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Gainesville Florida Estate Planning & Elder Law Blog

Tuesday, December 18, 2018

Spousal Protections for Medicaid Waivers Expiring Soon

Developing a disability can happen at any age. As things stand today, if that were to happen, Medicaid is the primary payer for any long-term services and supports (LTSS).

And it is most often the case that when this disability occurs, the preference is to receive care at home if possible, rather than going to a nursing home. Any long-term or permanent separation from a spouse brings new problems for everyone involved. Home and community-based services (HCBS) also cost less on average than in institutional care.

Seeing the logic of this, Congress, 30 years ago, created a number of protections designed to prevent a spouse from depleting all of their financial resources due to their significant others’ long-term care needs. Unfortunately, those protections were mandated for nursing home coverage, but only made optional for home-based care.

These protections included a community spouse resource allowance, exclusion of the community spouse’s income when determining whether the institutionalized spouse is eligible for Medicaid and a minimum monthly needs allowance for the community spouse.

Back in 2010, Congress for the first time temporarily mandated that these waivers should include spousal impoverishment protections. That mandate is set to expire at the end of 2018.

Mandating spousal impoverishment protections for HCBS services in at-home settings, not just institutions, helps to ensure that families can stay together when someone requires long-term care. If forced to choose between impoverishing their spouse because of the cost of paying out-of-pocket for HCBS, and separating from them to become institutionalized, a person with a disability may feel obligated to choose to institutionalize themselves.

The National Academy of Elder Law Attorneys (NAELA) is undertaking efforts to urge Congress to make these spousal protections a permanent feature of the Medicaid program before it expires at the end of 2018 – less than two weeks away.  NAELA will also ask that Congress clarify that these protections do not restrict a state’s ability to apply the methodology that treats spousal assets as unavailable for the purposes of qualifying for a Medicaid HCBS waiver.


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