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Practising Law InstituteMedicaid for the Elderly, Blind, or Disabled§ 6:1§ 6:2IntroductionThis chapter has been designed to provide useful information andguidance to attorneys and advocates who are involved with establishing and maintaining eligibility in the New York State Medicaidprogram for the elderly, blind, or disabled. This chapter does notcover the recent expansion of Medicaid to many people under the ageof sixty-five under the Affordable Care Act (also known as the MAGI(“Modified Adjusted Gross Income”) population). 1 The informationcontained in this chapter is current as of the date this chapter ispublished. Attorneys and advocates are cautioned to stay current withprogram changes which may take place after the publication of thischapter.The Medicaid Program is very complicated, and the applicationprocess is often compared to completing an income tax return. Tomake the subject matter manageable this chapter progresses from thebasic components of Medicaid eligibility (services covered, incomeand resources rules, citizenship, etc.) to the more complicated technical issues (transfers, spousal impoverishment, liens, etc.). Theprocedures and regulations necessary to applying for Medicaid“home-care” services are found in chapter 7. No single chapter cancover every aspect of Medicaid eligibility, for this reason only the mostcommon and useful subjects and topics have been selected fordiscussion.§ 6:2Background and Description of the MedicaidProgramMedicaid is a joint federal-state program administered by localgovernments; it was established by the federal government in 1965.2 Itspurpose is to provide payment for a comprehensive range of medical1.2.On January 1, 2014, New York State expanded its Medicaid program tomany individuals under the age of sixty-five under the Affordable CareAct. The newly eligible individuals are known as the MAGI population,because their eligibility for Medicaid is determined by their “ModifiedAdjusted Gross Income.”42 U.S.C. §§ 1396 et seq. The Medicaid program must be distinguishedfrom the Medicare program. Medicare is the non-needs-based federalhealth insurance program for the aged and disabled established underTitle XVIII of the Social Security Act. 42 U.S.C. §§ 1395 et seq. Medicareis structured as a health insurance system with eligibility linked to SocialSecurity eligibility.(N.Y. Elder Law, Rel. #36, 9/15)6–731

Practising Law Institute§ 6:2New York Elder Lawservices for persons with low income and resources. It is a “meanstested” program; that is, applicants for Medicaid must show financialneed by meeting certain income and resource guidelines.The federal government reimburses states for a portion of theirMedicaid expenditures.3 In New York, the federal share is about 50%.The remaining costs are shared by the state and local governments.While the federal government sets the guidelines for Medicaid,each state designs its own particular program within the limits offederal law and regulations. Therefore, Medicaid programs varygreatly from state to state. This chapter covers only the New YorkState Medicaid program for the elderly, blind, and disabled. TheMedicaid rules and regulations discussed and cited in this chaptershould not be applied to Medicaid applicants or recipients in otherstates.The Medicaid program recently went through a major change inhow it pays for and delivers services. On September 4, 2012, thefederal government approved a federal waiver that allows NYS torequire all community-based long-term care to be provided through anetwork of Managed Long-Term Care (MLTC) plans.4 The result isthat NYS Medicaid has changed from “fee-for-service”5 program to a“capitated rate”6 program, where an MLTC plan will be paid a flatmonthly fee to provide home health care services to each member ofthe plan. All Medicaid applicants who wish to receive personal care,home attendant, long-term Certified Home Health Agency services,or coverage for permanent nursing home placement will be requiredto enroll in an MLTC plan. The MLTC plan will determine how muchcare is provided and how it is delivered. These MLTC plans have takenover the job previously undertaken by the local CASA (local Medicaid3.4.5.6.42 U.S.C. § 1396(a)(1); 42 U.S.C. § 1369d(b).N.Y. SOC. SERVS. L. § 364-j (Amended L. 2011, ch. 59); 18 N.Y. COMP.CODES R. & REGS. §360; DOHHS Letter approving Medicaid section 1115demonstration waiver, dated August 31, 2012.Prior to this change, the Medicaid program was a third-party paymentprogram, which enabled a Medicaid recipient to receive medical servicesand have the bill sent to the state Medicaid program for payment.A “capitated rate” means that the Managed Long-Term Care plan that willprovide home care for the Medicaid recipient will receive a single monthlypayment (a capped amount) each month to provide all the care necessaryfor that individual Medicaid recipient. The concern is that under thischange an MLTC can actually make more money if they provide lessservices.6–832

