The annual budget proposed by Governor Andrew Cuomo has a provision about spousal refusal which ‘reads’ like it doesn’t exist. But, if passed, it will in fact extend the opportunity for spousal refusal to married couples where one spouse is a Medicaid recipient at home, receiving home care under MLTC, managed long term care.
What is spousal refusal? It is a written statement from the non-Medicaid spouse specifying that he or she is unable or unwilling to contribute excess countable resources and/or income for the cost of care of the other spouse. In 2014, countable resources are those that exceed up to $117,240.00.
What other resources are not countable? Your home, retirement accounts, life insurance without cash value, burial plot, automobile, and in some instances, business property are not countable. Spousal refusal and the retention of countable resources and income have, in the past, only been available with the nursing home Medicaid program.
The proposed law would do the following:
- For both MLTC home care services and nursing home services, a spousal refusal statement would be lawful (and may trigger spousal impoverishment budgeting, as discussed in my prior blog)
- The applicant (or their lawful power of attorney) must sign a statement Assigning Support from their non-Medicaid spouse to the local Medicaid department. This means that Medicaid still has the right to demand and sue a refusing spouse if there are excess countable resources or income.
- But, if the non-Medicaid spouse does not live with the applicant for Medicaid (perhaps they are separated but not divorced, and living apart), and that spouse fails or refuses to make that income or resources available, and refuses to sign a spousal refusal statement, MLTC services will still be provided. The proposed law says an ‘implied’ right of recovery against the non-Medicaid spouse living separately from the MLTC spouse is created for whether during that spouse’s life or in their estate after death.
Advocates see these three problems with the proposal.
- When one Medicaid spouse receives services under Hospice, they may be disenrolled from MLTC and lose the right of spousal refusal.
- In upstate NY counties where MLTC is still not mandatory for home care and the ‘prior’ traditional home care program is used, and for the poor using a Medicaid-based Medicare premium program (called SLMB and QMB), there is no continuation of spousal refusal.
- Many parents have young children under age 18 in Medicaid programs (often called Care At Home) and parental refusal (of their income and resources) seems to be excluded.
We will keep you up to date on the status of spousal refusal as the budget process progresses.
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