Updated: Jan 6, 2022
This column first appeared in the San Antonio Express News and other Hearst newspapers on December 9, 2019.
Dear Mr. Premack: My stepfather was in and out of the hospital, hospice, and finally died while in the nursing home. He was admitted as “Medicare pending” and we provided all the proper documentation so he could get approved by Medicare. The nursing home did all the filing and paperwork with Medicare, and he was denied twice. Now the nursing home has hired an attorney to collect the funds Medicare never paid them. Is my mother, as his widow, liable for that debt to the nursing home? - RT
Your family has gone through an end-of-life trauma that is too frequently seen these days. Your stepfather was very ill, needed medical and nursing care, and relied on his family and the care providers to help him. You would like to know if his wife – your mother – is liable for the cost of care that was not covered by insurance or by the taxpayers.
First, let’s look at the government programs. You state he was admitted as “Medicare pending” but that is fundamentally incorrect. Medicare covers some doctor, hospital, drug, hospice, and rehabilitation costs. Medicare does not cover long-term nursing home expenses; rather it covers 20 days of nursing home care for rehabilitation (and under some circumstances can cover up to 100 days total). The process you describe - application for coverage, pending status, and two denials - is related to Medicaid, not to Medicare.
Medicaid is designed to cover only those persons who qualify. An applicant must be low income and have few assets – after setting aside the homestead and some funds for the at-home spouse. Many nursing homes accept Medicaid, and many will admit a patient as “Medicaid Pending” – meaning they expect to be paid in part by Medicaid instead of by the patient. At the same time, the nursing home contract will specify that if Medicaid is denied the patient is liable to pay them in full.
Another thing your family did that was fundamentally incorrect was to allow the nursing home to prepare and file the application for Medicaid. Yes, some nursing homes offer that service (in their own best interest of getting paid faster) while some nursing homes arrange for non-licensed companies to handle the application for them. It is illegal for them or you to pay an un-licensed company to handle the application. Under Texas law, it is a crime for any third party to be paid to handle a Medicaid application unless that third party is a licensed attorney, and should have the skills of a member of the National Academy of Elder Law Attorneys (the member list is at www.NAELA.org/TXNAELA).
It is also unwise to allow the nursing home to handle the Medicaid application, because if they don’t get Medicaid, they become a creditor and have been armed with full disclosure of all the financial data they need to pursue a legal claim for payment. By using them to apply for Medicaid, your mother gave a potential adversary a free look inside their personal finances. If she had used an Elder Law Attorney then 1) there is a better chance that your stepfather would have been approved for Medicaid instead of denied, and 2) the attorney is on her side, and 3) information she shares with the attorney is privileged and confidential.
Does your mother need to pay them? That depends. First, she should hire an attorney (look at the NAELA list) to help. Did she personally sign the nursing home contract and promise to pay them, or did she act as her husband’s agent under his Durable Power of Attorney? If she personally promised to pay, then they can sue her for the amount due.
If she acted as agent for her husband, she is not liable, but her husband’s estate may be. Her attorney should probate her husband’s Will and she should become Executor if she was nominated in the Will. Then, as Executor, she should notify the nursing home that they need to file a formal claim within the statutory time limit. If they fail to do so, she need not pay them. If they do file a claim, then working with the attorney she will categorize it along with other debts, calculate the spousal allowance, and set aside exempt assets. After that, if the claim is valid, it should be paid by the estate to the extent that funds are available.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.