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2018-19 NYS Proposed Budget Would Abolish "Spousal Refusal," Cut "Spousal Impoverishment" and Change MLTC in Ways that May Hurt Consumers with High Needs

09 Feb, 2018

While we are grateful that the Governor recognizes the importance of the Medicaid program for New Yorkers, and has fought to maintain access to health care for New Yorkers under the Affordable Care Act and for DACA immigrants, the proposed New York State budget for 2018-19 includes some alarming changes for low-income New Yorkers.  Click here to see the actual  Health and Mental Hygiene (HMH) Bill  and the Governor's Health and Mental Hygiene (HMH) Memorandum in Support.

NYLAG  is one of many organizations that submitted testimony about the budget.  See NYLAG's  2018-19 Testimony posted here

Crain's New York Business quoted NYLAG's testimony stating that some of the changes in MLTC will  “increase barriers to access” for those who need care.  See "State looks to shrink financial 
burden for elder care"  by Caroline Lewis, Feb. 21, 2018. 

1.  NYLAG opposes two changes in "Spousal protections" that will impoverish married couples, deny critical medical and home care to sick spouses and children, and increase institutionalization.  

  1. Preserve Spousal/Parental Refusal  (§ 33) –The Governor’s bill would eliminate spousal refusal for many needy spouses as well as children with cancer and other severe conditions whose parents cannot afford the high cost of their care.  While many New Yorkers benefit from the new expanded eligibility limits under the Affordable Care Act [ACA], nearly a million low-income New Yorkers are over age 65 or have permanent disabilities.  For them, Medicaid remains unchanged by the ACA, with so-called "non-MAGI" income limits well below the Federal Poverty Level - singles may have only $842/mo and couples only $1233/mo.  Any income over that must be contributed through as a Spend-down.  They also may keep only minimal savings and other resources.     Spousal/parental refusal provides a vital protection for vulnerable populations, including abused spouses and children. 

    1. While Managed Long Term Care now has Spousal Impoverishment Protections, there is a Catch-22.  To get in the Medicaid door, and have the application accepted, a "community spouse"  or "well spouse" of an MLTC applicant must first use a Spousal Refusal on the application.  Only after the Medicaid application is accepted and the spouse needing home care is enrolled in an MLTC plan, may the "community spouse" keep up to $3,090 of the couple's combined income.  At that point, the spousal refusal is no longer necessary, because now the spouse can have a spousal impoverishment allowance. But if spousal refusal is abolished, the couple's combined income would be too high for the Medicaid application to be approved in the first place.  See details in our testimony.

    2. As required by federal law, the Governor's proposal would continue to allow spousal refusal for members of MLTC plans.  But many people who need home care are not allowed to enroll in MLTC plans at all, or are awaiting enrollment in MLTC plans. People excluded altogether from MLTC include those receiving Hospice Care, and those whose disabilities are less severe, so that they need only "housekeeping" services."   If Part B § 3 of the Governor’s budget proposal is enacted, more people will excluded -- those scored on an assessment tool as having the lowest need for home care, even though they may be eligible for nursing home care.  None of these excluded people could use Spousal Refusal under the proposal.  Even those who apply for Medicaid with the goal of  enrolling in an MLTC plan could not use Spousal Refusal, because the proposal allows it only AFTER the enroll in an MLTC plan.  

    3. Many married individuals do not need MLTC or other home care but still need Medicaid.  They need Medicaid for other vital health care coverage, or for help with Medicare out-of-pocket costs, like the Medicare Savings Program.   Spousal Impoverishment protections only help married individuals who need MLTC, who are in nursing homes, or in some other small waiver programs.

    4. Chronically ill children also are barred from Medicaid eligibility if their parents' income must be counted.  "Parental refusal" is vital for some children to obtain critical medical care, such as when they need special services not covered by a parent's employer-based health insurance.

    5. See page 5 of our testimony for examples of all of these needy individuals.

  2. REJECT SHARP CUT in Spousal Impoverishment Resource Allowance.  The Budget bill proposes to reduce the spousal impoverishment resource allowance from $74,820 to the lowest allowed by the federal government -- only $24,180.  With its high cost of living, New York should use the highest federal option ($123,600) rather than the lowest.  This cut will hurt those with the least resources – with life savings under $74,000 -- while not affecting at all those with more means.   Impoverishing “well” spouses of people who are living in nursing homes or who are enrolled in Managed Long Term Care plans will put the “well” spouses at risk of losing their homes, and themselves be forced onto Medicaid and becoming public charges.   

Now, Spousal Impoverishment and Spousal Refusal work together.  A “well” spouse with $3000 income and $50,000 in savings does a “spousal refusal” when the “ill” spouse applies for Medicaid to enroll in MLTC.   As soon as the ill spouse is enrolled in the MLTC plan, the “spousal impoverishment” protections take effect, which totally protect the well spouse’s assets.  Spousal impoverishment may not be used in the initial application, so spousal refusal is necessary.  As proposed, the ill spouse will be DENIED Medicaid and enrollment into MLTC.  See illustration in our  testimony

2.    NYLAG urges that the legislature OPPOSE  the following changes to the MLTC program: 

  1. Carving Nursing Home care out of MLTC after 6 months in a nursing home.   The cost of nursing home care would be shifted from the MLTC plans to fee-for-service  Medicaid, creating an incentive for  MLTC plans to place members with high needs in nursing homes, rather than approve more hours of home care needed to remain in the community.  (HMH Part B § 5).
  2. Disqualification of MLTC members with an assessment score of 9 or lower.   These individuals have been determined to need personal care services; though in lesser amounts than other members.  They will face barriers obtaining personal care from their local Medicaid districts, which lack the resources to administer these services.   (HMH Part B § 3).
  3. Lock-In - For the first time since MLTC became mandatory 5 years ago,  members would be barred from changing plans after the first 30 or 45 days.  (HMH Part B § 4).
  4. Disenrollment from MLTC if plan provides no homecare services in the first  30 Days of enrollment If plans failed to start services in 30 days, members would be disenrolled, rewarding plans for their delay – and allows plans to avoid high-need members(Administrative proposal).
  5. Contracting limits – Caps number of licensed home care services agencies an MLTC plan may contract to 10 agencies.    This cap will increase barriers to consumer access, as many plans already do not have an adequate network of home care provider agencies to provide authorized services.   Consumers have rights under federal regulations to adequate networks of providers .

3.      NYLAG OPPOSES Elimination of important “prescriber prevails” protections for prescription medications.  The proposed repeal would create new barriers to individuals with complex conditions who rely on medications on which they have been stabilized, both in managed care and fee for service.  (Part D, § 4-5).                                                          

4.      NYLAG URGES that the PROPOSAL TO increase the cap on Physical Therapy (PT) visits from 20 to 40 visits per year be MODIFIED. While NYLAG favors the effort to increase access to medically necessary physical therapy, the proposal falls short of providing the appropriate level of access to physical therapy and does nothing to address the 20-visit cap on Speech and Occupational Therapy visits.  Access to all of these therapies should not be restricted with a flat cap,  and should not be contingent on savings from performance targets in the bill.  This recent  fair hearing decision illustrates the harsh unfairness of the current limits, and the importance of considering each individual's circumstances. (HMH Part A, §5).

For information please contact  Valerie Bogart, Director, Evelyn Frank Legal Resources Program at NYLAG,  7 Hanover Square, 18th fl, NY NY 10004 vbogart@nylag.org  212-613-5047

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