From a Maryland perspective, once an individual is eligible for long term care Medical Assistance, all of his or her income must go to the nursing home except for certain deductions.  Notably, the deductions are health insurance,  personal needs allowance (currently at $71/month), and possibly a spousal allowance.   While there may be other needs for the nursing home resident, a question often poised is can the resident’s income be used to pay for private nurses?  The answer here in Maryland is “no.”   If private duty nurses or aids are going to be employed they must be paid for by other resources, typically, the surviving spouse or other family members.

So, it came as no surprise that in a recent out-of-state case, that this court also held that private nurse costs could not be deducted from the nursing home resident’s income (once they were on Medicaid).  In Re Pitman v. Daines (N.Y. Sup. Ct., App., Div., No. 2011 NY Slip Op 08681, Dec. 1, 2011).  In that case, the nursing home resident paid for private nurses to provide 24-hour care. After the resident died, the resident’s executor sought to have the decedent’s net available monthly income reduced for Medicaid eligibility purposes by the amount the decedent paid for
the nurses, but the state refused.

After a hearing, New York State Department of Health found for the state, and the executor appealed.

The New York Supreme Court, Appellate Division, held that the amount the resident paid for private nurses could not be subtracted from his monthly income for Medicaid eligibility purposes. According to the court, “private 24-hour nursing care may have provided the deceased with ‘optimal care’ but was not ‘essential’ care that was ‘medically necessary’ for purposes of Medicaid reimbursement.”

If this same case were heard here in Maryland, it is my opinion that the court here would come to the same conclusion.