Published Articles

Proposed Florida law on elderly is anti-marriage

By: Ellen S. Morris, Esq.

Elder Law Associates Newsletter dated April 11, 2013

Although its name may have a negative connotation, Spousal Refusal is a necessity for many elderly couples when the husband or wife needs nursing-home care.

“Spousal Refusal” is the term used when a spouse refuses to pay for the nursing home cost of care for an ill spouse. The well spouse is allowed to have only a small amount of assets in order for the ill spouse to qualify for Medicaid. If the ill spouse has even $10,000 above the allowed amount, he or she will not receive Medicaid, even though the well spouse cannot afford to pay for private nursing home care and pay their own bills in their home at the same time.

The federal government therefore passed a Spousal Refusal law that allows the well spouse to avoid becoming impoverished or losing a home by refusing, and grants the ill spouse Medicaid benefits. When a spouse refuses, the state may seek reimbursement from the estate of the well spouse for money it expended to pay for the ill spouse’s nursing home care.

The legislation currently pending in the Florida House and Senate, HB 1323 and SB 1748, would require the spouse in the nursing home to cooperate with the state to seek recovery of the money. However, cooperation is not defined, and, typically the ill nursing home spouse is demented, so the law forces the ill spouse’s agent to cooperate. If the nursing home spouse or the agent does not cooperate, Medicaid eligibility would be taken away.

These laws effectively pit one spouse against the other or pit a child who is an agent against the other parent. In order to avoid the harmful and drastic effect of these bills, elderly couples will need to get divorced to keep their assets separated. Couples who may have been married for over 50 years and who are in their 80s would have to endure the stigma of divorce in order to afford for one to remain in their home and the other to receive the necessary nursing home Medicaid.

That is anti-marriage and anti-family and not what we put our legislators in office to accomplish. Amendments to this legislation have been proposed by those who advocate for senior citizens on a daily basis: Florida’s elder law attorneys, AARP and the Alzheimer’s Association, as well as the Florida Department of Children and Families (DCF), the agency that oversees Medicaid eligibility.

The amendments strike the bills but create a framework for DCF to make further rules governing Medicaid eligibility to ensure that abuses of “spousal refusal” are able to be identified and properly dealt with. It is the empowered agency and it governs eligibility. We don’t need more big government looking over their shoulders.

It would be a sad day in Florida if a senior citizen in a nursing home is forced to cooperate in a lawsuit against his or her spouse, especially if the result is the seizure of the few assets that spouse may own.

Likewise, it would be devastating if we force our seniors to divorce in order for one to remain at home and be able to pay the bills while the other gets the skilled nursing home care needed. We must urge our lawmakers to pass this legislation only if the amendment is attached.

Ellen Morris is co-chair of the Florida Joint Public Policy Task Force for the Elderly and Disabled.