement accepting personal liability for the cost of services provided.  In the admissions agreement, and in two subsequent Medicaid applications, Ms. Donley denied that her grandmother had transferred any assets that might affect her grandmother's eligibility for Medicaid benefits.

Ms. Carnes, however, had gifted $50,000 to Ms. Donley in 2007, which Ms. Donley used as a down payment on a home. The gift  was determined to be an "improper transfer" thereby resulting in a transfer penalty which made Ms. Carnes' ineligible for Medicaid benefits until February 2013. Ms. Donley was unable to keep up with payment for her grandmother's care due to the period of ineligibility, and the nursing home filed an eviction action and later obtained a judgment of $17,441.50 against Ms. Donley for unpaid services.

Ms. Donley filed for bankruptcy protection, and sought to have the debt discharged.  The nursing home opposed the discharge of the judgment ostensibly on the grounds that Ms. Donley acted willfully or maliciously in causing the nursing home's loss.  Section 526 of the Bankruptcy Code excepts from discharge debts that are willfully or fraudulently procured, or resulting from willful or malicious conduct.    

Ms. Donley filed a motion for summary judgment, arguing that the nursing home lacked evidence to establish the elements of a claim, which she argued required a showing of fraud. The nursing home countered that considering Ms. Donley's multiple misrepresentations regarding her grandmother's transfer of assets, questions of fact existed about Ms. Donley's state of mind, making summary judgment inappropriate.

The United States Bankruptcy Court, N.D. Ohio, agreed with the nursing home and denied Ms. Donley's motion for summary judgment. The court determined that there existed a genuine question of fact whether Ms. Donley knew the $50,000 gift from her grandmother was an improper transfer at the time she signed the agreement and whether her misrepresentation was intentional or reckless.

There are several important lessons to take away from the Donley case.  First, Medicaid planning is an important consideration any time that a person wants to make a gift to another.  It is possible, even likely, that Ms. Donley's grandmother did not intend to make her granddaughter financially responsible for her long term care when she made the gift that permitted her granddaughter to purchase her home, but that is exactly the resulting legal and financial consequence.

Second,  caregivers, family members, and/or fiduciaries should have nursing home admission agreements reviewed by counsel before signature.  It is likely that an advising attorney would have explained the consequence of signing a personal guarantee, and absent such a guarantee, the nursing home's case would have been more difficult to prosecute.

Third, When applying for Medicaid, disclosure of all gifts must be made, regardless whether the parties intended the gifts as long-term care planning gifts, or whether the gifts might be overlooked.  The State is quite proficient at discerning improper transfers, and financial transactions, regardless the value, leave a footprint.

Fourth, counsel should be retained by caregivers, family members, and/or fiduciaries prosecuting any application for Medicaid.  Family members often reason that, since there is no value to the applicant's estate, the cost of counsel is unwarranted.  Counsel should be retained for the purpose of advising the person assisting in preparing or otherwise prosecuting the application  in order to protect his or her estate.  It is unclear what options might have been available to Ms. Donley had counsel been fully apprised of the situation (non-institutional care, mortgage, reverse mortgage, establishing residence of the grandmother in daughter's home and qualifying her care as necessary to avoid nursing home care, as examples),  but it is apparent that proceeding without regard for the ultimate possible consequence was an expensive, and possibly financially disastrous strategy.

Finally, nursing homes do evict residents.  There is a common misconception that nursing homes will always bear the financial burden of an indigent resident.  Nursing homes are not hospitals, many of which are required by federal law to provide care to indigents.  A nursing home will protect itself legally and financially, as it should for its own financial health, and ultimately for the health and safety of its residents.

Nursing homes have excellent lawyers representing their interests.  Likewise, caregivers and fiduciaries should have excellent lawyers representing their interests.  

For a full text of the decision, click here.     

