Posted: 02 Sep, 2010
by Valerie Bogart (New York Legal Assistance Group)
Updated: 22 May, 2018
by Valerie Bogart (New York Legal Assistance Group)
Medicaid home and community-based services [HCBS] are available through waiver programs to groups of individuals who would be eligible for Medicaid if institutionalized and, but for the services, would be institutionalized in a hospital or nursing facility. Under section 1915(c) of the Social Security Act, the federal government grants waivers of requirements that are otherwise applicable to Medicaid “state plan” services.
Congress enacted section 1915(c) of the Social Security Act in the Omnibus Reconciliation Act (OBRA) of 1981. Until then, comprehensive long-term care services through Medicaid were available only in institutional settings. Although mandatory home health services and optional personal care services were available as Medicaid benefits before OBRA 1981, states had largely restricted their use and limited the amount of services - New York being an exception with its personal care program and the Lombardi or Long Term Home Health Care Program (LTHHCP), which was established by Chapter 895 of the New York Laws of 1977. In fact, Congress reportedly modeled 1915(c) waivers in part on New York’s experience with the Lombardi program.
In waiver programs, CMS waives key requirements that apply to Medicaid “state plan” services – those provided to all Medicaid recipients in the state. State plan services are either “mandatory” or “optional,” meaning that a State may elect to include them in the state plan. Once elected by a state, an optional service must still comply with all of the federal requirements. For a waiver, however, waivers of the “statewideness” or “comparability” requirements of federal Medicaid law allow states to create waiver programs that target only a particular population -- limited by age, diagnosis, or geographic area of the state, or that limit the number of waiver slots available. Waiver of the financial eligibility requirements allow states to include individuals who would normally not meet Medicaid’s income/resource guidelines.
Waivers have grown nationally with the momentum to “rebalance” long term care services from institutional care to care in the communities. However, they are not the only Medicaid home care services -- Medicaid programs offer “state plan” services which are part of the state’s statewide Medicaid plan, offered to all people of all ages and diagnoses in the state, if eligible. Unlike waiver services, state plan services may not have a waiting list. New York State has long led the nation in these two state plan services: personal care (also known as home attendant services in NYC) and certified home health care program (CHHA) services.
Related Links and Documents on Waivers in New York
Note that many of these waivers have been or will be in 2015 or later "carved into" Medicaid managed care, so that managed care plans will be required to provide the waiver services to members who qualify. Advocates are raising concerns that plans lack the expertise and resources to provide these niche services to vulnerable members.
As of April 1, 2013, this program is no longer an alternative to Managed Long Term Care for "dual eligibles" (have Medicare and Medicaid)adults age 21+ who need Medicaid home care services in New York City and other counties in which enrollment in MLTC is otherwise mandatory for this population. The State has received approval from CMS to require all LTHHCP/Lombardi recipients in mandatory counties to enroll in MLTC plans. Additionally, those who are not dual eligibles and who are subject to mandatory enrollment in mainstream Medicaid managed care must enroll in those plans to receive home care services, and leave the Lombardi program. See MICSA Alert from NYC HRA regarding this mandatory transition.
02 OMM/ADM-4 (May 28, 2002)(Notice and Fair Hearing Procedures for the LTHHCP);
11-LTC-ADM-01 - Long Term Home Health Care Program Waiver Renewal (continuation of spousal protections, some new services within waiver)(April 26, 2011)
Attachment I (Consumer Fact Sheet)
Attachment II (Waiver Services Definitions)
Attachment III (Division of responsibilities local vs. state govt in monitoring, etc.)
Attachment IV (Reporting requirements)
ADM clarifies obligation to do discharge planning before discontinuing services. "If services can not be maintained within the budget after alternatives are considered, participants must be informed and referred to other options for care as necessary. This may include the range of existing State Plan home care services, other available 1915c waivers such as the Nursing Home Transition and Diversion waiver, and Managed Long Term Care. "
The regulations also require discharge planning. 18 NYCRR 360-2.6 requires that "the district must inform the recipient of available assistance and services, and help the recipient in obtaining them." SEE FH decision #5953201Z on OTDA FH archive.
Financial Budgeting Rules for Lombardi/LTHHCP, Transfers of Assets & Spousal Protections - For married couples, the rules on income and assets are different than in "community" Medicaid used for most people living in their homes, AND different than "institutional budgeting" for people in nursing homes and their spouses.
As in "community Medicaid," there is no penalty on transferring assets for this program -- See GIS 07 MA/018 (elimination of transfer penalty in all waiver programs)
Married couples get the benefit of Spousal Impoverishment Protections very similar to those used in nursing homes to allow a "community spouse" to retain the couple's income and assets. See- GIS 10 OLTC/003 Long Term Home Health Care Program (LTHHCP) Waiver Extension (May 3, 2010).
However, the spouse receiving LTHHCP services may only retain a monthly "Personal Needs Allowance" (PNA) that is the difference between the Medicaid income level for a household of one and the Medicaid income level for a household of two. In 2013, that is $375/month. Evans v. Wing, 277 A.D.2d 903, 716 N.Y.S.2d 269 (4th Dept. 2000), reargument denied, 724 N.Y.S.2d 143 (4th Dept. 2001). NYS DOHGIS 01-MA-021 (June 28, 2001).
NOTE: The mandatory transition of this waiver to Managed Long Term Care and managed care has been postponed to Jan. 1, 2022 (per NYS Budget enacted April 1, 2018. At that time, ervices in this waiver for participants who do not have Medicare will be required to join Medicaid managed care plans and receive TBI waiver services through the plans. Contact Traci Allen. See more here. See DOH Webpage on Transition of NHTD and TBI waivers to MLTC and managed care
NOTE: The mandatory transition of this waiver to Managed Long Term Care and managed care has been postponed to Jan. 1, 2022 (announced per NYS budget 4/2018). Participants who do not have Medicare will then be required to join Medicaid managed care plans and receive TBI waiver services through the plans. Those with Medicare will be transitioned to MLTC. Assembly bill A07598/ S.5535 - proposes delaying the transition of TBI and NHTD waiver populations to managed care plans.For info contact Traci Allen. See more here.
GIS 07 MA/018 explains that there is no transfer penalty, or “look-back” period, for HCBS Waiver applicants.
***NOTE: Individuals who have Medicaid do not need to be enrolled in the HCBS Waiver in order to receive OPWDD services, however OPWDD does need to determine them “eligible” for OPWDD services. The eligibility review process starts at one of OPWDD’s five Developmental Disability Regional Offices (DDROs). Each DDRO provides services to a specific county or group of counties. Certain documents, including reports from assessments conducted by qualified practitioners to support a qualifying diagnosis of “developmental disability,” must be submitted to the DDRO to receive an eligibility determination, and an individual must be given notice and appeal rights.
FAQs about the OPWDD eligibility process can be found on the OPWDD website.
TABLE 2: COMPARISON OF NYS AND NATIONAL ENROLLMENT, EXPENDITURES, AND WAITING LISTS FOR HCBS WAIVERS............................................................................................................................................8
FINANCIAL ELIGIBILITY ISSUES FOR WAIVERS...................................................................................9
Long Term Home Health Care PROGRAM (LTHHCP) Lombardi ............................................... 11
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