Q. I have been caring for my wife at home for some time, and I could really use help. In the past I was told that our modest savings and incomes were too high to qualify for a Medi-Cal subsidy to enable me to hire care-givers. However, I just heard that these strict requirements may have recently changed. Is this so?
A. Yes, indeed! Medi-Cal has recently given a welcome gift to couples struggling with care management at home.
In the past, a couple seeking a Medi-Cal subsidy to help with in-home care for an ill spouse would generally not qualify if their savings were greater than $3,000. Further, even if under that $3,000 threshold, yet if their combined monthly incomes were greater than $1,664 [1] , their resulting “co-pay” (aka, ‘Share of Cost’) would be too high to make hiring care-givers affordable, as the co-pay requirement would leave couples without enough money to pay for their other living expenses. These resource and income limits forced many spouses into nursing facilities, where the Medi-Cal financial eligibility rules were much more relaxed. This has now all changed.
Thanks to the Affordable Care Act, and a recent lawsuit to compel Medi-Cal to follow its mandate, Medi-Cal will now allow a spouse seeking care at home to take advantage of the same, more relaxed financial eligibility rules formerly only applicable to a spouse receiving care in a nursing facility. These rules are called the “Spousal Impoverishment Rules” (“SI Rules”). As the name implies, the SI Rules were designed by Congress to avoid impoverishing the At-Home spouse by the high cost of nursing facility care for the Ill Spouse.
Under the SI Rules, a married couple may now have as much as $122,900 [in 2017. See fn 2, below] in savings and still qualify the Ill Spouse for In-Home care, provided a doctor attests on a simple form that the Ill Spouse would otherwise need care in a nursing facility. Likewise, the rules for calculating Share of Cost (“SOC”) are now also more relaxed: only the income of the Ill Spouse will count toward his/her SOC, and then only after (a) an allocation from the Ill Spouse’s income to the Well Spouse to make sure the latter retains at least $3,023 per month to live on, and (b) a deduction of at least $600 for the needs of the Ill Spouse. [3]. For most seniors on modest, fixed incomes, this calculation will result in only a modest SOC, and in many cases none at all !
To inquire about in-home care options under the SI Rules, contact your county Social Service Agency (Alameda County: 510-383-8523) and ask about “Home and Community Based Services covered under the Spousal Impoverishment Provisions, as outlined in All County Welfare Directors’ Letter 17-25”. If you are already receiving In Home Supportive Services (“IHSS”), ask if you are on the “Community First Choice Option”, which would entitle you to the benefit of the SI Rules discussed above and, if not, inquire about your eligibility for that program or another which applies the SI Rules. Even if you are only placed on a waiting list, you will still be immediately eligible for Medi-Cal and IHSS using the SI Rules, no matter how long the wait.
Note: Couples with resources greater than $122,900 should not despair: there are lawful strategies that may enable them to seek an even larger Medi-Cal resource allowance [4], and/or to convert excess countable resources into exempt non-countable resources, and still qualify the Ill Spouse for a Medi-Cal subsidy.
The SI Rules apply equally, regardless of gender, to couples who are married and to Registered Domestic Partners. They should now enable more couples to remain together in their own homes and avoid, or at least defer, the need for nursing facility placement. Further, the SI Rules only apply to approved Waiver Programs, which are set forth in ACWDL Letter 17-25, referenced above.
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NOTES:
[1] $1664 is the current monthly income ceiling for a couple in order to qualify for a No Share of Cost Medi-Cal subsidy under the Aged & Disabled Federal Poverty Level Program, as of 04/01/2017. See, ACWDL 17-19 (June 23, 2017). As of 12/01/2020, it has been increased to $1,428 for a single person and $1,983 for a married couple. See, ACWDL 20-24 (11/23/2020).
[2] The Resource Allowance of $120,900 is that permitted to the Well Spouse as of 01/01/2017; it increases every year with the cost of living. In addition, the Ill Spouse is entitled to retain up to $2,000 in his or her own name, effectively allowing the couple to retain $120,900 + $2,000 = $122,900 in combined savings and other non-exempt assets. As of January 2021, that Resource Allowance for the Well Spouse was increased to $130,380. ACWDL 20-27 (12/09/2020).
[3] This $600 per month is called a Maintenance Needs Allowance for the Ill Spouse, and is deducted from her income before Share of Cost is determined. In addition, that deduction may be as high as $1,428/month if the Ill Spouse also meets the requirements of the Aged & Disabled Federal Poverty Level Program (income permitted for single individual as of 12/01/2020; see above.)
These Resource and Income allowances are the figures for the year 2017. These numbers are indexed to inflation and typically change every year. As of January, 2021, the Resource Allowance for a Married Person living at home increased to $130,380 (i.e., the “Community Spouse Resource Allowance”), and the minimum amount of income (“MMMNA”) that the At-Home spouse was entitled to retain has been increased to $3,260 per month. See, ACWDL 20-27 (12/09/2020).
[4] Legal proceedings to increase the resource allowance may be brought, either by way of an Administrative Fair Hearing under the Medi-Cal program or by way of a Petition filed in the Superior Court. Good news: Our local courts have been generally accommodating in permitting very significant increases in the Medi-Cal Resource Allowance, where the facts warrant.
