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3-3101-21966-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF VETERANS AFFAIRS
|
In the Matter of the Appeal of the Discharge of G.B. from the Minnesota Veterans Home-Minneapolis |
FINDINGS OF
FACT, CONCLUSIONS
AND RECOMMENDATION |
The above-entitled matter
came on for hearing before Administrative Law Judge Kathleen D. Sheehy on May
25, 2011, in Room 102, Building 2, of the Minnesota Veterans Home,
Angela Behrens, Assistant Attorney General,
STATEMENT OF ISSUE
Is the Minnesota Veterans Home-Minneapolis entitled to discharge the Resident because the guardian of his estate has failed to pay maintenance charges?
The Administrative Law Judge concludes that the Veterans Home-Minneapolis is entitled to discharge the Resident because the guardian of his estate has failed to pay maintenance charges.
Based upon the record in this mater, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
The
Resident is a 73-year-old veteran who was admitted to the Minnesota Veterans
Home in
2.
The
Resident has been married to Frances Bilderback for 52 years. Frances Bilderback lives in
3.
In a
1995 guardianship proceeding in Eau Claire County Circuit Court, the Resident
was adjudicated incompetent as a result of his injuries. Robert Adams was appointed as guardian of the
Resident’s estate. It was unclear at the
time where the Resident would live after discharge from the hospital. Consequently, Mr. Adams and Mr. Robert
Bilderback were jointly appointed as guardians of the Resident’s person, with
Mr. Adams to act as guardian of the person if the Resident were to live in
4.
When the Resident was admitted to the
Minnesota Veterans Home in 1996, his brother signed an admission agreement on
his behalf, in which he agreed to provide accurate financial information to the
home so that the Resident’s financial contribution toward the cost of his care
could be correctly determined. The
agreement provides that financial information would be reviewed annually and
that the Resident could be discharged for failing to pay the maintenance charge
by the due date.[5]
5.
The amount of the monthly charge varied over the
years from about $500 per month to $1,100 per month, depending on the cost of
care and the financial circumstances described in the annual filing. In 2009, the monthly maintenance charge was
$971.[6] The
Minnesota Veterans Home sent the invoices for the Resident’s maintenance charge
to Mr. Adams, who paid the charges through June 2009.[7]
6.
According to the financial information Mr. Adams
provided in 2009, the Resident had a life estate but no ownership interest in
the homestead where his wife lives. He
had approximately $1,000 in cash in a checking account. He received Social Security and a retirement
pension from Northwest Airlines, cumulatively amounting to $2,622 per month.[8] His expenses included $394 per month for
health insurance and $100 per month paid to his guardian.[9]
7.
Beginning
in July 2009, Mr. Adams refused to make further monthly payments to the
Minnesota Veterans Home. The basis for
his refusal was that the Resident had incurred medical expenses in the amount
of approximately $1,084 at the federal VA Medical Center while living at the
Veterans Home in Minneapolis, and Mr. Adams believed he should be entitled to
deduct these expenses from the amount of the monthly maintenance charge or have
these expenses otherwise accounted for in determining the amount of the
Resident’s monthly maintenance fee. At
some point, the VA Medical Center caused the Social Security Administration to
deduct sums from the Resident’s monthly Social Security payments to recoup
unpaid medical expenses.[10]
8.
On or
about August 11, 2009, the Minnesota Veterans Home issued an Initial Notice of
Involuntary Discharge of the Resident on the basis of the failure to comply
with payment obligations. At that time,
the balance due was $1,943.18.[11] Although Mr. Adams did not seek
reconsideration of the discharge, the Veterans Home took no further action to
discharge the Resident at that time.
9.
Another
notice of Involuntary Discharge was issued on or about October 19, 2009, in
order to provide Mr. Adams with another opportunity to seek reconsideration of
the decision.[12] He requested administrative reconsideration,
and a reconsideration hearing was held.
Mr. Adams agreed to provide copies of the medical bills and insurance
claims to the Minnesota Veterans Home so that staff there could assist in
determining whether these expenses were properly charged to the Resident.[13] He also provided a release of information to
allow the staff to discuss the medical expenses with the VA Medical Center.[14]
10.
The
Minnesota Veterans Home also explained to Mr. Adams, in writing, that under
Minn. R. 9050.0720, subp. 2, only medical expenses that were incurred prior to
admission to a Minnesota Veterans Home may be deducted in calculating the
maintenance charge.[15]
11.
