Latest Hardship: County’s Dunning Letter

Nicholas M. cared for his invalid wife, Maria, at home until her death two years ago. But rather than spend his life savings on her care, he applied for Medicaid. Now Nicholas, 81, a retired airline maintenance worker from Williston Park, is dying of Alzheimer's disease and his son is using his father's savings for round-the-clock care.

But Nassau County is demanding payment of $197,000 that Medicaid spent on Maria.

And Nicholas isn't alone. Once again, the lack of a sane national long-term care policy and the shortsightedness of Nassau County's bureaucrats are driving scores of elderly widows and widowers to panic over the possible loss of their life savings. Yet the county, which has launched such efforts before, stands to gain next to nothing.

Under federal and state law, husbands or wives have the right to refuse to pay for their spouses' long-term care costs, under Medicaid, in order to protect their own financial security, support themselves, and remain in their homes. The law recognizes that right and prescribes the allowable income and assets the "community spouse" (the one who remains well and at home) may keep, although it gives the state the right to sue for part of what Medicaid paid if that spouse keeps more than is allowed.

Beginning last month, the county's Department of Social Services sent out scores of letters to men and women demanding repayment of thousands of dollars spent on their spouses, now dead, who were cared for at home or in a nursing home under Medicaid.

The grounds: The community spouses had assets and income beyond the allowable amount at the time their sick spouses applied for Medicaid. But in the metropolitan area, how much is enough to last the community spouse a lifetime while nursing a loved one at home or living alone waiting for him or her to die in a nursing home? Under present law, if the spouse is in a nursing home, the community spouse is entitled to keep half the couple's assets up to $92,760 and a monthly income of $2,319. But if the assets cannot generate the allowable income, or what is needed to last a lifetime, the spouse may file a refusal and turn the excess of $92,760 into income. The rules are far less generous for Medicaid home care. The Medicaid beneficiary had to help pay for her care, and in 1999 Nicholas would have been allowed to retain only $5,150 in resources ($5,600 today), to last the rest of his life, plus $650 or so in monthly income. Nicholas had more in savings but understandably declined to give up everything.

In the letter Nicholas received but was unable to understand, the Nassau County Department of Social Services gave him 10 days to reply, pay up or seek a settlement.

Elderlawyer Vincent Russo of Westbury said at least two dozen surviving spouses had reported receiving similar letters, and estimated perhaps 100 had been sent out. His advice: Don't be intimidated into paying or even seeking a settlement.

Elderlawyer Ronald Fatoullah of Great Neck said, "The county is even contacting the community spouses years after the death of the recipient spouse. And the county is being mean-spirited in going after spouses in home care cases who are permitted to keep very few assets, as well as nursing home cases." New York City declined to pursue home care cases, and generally went after the wealthiest spouses.

Fatoullah questioned whether the county has authority to sue, since Medicaid is a federal program administered by the state. He advised families who received threatening letters from Nassau County to check first whether the community spouse did, indeed, file a spousal refusal letter. Without a refusal, the county may have no case.

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One defense, Fatoullah said, is to assert that the community spouse no longer has the assets to repay the debt and needs all his/her remaining savings to meet present income needs. "I am confident that the county would not consider pursuing a spouse who needs all her assets to meet basic expenses, even if the assets exceed the recourse allowance."

A county spokeswoman ind- icated it is prepared to negotiate and take into account changed financial circumstances: "Information is updated from time to time and fluctuations will affect liability for ongoing support of the spouse [on Medicaid]."

Fatoullah said that the county has often settled cases "at a significant discount." It's necessary to retain an elderlawyer who knows Medicaid law to defend against county threats. More important, spouses applying for Medicaid on behalf of a loved one should seek advice on methods, such as annuities, to hold on to assets they need to support themselves.

The county won't say how many letters it sent out or how much money could be recovered. I doubt it's much because Ellen Rosenzweig, an attorney with Hunter College's Brookdale Center on Aging, observes that because the county pays only 10 percent of the Medicaid bills, it may keep only a tenth of what it recovers, minus legal costs. Is it worth it?

Source: newsday.com 07-16-2004