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The legislative battles and annual give-and-take of New York’s annual budgeting process are usually a tense time for Medicaid applicants and recipients.  We can’t fault our government for looking for ways to make the Medicaid program more efficient and less costly.  However, every year there seem to be ideas about how to “re-design” Medicaid that are ill-conceived or ill-considered.  A couple of very important issues were in the mix this year, but fortunately the right results were reached.

Spousal Refusal

For most of us, the words “in sickness and in health” are linked to our wedding ceremony, or to the weddings that we have attended.  Hopefully, most of us realize that these words are not just ceremonial – they express the legal obligation of support that each spouse owes to the other.

In the context of Medicaid, unlike most states New York permits a spouse to refuse to support (i.e., pay for the care of) the other spouse.  Medicaid even has a form called “Spousal Refusal.”  When one spouse is applying for Medicaid benefits, and the other spouse signs a Spousal Refusal, Medicaid is obligated to provide care to the spouse who needs care.

In many cases, Spousal Refusal is preceded by a penalty-free transfer of all of the couple’s assets to the well spouse.  In this manner, the well spouse is able hold – and, if proper planning is undertaken, to preserve some or all of the couple’s assets and avoid impoverishment.

In so-called “Spousal Share” states, the well spouse is protected from impoverishment only by his or her legally-protected share, which can be – and frequently is – as little as $23,448 (in 2014) in total assets.  The rest of the couple’s assets must be contributed toward the cost of care of the ill spouse.

This year in New York, the Governor had proposed to eliminate Spousal Refusal in all situations, excepting only where the ill spouse was enrolled in a Managed Long-Term Care (“MLTC”) Plan.  Doing so would have put at financial risk the spouses of Medicaid recipients who did not need, or who lived in a county that did not offer, an MLTC Plan; hospice recipients who are not eligible for an MLTC Plan; and those who need access to a Medicare Savings Program for assistance with out-of-pocket medical costs.

This proposal was defeated, and, fortunately for married couples, Spousal Refusal continues to be the law in New York.

Parental Refusal

A similar proposal was under consideration to eliminate Parental Refusal.  Of course, a parent is legally obligated to support a minor child.  In certain situations, where the child requires medical assistance from Medicaid, the parent may want to sign a Parental Refusal to avoid impoverishment that would occur from trying to meet the financial demands of caring for an ill child.

This proposal was also defeated, leaving parents with the possibility of exercising the right to sign a Parental Refusal, when, for example, their developmentally disabled child needs expensive care that they cannot afford to provide.

Aid Continuing

With the advent of managed care under Medicaid, many recipients are finding that their managed care plan is reducing their benefits.  A patient who was receiving 24/7 care suddenly finds that the managed care plan is allowing only 12 hours.  Or that the patient who was receiving 8 hours of home care per day is now allowed only 5 hours.

Ultimately, the remedy for these patients will be to request a Fair Hearing before an Administrative Law Judge.  Of course, the patients must first exhaust their internal appeals within the managed care plan before seeking a Fair Hearing.

A key issue in this connection is whether the patient will have “aid continuing” while the appeal process is pending, which can take many months.  Without aid continuing, many patients would be put at risk during the appeals process.

For several decades, aid continuing was not a significant issue, due to a U.S. Supreme Court decision in 1970 that guaranteed the right to notice and an opportunity to be heard before benefits could be reduced or terminated.  However, with the advent of managed care, New York’s Department of Health allowed MLTC plans to reduce or terminate home care hours, and at the same time deny aid continuing, at the end of the plan’s “authorization period” (which could be every six months or less).

Under the current NYS Budget, the Social Services Law is amended to require aid continuing, while Medicaid recipients pursue their appeals from decisions that reduced or terminated their benefits.  Needless to say, this provision is an extremely important one in protecting the rights and care of a vulnerable population.

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