Monday, May 8, 2023
In one of the earliest articles I wrote on familiy member liability under nursing home contracts, I cautioned that federal law prohibits nursing homes from requiring "guarantees" of payment by family members. Any family member who is asked to sign "on behalf" of a loved one should carefully consider the role he or she is undertaking, especially if the only role acceptable and affordable for that family member is "agent." See "The Responsible Thing to Do About 'Responsible Party' Provisions in Nursing Home Agreements," published in 2004 in the Unversity of Michigan Journal of Law Reform.
On May 1, 2023, an appellate court in Ohio cited this article when concluding that in the case before it, the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care. The daughter appears to have properly cooperated or assisted in the original Medicaid application. Further, the daughter gave authority to the nursing home to debit the bank account where her mother's SS checks were deposited each month, in order to pay itself the "patient pay portion" of the monthly allocation for costs of care when a patient has low income but is otherwise eligible for Medicaid. Thus the nursing home appears to have had at least the same ability as the daughter to avoid accumulation of a sum greater than $2,000, a resource limit that can trigger disruption of Medicaid benefits. There was still another party that could be faulted for what appears to have been an unplanned "excess resource" situation. The court pointed to the failure of the state agency to give effective notice to interested parties about when and why it was terminaating Medicaid. See National Church Residences First Community Village v. Kessler, 2023 WL 3162188 (Ohio Ct. App. 2023).
Bottom line? Family members or others attempting to help an incapacitated person get proper care are well-advised to consult with an experienced elder law attorney early in the process about how to qualify and protect eligability for Medicaid. Further, clear, direct communications between the agent, the facility and state agencies are important when seeking to facilitate prompt, proper payments.
Overwhelmed family members should not be scapegoats, even (especially?) when overwhelmed state agencies and facility billing offices are themselves missing opportunities to keep benefit payments flowing properly.