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.

*************************************

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).

[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.

[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 $1,235/month if the Ill Spouse also meets the requirements of the Aged & Disabled Federal Poverty Level Program.

These Resource and Income allowances are the figures for the year 2017. These numbers are indexed to inflation and typically change every year.

[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”

All County Welfare Directors’ Letter 18-19 (8/21/2018) [“Supplement to Home & Community Based Services and Spousal Impoverishment”]; 

Fact Sheet By California Advocates For Nursing Home Reform.

Justice in Aging’s Summary of the precipitating Kelly v. Kent class action lawsuit.

Kelley v. Kent Class Action: Petition for Writ of Mandate, Declaratory and Injunctive Relief, filed July 6, 2017

Update:  More Waiver Updates:  The CA Home & Community-Based Services Waiver may be amended. Public Comment period ends 09/10/2019.

New Developments as of 12/6/2019:  The Spousal Impoverishment provisions are set to expire on 12/31/2019, unless extended by further act of Congress and signature of the President.  See the recent 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.

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:

https://www.wealthmanagement.com/retirement-planning/will-individuals-disabilities-be-forced-nursing-homes?NL=WM-17a&Issue=WM-17a_20181128_WM-17a_937&sfvc4enews=42&cl=article_4&elqTrack=true