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Family caregivers' contracts under scrutiny in legislation

BRANDON

Patty Wallace's days begin when her 81-year-old mother awakens and wanders from her bedroom, asking whose kitchen she's standing in or when she should get ready for school.

Love and duty led Wallace two years ago to take in her widowed mother, who suffers from dementia. But Wallace, 61, worries she may one day have to put her mother in a nursing home. To prepare for that possibility, she did something that she never expected: She signed a contract with her mother.

Wallace gets $2,000 a month from her mother, a former factory worker who had less than $60,000 once she sold her home. The "personal services contract'' is a legal way for her mother to redistribute her assets so she would qualify for Medicaid coverage should she go into a nursing home. It's also a way to compensate her daughter, her sole caregiver.

"For somebody to say I'm doing this for the money, come spend a week with me," said Wallace. "I'm too tired to think about the money."

But state officials say they've seen wealthier families abuse the system and are asking the Legislature to rein in the contracts.

"You can do a personal service contract for any amount, and there are no rules of the game," said David Wilkins, secretary of the Department of Children and Families, which determines Medicaid eligibility. "If people knew about it there would be a lot more outcry."

Elder law attorneys say the new restrictions are too broad, however, and could sweep up contracts like Wallace's.

"We agree there are abuses," said Tallahassee lawyer Twyla Sketchley, chairwoman of the Florida Bar's elder law section. "But we think their approach is throwing the baby out with the bath water."

• • •

Few families can afford the average $80,000-a-year cost of residential nursing homes.

Medicaid, the state-federal health care program for the poor, pays the bills for most nursing home residents, including 77,000 Floridians. But to qualify for Medicaid's long-term coverage, an applicant's assets must be less than $2,000.

So for decades, Americans have looked for ways to qualify without going broke. It's not legal, for instance, for a senior to qualify by simply giving money away to their children. But personal services contracts are a strategy to transfer funds legally, both before and after being admitted to a nursing home.

Over a three-month period last year, state officials tracked 137 people who used personal service contracts as part of their applications for Medicaid coverage. Most of them — 101 — qualified for Medicaid, which paid their bills totaling $1.3 million over that period, according to DCF documents. At least some of those costs should have been paid by the patients, not Medicaid, officials contend.

Attorneys who specialize in elder law say the contracts are a way to compensate relatives, often adult children, who may have to quit their jobs to care for the elderly person. And once they're in the nursing home, the lawyers say, the family member gives care that overworked staff often cannot provide.

Attorneys say the high-dollar contracts officials worry about are rare. "My people are middle class," said Tampa lawyer Beverly White.

But DCF officials say they're seeing six-figure contracts, some promising high hourly rates and others duplicating services provided at the nursing homes.

In one example, a $120,000 contract was created to oversee the care of an 89-year-old at a nursing home, promising to pay routine visits, read to the senior and help with letter writing. The rate was spelled out at $39 per hour for 12 hours a week, for nearly five years — the client's life expectancy.

In another, a relative or friend received an up-front payment of $85,000 from a senior for overseeing care, paying routine visits and making funeral arrangements. Up-front payments are typical if the senior is preparing to enter an assisted-living facility or nursing home, state officials say.

The proposed legislation would require hourly rates to be calculated at minimum wage and invalidate contracts that include services "normally provided out of consideration'' — which, Wilkins said, is meant to include what most families do out of love, such as paying visits.

Wilkins says the proposed restrictions are part of an overall, stepped-up effort to fight health care fraud. A handful of other states, including New York, have put similar restrictions in place.

"I don't think we want to get rid of them altogether," Wilkins said of the personal services contracts. "Medicaid allows for this concept. But there ought to be some controls."

Emma Hemness, an elder law lawyer in Brandon, said this proposal goes too far. Why, for instance, should family members get only minimum wage for doing the hard work of a nursing aide?

She thinks the phrase "services normally provided out of consideration" is vague enough that it could be used to invalidate contracts like Patty Wallace's.

• • •

Wallace admits she felt funny signing a contract promising to care for her own mother. She also admits she never imagined how hard it would be.

She helps her mother in the bathroom. She wakes up when the baby monitor in her mother's room goes off. She fixes meals and cuts up the food. She makes up games to keep her mother entertained. She tries not to cry when her mother asks her who she is.

"I physically do everything a nurse would do, but I also deal with the changes unfolding in front of me," said Wallace, her voice breaking. "It's my mom, and she's going away."

Wallace, whose husband works as a civilian at MacDill, isn't spending the money she gets under the contract each month. She said she's setting most of it aside in a special account, should she need it for her mother.

"I still think of that as her money," she said. "Because I don't know what's down the road."

Jodie Tillman can be reached at jtillman@tampabay.com or (813) 226-3374.



.Fast facts

More on the bill

Two Republicans, Sen. Greg Evers and Rep. Jeanette Nunez, have filed bills (SB 1748 and HB 1323) that would put new restrictions on personal services contracts. The legislation would also require the Florida Agency for Health Care Administration to go after some spousal assets for nursing home care. Now, the healthy spouse can keep their income plus certain assets, such as their home, and up to roughly $115,000 a year in the bank without having to put that money toward nursing home care. But the state doesn't have a process for recovering assets over $115,000. The proposed legislation, which is opposed by many elder advocates, would change that.

Family caregivers' contracts under scrutiny in legislation 03/16/13 [Last modified: Saturday, March 16, 2013 9:42pm]

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