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September 2005


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Monday, September 26, 2005

Nursing Home May Recover Unpaid Bills From Transfer Recipients

Nursing Home May Recover Unpaid Bills From Transfer Recipients

Last 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 unpublished opinion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 appealed.

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:

Monday, September 19, 2005

Opinion Piece Calls for Full Federal Coverage of Long-Term Care

Opinion Piece Calls for Full Federal Coverage of Long-Term Care

Last 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 long-term care."

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 contend.

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 'death tax'," click here.

Monday, September 12, 2005

Nursing Homes Must Give Flu Shots, Medicare, Medicaid Say

Nursing Homes 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.
In 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

Monday, September 05, 2005

Parol Evidence From Drafting Attorney Needed to Clear Up Ambiguous Will

A Florida 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: and click on "Opinions."