Medicaid Nursing Home Assistance

• Eligibility
• Non-Countable Assets
• Transferring Assets
• Promissory Notes, Loans and Mortgages
• Undue Hardship
• Irrevocable Annuities
• Personal Service Contract
• Exemptions to the Transfer Rules
• Supplemental Needs Trusts and Pooled Trusts
• Assisted Living Facility Medicaid Waiver Program
• Medicaid Estate Recovery

Eligibility

A nursing home patient may be eligible for assistance in paying a portion of his or her skilled or custodial nursing home cost through the state of Florida’s institutional care program. However, there is a maximum amount of countable assets that a person applying for assistance and his or her spouse can own and still receive assistance. The institutionalized spouse entering a nursing home cannot own more than $2,000 in countable assets. The community spouse who is not residing in the nursing home can not own in the year 2009 more than $109,560 in countable assets. A person who has no spouse can only retain $2,000 in countable assets if his or her income exceeds $767 per month in the year 2008. A person who has no spouse can only retain $5,000 in countable assets if his or her income is $767 or less per month in the year 2009.

There is also a maximum amount of monthly income that the institutionalized spouse can receive and still be eligible for nursing home assistance. The monthly gross income available to the institutionalized spouse cannot exceed the state monthly income cap of $2,022 in 2009. However, a nursing home patient with a gross monthly income in excess of $2,022 for 2009 can still qualify for the institutional care program by establishing an irrevocable qualified income trust. This trust is often referred to as a Miller Trust, after the name of the Colorado case that originally approved this concept. The nursing home patient’s income in excess of $2,022 is irrevocably assigned to the irrevocable qualified income trust that is used to pay the patient’s medical and nursing home expense.

In determining the institutionalized spouse’s income available to pay the cost of the nursing home, a community spouse is first permitted to retain a minimum monthly maintenance income needs allowance that is sometimes referred to as a MMMNIA. This means that the community spouse may retain his or her income plus the portion of the institutionalized spouse’s income necessary to allow the community spouse $1,750 in income per month. There may be an additional amount of income diverted from the institutionalized spouse if the community spouse can demonstrate excess shelter expenses. However, the maximum monthly maintenance income needs allowance is $2,739 per month in 2009. This amount will increase on July 1, 2009.

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Non-Countable Assets

All assets owned by the institutionalized spouse or by the non-institutionalized spouse are considered countable assets unless exempted by state regulation. An individual with an equity interest in his or her home in excess of $500,000 is not eligible for long-term care. Home equity is calculated using the current market value of the home minus any debt. The current market value is the amount for which it can be reasonably expected to sell on the open market in the geographic area. If the home is held in any form of shared ownership, only the fractional interest of the person requesting long-term care assistance should be considered. The home equity policy does not apply if the residence is being occupied by the nursing home resident’s spouse, a child under age 21, or a blind or disabled child is living in the residence. The home equity must be revalued each year that the applicant remains on Medicaid nursing home assistance. This home equity limitation may be waived when a denial of long-term care eligibility will result in demonstrated hardship to the individual.

One vehicle is excluded in computing countable assets regardless of its age or value. A second vehicle is generally excluded if it is more than seven years old. If the total face value of the patient’s whole life insurance policies is $2,500 or less, the cash value of the policies is excluded as an asset. The full value of an irrevocable burial contract is excluded as an asset. Likewise, there is a $2,500 exclusion for bank accounts that have been designated for burial expenses.

It is also important to consider the exemptions and maximum allowances for tangible personal property such as clothing, jewelry, tools of a trade, pets, and household goods such as furniture and appliances. A community spouse is entitled to exclude all personal property if his or her spouse is in a nursing home. A single person may exclude a wedding ring, one engagement ring, and any items required because of the individual’s medical or physical condition. A single person may also exclude household goods and personal effects up to a value of $2,000. It will be assumed that the household goods and personal effects are less than $2,000, unless the individual applying for personal assistance indicates he or she owns items of unusual value.

The total value of an individual retirement account (IRA) owned by an institutionalized spouse is not counted as an available asset if it is placed into payment status over the life expectancy of the institutionalized spouse. Likewise, the total value of an individual retirement account (IRA) owned by a community spouse is not counted as an available asset if it is placed into payment status over the life expectancy of the community spouse. Most Districts of the Department of Children and Families require the IRA payments to paid over Social Security’s life expectancy tables.

