Spending $8,000 on a nursing home resident’s pet cat “Spunky” was “highly suspicious,” said a Fairfax Circuit Court judge.
But that “extremely large” sum purportedly paid by a woman who had a general power of attorney for the resident did not let the nursing home go after the woman for an alleged misappropriation of funds, the court said. Nor could the nursing home collect on the resident’s bill from the cat caretaker with the general POA.
Fairfax Circuit Judge Leslie Alden had to sort through the nursing home’s multi-front effort to collect some of the costs of care for resident Betty M. Callicotte-Meier, who was admitted to Inova’s Commonwealth Care Center in 2004 and died in 2008.
Callicotte-Meier was admitted under an agreement that identified her as both the resident and the party responsible for payment.
As is frequently the case, Callicotte-Meier was physically unable to sign the agreement, and Susan Bainbridge, who held the POA, executed the agreement in that capacity after the admission.
At one point during Callicotte-Meier’s sojourn at the Center, a Center employee took the resident to her bank, only to discover Bainbridge had cashed out and closed a savings account with $2,351. Callicotte-Meier then revoked the power of attorney.
The nursing home later sued Bainbridge for the $23,782 balance of the resident’s care not covered by Medicaid or private insurance. After Callicotte-Meier died, Bainbridge qualified as administratrix of the resident’s estate, which was insolvent.
The nursing home argued Bainbridge was personally liable because she had signed the agreement on the line labeled “Responsible Party.”
The nursing home also sought to recover from Bainbridge under a Social Security Act provision, 42 USCS § 1396r, that allows a nursing facility to require someone with access to a resident’s income to pay from that income. But the nursing home had ignored the statute’s qualifying phrase, “without incurring personal financial liability,” according to Alden’s opinion in Inova Health Systems Servs. Inc. v. Bainbridge (VLW 010-8-156).
A Virginia statute, Virginia Code § 32.1-138.3, looks like it would provide a remedy. The Virginia provision has much of the same language as § 1396r, but adds the phrase, “except for breach of the duty to provide payment from the resident’s income or resources for such care.”
“Because the Virginia Code appears to allow personal liability where the federal law prohibits it, it is impossible for any court granting relief under the Virginia Code, by finding someone personally liable, to be in compliance with the federal law,” Alden said.
The Center has filed a notice of appeal, according to its attorney, Alexandria lawyer J. Casey Forrester.
Forrester said Alden raised the preemption argument on her own. Bainbridge appeared pro se in the litigation.
He said the nursing home does not contend that someone who is not a responsible party can be held liable merely if they promise to pay but don’t.
They incur liability only if they convert the money of the responsible party to their own use, he said.
Alden said the agreement under which Callicotte-Meier was admitted requires a resident to grant a special power of attorney to a responsible party with a duty to preserve the resident’s income and promptly pay the nursing home.
But Bainbridge was never given a special power of attorney, and Alden said it is not clear whether such an appointment would have altered her analysis.
Emily G. Towey, a Richmond attorney who frequently advises nursing homes, said, “We get questions like this all the time from nursing facilities.”
Fortunately, she said, they often come up early in the process when a reminder from the nursing home is enough to get the holder of the power of attorney to do the right thing. If the holder is recalcitrant, the nursing home might warn that they can be reported to the Department of Social Services, Towey said.
She said her advice for clients has been in line with the arguments the nursing home made in this case on the interpretation of the Social Security provisions. She agrees with Forrester that the holder of the power of attorney is not being held personally liable because the money in question actually belongs to the resident.
Alden’s opinion will alter that advice, although it is not binding on other courts in the state, Towey said.