Will People With Disabilities Be Forced Into Nursing Homes?

Hook Law News | Nov 26, 2018 | Letha Sgritta McDowell

On November 9, 2018, the Deputy Administrator and Director of the Centers for Medicare and Medicaid Services issued a notice regarding the sunset of certain provisions and protections which allowed married individuals with disabilities to receive services and supports in their homes.  While it is unclear how either the Commonwealth of Virginia or State of North Carolina will implement the guidance issues, the mandate has the potential to cause major upheaval for many of the 3.2 million people nationwide who are receiving services and supports in their home.[i]

States which participate in the federal Medicaid plan receive funding from the federal government as well as funding which is included as part of their state budget.  Participating states must offer certain programs which have certain eligibility requirements.  These programs are often referred to as entitlement programs– an example of which is the Medicaid program which pays for nursing home costs for some individuals.  A Medicaid waiver program is one in which the federal government waives the rules that usually apply to Medicaid programs, but for which the federal government still provides some funding.  Conceptually, the waiver programs allow states to try certain programs to expand coverage, reduce costs, or improve care.

One series of waiver programs are those which are aimed at assisting persons with disabilities of any age needing long-term services and supports in the community (i.e. home care).  The waiver programs allowed states to offer long-term care services in a home-based setting which ideally reduced state costs and improved quality of life for those individuals by offering and alternative to nursing home placement.

While, by definition, waiver programs authorize the waiving of certain eligibility rules, in 2014 Congress mandated that certain rules protecting married couples be applied to married couples when one was applying for a waiver.  The resulting mandate allowed a spouse not needing care to retain certain income and assets in the same manner as if the spouse needing care was entering a nursing facility, but without the resulting disruptive move.  In many instances, the financial protection for the spouse not needing care, along with the waiver program, was the only way to avoid a move into a nursing home.

The 2014 mandate for spousal protections was only extended through the end of 2018.  Therefore, beginning on January 1, 2019, states are no longer required to distinguish between an institutionalized spouse (spouse needing care) and a community spouse for purposes of the waiver programs.  The directive issued by CMS states that the reevaluation of all married couples should begin on January 1, 2019.  Should the income or assets of a spouse not needing care be considered upon re-evaluation, many married couples needing services and supports may find themselves forced into a nursing facility.

While the CMS mandate does state that re-evaluation should begin in January, the mandate also acknowledges that states will have the option to continue to allow for the protection of the spouse.  At this time, it is not clear what states may choose regarding this.  State budgets have been squeezed for quite some time and the practical impact of this may temporarily reduce spending. However, long term, the election not to provide protections for the spouse without a care need will likely result in more people with disabilities needing care in an institutional setting which ultimately will have a greater impact on state budgets.

A number of advocacy organizations are working on a bi-partisan solution to this potentially major problem; however, it is difficult to predict whether Congress will act prior to the end of the year.  Until a solution is passed, people with disabilities receiving these services should carefully review any notifications received regarding their services and be prepared for advocacy if necessary.

[i] https://www.kff.org/report-section/medicaid-home-and-community-based-services-results-from-a-50-state-survey-of-enrollment-spending-and-program-policies-report/

Ask Kit Kat – End to Greyhound Racing in Florida

Hook Law Center: Kit Kat, what can you tell us about the results of the Florida election and Amendment 13, which proposed outlawing greyhound racing in Florida?

Kit Kat: Well, on November 6, 2018, 67% of the voters in Florida overwhelmingly approved Amendment 13 which will shut down the greyhound racing industry there as of January 2021. This will put a huge dent in the greyhound racing industry nationwide, since 11 of the 17 active dog tracks in the United States operate in Florida. Dog racing has long been criticized by opponents as being extremely cruel. Dogs typically race for 2 years, and then are discarded like throwaways. Even when they are used for racing, they can be kept in cramped quarters, and let out to exercise infrequently.

The success of Amendment 13 was the result of a lot of hard work. Groups like GREY2KUSA and the Humane Society of the United States (HSUS) mobilized support, and the effort paid off. Kitty Block, acting president and CEO of HSUS commented afterwards, “ We are so grateful to the volunteers, campaign members, coalition partners, contributors and endorsers who came together in support of this historic effort to end the cruelty of greyhound racing.”

The next step is to find homes for the approximately 6,000 dogs who will need to find new homes. Adopt-a-Greyhound.org is one group who is leading the way in this effort. According to them, greyhounds make great pets. They’re used to being around lots of different people, having been handled by vets, trainers, and strangers. Also, they are easy-going, and don’t have the killer instinct. They are trained to chase a mechanical lure, but in their spare time, can be quite lethargic. If you are interested in adopting an adult greyhound, contact them or the HSUS.

(Cindy Boren, “A greyhound racing ban in Florida means thousands of dogs will need new homes,” The Washington Post, November 8, 2018)

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Letha Sgritta McDowell

Attorney, Shareholder, CELA
757-399-7506 | 252-722-2890
[email protected]

Letha Sgritta McDowell is a Shareholder of Hook Law practicing in the areas of estate planning, elder law, special needs planning, estate and trust administration, asset protection planning, long-term care planning, personal injury settlement consulting, guardianships & conservatorships, and tax law. Ms. McDowell’s clients range from high-net-worth individuals with over $75 million in net worth to families with limited assets.

Ms. McDowell is a past President of the National Academy of Elder Law Attorneys and was named as a Fellow of the prestigious American College of Trusts and Estates Council (“ACTEC”) in 2020. She is certified as an elder law attorney by the National Elder Law Foundation (“CELA”) and Board Certified as a specialist in Elder Law by the North Carolina State Bar Board of Legal Specialization. Furthermore, McDowell is accredited to prepare and prosecute claims with the Department of Veterans Affairs.

Ms. McDowell is currently the chair of NAELA’s strategic planning committee, a member of the Board of Directors for the North Carolina Chapter of NAELA, and a member of the Board of Directors for the Purdue Center for Cancer Research. She is the former Chair of the North Carolina State Bar’s Elder Law Specialization Committee and is the former Editor-in-Chief of “Gray Matters”, the newsletter for the Elder Law Section of the North Carolina Bar Association. She is a consultant for InterActive Legal and has worked on several law and technology initiatives including IBM’s Watson project. Along with her experience practicing as an attorney, she has dedicated much of her time writing for national publications including, but not limited to: Wolters Kluwer, Wealthmanagement.com, the NAELA Journal, Trust & Estates Magazine and many more.

Practice Areas

  • Elder Law
  • Estate & Trust Administration
  • Estate Planning
  • Asset Protection Planning
  • Long-Term Care Planning
  • Special Needs Planning
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