Resources: All County Welfare Directors’ Letter 17-25 (7/19/2017); CANHR Fact Sheet “Using California’s Spousal Impoverishment Rule for Home and Community Based Services” (updated 2/22/2021). ACWDL 18-19 (8/21/2018)[“Supplement to Home & Community Based Services and Spousal Impoverishment”]; ACWDL 20-15 [9/11/2020) [“New Guidance For Individuals Seeking Retroactive Reimbursement”]; ACWDL 14-60 (8/29/2014) [“Implementation of the Community First Choice Option (CFCO) Program”, including eligibility requirements.
Justice in Aging’s Summary of the precipitating Kelly v. Kent class action lawsuit.
New California Developments as of January 14, 2020. See article published by Disability Rights California, “California plaintiffs win case against state for failing to provide federally-mandated In-Home Supportive Services” with the following further explanation: “State must reimburse or pay Medi-Cal recipients and conduct statewide outreach to thousands of Californians who may be eligible for in-home services”. This is in reference to the Kelly v. Kent Class Action, wherein a Los Angeles Superior Court judge granted plaintiffs’ Petition and ordered preparation of an appropriate Judgment in plaintiffs’ favor.
Home and Community Based Spousal Impoverishment Provisions Extended to September 30, 2023:
The Consolidated Appropriations Act, which Congress passed on 12/21/2020 and the President signed on 12/27/2020, extended the Spousal Impoverishment Provisions (“SI”) to September 30, 2023, and also extended the Money Follows the Person funding. The ACT is over 5,000 pages long. The relevant portion regarding the SI extension is found at Title II, § 205 entitled “MEDICAID EXTENDERS AND OTHER POLICIES” and is found at page 4,721 of the ACT. See summary comments in this brief announcement by the Center for Public Representation. Affirmed in ACWDL 21-03 (2/17/2021), at page 5.
The zero Share of Cost rule for a married Beneficiary who would otherwise need a Nursing Home, but who prefers to be cared for at home or in an Assisted Living Facility, is contained in the most recent Assisted Living Waiver Document, submitted by California as the “Application for a 1915(c) HCBS Wavier”, and approved by CMS: https://www.dhcs.ca.gov/
On March 27, 2020, the CARES Act (H.R.748), extended Home and Community Based Services (HCBS) spousal impoverishment rules from May 22, 2020 to November 30, 2020. The provisions expanded by the Affordable Care Act were originally set to sunset five years after the implementation. Spousal Impoverishment gives married applicants seeking HCBS the same financial protections as institutionalized beneficiaries. Relevant guidance continues to be available in ACWDLs 17-25 and 18-19 and the DHCS SI FLYER.
See CANHR’s factsheet: Using California’s Spousal Impoverishment Rule for Home and Community Based Services
(Prior Developments) Federal Developments as of 12/20/2019: The Spousal Impoverishment provisions of the “Medicaid Home- and Community-Based Services” (HCBS) and the Medicaid “Money Follows the Person” program, were extended to May 22, 2020, by the end of year federal budget bill (“Further Consolidated Appropriations Act, 2020”, enacted as H.R. 1865 on 12/20/2019, the date signed by the President). They were previously set to expire on 12/31/2019, and were then set to expire on May 22, 2020. As of April 1, 2020, they have been extended to to November 30, 2020. See the CARES Act (J.F. 748), above.
(Prior Developments) More Waiver Updates: The CA Home & Community-Based Services Waiver may be amended. Public Comment period ends 09/10/2019.
For earlier developments, see the Issue Brief prepared by the Kaiser Family Foundation and incorporated into the website of Justice in Aging.
Prior DEVELOPMENTS as of 04/18/2019, HR 1839, a Bill approving a further extension of the Spousal Impoverishment (“SI”) Provision was signed into law by the President. It now, once again, extends the SI Provisions to September 30, 2019. Advocates for seniors and the disabled are advocating to make this extension permanent. See Justice in Aging’s Fact Sheet on topic.
Prior history of the “SI” Provisions: On January 24, 2019, the President signed the Medicaid Extender’s Act, temporarily continuing the Spousal Impoverishment Provisions for Home Care for senior couples. The Act, however, only extends this provision until March 31, 2019, unless that cut off date is extended by further legislation. Prior to this Act, the status of the Home Care option was in serious jeopardy. See references, below. This Act, even though presently only a temporary extension of the Spousal Impoverishment Provisions for Home Care, is good news for seniors and reflects serious advocacy by many organizations supporting seniors and the disabled, including Justice in Aging.
(Prior Developments): As of 12/31/2018, the status of the Spousal Impoverishment Provisions for Home Care were previously in limbo: See the following articles:
(1) the CMS Informational Bulletin entitled “Sunset of Section 2404 of the Affordable Care Act, Relating to the Spousal Impoverishment Rules for Certain Home and Community-Based Services…”, issued 11/09/2018.
(2) Kaiser Family Foundation Summary of CMS Informational Bulletin referenced above; article in the on line Trusts and Estates Magazine:
3) And an article in the on line Trusts and Estates Magazine: