23 Apr, 2012
New York State has now made it clear that spousal impoverishment protections will be available to applicants and recipients in not just the Home and Community Based Services (HCBS) wavier program, also known as Lombardi, but in the Traumatic Brain Injury (TBI) and Nursing Home Transition and Diversion (NHTD) waiver programs as well.
This policy clarification is set out in GIS 12 MA/013. The GIS should prove very helpful to consumers and their advocates, as districts have been confused about budgeting rules in waiver programs, where a hybrid of community and institutional Medicaid budgeting applies. Spousal impoverishment rules have been particularly problematic, as the rules in waiver programs have not been consistent.
Pre-2006, NYS used spousal impoverishment protections in the Lombardi and other waivers, under an interpretation of federal regulations that had long been approved by the federal agency, CMS, and its predecessor HCFA. The continued use of spousal impoverishment protections was thrown into doubt in 2006, when, under the Bush Administration, CMS held up renewal of New York's HCBS waiver, reversed its policy after 20 years and insisted that New York drop the spousal protections. CMS re-interpreted federal regulations to prohibit the spousal protections in waiver programs, restricting them to nursing home care.
Agreement with CMS under 1115 Waiver
The dispute between NYS and CMS over spousal protections reached at least a temporary resolution in 2010 after the national health reform law, the Patient Protection and Affordable Care Act (PPACA) mandated that all waiver programs nationally must include spousal impoverishment through 2019. Although the ACA mandate doesn't take effect until 2014, NYS was able to reach agreement with CMS under its 1115 Partnership plan extension to permit spousal impoverishment protections to continue in the Lombardi program. See GIS 10 OLTC/003.
Unfortunately, the 2010 agreement on spousal impoverishment protections in the HCBS waiver did not apply to the TBI and NHTD waivers. Spousal protections had already been removed from these programs under pressure from CMS.
Spousal Protections Now Available in All 1915 Wavier Programs
Under GIS 12 MA/013, participants in HCBS, TBI or NHTD waiver programs, who have a community spouse must have eligibility determined under spousal impoverishment budgeting if it is advantageous to the recipient. Remember, however, that spousal income is not counted in the TBI and NHTD waiver programs (even without a spousal refusal). This contrasts with This contrasts with the HCBS program, in which a spousal refusal would be necessary in order not to count the spouse’s income or resources toward eligibility.
Thus, it is important to note that Because spousal income is not counted in the TBI and NHTD waiver programs, spousal impoverishment rules will not always be advantageous. If the total amount of income allowance allowed under the spousal protection rules is less than or equal to the amount allowed for a Medicaid household of one ($812.00), then spousal protection budgeting will not be more advantageous in the TBI and NHTD waiver programs. The GIS notes that in 2012, it will be advantageous to the TBI and NHTD waiver recipients to apply the spousal impoverishment rules only if the sum of the monthly income allowances exceeds $445.00.