ODI Assists Families Locate Lost Life Insurance Policies

If you suspect a deceased loved one has a life insurance policy that you cannot locate, there is a service through the Ohio Department of Insurance (ODI) that can assist in identifying and locating the policy. ODI’s missing life policy search service is a comprehensive search service that assists Ohio residents, and the families of deceased Ohio residents, in locating lost insurance policies purchased in the state. The search identifies the existence of any life insurance policies or annuity contracts purchased in Ohio and issued on the life of, or owned by, a deceased person.

Since its implementation in September of 2009, the missing life policy search service has had 682 valid search requests, and have matched 442 polices with their rightful owners. Executors, legal representatives, or members of the deceased person’s immediate family may file a search request with the Department. To submit a request, visit the Missing Life Policy Search Service, page of ODI's website.  Go here to print out a request form.  Have the form notarized, attach a copy of the certified death certificate, and mail it to the Department.

The Department forwards the search requests and supporting documentation to all Ohio-licensed life insurance companies within 25 business days of submission. If an insurance company has information about an in-force individual insurance policy on the life of the deceased person or an individual annuity contract where the deceased person is an annuitant, the insurer is required to take action to administer the policy and/or contract according to its terms. If any money is to be paid to a beneficiary, the insurance company will contact the beneficiary directly. In this case, the company has 21 days to notify the consumer after contacting the Department.

Ohioans with questions about life insurance can call the Department's toll-free consumer hotline at 1-800-686-1526. A life insurance informational toolkit is also available on the Department's website. The toolkit provides tip sheets, publications, and links to other helpful web sites.

Using Your Social Security Benefits as an Interest-Free Loan

One little-known Social Security retirement benefits rule is the so-called “do-over rule.” Under this rule, an individual 62 years or older can start collecting benefits but stop the benefits within 12 months of the start, repay the benefits collected, and then still be eligible for their higher benefit amount when they collect at full retirement age or older.

What’s the advantage if the benefits must all be immediately repaid? The strategy can work as a short-term interest fee loan. It makes sense, for example, in cases where an individual has a need for income in the immediate short term, due to an emergency such as a sudden loss of employment, but they anticipate income, i.e. finding a new job or collecting a pension, within the year which would allow for full repayment. For many individuals in the their early 60s, a majority of their assets are tied up in retirement and investment accounts and withdrawals from these accounts would trigger hefty penalties. After “emergency” liquid funds run out, the do-over rule offers a short-term solution. In addition, by drawing on a Social Security “loan” instead of investments, you allow your investments to continue growing.

What if you are unable to pay back the benefits after the 12 months are up? You may still be able to suspend your benefits and increase your ultimate pay-out amount. For example, if you start collecting at 62 but no longer need the income at 66, you could suspend benefits until 70. Then, between the ages of 66 and 70, you would earn delayed retirement credits which would increase the ultimate benefit amount when you collect at age 70.

(Note that up until December 2010, it was possible for you to collect benefits and repay at any time. The law has since changed so that you are limited to a 12-month pay back period. You are also only allowed one “do-over.”)

For more information on how to collect, suspend and pay-back benefits, contact or visit your local Social Security district office. You can click here to find your local office.

Religious Music Aids the Dying

Listening to religious music helps seniors increase their life satisfaction and self-esteem, and decreases anxiety around death, according to new analysis published in the Journal of Gerontology.  Music also helped seniors appreciate a sense of control, according to researchers at Baylor University, University of Texas- San Antonio, Bowling Green State University and Duke University. The research suggests that long-term care residents may benefit from listening to religious music. Responses were collected among more than 1,000 adults, all over age 65, who were either practicing Christians, identified as Christian in their past, or who were unaffiliated with a specific faith.

"Given that religious music is available to most individuals — even those with health problems or physical limitations that might preclude participation in more formal aspects of religious life — it might be a valuable resource for promoting mental health later in the life course,” the authors concluded. Results appeared in The Journal of Gerontology.  

According to McNights Long-term Care News, a  2013 study, also published in the Journal of Gerontology, considering the use of religious songs in helping older African Americans cope with stressful life events, also found that songs evoking themes of thanksgiving, communication with God, and life after death improved the mental health of those studied.  These join a growing amount of research literature that associates various religious factors with positive mental and physical health, and even suggests that aspects of religious involvement may reduce mortality risk. 