LIFE SITUATION

George has been in a nursing home for over twenty days. He will need to remain there because a massive stroke has disabled him to the degree that he will no longer be able to perform his daily living activities. George and his wife, Helen, own a residence having a fair market value of $250,000, and $126,400 in savings, and a 1980 car with over 100,000 miles. George’s monthly income is $1,000 from Social Security and $1,111 from a pension. Helen receives $700 each month from Social Security. Since a “community spouse” (the spouse living outside the nursing home) can only own $109,560 and a nursing home spouse can only own $2,000 in countable assets in 2009, George is presently not eligible for Medicaid nursing assistance. One way to obtain eligibility is for Helen to replace the 1980 automobile with a new one that will cost about $21,000. This purchase will not disqualify George from Medicaid assistance since something of value was received by Helen and the new automobile is a non-countable asset. Since George’s income exceeds the 2009 monthly income cap of $2,022, he will need to establish a Qualified Income Trust (QIT). The trust will need to state that any monthly income over the monthly income cap of $2,022 is assigned to the trustee of the trust. The excess income of $89 per month that is paid to the QIT will be used for George’s care. Helen is entitled to a minimum monthly maintenance income needs allowance in 2009 of at least $1,750 each month and can divert $1,050 of George’s income ($1,750 minus Helen’s $700 Social Security) to meet her living needs. George will be able to retain $35 each month for his personal needs allowance. George’s remaining income of $1,026 after Helen receives her minimum monthly maintenance income needs allowance and George receives his $35 personal needs allowance becomes George’s patient pay responsibility to the nursing home. The additional monthly cost of the nursing home will be paid to the nursing home facility by the state of Florida’s Department of Children and Families.

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Transferring Assets

A gift to someone other than a spouse may cause the donor and his or her spouse to be ineligible for nursing home assistance for a period of time. The current 36-month look-back period for transfers will increase to 60 months beginning December, 2010. The 60 month look back period will be “phased in” in one month increments beginning November 1, 2007. This means that a gift made in October of 2004 will not penalize a person applying for Medicaid nursing home assistance in or after November, 2007. However, a gift made in November of 2004 will make a person who applies for nursing home assistance subject to a penalty for making a gift until November of 2009. Transfers made before November 1, 2007, to someone other than a spouse for no consideration will cause the nursing home patient to be ineligible for Medicaid assistance for a certain period determined by dividing the amount of the uncompensated transfer by the state determined average cost of nursing home care that is $5,000 per month. Thus, a gift by the nursing home patient to someone other than a spouse of $60,000 in October of 2007 will result in an ineligibility period lasting for 8 months beginning with the month in which the gift was made or until April 1, 2008.

Transfers made on or after November 1, 2007, to someone other than a spouse for no consideration will cause the nursing home patient to be ineligible for Medicaid assistance on the later of the following dates: The first day the individual would be eligible for long-term care Medicaid were it not for imposition of the transfer period (this includes the filing of an application and meeting all other program criteria for long term care Medicaid), or the first day of the month in which the individual transfers the assets, or the first day following the end of an existing period.

This is because the 60 month look back period will be “phased in” in one month increments beginning November 1, 2007. Thus, a gift by a person to someone other than a spouse of $60,000 in November of 2007, who then enters the nursing home in April, 2008, will result in an ineligibility period lasting for 12 months beginning May 1, 2008, which is the first month after an application is filed and the person meets all other program criteria for long term care Medicaid. This means that the applicant who made the gift of $60,000 in November of 2007, will not be eligible for Medicaid nursing home assistance until May 1, 2009.

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Promissory Notes, Loans and Mortgages

All promissory notes, loans and mortgages signed on or after November 1, 2007, will be considered a transfer of assets without fair compensation, unless the promissory note, loan or mortgage has a repayment term that is actuarially sound based on Social Security’s life expectancy tables, and has payments made in equal amounts during the term of the loan with no deferral or balloon payments and the note does not allow for debt forgiveness.

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Undue Hardship

A nursing home patient who has made an uncompensated transfer subjecting him or her to a penalty period affecting eligibility and a person with a home equity interest exceeding $500,000 must be offered an opportunity by the Department of Children and Families to demonstrate that the imposition of the penalty period will create an undue hardship. This opportunity must be granted before the disposition of the application. Nursing home facilities are allowed to apply for an undue hardship waiver on behalf of an individual with the consent of the applicant or the designated representative. An undue hardship exists when application of the transfer of asset penalty or excess home equity penalty will deprive the nursing home patient of medical care such that his or her health or life would be endangered or the individual will be deprived of food, clothing, shelter or other necessities of life. Other federal and state laws prohibit a nursing home from evicting a resident without transferring the person to a safe place. Thus, the nursing home might be required to continue to provide care to an indigent patient without receiving public assistance until the undue hardship waiver has been determined.

