Published Articles

Proposal would force more Florida seniors into nursing homes

By: Ellen S. Morris, Esq.

Elder Law Associates Newsletter dated April 16, 2013

The Florida House will soon vote on legislation that, if not amended, would harm elderly citizens who are being cared for by a family member and those whose spouses needs nursing home care.

House Bill 1323 and a related Senate bill (SB 1748) would restrict the use of Personal Services Contracts (PSCs) and inhibit a well spouse from continuing to pay his or her living expenses when an ill spouse needs to enter a nursing home.

PSCs allow family caregivers to be paid by the ill relative. Many family caregivers must leave jobs or reduce work hours, so putting unreasonable limits on payment would be a huge financial sacrifice, especially since many caregivers also must support their own families. SB 1748 calls for paying the minimum wage, which in Florida is $7.79. A 2011 study by MetLife estimated that wage losses incurred by caregivers, who usually are in their prime earning years, average $303,880.

Both bills also would require the caregiver to predict how many hours he or she will spend taking a relative to the doctor or pharmacy, running errands and managing care. It is impossible to accurately predict this. Caregivers don’t know how often their loved one might need to go to the hospital.

These laws, in effect, would get rid of PSCs, which would force seniors to pay a stranger for expensive professional caregiving or enter a nursing home, with Medicaid paying the bill. Thus these bills would unnecessarily cost taxpayers more in Medicaid dollars and are the opposite of what Medicaid reform seeks to encourage: seniors aging at home, with proper care.

Legislators are considering the changes because the Florida Department of Children and Families is concerned that people use PSCs to cheat the system by overpaying the caregiver so the senior citizen can “spend down” assets and qualify for Medicaid, which the DCF administers. According to a House analysis, however, DCF says only that “a few individuals” are doing this.

Another harmful part of these bills would restrict “spousal refusal,” meaning the healthy spouse can refuse to pay for care of the spouse who is in a nursing home. Current law allows the well spouse to avoid poverty, keep paying his or her bills and remain at home. The ill spouse qualifies for nursing home care through Medicaid, while the well spouse maintains the couple’s limited assets.

Spousal refusal isn’t meant for those who can afford to pay for nursing home care. In fact, the well spouse grants the state the right to seek reimbursement from his/her estate for Medicaid benefits the state provided to the ill spouse.

The bills would requires the spouse in the nursing home to cooperate with the state to seek recovery of the money. If the nursing home spouse did not cooperate, Medicaid eligibility would be taken away. This unreasonable change would pit one spouse against the other or even the child, as the agent for one spouse, against a parent. The bills would encourage elderly couples to get divorced in order to protect their assets and avoid the harsh penalty. This is anti-marriage legislation.

Florida elder law attorneys, who advocate for senior citizens and their caregivers on a daily basis, along with AARP and the Alzheimer’s Association, have worked with the DCF to create an amendment to the bills. Rather than create an inflexible law, the amendment would allow the DCF to make rules to discover fraudulent transactions and punish cheaters.

Elderly Floridians don’t need more laws that would take away choices, force them to divorce after 50 years of marriage and force them to cooperate in a lawsuit against their spouse. Let’s encourage our seniors to age in place and encourage family members to step up to the challenge of caregiving. Legislators should vote no on HB 1323 and SB 1748 unless the original language is taken out and the amendment mentioned above replaces it.

Ellen S. Morris is an attorney in Boca Raton who specializes in elder law.