Go here for an article discussing the broader Family and Psycho-Social Dimensions of Death and Dying in African Americans.

IRAs Can Affect Medicaid Eligibility

For many Medicaid applicants, individual retirement accounts (IRAs) are one of their biggest assets. If you do not plan properly, IRAs can count as an available asset and affect Medicaid eligibility.

Medicaid applicants can have only a small amount of assets in order to be eligible to receive benefits ($2,000 in most states). Certain assets -- i.e., a house, car, and burial plot -- are exempt from eligibility determinations. Whether your IRA counts as an exempt asset depends on whether it is in "payout status" or not.

At age 70½, individuals must begin taking required minimum distributions from their IRAs, which means the IRA is in payout status. You may also be able to choose to put your IRA in payout status as young as age 59 ½ if you elect to take regular, periodic distributions based on life expectancy tables. If an IRA is in payout status, depending on your state, it may not count as an available asset for the purposes of Medicaid eligibility, but the payments you receive will count as income. Medicaid recipients are allowed to keep a tiny amount of income for personal use and the rest will go to the nursing home.

If the IRA is not in payout status, the IRA is a non-exempt asset, which means the total amount in the IRA will probably be counted as an asset, affecting your Medicaid eligibility. In order to qualify for Medicaid, you will need to cash out your IRA and spend down the assets. Alternatively, you could transfer the money to your spouse or someone else, although there will likely be an income tax penalty for doing this.  

Note that the rules for a Roth IRA may be different. If you have a Roth IRA, depending on the rules in your state, it may not be exempt at all because Roth IRAs do not require minimum distributions.

The rules regarding IRAs and Medicaid are complicated and vary from state to state. You should talk to your attorney about your IRA to determine the best course of action for you. 

For more information on retirement planning, click here.

For more on Medicaid's rules, click here.

CNA's Face Prison for Stealing Nursing Home Residents' Identities and Defrauding Government

Three former nursing home aides face prison time for stealing residents' identities and conning the government. The Georgia women obtained residents' personal identification information from the nursing home where they worked as certified nursing assistants, and they used the information to file fraudulent tax returns, according to court papers and evidence introduced at trial. The DOJ did not name the facility where the women worked.

One of the defendants, Kimberly Banks, was convicted after a one-week trial in January. She received a 192-month prison sentence on Thursday, announced Assistant Attorney General Kathryn Keneally of the Justice Department's Tax Division and U.S. Attorney Michael J. Moore for the Middle District of Georgia.

The other two defendants, Donalene Mosely and Arneshia Austin, entered guilty pleas to conspiracy prior to trial, according to the prosecutors. They received 37-month and 21-month prison sentences, respectively. The three former CNAs also have been ordered to pay about $275,000 in restitution.

Of course, repayment may not be forthcpming. The women used refunds from the fraudulent returns to make car and mortgage payments, buy products online, and throw a “red carpet party,” the Department of Justice stated in a news release. They raised more than $600,000 by filing nearly 200 false returns.

This is the second nursing home identification theft case to come out of Georgia recently. In January, Yolando Blount received a 27-year prison sentence for her role in a similar but unrelated scheme.

Medicare Home Health Care Benefits

One common objective of estate and financial plans is the avoidance of institutionalization. Most folks prefer home care, or "aging in place" rather than institutional care.  Aside from the obvious perceived benefits in the control and quality of care for the individual, home care prevents separation of spouses and families.  Home health care can also reduce the risk of, and/or the need for guardianship.  If, however, seniors are are going to avoid institutional care, seniors, and their families, caregivers, and planning professionals should understand the rights to home care under Medicare.  It is a far too common misconception that Medicare will not pay for home care. 

Medicare does indeed have a home health benefit, under which patients typically receive four to ten hours a week of skilled care and home health aide services. Depending on your need, Medicare will pay for skilled nursing and home health services provided up to seven days a week for no more than eight hours per day and 28 hours per week (up to a total of 35 hours in unusual cases).