In a
meeting with the Veterans Home administrator on February 5, 2010, the
administrator asked Mr. Adams to pay whatever amount he thought he owed. The balance due at that time was $7,833. Mr. Adams then made a payment of $6,630.49,
which was credited to the Resident’s account.[16] The remaining balance of $1,202 was
approximately the amount that the VA Medical Center had caused to be deducted
from the Resident’s Social Security check, including some finance charges.[17]
12.
The VA
Medical Center subsequently agreed that it had improperly charged the Resident
for expenses that were covered by his insurance. A refund check in the amount of approximately
$1,300 was sent to Mr. Adams to cover the amounts deducted from the Resident’s
Social Security payments, with interest.[18] Mr. Adams did not forward the payment to the
Veterans Home, nor did he make any further payments to the Veterans Home. He maintains that he did not forward this sum
to the Veterans Home because he personally was owed more than this amount for
other medical expenses, including the Resident’s oxygen expenses.[19]
13.
Mr.
Adams also refused to provide the 2010 and 2011 annual financial disclosures
for the Resident.[20] When he had failed to provide the required
annual financial information by March 1, 2010, the Veterans Home began charging
the Resident for the full cost of care, amounting to approximately $7,870 per
month. In 2011, the full cost of care
increased to $8,141.[21]
14.
Mr.
Adams has made no payments to the Veterans Home on behalf of the Resident since
February 5, 2010, and he has persisted in refusing to provide the required
financial information. His position is
that he will not make any further payments or provide any further financial information
until the Veterans Home can answer to his satisfaction the question why medical
expenses incurred after admission to the Veterans Home are not considered
appropriate deductions in calculating the amount of the maintenance charge.[22] He does not accept the explanation that,
under rules governing calculation of the maintenance charge, only medical
expenses that were incurred prior to admission may be deducted.[23]
15.
The
Veterans Home staff assisted the Resident in applying for and obtaining “Aid
and Attendance” benefits from the U.S. Department of Veterans Affairs. These benefits are a nonservice-related
pension available to the Resident based on his obligation to pay the
maintenance fee to the Veterans Home each month. Commencing in August 2010, monthly Aid and
Attendance benefits in the amount of $928 were made to Mr. Adams on behalf of
the Resident.[24]
16.
On
September 17, 2010, the Veterans Home issued an Order for Involuntary Discharge
on the basis of nonpayment.[25] Mr. Adams again asked for reconsideration of
the discharge, and a reconsideration hearing was held. At the hearing, Mr. Adams declined to make
any payments or to enter into a payment plan.[26]
17.
On
November 10, 2010, after review of the record of the reconsideration hearing,
the administrator of the Veterans Home affirmed the Order for Involuntary
Discharge.[27]
18.
By
letter dated November 18, 2010, Mr. Adams requested an administrative appeal of
the discharge order. He also requested
that the hearing be scheduled to take place after December 2010 to allow him
time to recuperate from surgery for cancer.[28]
19.
In March
2011, the U.S. Department of Veterans Affairs learned that Mr. Adams was not
using the Aid and Attendance benefits to pay the monthly maintenance fee at the
Veterans Home. It consequently
terminated these benefits and is seeking to have Mr. Adams pay restitution of
the amounts paid since August 2010.[29]
20.
On April
12, 2011, the Minnesota Department of Veterans Affairs issued a Notice and
Order for Hearing in this matter.
21.
At the
time of the hearing, the balance owed to the Veterans Home for the Resident’s
care was $125,735.65. If Mr. Adams were
to provide the required financial disclosures for 2010 and 2011 so that an
updated maintenance charge could be calculated, the Veterans Home would
recalculate the balance due based on the amount of the resulting maintenance
charge.[30]
22.
The
Minnesota Veterans Home has no desire to discharge the Resident and would like
to see him stay at the facility; however, it has no choice but to seek a
discharge at this point based on Mr. Adams’ refusal to provide either payment
of balances due or the financial disclosures required to calculate a new
maintenance charge.[31]
23.
The
Veterans Home does not plan to discharge the Resident without performing
appropriate discharge planning. If a
discharge is ultimately necessary, it is likely that the Veterans Home would
discharge the Resident to a nursing home if arrangements could be made to pay
for his care.[32]
Based upon these Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Veterans Affairs have the legal authority to conduct this proceeding under Minn. Stat. §§ 198.03 and 14.50 (2010) and Minn. R. 9050.0220, subp. 6 (2009).[33]
2. The Resident received proper notice of the proposed discharge, of his rights to reconsideration and appeal, and of the time and place of the hearing in this matter.
