Can the nursing home discharge me if I apply for Medicaid?

Maybe, depending on whether the nursing home participates in the Medicaid program. If the nursing home participates in the Medicaid program, threatening to discharge a patient for applying for Medicaid is illegal. A nursing home in the Medicaid program can discharge a patient only for medical reasons, or if the patient fails to pay. 

Nursing homes cannot claim that a Medicaid amount, which is probably less than what you paid privately, counts as non-payment. Federal law specifically states that payment under Medicaid is not a non-payment. If you are Medicaid eligible, the nursing home cannot charge you an amount above what Medicaid will pay. If the nursing home does not participate in the Medicaid program, then they are not covered by the law discussed above and may discharge you if you apply for Medicaid.  

If you believe that the nursing home violated some federal or state law, you may contact the state authority at: 

Office of Health Facility Licensure & Certification Phone: (304) 558-0050  

408 Leon Sullivan Way Fax: (304) 558-1442 

Charleston, WV 25301    

For more information, see: 42 U.S.C. §§ 1396r(c)(2)(A),(c)(5)(A)(i)(I)-(III), (c)(7)(A) (2014); West Virginia Department of Health and Human Resources, Office of Health Facility and Licensure, (last visited May 26, 2015).

Do I have to sell my home to be eligible for Medicaid coverage of my nursing home care?

Probably not. Your home is generally exempt from being considered a countable asset for purposes of long-term care Medicaid eligibility as long as you plan to return home if you ever get better. This exemption is called the homestead exemption. Your homestead is the property on which you normally live and which you own or are in the process of purchasing. It is not required that you are likely to go back home, or even that it is probable. To exempt your home you must only intend to return if you ever get better. There is really no reason why your residence should ever be counted as an asset. Most people would like to live at home if they were in the condition to do so. 

Sometimes Medicaid caseworkers will ask you about your residence in terms of probability. For instance, one may ask, “Do you ever think that you will go back home?” What the caseworker is actually asking is whether you intend to go home if you ever get better. If your residence is being counted as an asset, be certain to tell the caseworker that you intend to return to your home in the event that you get better, if it is true. Or, if your spouse or a dependent relative lives there, the residence will not be counted. Either way, your residence should then be exempt from your countable assets. Likewise, if you have a power of attorney for someone in a nursing home, be certain that the caseworker knows that the applicant plans to return to the home if he or she ever gets better, but only if it’s true.  

Other real estate property will be counted toward your countable assets with a few exceptions. First, if the property cannot be sold, then it may not count against you. For instance, if you own a tract of land that no one will buy, you may be able to exempt that property. However, you must have proof that you have been trying to sell the property.  

Second, if your property is producing income, and the yearly income is more than 6% of the total value of the property, you may exempt up to $6,000 of the property value. For instance, say you own a lot and are charging rent to someone who puts her trailer on it. If the lot is worth $6,000 and you are charging at least $30 a month for rent, you can exempt the property ($30 for 12 months equals $360, or 6% of $6,000). Of course, the income from the property will be counted toward the income requirement. 

Third, if your property is needed for supporting your family (such as for growing a vegetable garden that feeds your family), you may be eligible for an exemption. All other real estate interests will be counted as assets. 

For more information, see: West Virginia Department of Health and Human Resources, Income Maintenance Manual, §§ 11.4(LL), 17.10(C), (last visited May 26, 2015).

Can a nursing home refuse to admit me until I have paid for my care privately for a period of time before I start receiving Medicaid?

Probably not. Medicaid regulates nursing homes that participate in the Medicaid program. Medicaid will only pay a certain amount to nursing homes for the long-term care of Medicaid recipients. Nursing homes cannot charge the resident more than this Medicaid amount. However, nursing homes may charge more for persons who privately pay for their care. 

To avoid the reduced Medicaid price, an unscrupulous nursing home may try to make you pay privately for a period of time before you apply for Medicaid. This is called a duration of stay contract. The duration of stay contract allows nursing homes to charge you an inflated rate above the Medicaid amount. 

