| Bar Bulletin |
May,
2003 |
|
Monthly Focus Articles |
|
The Medical
Assistance Older Adults Waiver Update: 2003
By
Jason A. Frank
Maryland’s Medicaid
Home and Community Based Services Waiver for Older Adults, codified at
Health General §15-132 (with regulations at COMAR 10.09.54), provides
long-term care services in the community to keep individuals out of
nursing homes; the requirement of nursing home placement is what is being
“waived.” As of July 1, 2003, the available slots (unduplicated
beneficiaries) for the waiver will increase to 3,635 (depending on the
availability of state funding for fiscal year 2004). There are currently
2,236 individuals enrolled in the waiver program and 2,191 applicants
pending enrollment. If the slots for the program are capped due to lack of
funding, applications will no longer be accepted, and those interested in
applying for the waiver will be put on a registry list. Then, once slots
become available (when participants die or otherwise go off the waiver),
those on the registry will be notified in chronological order to apply for
the waiver.
The eligibility
criteria for the waiver program include non-financial and financial
factors. Factors of eligibility include state residency and citizenship or
qualified alien status. In general, a waiver applicant must satisfy the
following requirements: the individual must be 50 years of age or older;
s/he may not be enrolled in any managed care program that includes
long-term care; s/he must have been determined by the Delmarva Foundation,
Inc., to need a nursing home level of care; s/he has an approved plan of
care which is cost-neutral; the individual’s health and safety needs can
be reasonably met in a community setting with waiver services; income from
all sources is no greater than 300 percent of the maximum SSI payment plus
a $20 income disregard and countable assets are no greater than the
current SSI standard, currently $2,000 for an individual.
Although there is
technically no income cap for waiver eligibility purposes, those with
monthly income greater than 300 percent of SSI plus $20 (currently
totaling $1,676) will find accessing the waiver to be nearly impossible.
If the income is greater than $1,676, the applicant has to be eligible for
Community Medical Assistance by spending down to $350 (for an individual)
or $396 (for a couple) per month to meet the requirements for the waiver
under the medically needy category (which rules out those in assisted
living facilities). Note that there are no protections from spousal
impoverishment under Community MA.
Most of the
financial eligibility rules for the Medical Assistance Nursing Home Long
Term Care program apply to the waiver program for those with incomes less
than $1,676 per month. In general, protection from spousal impoverishment
and Medicaid planning strategies remain effective for the waiver program
as well. The resource exclusions for aged, blind, or disabled individuals
found in the Long Term Care program govern the determination of financial
eligibility, with some exclusions. The rules governing treatment of joint
accounts apply for the waiver program, as well as the rules governing
disposals of resources for less than fair market value. However, the lien
provisions governing Medical Assistance Long Term Care are not applicable
for the waiver program. Furthermore, there is a significant difference
between the treatment of resources under the Long Term Care program and
the waiver program involving home property. The waiver program rules
provide that a single person in an assisted living facility cannot exempt
home property with just an intent to return home. Again, this is another
example of an arguable violation of OBRA 87 and the Maryland Waiver
statute.
There are five
dates which govern the waiver program eligibility process. The first
governing date is the date of application. This is the date the
application is received by the area agency on aging. This date begins a
45-day time period in which the case must be completed. The second date
which governs the processing of the application is the date on the Freedom
of Choice form. This form can be submitted with the application for waiver
benefits. The date used is the date the form is signed, not the date it is
received by the area agency on aging. (It is advisable to have the
applicant sign on the first day of the month they will be requesting
benefits to be effective.) The third relevant date is the Medical
Eligibility date. This is the date the physician signs the 3871 form which
is approved by Delmarva Foundation, Inc. Medical eligibility can be
determined for any month; the 3871 form needs to state that it reflects
the patient’s condition as of a certain date. If this language is on the
3871 form, the medical eligibility date will be as of that stated date.
The fourth date in the eligibility process is the Plan of Care date. This
is the date the Adult Evaluation Review Service (AERS) worker completes
the applicant’s care plan. The fifth date is the Financial Eligibility
date. This financial review is done beginning the first day of the month
of application. Determination of eligibility is based on these governing
dates. Waiver eligibility can be granted no earlier than the later of the
five dates listed above. For example, if the applicant meets
financial and medical eligibility as of March 1, 2003 and the Freedom of
Choice statement is dated March 1, 2003, but the care plan is not started
until the medical, financial, and Freedom of Choice statements are signed
and is not completed until August 3, 2003, then eligibility cannot be
granted earlier than August 3, 2003. Having eligibility governing dates
that do not coincide results in an eligibility gap for the applicant,
where s/he cannot receive benefits even though s/he is really eligible and
left without money to pay for care.
Maryland’s current
medical eligibility standard, as stated in DHMH’s Nursing Home Transmittal
135, is arguably the strictest Medical Assistance long-term care medical
eligibility standard in the country and will remain the governing
eligibility standard for all Medical Assistance long-term care programs in
Maryland, including the waiver. With this standard in place, the waiver
program will have continued difficulty fulfilling its purpose of providing
services to allow Marylanders to avoid institutionalization until
absolutely necessary.
The waiver program
as it stands today, however, is still a viable long-term care planning
option. Attorneys with clients who require long-term care in the community
should look to the local area agencies on aging to apply for waiver
services and verify whether slots are available.
