Until 1988, the Court of Appeals noted in its 2009 ruling, a married individual in a nursing home was essentially required to “spend down” all of the family assets before becoming eligible for Medicaid. In 1988, the Medicare Catastrophic Coverage Act made changes that were meant to prevent the impoverishment of one spouse when the other enters a nursing home.
The court also pointed to federal law signed in 2006 regarding annuities under the Medicaid program. Once a couple has purchased an irrevocable annuity, the court said, neither spouse owns the funds used for the purchase. That is why the funds are not a resource that can be counted for the institutionalized spouse’s care.
A couple can convert resources through an appropriate annuity, such as Susan bought, the court said. Warren Vieth was eligible for Medicaid.
The Vieths’ attorney, William Browning, said the court was sympathetic to the fact that Susan’s income was modest, even with the annuity payments. Still, as a past president of the National Academy of Elder Law Attorneys, he counsels consumers to “be cautious about the purchase of this type of annuity after their spouse has gone into a nursing home.” For one reason, it is likely to raise red flags when applying for Medicaid. And despite what salespeople may say, “there’s no such thing as a Medicaid tailored annuity,” Browning says.
Warren Vieth died in late 2008, and Susan died in June 2009. As beneficiary of their assets under Medicaid rules, the state of Ohio recouped all of the money for Warren’s care.
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Robin Gerber is a lawyer and the author of Barbie and Ruth: The Story of the World’s Most Famous Doll and the Woman Who Created Her.