|
 |  |
|
The Governor’s Proposed Medicaid Initiatives |
By: Lawrence N. Berwitz, Esq. & Maureen Rothschild DiTata, Esq.
Berwitz & DiTata LLP
Garden City, New York |
|
The current budget bill proposal submitted by Governor Pataki seeks changes to the Medicaid health care program that constitute a significant departure from the rules used to determine Medicaid eligibility and will have devastating consequences for the elderly and disabled. Among the proposed changes are: 1) lengthening the “look back” or disclosure period, the period for which all of the applicant’s financial records must be submitted in support of a Medicaid application, from 36 to 60 months; 2) instituting a penalty or ineligibility period for asset transfers made by home care applicants; 3) curtailing or eliminating the “spousal refusal” strategy available to married couples who wish to accelerate the eligibility of one member of the couple; and 4) commencing any ineligibility period created by penalized transfers on the date of submission of the Medicaid application rather than the first day of the month following the transfer.
The Medicaid program is jointly administered by the federal and state governments and, to qualify for federal funding, New York State must comply with federally established parameters. The Governor’s proposed changes violate the federal rules. Instead of seeking to amend the federal laws, the budget proposal seeks an administrative waiver pursuant to Section 1115 of the Social Security Act. Section 1115 gives the Secretary of Health and Human Services discretion, in the case of experimental, pilot or demonstration projects, to waive compliance with the Medicaid eligibility requirements which, in the judgment of the Secretary, are likely to assist in promoting the objectives of the program. The federal agency which coordinates the 1115 Waiver program with the states, the Centers for Medicare and Medicaid Services (“CMS”), utilizes certain criteria in evaluating requests for waivers. These are published on its website at http://www.cms.hhs.gov/medicaid/1115/default.asp. The article, entitled “1115 Waiver Research and Demonstration Projects,” clarifies that “section 1115 is sufficiently broad to allow States to test substantially new ideas of policy merit” and provides “flexibility under the Secretary’s discretion, for the provision of services which are not otherwise matchable, [allowing] for the expansion of eligibility for those who would otherwise not be eligible for the Medicaid program.”
Thus, the 1115 waiver program is intended to encourage the states to develop new means for providing services not already offered. It contemplates the expansion, not the contraction, of Medicaid services. Under the circumstances, even if the Secretary were to grant the necessary waivers to curtail Medicaid eligibility as the proposal suggests, it would seem that such an exercise of discretion would exceed the Secretary’s authority under Section 1115.
While numerous consumer directed organizations oppose this legislation and the Elder Law Committees of both the New York State and Suffolk County Bar Associations have submitted responses to these proposals which have been adopted by the Executive Boards of the respective Bar Associations, the opposition is predominantly based upon the economic impact that these changes will have on the senior population, the financial consequences to the health care industry, and the likelihood that they will result in an increase of governmental overhead rather than its reduction. The legislature should reject this portion of the Governor’s budget on the ground that anticipated fiscal relief is unlikely if not impossible as it is predicated on the State’s receipt of a section 1115 waiver which is beyond the authority of the Secretary of Health and Human Services to grant.
Author’s Note: Sample letters to legislative representatives regarding the Governor’s proposal, as well as the NYSBA Elder Law Committee’s “Report on Governor’s Budget Bill: Medicaid Initiatives,” are available on the NYSBA’s website at http://www.nysba.org/MSTemplate.cfm?MicrositeID=53.
* Note: Lawrence N. Berwitz and Maureen Rothschild DiTata are partners in the Garden City elder law firm of Berwitz & DiTata LLP. This article is the first in what will be a regular monthly feature on issues concerning the senior community.
|
|
|
|
|
|
|
|