3. The Minnesota Veterans Home has complied with all of the procedural requirements for conducting this proceeding.
4. The Veterans Home has the burden of proving that a resident is delinquent in the payment of maintenance charges.[34]
5. Veterans who have the means to support themselves may be admitted to a veterans home, if they comply with the terms of a contract providing for reasonable compensation to be paid for care, support, and maintenance in the home.[35] Residents who do not promptly pay maintenance charges may be discharged.[36]
6. A resident’s ability to pay must be determined from insurance and other benefits, value of property owned, and income.[37] The resident’s chargeable income is the income remaining after deductions from gross income have been made according to part 9050.0720 and after deductions from net income have been made according to part 9050.0755.[38]
7. Facility financial staff shall deduct the following expenses, in relevant part, from a resident’s gross income to determine net income: payment of documented medical expenses not related to long-term care, incurred prior to the person’s admission to the facility operated by the commissioner of veterans affairs, for which the person is legally responsible.[39]
8. In calculating the resident’s maintenance charge, the Minnesota Veterans Home properly declined to deduct medical expenses incurred after the resident was admitted to the facility.
9. The rules governing the administration of veterans homes provide that discharge procedures “must” be instituted with regard to a resident who fails or refuses to comply with payment obligations or when an account is delinquent.[40]
10. The Resident’s legal guardian has refused to comply with payment obligations and as a consequence, the Resident’s account is delinquent.
Based upon these Conclusions, and for the reasons explained in the attached Memorandum, the Administrative Law Judge makes the following:
The Administrative Law Judge hereby recommends that the Commissioner of Veterans Affairs AFFIRM the order of the Administrator discharging the Resident from the Minnesota Veterans Home-Minneapolis.
Dated: June 24, 2011
|
s/Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
Reported: Digitally recorded (No transcript prepared)
NOTICE
This report is a
recommendation, not a final decision.
The Commissioner of Veterans Affairs will make the final decision after
a review of the record. The Commissioner
may adopt, reject or modify the Findings of Fact, Conclusions, and
Recommendations. Under Minn. Stat. §
14.61, the Commissioner’s final decision shall not be made until this Report
has been made available to the parties to the proceeding for at least ten days.
An opportunity must be afforded to each
party adversely affected by this Report to file exceptions and present argument
to the Board. Parties should contact the
Commissioner of Veterans Affairs,
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes. Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.
MEMORANDUM
The Resident receives monthly income in the amount of approximately $2,622 in the form of Social Security benefits and pension benefits from his former employer, and in addition he received VA pension benefits of $983 per month for approximately six months. Since February 2010, Mr. Adams has consequently collected approximately $50,000 in income on behalf of the Resident, but he has refused to pay any of it toward the cost of his care at the Veterans Home.
Mr. Adams is a legal guardian and has fiduciary obligations to the Resident. Whatever amounts he has paid for the Resident’s medical expenses, and those amounts are both unclear and unsupported in this record, the payment of these expenses would provide no legal basis for refusing to pay for the Resident’s care, refusing to provide the required financial disclosures, and risking the disruption of the Resident’s established life and happiness at the Veterans Home through a discharge.
K.D.S.
[1] Ex. 1.
[2] Testimony of Pamela Barrows.
[3] Testimony of Robert Adams.
[4] Ex. 2.
[5] Ex. 1.
[6] Ex. 3.
[7] Ex. 3.
[8] Ex. 4.
[9] Ex. 4.
[10] Test. of R. Adams; Ex. 12.
[11] Ex. 5.
[12] Ex. 6; Test. of P. Barrows.
[13] Ex. 7.
[14] Test. of P. Barrows.
[15] Exs. 12-14.
[16] Ex. 15.
[17] Ex. 8.
[18] Ex. 8.
[19] Test. of R. Adams.
[20] Testimony of Karen Proffer; Test. of R. Adams.
[21] Ex. 3.
[22] Test. of R. Adams.
[23]
[24] Test. of R. Adams; Testimony of Dennis Devereaux.
[25] Ex. 9.
[26] Test. of P. Barrows.
[27] Ex. 10.
[28]
[29] Test. of D. Devereaux.
[30] Test. of K. Proffer.
[31] Test. of D. Devereaux.
[32]
[33] All references to Minnesota Statutes are to the 2010 edition, and all references to Minnesota Rules are to the 2009 edition.
[34]
[35]
[36]
[37]
[38]
[39]
[40] Minn. R. 9050.0200, subp. 3, item A; Minn. R. 9050.0520, subp. 2.