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By John M. Bigler Just when we thought that there was no politician more uncaring of older persons than President Bush, our own Governor Pataki now attempts to lay claim to that title. As you are undoubtedly aware from these columns, from numerous newspaper articles and possibly from your own experience, the president signed the Deficit Reduction Act of 2005 in February. It is a particularly vicious attempt to reduce medical assistance for older middle class and disabled. Four different lawsuits are currently pending to determine whether or not that law is constitutional.
But Governor Pataki decided that he has the right to override the legislature and has gone ahead and instituted penalties when applying for community Medicaid and eliminated spousal refusal in home-care cases. There is the talk of possible lawsuits against the governor by the legislature. Even at this late date, some compromise may be reached, but as of now it appears that we will have these changes, albeit for only a short period of time. Since the governor is taking this action on his own, the changes which are scheduled to go into effect on July 1, will only be effective until March 31, 2007, at which point they will expire.
Attorney General Elliott Spitzer, who is a front runner to be the next governor, has indicated that he would not support extending these measures. What a refreshing change of pace that would be. I can't even imagine what it would be like to have a governor who was sympathetic to the older and disabled population.
In any event, we are waiting for administrative guidelines that should be issued by the state this month. There are many questions still to be answered. We still don't know when these measures will take effect - July 1 or possibly an earlier date such as February 8, the date that the Deficit Reduction Act? If July 1 is the effective date, then will applications filed prior to that date be considered under the old law or will all applications being processed as soon as the statute becomes effective? Further, since every Medicaid case is recertified annually, will community Medicaid that has already been granted be discontinued based on either transfers or removal of spousal refusal?
Clearly, and not surprisingly, the changes have not been carefully thought out. The way the governor's amendments appear to be written, they are a combination of old law and new law. Therefore, there is a very good argument that if transfers are made when applying for community Medicaid, the penalties will not take effect unless the individual applying has already received institutional Medicaid. That would mean that an individual not coming from an extended nursing home stay but is simply looking for assistance either for home-health aides or payment for adult day care or prescriptions would still be able to make unlimited transfers without there being a period of ineligibility. Whether this is a correct interpretation will be clarified by the administrative directives.
What is particularly painful about the governor's proposals is the elimination of spousal refusal in community spouse situations. As I have detailed many times, if there is a spouse in the institution receiving Medicaid, then their spouse in the community is automatically entitled to a community spouse resource allowance which this year is $99,540, and an automatic community spouse income allowance of $2,48. As well, the spouse in the community has the right to sign a spousal refusal and keep more than the community spouse resource allowance. However, there is no automatic community spouse resource or income allowance in a home-care scenario. In the community, a couple are allowed $8,400 of resources and a $920 income. Typically, that would mean that the well spouse would sign a spousal refusal so that the application would only be for one rather than for the couple. We were left with the strange situation that a couple that might only have $20,000 in liquid assets would still require a spousal refusal. More troubling is that there is no community spouse income allowance. The spouse applying for Medicaid would only be allowed to keep $712 of monthly income and the rest would have to be spent on home health care. His or her spouse would not automatically be entitled to that money. Instead, the couple had a choice of either going to Family Court or setting up a charitable pooled income trust. Now, the governor's effort is to eliminate spousal refusal altogether in the community. In effect, he is telling the caregiver spouses, who for the most part undertake heroic measures to keep their spouse at home, that it would be significantly financially better for them and their family to place their spouse in a nursing home. Aside from the obvious additional financial cost to the state, I can think of nothing more heinous.
Hopefully, something miraculous will happen to stop these changes from taking place. However, at the very least, we have the comfort of knowing that the changes may be only temporary. I will have further details once the state administrative directives are issued.
Reprinted with permission of the Suffolk Times © 2006 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
As I wrote in my column of February 16, the governor of New York had once again attempted to institute penalties for transfers when applying for community Medicaid and to eliminate spousal refusal in home-care scenarios. I was happy to report at the time that the legislature had once again rebuffed his attempt. I had hoped that since Governor Pataki is leaving office, that would be the last time we'd would have to deal with a governor attempting to cut services.