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Irrevocable Annuities

When an individual purchases an annuity, he or she generally pays to the insurance company that issues the annuity a lump sum of money, in return for which he or she is promised regular payments of income in certain amounts. The payments may continue for a fixed period of time (for example 10 years) or for as long as the individual (or another designated beneficiary) lives, thus creating an ongoing income stream. The annuity may or may not include a remainder clause stating that if the person who owns the annuity dies, the insurance company converts whatever is remaining in the annuity into a lump sum and pays it to a designated beneficiary.

Annuities, although usually purchased to provide a source of income for retirement, are occasionally used in conjunction with Medicaid planning. To avoid penalizing persons who validly purchased annuities as part of a retirement plan, but to capture those annuities that were purchased to shelter assets, a determination is made by the Department of Children and Families that the return to the annuitant is fairly computed. If the expected return on the annuity is commensurate with a reasonable estimate of the life expectancy of the beneficiary, the annuity is deemed sound for actuarial purposes and is not considered to have been purchased to shelter assets. The annuity must also be irrevocable and non-assignable. The periodic payments (including the interest portion) are counted as unearned income in the eligibility determination and patient responsibility. An annuity that is revocable or non-assignable is not considered a countable asset. If the annuity is revocable, the asset value is the amount the purchaser would receive from the annuity purchaser would receive from the annuity issuer if the annuity is cancelled. If the annuity is assignable, the asset value is the amount the annuity can be sold for on the secondary market.

To determine that an annuity is sound for actuarial purposes, the life expectancy tables, compiled from information published by the Office of the Actuary of the Social Security Administration, are used. The average number of years of expected life remaining for the individual must coincide with the length of the annuity. If the individual is not reasonably expected to live longer than the guaranty period of the annuity, the individual will not receive fair market value for the annuity based on the projected return. In this case, the annuity is not actuarially sound and a transfer of assets for less than fair market value has taken place, possibly subjecting the individual to a penalty. The penalty is assessed based on a transfer of assets for less than fair market value that is considered to have occurred at the time the annuity was purchased. For example, a male at age 65, has a life expectancy according to the table is 14.96 years. Thus, if he purchases a $10,000 annuity to be paid over the course of 10 years, the annuity is actuarially sound. However, a male at age 80 has a life expectancy of only 6.98 years. Thus, if he purchases an annuity to be paid over 10 years, the amount that will be received for the last 3 years is considered a transfer of assets for less than fair market value, and that amount is subject to penalty. The new Medicaid laws still permit a spouse with countable assets in excess of the $109,560 community spouse resource allowance to purchase an annuity with the excess assets. The annuity must be paid to the community spouse over no longer than his or her life expectancy. However, the new law requires that the state be named the first beneficiary for at least the total amount of medical assistance paid on behalf of the annuitant, except when the owner of the annuity has a spouse, minor or disabled child. In this case, the State of Florida may be named as the secondary beneficiary after the spouse, minor or disabled child. Since the new law addresses only the medical assistance paid on behalf of the person over whose life the payments are to be made, there is a question as to whether there is a repayment obligation if the annuitant is the community spouse.

Long-Term Care Insurance Partnership Program

The Florida Legislature has approved Florida’s participation in a federal program designed to encourage individuals to purchase long-term care insurance policies to cover future long-term care needs. The newly approved qualified long-term care insurance policy allows the Department of Children and Families to disregard special assets if the beneficiary of a qualified long-term care insurance policy applies for Medicaid nursing chare. An individual who currently owns a long-term care policy should consider asking his or her insurance carrier to convert the present policy to the new qualified long-term care insurance partnership policy.

By example, if the long-term care insurance company pays out $60,000 for nursing home benefits for a beneficiary, the Department of Children and Families must subtract $60,000 from the individual’s total countable assets when determining if the individual’s total assets are within the Medicaid program limits. It is important that the long-term care insurance policy be certified under the standards established by the Office of Insurance Regulation as a qualified state LTC Insurance Partnership Policy.

