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.

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Publications : Bar Bulletin: May, 2003