medicaid planning lawyer and elder law attorney in jacksonville, florida

medicaid planning lawyer and elder law attorney in jacksonville, floridaSpousal impoverishment for the community spouse who stays at home when the other spouse is in a skilled nursing home is always an important issue. Members of the U.S. House house of representatives have taken a step toward extending some of the financial protections provided to seniors receiving long-term care in home or community settings. They have the support of more than a dozen health care organizations.

To financially qualify for Medicaid long-term care and support (LTSS), an individual must meet certain low-income and minimal asset limitations. Marriage often complicates those eligibility requirements because the community spouse needs financial stability. In some cases, one spouse can be put in the position where it is necessary to “spend down” or bankrupt themselves to secure Medicaid benefits to pay for long term-care support for their partner thus causing spousal impoverishment for the community spouse. The bill will provide financial support for the community spouse.

Medicaid, as the payer of last resort, is currently the primary payer for long-term care services and support in the U.S. health care system. According to federal Medicaid data,  as of August 2018, more than 66 million individuals combined were enrolled in Medicaid.

To prevent self-induced bankruptcy for the purpose of continuing a spouse’s Medicaid eligibility, Congress created spousal impoverishment rules in the late 1980s to provide financial support for community spouses.  Originally, the rules required states to protect a portion of a married couple’s income and assets to provide for the “community spouse’s” living expenses when determining nursing home financial eligibility, according to the Kaiser Family Foundation. States, though, were also given the option to apply the rules to home and community-based services (HCBS) waivers, which most states, including Florida have done.

Section 2404 of the Affordable Care Act (ACA) changed that stipulation, mandating that the spousal impoverishment for the community spouse rules treat Medicaid HCBS and institutional care equally. The institutional care program is the Medicaid program that provides benefits for skilled nursing facilities so that those elderly people who need long term care, but cannot afford it, can receive that care through the Medicaid program. The ACA provision is set to expire at the end of December 2018, meaning individual states would once again have the authority to make program coverage decisions when it comes to spousal impoverishment in the home care setting.

In 2018, all 50 states were applying the spousal impoverishment rules to HCBS waivers, according to Kaiser Family Foundation. Five states — Arkansas, Illinois, Maine, Minnesota and New Hampshire — plan to stop applying the spousal impoverishment rules to some or all of their HCBS waivers if Section 2404 expires at the end of 2018.

With support from LeadingAge, the National PACE Association, the National Council on Aging and several other groups, U.S. Reps. Debbie Dingell (D-Mich.) and Fred Upton (R-Mich.) on Friday introduced the Protecting Married Seniors from Impoverishment Act.

If passed, the legislation would permanently extend spousal impoverishment protections for Medicaid beneficiaries receiving long-term care in a home or community care setting. “Our long-term care system is broken,” Rep. Dingell said in a statement. “Seniors and their families already face too many challenges when navigating long-term care, and they should not have to get divorced or go broke just to be eligible for the care they need.”

At this time it is unclear how much Congressional support the Protecting Married Seniors from Impoverishment Act will ultimately draw. Perhaps, the fact that most states plan to continue protections on a voluntary basis is encouraging. Anyone who may be impacted by this proposed legislation should contact their representative and express their support for the legislation. With concerted action Congress may provide financial support for the community spouse.

LeadingAge, a Washington, D.C. based association representing more than 6,000 not-for-profit senior care providers supports the proposed federal law establishing protections against spousal impoverishment. The National Academy of Elder Law Attorneys, Inc., the National Association for Home Care & Hospice and AARP are other  groups that have supported issues involving “spousal impoverishment” in the past two years.

If you or a member of your family needs to establish eligibility for Medicaid benefits to pay for long term care, without the necessity of creating spousal impoverishment for the community spouse, we can help you accomplish that objective. Please call us to schedule a consultation.

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