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Personal Service Contract

Of great concern to a senior citizen is the right to continue to live at home despite the need for assistance and personalized care. Another concern is that there will be someone to advocate for him or her in the event of incapacity and the level of care increases or placement in a nursing home becomes necessary. This assistance necessary to keep a person at home and not in a nursing home is often provided at no cost by a child, another family member or a friend. A subsequent reimbursement to a family member or friend who has spent months and perhaps years providing the care and assistance necessary to keep the senior at home may result in denial of Medicaid nursing assistance to this senior citizen. This is because an individual who makes an uncompensated transfer of assets within 60 months of applying for Medicaid assistance will be presumed to have made a disqualifying gift.

A period of Medicaid ineligibility will usually not result if the person in need of assistance initially contracts with a family member or a friend before these personal services are rendered. In such event, real or personal property estimated to equal the value of the services to be rendered to the infirmed person can be transferred in exchange for an agreement to provide the personal services over the infirmed person’s lifetime. There is no disqualifying gift in this instance because the personal service contract provides that the infirmed person will receive services having a value equal to the property being transferred.

The personal service agreement must be in the form of a binding written contract that is signed by both parties. The contract should state that the services are to be provided solely by the caregiver and that these services cannot be delegated to another person. This contract should state the services that will be provided to the infirmed person as needed. The contract should recognize that the need for certain services will increase or decrease with time. At a minimum, the contract should confirm that the family member or friend will monitor the infirmed person’s health care, secure necessary health care, provide financial management and visit the person to provide the services on a periodic basis.

A personal service contracts term is most often for the infirmed person’s life expectancy. This is necessary to avoid a concern that the person is not receiving sufficient care in return for his or her payment and that a gift is being made.

The method used to determine the maximum amount of real or personal property to be transferred in exchange for the promise of lifetime personal care is to multiply the reasonable wage in the community for these services times the number of hours per week reasonably expected of the caregiver times the 52 weeks in the year times the infirm persons life expectancy, which is determined from the Health Care Financing Administrations life expectancy charts. It is important to remember that the person who agrees to provide the personal services will have to report as income any payment received or the value of any property received as a result of the contract. Also, the infirmed person who will be receiving the services may recognize a capital gain for income tax purposes when his or her assets are transferred in exchange for the personal services to be provided. The advice of a certified public accountant and an attorney before entering into a personal service agreement is recommended.

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Exemptions to the Transfer Rules

Transfers to a spouse or to another person for the sole benefit of the spouse, or transfers from a spouse to another person for the sole benefit of the spouse are exempt from transfer penalties. Transfers to a disabled child or to a trust established solely for the benefit of a disabled child are also exempt in determining the transfer penalties. The transfer penalties do not apply to transfers to a trust established solely for the benefit of a disabled individual under age 65.

A transfer of an individual’s home is exempt if the recipient is the spouse, a child who is blind, disabled, or under age 21, a child who had resided at the individual’s home for two years prior to the institutionalization and had cared for the parent-applicant or a sibling with an equity interest who had resided there for one year prior to the institutionalization

An applicant is considered to have established a non-countable trust for Medicaid purposes if his or her assets were used to form all or part of the assets of the trust and if any of the following persons established such a trust other than by will: the applicant, the applicant’s spouse, a person (including a court or administrative body) with legal authority to act in place of or on behalf of the individual or the applicant’s spouse, or a person (including any court or administrative body) acting upon the direction or request of the applicant or the applicant’s spouse.

If the trust includes assets of an individual and assets of another person or persons as noted above, the trust will be considered to have been established by the individual to the extent of the portion comprising the individual’s assets.

In the case of revocable trusts, the assets owned by the trust are considered a resource available to the person applying for Medicaid, and payments to or for the benefit of the applicant will be considered income of the applicant. Any other payment from the trust (presumably payments to third persons) will be considered assets disposed of by the applicant and falling under the rules governing the transfer of assets (subject to the 60-month look-back period).

With an irrevocable trust, if there are any circumstances under which payment from the trust could be made to or for the benefit of the applicant, the portion of the assets of the trust or the income from which payment is made to the applicant will be considered resources available to the applicant. Payments from that portion of assets of the trust or income paid to or for the benefit of the individual will be considered a transfer of assets.

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Supplemental Needs Trusts and Pooled Trusts

Individuals with mental and physical disabilities often lack the ability to support themselves due to the inability to work full-time work on a recurring basis. Government benefits such as Supplemental Security Income (SSI) and Medicaid will help pay for a disabled person’s basic needs and medical care if he or she does not receive sufficient income and does not have sufficient assets to pay for these costs.

The maximum monthly countable income that a person can receive and be eligible for SSI benefits is $674 in 2009. In Florida, a person who is eligible for SSI benefits automatically receives Medicaid.

