Florida Medicaid Blog
Subscribe to Feed
Nursing Home May Recover Unpaid Bills From
May Recover Unpaid Bills From Transfer Recipients
Updated: 9/26/2005 Topic: Medicaid
A nursing home may recover
a judgment for amounts owed from the daughters of a former resident. The
daughters were the recipients of asset transfers that rendered the
resident no longer eligible for Medicaid.
Beverly Healthcare v. Gammon (Tenn. Ct. App., No.
M2003-03117-COA-R3-CV, Aug. 18, 2005). unpublished opinion
Charles Leath was admitted to a nursing home facility operated by
Beverly Healthcare on February 28, 1997, and began receiving Medicaid
benefits that April. Mr. Leath's home was exempted from the asset
calculation because of his intention to return to it. On September 30,
1999, on the advice of elder law attorney Tim Takacs (erroneously
spelled "Tackus" in the opinion), Mr. Leath sold his home to his
daughter Betty Gammon for its fair market value. Shortly after the sale,
Ms. Gammon, who handled her father's financial affairs under a power of
attorney, distributed part of the proceeds from the sale to herself and
Mr. Leath's other two daughters. In addition, the three daughters
entered into a "Service and Life Care Agreement" drafted by Mr. Takacs
whereby they agreed to perform certain services for their father for
payment of $5,000 each.
In February of 2000, Mr. Leath was
found ineligible for Medicaid benefits because the transfers to the
daughters were determined to be improper, a decision that was affirmed
by a trial court. Mr. Leath remained at the facility until June 25,
2001. Beverly Healthcare obtained a judgment against Mr. Leath for
$16,972.45 some two weeks before his death on August 14, 2001.
Unable to collect the judgment from Mr. Leath or his estate, Beverly
sought to recover the amount from Mr. Leath's daughters on the basis
that the transfers to them were fraudulent because Mr. Leath allegedly
intended or believed that debts would accrue beyond his ability to pay.
The trial court agreed that the transfers constituted fraudulent
conveyances. "The only apparent purpose for the transfers," the court
wrote, "was to somehow have Medicare [sic] pay for all of their father's
care without having to consume any of their father's assets." The court
found the daughters liable for three months of unpaid bills totaling
$9,891.92, plus $7,670 in attorney's fees and costs. Two of the sisters
The Court of Appeals of Tennessee affirms. "The
sale of his house," the court writes, "made [Mr. Leath] ineligible for
Medicaid and increased his monthly obligation to [the facility]. In that
situation, it was to be anticipated that the amounts owed [the facility]
would exceed Mr. Leath's assets . . . " The court also rules that the
provision governing attorney's fees in Beverly's admission agreement
allows the facility to recover attorney's fees not just in litigation
against Mr. Leath but also in litigation to collect the judgment.
To download the full text of this decision in WordPerfect format, go to:
Opinion Piece Calls for Full Federal Coverage
of Long-Term Care
Calls for Full Federal Coverage of Long-Term Care
Updated: 9/19/2005 Topic: Medicaid
Medicaid "has become a
lifeline for millions of people who require nursing home care," and
"simply cutting the program won't work," two professors write in a Los
Angeles Times opinion piece.
Jacob Hacker, a professor of
political science at Yale University, and Harold Pollack, faculty chair
of the University of Chicago's Center for Health Administration Studies,
write that the real problem with Medicaid "isn't well-off senior
citizens gaming the system" but rather that "few Americans have reliable
and effective private alternatives that can protect them if they require
The authors say that long-term care
insurance, touted as an alternative to Medicaid, "will never work for
millions of Americans." Insurers themselves cannot reliably price such
insurance due to uncertainties about the future costs of care, they
Rather than pursuing the home equity of widows with
Alzheimer's disease, "the federal government should pay for long-term
care through Medicare, openly, for every American," Hacker and Pollack
say. Doing so would give the elderly and disabled through the front door
what they are now gaining through the backdoor under Medicaid, and would
"protect everyone from one of life's most frightening risks."
To read the full Los Angeles Times article, "Health cuts are the real
Nursing Homes Must Give Flu Shots, Medicare,
Must Give Flu Shots: Medicare, Medicaid Say
Sep. 12, 2005 -
Nursing homes serving Medicare and Medicaid patients would have to
provide immunizations against influenza and pneumococcal disease to all
residents if they want to continue in the programs, according to a
proposed rule to be released by CMS in the August 15 Federal Register.
Unless refused by the patient or patients family or for medical reasons,
nursing homes would be required to ensure that each resident received
the immunizations as a condition of participation in the two programs.
