Nursing Homes

SOUTHEAST TENNESSEE LEGAL SERVICES

 

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Answers from AARP

These matters are addressed below:

Is it true that a nursing home resident must sell his or her home?

Is it legal for a nursing home to require me to have a responsible party, sponsor or guarantor sign the admission contract?

Is it legal for a nursing home to require me to pay private pay rates for a certain period of time before converting to Medicaid?

If I am a private-pay nursing home resident, can the nursing home transfer or discharge me if I become eligible for Medicaid?

How many beds in a nursing home are designated "Medicaid beds," and how can I know when one becomes available?

Is it true that a nursing home resident must sell his or her home?

This question becomes an issue when a person must apply for Medicaid (TennCare) benefits in order to pay for long term care in a nursing home. This answer must be read in conjunction with all of the TennCare questions and answers.

A home is not a countable resource for TennCare purposes so long as the resident intends to return there or certain persons live there. These people include the spouse, sibling, child under the age of 21, or a disabled child of any age. If none of these people live in the home, and if the nursing home resident does not intend to return there, then the home is no longer exempt and is counted in determining eligibility. If the residentís assets exceed the applicable limit, then they will need to be spent down to qualify for TennCare. However, the Bureau of TennCare, which administers TennCare, does not specify exactly what constitutes the intention to return there. Any resident who wishes to move back home should be able to make the argument that they intend to return. (The argument is more persuasive if a physician is able to offer evidence that the residentís physical condition would allow that at some point.)

Certain transfers of homestead property are allowable and do not affect a personís eligibility for TennCare. A transfer of homestead property to the following people will not affect TennCare eligibility:

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a spouse;

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a residentís child under age 21;

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a residentís child who is blind or disabled;

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a residentís brother or sister who has an equity interest in the homestead property and who was living in the home for at least one year immediately prior to the date the resident entered the nursing home; or

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a residentís child who provided care for the person and who was living in the home for at least two years immediately before the date the person entered the nursing home.

NOTE: The Bureau of TennCare may put a lien on the home of any nursing home resident for TennCare paid out for anyone who has resided in a nursing home for at least 120 days. However, this lien does not affect the homeís exempt status for eligibility purposes.

As required by federal law, Tennessee now has provisions to recover funds from the estate of Medicaid recipients. The provisions apply to individuals who were 55 years of age or older at the time that assistance was received for all nursing facility services, home- and community-based services, and related hospital and prescription drug services, and to individuals of any age who are residents in a nursing home, facility for the mentally retarded, or other medical institution.

The state of Tennessee has a claim against the individualís estate or against his or her spouseís estate, regardless of who dies first. The claim is not enforced until the surviving spouse dies, and then only if there is no surviving child under age 21 or a child who is disabled. The state can recover against real and personal property in which an individual has any legal title or interest at the time of death.

Is it legal for a nursing home to require me to have a responsible party, sponsor or guarantor sign the admission contract?

It is a very common practice for a nursing home to require the signature of a responsible party on the admissions contract before admitting a resident. This practice is illegal.  

Is it legal for a nursing home to require me to pay private pay rates for a certain period of time before converting to Medicaid?

It is a common practice for nursing homes to require applicants to agree to remain private-pay patients for specified periods of time (usually 2 or 3 years) before applying for Medicaid. Thus, the nursing home is able to receive the higher, private pay rate for that period. However, it is illegal for a Medicaid participating nursing home to ask patients to sign such agreements.

Federal law makes it a criminal offense to charge, solicit, accept or receive any gift, money, donation or other consideration as a precondition of admitting a resident, or as a requirement for the resident's continued stay, when a resident would otherwise be eligible to have services paid for by Medicaid.

Contracts containing such provisions are called "duration of stay" contracts. These provisions are illegal under Tennessee and federal law.

However, Tennessee does allow nursing facilities to set aside a certain number of Medicaid beds under "distinct part" Medicaid certification. If a resident enters such a facility as a private pay resident, he or she may be discharged when he or she becomes eligible for Medicaid if there is no Medicaid bed available in the distinct part (although nursing facilities are supposed to put the resident on a waiting list, rather than discharge them). For this reason, it is not advisable to place an individual in such a facility if the individual will ever need Medicaid.

Keep in mind that all nursing homes do not participate in the Medicaid program. However, those who do are bound by all the laws and regulations affecting Medicaid.

If I am a private-pay nursing home resident, can the nursing home transfer or discharge me if I become eligible for Medicaid?

If the nursing home participates in the Medicaid program, the nursing home cannot transfer or discharge a private-pay resident who becomes eligible for Medicaid.

Some nursing homes place a clause in their admissions contract requiring residents to pay for care from private funds for a certain period of time before conversion to Medicaid will be "accepted." This type of clause is illegal and unenforceable.

A resident cannot be transferred or discharged for any reasons other than medical reasons or non-payment. Conversion to Medicaid is not "non-payment" within the meaning of the law. However, Tennessee does allow nursing facilities to set aside a certain number of Medicaid beds under "distinct part" Medicaid certification. If a resident enters such a facility as a private pay resident, he or she may be discharged when he or she becomes eligible for Medicaid if there is no Medicaid bed available in the distinct part (although nursing facilities are supposed to put the resident on a waiting list, rather than discharge them). For this reason, it is not advisable to place an individual in such a facility if the individual will ever need Medicaid.

Federal law also includes provisions prohibiting facilities from requiring individuals to waive their rights under Medicaid or Medicare.

How many beds in a nursing home are designated "Medicaid beds," and how can I know when one becomes available?

Some nursing homes may tell applicants that a "Medicaid bed" will not be available for a certain period of time. However, if they participate in Medicaid, they cannot legally limit the number of "Medicaid beds" in the nursing home.

Not all nursing homes participate in the Medicaid program. However, those who do are bound by all the laws and regulations affecting Medicaid.

The long-term care ombudsman or area agency on aging can be useful contacts for assistance.

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