Medicare will help pay for your home care if all four of the following are true:

1.  You are considered homebound. Medicare considers you homebound if you meet the following criteria:  

• You need the help of another person or special equipment (walker, wheelchair, crutches, etc.) to leave your home or your doctor believes that leaving your home would be harmful to your health; and

• It is difficult for you to leave your home and you typically cannot do so.

2.  You need skilled care. This includes skilled nursing care, but only on an intermittent basis.  "Intermittent means you need care for as little as once every 60 days to as much as once a day for three weeks (this period can be longer if you need more care but your need for more care must be predictable and finite). This can also mean you need skilled therapy services.  Skilled therapy services can be physical, speech or occupational therapy (If you only need occupational therapy, however, you will not qualify for the Medicare home health benefit. But, if you qualify for Medicare coverage of home health care on another basis, you can also get occupational therapy. When your other needs for Medicare home health end, you should still be able to get occupational therapy under the Medicare home health benefit if you still need it);

3.  Your doctor signs a home health certification stating that you qualify for Medicare home care because you are homebound and need intermittent skilled care.  That means your doctor will need to complete CMS Form 485.   Another format of the form can be found here.  The certification must also say that a plan of care has been made for you, and that a doctor regularly reviews it. Usually, the certification and plan of care are combined in one form that is signed by your doctor and submitted to Medicare. 

• As part of the certification, doctors must also confirm that they (or certain other providers, such as nurse practitioners) have had a face-to-face meeting with you related to the main reason you need home care within 90 days of starting to receive home health care or within 30 days after you have already started receiving home health care. Your doctor must specifically state that the face-to-face meeting confirmed that you are homebound and qualify for intermittent skilled care.

• The face-to-face encounter can also be done through telehealth. In certain areas, Medicare will cover examinations done for you in specific places (doctors offices, hospitals, health clinics, skilled nursing facilities) through the use of telecommunications (such as video conferencing). 

The plan of care, which details the care you will receive and the frequency of services, covers no more than 60 days. However, so long as you continue to qualify for the Medicare home health benefit at the end of the plan of care, Medicare will recognize a new plan of care approved by your doctor.

4.  You receive your care from a Medicare-certified home health agency (HHA).

Your doctor will decide whether you qualify as homebound when he or she prepares your plan of care for the home health benefit. Whether or not you qualify depends on your doctor’s evaluation and knowledge of your condition over an extended period of time, not on a daily or weekly basis.  

Leaving home for medical treatment, religious services. or to attend a licensed or accredited adult day care center does not put your homebound status at risk. Leaving home for short periods of time or for special non-medical events, such as a family reunion, funeral or graduation, will also not keep you from being considered homebound. Taking an occasional trip to the barber or beauty parlor is also allowed.

If you qualify for the home health benefit, Medicare covers the following types of care:

• Skilled nursing services and home health services provided up to seven days a week for no more than eight hours per day and 28 hours per week (Medicare can cover up to 35 hours in unusual cases).

• Medicare pays in full for skilled nursing care, which includes services and care that can only be performed safely and effectively by a licensed nurse. Injections (and teaching patients to self-inject), tube feedings, catheter changes, observation and assessment of a patient’s condition, management and evaluation of a patient’s care plan, and wound care are examples of skilled nursing care that Medicare may cover.

• Medicare pays in full for a home health aide if you require skilled services. A home health aide provides personal care services including help with bathing, using the toilet, and dressing. If you ONLY require personal care, you do NOT qualify for the Medicare home care benefit.

• Skilled therapy services. Physical, speech and occupational therapy services that can only be performed safely by or under the supervision of a licensed therapist, and that are reasonable and necessary for treating your illness or injury. Physical therapy includes gait training and supervision of and training for exercises to regain movement and strength to a body area. Speech-language pathology services include exercises to regain and strengthen speech and language skills. Occupational therapy* helps you regain the ability to do usual daily activities by yourself, such as eating and putting on clothes. Medicare should pay for therapy services to maintain your condition and prevent you from getting worse as long as these services require the skill or supervision of a licensed therapist, regardless of your potential to improve.