About two million Americans, most senior citizens age 65 years or older,
live in long-term care facilities. People aged 65 years and older
account for more than 90 percent of influenza-related deaths in the
United States and elderly nursing home residents are particularly
vulnerable to influenza-related complications. In addition, the elderly
are more likely than younger individuals to die from pneumonia.
light of these statistics and in line with the agencys Nursing Home
Quality Initiative, CMS received input from the Centers for Disease
Control and Prevention (CDC) and two of the nations largest nursing home
industry trade groups, the American Association of Homes and Services
for the Aging and the American Health Care Association, in developing
the proposed rule.
?Improving immunization is a key element
of our quality improvement strategy a strategy that is focused on
preventing illnesses and complications in the first place, said Mark B.
McClellan, M.D., Ph.D., administrator of CMS. The outstanding commitment
of the nursing home industry, caregivers and other stakeholders makes
clear that his commitment to better quality through more effective
immunization is shared and achievable.
?As a physician, I
know the impact that influenza and pneumococcal infections can have on
the elderly, particularly those in nursing homes, he added. Greater use
of flu shots and pneumococcal vaccine in nursing homes is a proven
approach to better health and fewer costly complications for one of our
most vulnerable groups of beneficiaries.
In its collaborative effort to improve quality of care, CMS is also
encouraging nursing homes to provide influenza vaccine to their
healthcare workers. Although the vaccine for these workers will not be
required in the proposed regulation, immunizing nursing home workers has
been shown to reduce mortality rates among residents of long-term care
facilities. Research from last years flu season revealed that only 36
percent of all healthcare workers were vaccinated against the illness.
?Healthcare workers play a vital role in protecting the health of one of
our nations most vulnerable populations the elderly and disabled who
live in nursing facilities, said Julie Gerberding, M.D., director of the
Centers for Disease Control and Prevention. ?This initiative is critical
to ensuring they receive the best quality healthcare.
A 1999 national nursing home survey showed that 65 percent of residents
had documented influenza shots and only 38 percent had been inoculated
against bacterial pneumonia. A goal of this proposed rule is to attain a
target rate of 90 percent for both vaccinations. As an added incentive
to increase immunization rates, in January, CMS increased the average
Medicare payment rate for administering each shot from $8 to $18, in
addition to a separate payment for the cost of the vaccine. Medicaid
payment rates are set independently by each state.
As a Medicare
condition of participation, the rule proposes that long-term care
facilities ensure that each resident is: offered influenza immunization
annually; immunized against influenza unless medically contraindicated
or when the resident or the residents legal representative refuses
immunization; offered pneumococcal immunization once if there is no
history of immunization; and immunized against pneumococcal disease
unless medically contraindicated or when the resident or the residents
legal representative refuses immunization. In the case of a vaccine
shortage as declared by CDC, state survey agencies would have the
discretion not cite facilities for being out‑of?‑compliance with this
requirement. ?Vaccines against these diseases are effective in
preventing hospitalizations and death,? said Dr. McClellan. ?However,
many at-risk people are not getting the vaccines they need. This
initiative will be critical to maintaining high-quality care in the
nations long-term care facilities.? Because of the impending influenza
season, this expedited proposed rule will have a 15-day comment period.
To review the proposal, go to the Federal Register Web site at
Parol Evidence From Drafting Attorney Needed
to Clear Up Ambiguous Will
appeals court rules that an affidavit from the attorney who drew up a
will may be used to clear up an ambiguity in the will.
Harbie v. Falk (Fla. Dist. Ct. App., No. 3D04-3041, July 6, 2005).
Youssef Harbie was married with a daughter. He also had a son from a
previous marriage. Mr. Harbie executed a will that left his estate to
his "children." The will also stated that Mr. Harbie's daughter was his
only child. When Mr. Harbie died, his son claimed a share of the estate
as one of his children.
The estate argued Mr. Harbie's son
was not a beneficiary under the will. In support of this position, it
filed an affidavit by the attorney who drew up the will. The attorney
said he used the term "children" only to refer to future children and
that he had no knowledge of another son when he drafted the will. The
trial court found for the estate, and Mr. Harbie's son appealed.
The District Court of Appeal of Florida, Third District, affirms. The
court holds that because the will was ambiguous, the court could look at
parol evidence to determine the meaning of the will, and the attorney's
affidavit cleared up the ambiguity.
To download the full text
of this decision in PDF format, go to:
http://www.3dca.flcourts.org/ and click on "Opinions."