If the disabled person meets the income and asset guidelines, Medicaid pays for the cost of health care provided by physicians, hospitals, pharmacists and other health care providers. SSI may also pay for training programs. Unearned income received from other benefit payments, financial gifts, annuity payments and payments from a trust fund paid directly to the SSI recipient reduces his or her monthly SSI payment dollar for dollar. Earned income is also counted but treated differently.

In calculating countable income, there is a general $20 disregard applied to most incomes. In calculating the earned income offset to SSI, the first $65 per month of earned income and one-half of the remaining work-related income is not counted. The remaining one-half of work-related income will be counted against a person’s SSI benefit. Payments made by another person for a recipient’s food and shelter reduces the SSI benefit up to a maximum of $224.67 per month in 2009.

The asset limit for an SSI recipient is $2,000. Anything that can be converted to cash will be considered toward this $2,000 limit. This includes bank accounts, 401(k) benefits, cash values in some life insurance policies and trust funds where the trustee has the discretion to pay for the recipient’s support. A homestead, one car and some personal effects are not counted as assets. The asset limit for Medicaid only is $5,000.

If a trust is established to provide for the basic support needs such as housing and food, the recipient will be denied SSI because the trust assets in excess of $2,000 will be considered available to the recipient. A person applying for Medicaid only will be denied Medicaid assistance if his or her trust assets exceed $5,000. It is possible for a trust fund to be created to provide supplemental services to a disabled person without depriving the recipient of SSI and Medicaid benefits. The assets of the trust will not be counted if the terms of the trust agreement state that the trust funds are not to be expended for basic needs that are by SSI but are only to supplement these benefits.

A Supplemental Needs Trust authorizes the trustee to pay only the expenses of goods and services that are supplemental to the beneficiary's basic needs (food and shelter). Food and shelter expenses cannot be covered by the trust. Some examples of allowable expenses that can be paid from a Supplemental Needs Trust are medical equipment not covered by Medicaid; medical, nursing and dental care, tests not covered by another source; insurance premiums (Health, Dental, Life, Car, and Renter); clothing, personal assistance; private counseling or case management; guardianship and advocacy services; computer hardware and software; school or camp tuition; home appliances; furniture; telephone and internet charges.

Some of the charges that are not allowable to be paid from a supplemental needs trust are food and groceries; rent and mortgage payments, property taxes; condominium fees and utility charges.

The beneficiary of a special needs trust (also known as supplemental needs trust) must be an individual under 65 years of age who is determined disabled by the Social Security Administration. This means the beneficiary who is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

A special needs trust is one that is established for the disabled person’s benefit by a parent, grandparent, legal guardian or the court with money due the disabled beneficiary. The state paying the Medicaid benefits for a disabled person will receive all amounts remaining in the trust upon the death of the individual, up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan. Court approval is not required and there need not be a pay-back provision in a trust created by a third party such as a grandparent. Another type of trust can be established for the special needs of a disabled person without the assets being considered available. This is called a pooled trust. It is managed by a non-profit organization that pools the funds of that trust with the funds from all participants. However, there is a separate sub account for each benefit. A pooled income trust can be established for a disabled person regardless of his or her age. At the beneficiary’s death, the amount remaining in the beneficiary’s account is paid to the state that provided the Medicaid assistance to the total amount of benefits provided. However, the remaining assets can be left in the pooled trust for other disabled persons and no payback is required.

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Assisted Living Facility Medicaid Waiver Program

The State of Florida’s Assisted Living Medicaid Waiver Program pays for services provided to financially and physically eligible residents of assisted living facilities who would otherwise need placement in a nursing home. Some of the services covered under the Assisted Living Facility Medicaid Waiver Program include case management, personal care services, medication management, administration, intermittent nursing care services, occupational therapy, physical therapy, speech therapy, therapeutic social and recreational services, specialized medical equipment and incontinence supplies.

The rules governing the Assisted Living Waiver Medicaid Program changed as of July 1, 2003. This change is intended to align the Assisted Living Waiver Program’s rules involving asset allocations and income allowances to spouses and dependents with the current Medicaid nursing home institutional care program.