• Medical social services. Medicare pays in full for services ordered by your doctor to help you with social and emotional concerns you have related to your illness. This might include counseling or help finding resources in your community.

• Medical supplies. Medicare pays in full for certain medical supplies provided by the Medicare-certified home health agency, such as wound dressings and catheters needed for your care.

• Durable medical equipment. Medicare pays 80 percent of its approved amount for certain pieces of medical equipment, such as a wheelchair or walker. You pay 20 percent coinsurance (plus up to 15 percent more if your home health agency does not accept "assignment"—accept the Medicare-approved amount for a service as payment in full).

One common misconception is that Medicare will not cover the cost of chronic home care.  If you are homebound and qualify, your coverage is based on a need for skilled care.  Medicare should cover your home care from a Medicare-certified home health agency regardless of whether your condition is temporary or chronic. Although beneficiaries often hear otherwise, Medicare covers skilled nursing and therapy services intended to help you maintain your ability to function or to prevent or slow you from getting worse. Medicare should not deny home health care because your condition is chronic or stable or because the care will only maintain, not improve your ability to function.

It can be hard to find a home health agency willing to provide Medicare-covered services to individuals with chronic care needs, however.  If you have Original Medicare you can call 800-Medicare for a list of home health agencies in your area. If you are in a Medicare Advantage plan (private health plan) you should check with your plan to find out which home health agencies are in the plans network.

Medicare’s home health care benefit is nonetheless limited. Medicare does not cover many home care services. Medicare home health care does not, for example cover:

• 24-hour a day care at home;

• Prescription drugs (To get Medicare drug coverage, you need to enroll in a Medicare Part D plan. You can choose a stand-alone Medicare private drug plan (PDP), or a Medicare Advantage plan with Part D coverage (MA-DP);

• Meals delivered to your home;

• Homemaker or custodial care services (i.e. cooking, shopping, and laundry, unless custodial care is part of the skilled nursing and/or skilled therapy services you receive from a home health aide or other personal care attendant.

The Medicare hospice benefit may pay for some of these items and services for people at the end of life.  It is wise for people who anticipate the use of hospice to consider involving hospice in your planning once there exists a diagnosis of a chronic, critical, or terminal condition.

As long as you are homebound and need skilled care, there is no prior hospital stay requirement for Medicare Part B coverage of home health care. There is no deductible or coinsurance for Part B covered home health care.

If you have been in the hospital as an inpatient for three days, or have been in a skilled nursing facility after a hospital stay, Medicare Part A covers your first 100 days of home health care. Medicare Part B covers the additional days. Regardless of whether your care is covered under Medicare Part A or Part B, Medicare pays the full cost.

Medicare Advantage plans must follow Original Medicare’s rules for providing you home care, but they can impose different costs and restrictions. You may need to choose an HHA that contracts with your Medicare Advantage plan (private health plan) to get care. You may also have to get your plan's prior approval or a referral before receiving home health care. Although Original Medicare does not charge a co-payment, some Medicare Advantage plans do.

If no HHA in your plan's network will take you as a patient, call your plan. Your plan must provide you with home health care if your doctor says it is medically necessary. 

If no network HHA will take you, but a non-network one will, your plan must pay for your care that you receive from the non-network HHA. If you cannot find an HHA in your area that is able to take you as a patient, talk with your doctor and your plan about other options that are available to you.  For more information regarding Medicare Advantage in Ohio, go here.  Call your State Health Insurance Assistance Program (SHIP) for more assistance. You can call 800-Medicare to find the number of your local SHIP.  In Ohio, the number is 1-800‐686‐1578

If you have questions about billing issues for home health care you should contact 800-MEDICARE.

For more information regarding Medicare and your rights, visit The Medicare Rights Center a national, nonprofit consumer service organization that works to ensure access to affordable health care for older adults and people with disabilities through counseling and advocacy, educational programs and public policy initiatives.