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.

Court Upholds Conviction of Agent under Power of Attorney for Gifting Funds to Himself to Qualify Principal for Medicaid

A Texas appeals court upholds the conviction of an agent under a power of attorney who transferred funds to himself, supposedly to qualify his former grandmother-in-law for Medicaid. In an earlier proceeding, a jury sentenced the agent to 25 years in prison. Natho v. State (Tex. Ct. App., 3rd Dist., No. 03-11-00498-CR, Feb. 6, 2014).

Rosie Shelton signed a power of attorney, appointing her former grandson-in-law, Ronnie Natho, as her agent. The power of attorney gave Mr. Natho the power to act on her behalf, including with regard to Medicaid issues, but it did not give him the authority to make gifts on her behalf. Mr. Natho was also the sole beneficiary under Ms. Shelton’s will. After Ms. Shelton entered a nursing home, Mr. Natho gifted himself her car and then consulted with an attorney who helps clients qualify for Medicaid. The attorney informed Mr. Natho that he could spend down Ms. Shelton's money and it was acceptable for him to make gifts to himself as long as Ms. Shelton's needs were met. Mr. Natho then transferred Ms. Shelton's life insurance policy to himself and gave himself other gifts as well.

When Ms. Shelton discovered the transfers, she revoked Mr. Natho's power of attorney, and criminal charges were filed against Mr. Natho. A jury convicted Mr. Natho of misapplication of an elderly person's fiduciary property, and sentenced him to 25 years in prison. Mr. Natho appealed, arguing he was acting in Ms. Shelton's best interest to qualify her for Medicaid.

The Texas Court of Appeal affirms the conviction, holding the evidence was sufficient to find Mr. Natho misapplied Ms. Shelton's assets. The court rules that the fact that the power of attorney did not give Mr. Natho the power to make gifts, that he gifted himself the car before he consulted with the attorney, and that the car and insurance policy would have been excluded from a Medicaid eligibility determination, show that Mr. Natho wasn't acting to benefit Ms. Shelton.

For the full text of this decision, click here.

Number of Estate Tax Returns Has Plummeted Since 2003

The IRS has just released an analysis of estate tax returns filed by wealthy decedents in recent years.  The analysis spans the years 2003 to 2012, during which time the estate tax filing threshold gradually rose from $1 million to $5.12 million.

Not surprisingly, the number of estate tax returns declined 87 percent, from about 73,100 in 2003 to about 9,400 in 2012, primarily due to the incremental increase in the filing threshold.  The total net estate tax receipts fell from $20.8 billion in 2003 to $8.5 billion in 2012.  The total for 2011 was only $3 billion; the estates of those dying in 2010 had a choice of paying the estate tax or accepting a limited step-up in the cost basis of inherited assets.

Looking at the number of estate tax returns filed as a percentage of the adult population (ages 18 and over), the top five states were the District of Columbia, Connecticut, Florida, California, and New York.

Stock and real estate made up about half of all estate tax decedents’ asset holdings in 2012.

Estate tax decedents with total assets of $20 million or more held a greater share of their portfolio in stocks (about 40 percent) and lesser shares in real estate and retirement assets than decedents in other total asset categories.

For an IRS brief on its findings, click here.

For detailed statistics on estate tax filings from 1995 to 2012, click here.

Staying Eligible for Medicaid after the Death of a Spouse

When one member of a couple moves to a nursing home, it is not uncommon for families to expect that spouse will be the first to die, and then plan accordingly.  Such short-sighted planning fails to consider what happens if a Medicaid recipient's spouse dies first.  If planning steps aren't taken, the death of a spouse can affect the nursing home resident's assets and eligibility for Medicaid.

In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in assets (the amount may be somewhat higher in some states). The Medicaid applicant's spouse (called the "community spouse") can keep more assets. In general, the community spouse may keep one-half of the couple's total "countable" assets up to a maximum of $115,920, depending on the state (in 2013). Often when one spouse seeks to qualify for Medicaid, he or she transfers assets to the community spouse.

The death of a Medicaid recipient's spouse can affect the amount of assets the Medicaid recipient has, and therefore his or her Medicaid eligibility. For example, suppose a community spouse dies, and her will leaves her estate to her husband, who is in a nursing home and receiving Medicaid. The additional assets will make the husband ineligible for Medicaid. Even if the community spouse's will did not leave anything to her husband, most states allow a spouse to claim a share of the estate. Medicaid can assess a penalty even if the husband does not claim his share.

The couple's house can also present a planning challenge. Most spouses own property jointly. If the community spouse passes, the Medicaid recipient will own the house. Depending on the state, the nursing home resident may have to prove either an intention to return home or a likelihood of returning home in order for the house not to count as an asset. If the resident sells the house, the proceeds from the sale will make the resident ineligible for Medicaid.

To prevent a community spouse's death from affecting the institutionalized spouse’s Medicaid eligibility, it is important that the community spouse update his or her estate plan. There are steps the community spouse can take to protect the spouse in the nursing home, including setting up a trust for the management of assets. To find out the plan that would work best for you, contact your attorney. 

For more about Medicaid’s rules, click here.  For more about Medicaid planning, click here.