For persons applying for this assistance, the change affects the amount of assets the applicant and his or her spouse can own and still qualify for this program. Previously, only the assets of the person applying for the assisted living waiver were considered. The new policy requires that all countable resources owned solely by either the applicant or his or her spouse and the resources owned jointly by a married couple are considered in determining eligibility. Those countable assets that exceed the patient’s allowable resource limit of $2,000, and the 2009 community spouse’s resource limit of $109,560, will be considered available to the spouse applying for the Assisted Living Waiver Program. Thus, the husband and wife having countable assets in 2009 in excess of $111,560 will have to spend down the countable assets to the allowable amount before the spouse will be eligible for the Assisted Living Waiver Medicaid Program. The spouse who will reside in the Assisted Living Facility cannot have income exceeding $2,739 per month and still receive this financial assistance.

When the Assisted Living Waiver applicant or recipient has a community spouse whose gross income is less than Florida’s minimum monthly maintenance income allowance of $1,750. This amount will increase to in July of 2009. A portion of the applicant’s or recipient’s monthly income may be diverted to meet the support needs of the community spouse.

The resident applying for a Medicaid Assisted Living Waiver must be residing in an assisted living facility that is certified as a Medicaid provider and have a contract with the Department of Elder Affairs. The assisted living facility must provide semi-private rooms and bathrooms and also have an extended congregate care (ECC) or limited nursing service (LNS) license.

A person residing in an assisted living facility applying for an Assisted Living Medicaid Waiver must be 65 or older, or be age 60 to 65 and be determined disabled according to the Social Security standards. This person must also meet the nursing facility level-of-care criteria as determined by the Florida Department of Elder Affairs CARES team. This means the resident must require assistance with four or more activities of daily living (ADLs); or require assistance with three ADLs plus assistance with the administration of medication; or require total help with one or more ADLs; or have a diagnosis of Alzheimer's Disease or another type of dementia and require assistance with two or more ADLs; or have a diagnosis of a degenerative or chronic medical condition requiring nursing services that cannot be provided in a standard licensed ALF but are available for an ALF licensed to provide limited nursing services; or extended congregate care services; or be a Medicaid-eligible resident awaiting discharge from a nursing home who cannot return to a private residence because of the need for supervision, personal care services, periodic nursing services or a combination of the three; and who is receiving case management and in need of assisted living services as determined by the community case manager and determined to meet eligibility criteria by CARES.

Regardless of the facility's license status, residents living in an Assisted Living Facility cannot have conditions that require 24-hour nursing supervision. The only exception is for a resident who is receiving hospice services from a licensed hospice while continuing to reside in an Assisted Living Facility.

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Medicaid Estate Recovery

The 1999 Florida Legislature passed the Medicaid Estate Recovery Act. The legislature stated that its intent in passing this law is to supplement Medicaid funds that are used to provide medical services to eligible persons. Medicaid estate recovery is to be accomplished through the filing of claims against the estate of deceased Medicaid recipients. A recent Florida statute states that the personal representative (executor) of the estate of the decedent must serve Florida’s Agency for Health Care Administration with a copy of the notice to creditors within 3 months after the first publication of the notice of creditors. The claim amount is calculated as the total amount paid to or for the benefit of the recipient for medical assistance on behalf of the recipient after he or she reached age 55 years of age. There is no claim against estates of recipients who had not yet reached age 55 years on age.
This statute confirms that the claim for Medicaid funds will not be enforced if the Medicaid recipient is survived by:
1. A spouse;
2. A child or children under 21 years of age; or
3. A child or children who are blind or permanently and totally disabled pursuant to the eligibility requirements of the Social Security Act.
This statute also clarifies that in accordance with the Florida Constitution, no claim will be enforced against any property that is determined to be the homestead of the deceased Medicaid recipient and is determined to be exempt from the claims of creditors of the deceased Medicaid recipient.

The statute further states that the Agency for Health Care Administration is not to recover from an estate if doing so would cause an undue hardship for the heirs. The hardship to be considered by the agency in reviewing a hardship request is whether the heir:
1. Currently resides in the residence of the deceased;
2. Resided in the residence of the deceased at the time of the death of the deceased;
3. Made the residence his or her primary residence for the 12 months immediately preceding the death of the deceased; and
4. Owns another residence.

Other factors which will be considered are whether the heir would be deprived of food, clothing, shelter, or medical care necessary for the maintenance of life or health. Another factor will be whether the heir can document that he or she provided full-time care to the recipient which delayed the recipient’s entry into a nursing home. In such event, the heir must be either the decedent’s sibling or the son or daughter of the decedent and must have resided with the recipient for at least 1 year prior to the recipient’s death. Another factor is whether the cost involved in the sale will be equal to or exceed the value of the property.


Dave Henderson
941-586-9280 cell
Senior Planners
'Health, Legal, Finance and Tax'