Many Medicaid recipients are admitted to nursing homes but plan to return to their homes in their community. Financially, it is important for them to maintain community Medicaid budgeting so that they can continue to pay rent, utility, and other living expenses to preserve their apartment or home for their return. However, the Medicaid application system presumes that because they were admitted to a nursing home, they are staying there permanently. Permanent residents are allowed to retain only the $50 personal allowance, and the amount needed to pay a supplemental Medicare (Medigap) policy, and the rest of their income is paid for their nursing home care. See this article on Medicaid rules for coverage in nursing homes. There are exceptions to these rules that allow the resident to maintain “community budgeting” or "non-chronic care" while in the nursing home, allowing them to retain the same income they are allowed in the community – $859/month + $20 (2019). ALSO, SSI recipients have their own rules. Both are discussed in this article.
1. People with Supplemental Security Income (SSI) Can Keep SSI for THREE MONTHS if forms are filed, plus request NYS Emergency Assistance for Adults for SIX more months.
The SSI program has its own separate rules that allow SSI recipients who are temporarily in a medical institution (hospital or nursing home) to keep their full SSI check for the first 3 full months of institutionalization, so that they may pay necessary expenses to maintain their home or living arrangement to which they may return upon discharge. These rules are in this Fact Sheet, along with a form to request these temporary SSI benefits. The rules are in the Social Security POMS § SI 00520.140 and require two types of documentation. This Fact Sheet includes a form that can be used for both types of documentation. First, a physician (or other appropriate source) must certify in writing to the Social Security Administration, before the 90th day of the institutionalization or the discharge home, whichever is earlier, that s/he expects the medical confinement will not last longer than 90 days. Second, the recipient must also demonstrate that s/he needs to pay expenses to return home. After the 90 days, the SSI check is reduced to $55/month as a personal needs allowance (NYS supplements the $30 federal allowance to total $55).
Additionally, NYS Emergency Assistance to Adults (EAA) may be requested to provide an additional six months of assistance to cover shelter for individuals intending to return home.
Social Services Law § 303(1)(g) -- "It shall be the duty of the social services official to provide emergency assistance, in accordance with regulations, ... to an eligible aged, blind or disabled person who has one or more of the following needs: Household expenses essential to the maintenance of a home, in the case of a person whose SSI benefit has been reduced because he has been placed in a medical facility. Within forty-five days following placement in such a facility, the social services official shall determine whether, and payments under this subdivision shall not continue unless, such person is expected to remain in such a facility for less than one hundred eighty days following the reduction in such benefits;” See also 18 NYCRR § 397.5(g)
2. RULES FOR PEOPLE WITHOUT SSI
a. How Medicaid typically budgets a new resident’s income
Any person who enters a nursing home, or who stays in a hospital for 6 months and has no spouse, is presumed to be in permanent absence status, meaning “that an individual is not expected to return home.” See 18 NYCRR § 360-1.4(k). For people in “permanent absence status,” Medicaid uses chronic care budgeting to calculate how much of their income must be used to pay toward the cost of care. See 18 NYCRR § 360-4.9. Beginning with the first full calendar month of the person’s admission to the nursing home, they are allowed to keep only a personal needs allowance of $50, plus enough money to cover any private health insurance premiums. See 18 NYCRR §§ 360-1.4(c), 360-4.9; Medicaid Reference Guide 232-235. (If married or for those with dependents, spousal impoverishment protections also apply and are not discussed here). If they were not admitted on the first day of a month, then for the partial month of their admission Medicaid uses community budgeting, under which a single person may keep $787 of their income plus enough to cover health insurance premiums
All new residents are “presumed” to be admitted to the nursing home permanently
The shift to “chronic care budgeting” occurs automatically during the first full month of the nursing home admission because of a “presumption” in the regulations. Medicaid presumes that all residents are permanently absent, meaning they are not expected to return home. State regulation 18 NY Code of Rules & Regulations § 360-1.4(k) provides:
It will be presumed that an individual will not return home if: (1) a person enters a skilled nursing or intermediate care facility; (2) a person is initially admitted to acute care and is then transferred to an alternative level of care, pending placement in a residential health care facility or (3) a person without a community spouse remains in an acute care hospital for more than six calendar months.
Adequate medical evidence may overcome the presumptions set forth in paragraphs (1) through (3) of this subdivision.
How to overcome the presumption that any new nursing home resident is permanently absent
This presumption may be overcome by “adequate medical evidence” that the resident expects to return home. The medical evidence need not GUARANTEE that the resident will return home - it is only an expectation. Since the nursing home generally prepares and submits the Medicaid application, it is the nursing home’s role to inform Medicaid that the individual expects to return home and to submit “adequate medical evidence” to rebut the presumption that the resident will not return home. However, since the nursing home has no incentive to do this extra work, the resident, family or advocate must ask nursing home to do this.
b. PROCEDURE -- NEW FORMS USED IN NYC October 2015 with Discharge Notice and others updated as of 8/23/19
In New York City, the nursing home should file a form called a Discharge Alert -- Non-Chronic Care Budget (MAP259d) (formerly called the 1122)(revised in Oct. 2015), on which the treating physician certifies that the resident is planning to return to community living, specifying an anticipated discharge date. In October 2015, HRA revised this and related forms. In this PDF is the HRA MICSA Alert listing and explaining the new forms. The PDF includes copies of all of the new forms updated as of 8/24/19).
Also, an M11q (Medical Request for Home Care), a physician’s order for home health care, or a simple physician’s statement should be adequate to show that the individual expects to go home. Community budgeting is then used. See Medicaid Reference Guide p. 235.
NOTE that these procedures are changing along with the statewide changes implemented in 2015 requiring permanent nursing home residents to enroll in or stay enrolled in managed care or MLTC plans. See this article. In NYC, this may mean that Medicaid budgeting for nursing home care, including these requests for community or non-chronic care budgeting, are handled by the NYC HRA Home Care Services Program instead of the Nursing Home Eligibility Division. See NYC Protocols on Nursing Home Submissions.
c. There Is No Six-Month Limit - or Any Time Limit - for Community Budgeting
In June 2015, NYS DOH confirmed that there is no time limit for community budgeting. See Frequently Asked Questions re Nursing Home Transition to MLTC and Managed Care - See Eligibility Section, Question #2 Question No. 2, DOH explains that “non-chronic budgeting” allows individuals who are expected to return home to retain the regular Medicaid income level, with no set durational limit. “…There is no set durational limit, for example 6 months, for temporary status in a nursing home; however, for Medicaid eligibility purposes, the consumer´s status should be re-evaluated periodically based on medical evidence.” No state regulation or state law says that community budgeting is just for six months. It may be necessary for the nursing home to file a new “Discharge Alert” stating the new anticipated discharge date.
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.