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By John M. Bigler This month I'd like to discuss an unfortunate reality in Medicaid law that actually gives a preference to a couple with one spouse in a nursing home over a couple with an ill spouse being cared for at home.
In a situation where the spouse needs to be institutionalized in a nursing home, Medicaid allows the community spouse $81,960 in 1999 as a community spouse resource allowance. That community spouse is also allowed an income allowance of $2,049 in 1999. Spousal refusal allows a community spouse to keep more than the resource allowance and still be entitled to the income allowance. For example, John and Mary are a married couple with $100,000 of joint assets. John has $1,500 of income and Mary, the community spouse, has $600 of income. Mary would be entitled to $1,449 of John's income to bring her up to the community spouse income allowance. John would keep $50 as an allowance and the nursing home would be entitled to $1. If the community spouse had income equaling or exceeding the community spouse income allowance, then the institutionalized spouse's income would all go to the nursing home except for the $50 allowance. The community spouse would e asked to make a voluntary contribution of 25 percent of that spouse's income over ad above the $2,049 allowance. Now let's look at the same fact pattern but in this case, the institutionalized spouse is cared for by Because his condition is dementia, there's no need for physical therapy or nurses. The main need is for an aide to give Mary respite fro the daily grind of taking care of her husband. If she could have an aide for as many hours as possible, it would greatly alleviate the physical and emotional toll that she is suffering and help John stay out of the nursing home for a longer period of time. What's the financial impact of such a scenario? One would think that with significantly fewer assets, this situation would make John eligible more easily for Medicaid. However, in the traditional home-care scenario, there's no community spouse resource allowance. The couple is looked on as a family of two and entitled to combined resources of $8,150. This means that it would be necessary for Mary to sign a spousal refusal so as to force the Department of Social Services to look at John's application for Medicaid as one for an individual only. Having to sign an extra document as part of the application is not the problem. However, when we look at the income consequences, the problem is much more serious. In this situation, Mary could keep all of her income, but John is only entitled to a $612 allowance as an individual in the community. The balance of his income, or $888, would have to be turned over to the health agency providing John's care. Therefore, instead of Mary keeping $2,049 as she would if John were in a nursing home, the couple together could keep only $1,212, a combination of John's allowable income allowance and Mary's total income. Clearly, this is an unjust consequence that may force an individual struggling to keep their spouse at home to make a terrible choice base on finances rather than medical need. As if the current situation isn't unfair enough, there's been the persistent threat over the last several years that the state would actually remove spousal refusal in the community care situation. Fortunately, federal law prohibits the state from effecting spousal refusal in the institutional scenario but doesn't stop the state from taking action when it comes to community care. Hopefully, the state will weigh the long-term expense of forcing people into a nursing home against possible short-term savings and at the same time take into consideration the emotional toll on citizens struggling to maintain independence and dignity for themselves and their spouses. Reprinted with permission of the Suffolk Times © 1999 [ 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've stated a number of times in the past, New York is the only state that has spousal refusal. This means that the spouse of an individual applying for Medicaid, although legally responsible, has the right to refuse to allow assets in their name to be applied toward the care of the spouse applying for Medicaid.
the spouse in the home. Also, in the home-care scenario, let's say that instead of $100,000 in resources, the couple has only $20,000 in resources. The couple would like to obtain the assistance of a home health aide to keep John in the community.