With increasing frequency we are seeing clients who have had applications for Nursing Home Medicaid benefits submitted for them by nursing home personnel where the application is approved, but then 1 year later at annual review, benefits are denied. These people come and ask us, what changed? In almost all of these cases it is not that anything has changed. Rather, it is that the nursing home personnel, who are not attorneys and who do not represent the interests of the applicant or the family, have simply done a poor job and this was not discovered until later.
When an application for Medicaid is submitted, besides being submitted under penalties of perjury, it contains a built-in, back-up mechanism for the government in the regulations. Any approval for Medicaid is provisional for a one-year period. This means that they can reopen and review a previously approved application at any time in that year. If you tell them the truth on the application and they grant it in error, the “worker error” rule operates in your favor and the initial approval stands. In this case you just have to take action to arrange things so that ongoing benefits can be granted. This usually means spend down and/or restitution.
But if the initial application was incomplete, inaccurate, or outright fraudulent, HHSC can retroactively deny benefits. This can mean eviction from the nursing home, litigation with HHSC, and litigation with the Nursing Home. Of course, it is difficult to sue the Nursing Home for their lack of care. It is a bit like trying to sue your plumber for negligently preparing your taxes. If you hired a plumber to do your taxes you probably got what you deserved.
The government put in place a regulation allowing nursing home personnel to help people complete and submit applications in a move to make the process quicker and less expensive than hiring an attorney. It has the “unintended” (wink, wink) consequence of leaving more assets exposed to Medicaid estate recovery, thereby increasing the amounts that the government recovers out of the pockets of families. In other words, you may save money at the outset, but it will cost you more in the end. This also leaves people at the hands of caring, concerned, well meaning nursing home personnel who know a lot about running care facilities but relatively little about estate planning and protecting against losses due to Medicaid estate recovery.