Federal law prohibits this practice. Nursing homes cannot require you to privately pay before you receive Medicaid coverage. Nursing homes are allowed to give admission preference to private-pay applicants over Medicaid-eligible applicants, but only after the home has reached nearly maximum capacity. In these situations, a nursing home may try to pressure family members into “voluntarily” accepting a duration of stay contract. The implication is that the nursing home will give preference to other patients if you do not accept the duration of stay contract. Since the availability of nursing home care is limited, families feel pressure to accept these terms “voluntarily.” 

However, federal law states that a nursing home cannot force you to waive your right to Medicaid. While the nursing home is not technically “forcing” you to waive the right, this practice may still be illegal. 

If you believe that a nursing home is pressuring you into a duration of stay contract, you can report this to: 

Office of Health Facility Licensure & Certification Phone: (304) 558-0050  

408 Leon Sullivan Way Fax: (304) 558-2515 

Charleston, WV 25301    

For more information, see: 42 U.S.C. §§ 1320a-7(b), 1396r(c)(5)(A)(i)-(iii) (2015); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging § 12.12 (2nd ed. 1993); West Virginia Department of Health and Human Resources, Office of Health Facility and Licensure, (last visited May 26, 2015).

If Medicaid helps pay for my medical expenses, will the state take my house from my spouse after I die?

No. In most instances, the state cannot recover anything from your estate until after the death of your spouse, if at all. What is being asked about is something called estate recovery. In 1993, Congress passed a law requiring states to set up programs to recoup the costs of long-term care and related Medicaid services. West Virginia then enacted an estate recovery law in 1995. The West Virginia law gives the state two methods of reimbursement for the costs of long-term Medicaid care. Long-term care is care that is received either in a nursing home or under the Aged & Disabled Medicaid Waiver Program. 

First, the State can file a claim against the estate of the Medicaid recipient after he or she dies. In that case, the State would file for the amount of Medicaid assistance “loaned” to the deceased individual. This amount would then be paid out of the estate after the following expenses were taken care of: costs of settling the estate, reasonable funeral expenses, unpaid child support, and debt and taxes given preference by federal law. Sometimes these claims are filed quickly, while other times no claim is ever filed. Generally, the state cannot enforce its claim until after the death of the surviving spouse or until there are no surviving children who are under the age of 21 or who are disabled or blind.  

Second, the state can try to recoup its Medicaid expenses by placing a TEFRA lien on the individual’s property before the Medicaid beneficiary’s death. A lien is a legal claim made by a creditor concerning his/her interest in the money received for the sale of another person’s property. The state can only place a lien on property when an individual is determined to be “permanently institutionalized” in a nursing facility, intermediate care facility, or other residential institution. The lien dissolves if and when the person is discharged from the medical institution. In West Virginia, the law allows the state to use TEFRA liens, but as a matter of policy, the state has declined to use them. However, the state is legally permitted to begin exercising its right to use TEFRA liens at any time. 

No lien can be placed against the home of an individual–regardless of whether the individual is permanently institutionalized–if the home is the lawful residence of the individual’s spouse, child under 21 years old, disabled child, or sibling who has an equity interest in the home and who lived in the home for at least one year immediately before the date of the individual’s admission to the nursing home. 

Further, if you transfer or sell your home before the beginning of the look-back period, the home will not be regarded as an asset and will not be subject to Medicaid estate recovery. Also, in early 2014, the WV legislature created another option for transferring property while avoiding Medicaid estate recovery called the Transfer on Death Deed. More information is available on this new type of deed, see the section on giving away property without going through probate.  

For more information, see: W. Va. Code § 9-5-11C (2014); Charles P. Sabatino & Erica Wood, Medicaid Estate Recovery: A Survey of State Programs and Practices, Public Policy Institute, AARP (1996); West Virginia Department of Health and Human Resources, Income Maintenance Manual, § 17.13(C), (last visited May 26, 2015).