Practising Law InstituteMedicaid for the Elderly, Blind, or Disabled§ 6:2offices). Medicaid recipients must receive their long-term home healthcare services through the network of providers that contract with theMLTC plan they have chosen. For a complete discussion of how thenew Home Care MLTC program works, see chapter 7 of thishandbook.Once approved for Medicaid, each recipient will receive a plasticidentification card that will reflect to which MLTC plan the recipienthas been enrolled, and if home care services are being provided.Medicaid will continue to pay doctors, hospitals, and nursing homesdirectly, even if the Medicaid recipient has enrolled in an MLTCplan.Medicaid will not pay for services of a provider who has notregistered in the Medicaid program. Providers who participate inthe Medicaid program must accept all Medicaid recipients as patients.Before obtaining treatment, recipients should be sure to find outwhether the provider they intend to use accepts Medicaid. If theprovider does not accept Medicaid, the recipient of services will bepersonally liable to pay for the cost of services provided.At the federal level, the Department of Health and Human Services(DHHS), through the Health Care Financing Administration (HCFA),issues regulations and guidelines and monitors state compliance withfederal laws and rules.7 DHHS publishes the State Medical AssistanceManual for use by the states in administering the program.8 Therehave been two major revisions of the Federal Medicaid Law since itwas established in 1965. The first revision was the Omnibus BudgetReconciliation Act of 1993 (OBRA ’93),9 which was passed by Congress and signed into law on August 10, 1993 (these changes wereenacted in the 1994 New York State Budget Bill 10 and becameeffective for all Medicaid applicants on or after September 1,1994).11 The second revision was by the Deficit Reduction Act of7.8.9.10.11.42 U.S.C. §§ 1396 et seq.; 42 C.F.R. §§ 430 et seq.State Medicaid Manual, Part 3—Eligibility, effective Dec. 13, 1994.Transmittal No. 64, Date: November 1994 (HCFA-Pub. 45-3).Omnibus Budget Reconciliation Act of 1993 (H.R. 2264), Pub. L. No.103-66.Chapter 170 of the Laws of 1994 (Senate 8599-A11854). The Medicaidprovisions are contained in §§ 449–55 (see § 57 for effective dates).Different effective dates apply to transfer of assets and to trusts under theNew York State Budget of 1994. In its continuing effort to clarifyimplementation of OBRA ’93 in New York, the Department of Social(N.Y. Elder Law, Rel. #36, 9/15)6–933

Practising Law Institute§ 6:2New York Elder Law2005 (DRA ’05) and the Tax Relief and Health Care Act of 200612(these changes were adopted as part of the 2006 New York StateBudget13).At the state level, the New York State Department of Health(DOH) is the agency responsible for issuing regulations andguidelines for Medicaid eligibility and coverage through their Officeof Medicaid Management. 14 The DOH also supplements andclarifies its regulations and guidelines by issuing New York StateAdministrative Directives (OMM/ADM) and Informational Letters(OMM/INF).15 Administrative Directives and Informational Letters(known as ADMs and INFs) are instructional manuals which explainhow Medicaid regulations and policies are to be implemented at thelocal level. ADMs and INFs are two of the primary sources ofinformation on how the Medicaid program works at the local level.Local agencies are responsible for the day-to-day administration ofthe Medicaid program. In New York City, the local agency is known asthe Medical Assistance Program (MAP), an agency within the HumanResources Administration (HRA). Elsewhere within New York State,the county Departments of Social Services (DSS) continue to administer Medicaid. The New York City MAP publishes its own Proceduresand Info Letters to clarify the city’s interpretation and implementation of Medicaid rules and regulations.Identifying the sources of authority is important because there is ahierarchy of authority. Federal laws (statutes) have greater weightthan state statutes. State statutes have more authority than stateregulations, which, in turn, have more weight than local administrative directives or informational letters.12.13.14.15.Services has issued an administrative directive (ADM) entitled “OBRA ’93Provisions on Transfers and Trusts” (96 ADM-8), issued on Mar. 29,1996. The relevant portions of this ADM are cited where appropriate inthis chapter.Deficit Reduction Act (DRA) of 2005, Pub. L. No. 109-171.2006 N.Y. Laws 57 and 2006 N.Y. Laws 109. The N.Y.S. Department ofHealth issued their interpretation of the DRA in 06 OMM/ADM-5.N.Y. SOC. SERV. LAW §§ 363 et seq. (as amended by chapter 165 of theLaws of 1991, chapter 938 of the Laws of 1990, and chapter 41 of theLaws of 1992); N.Y. COMP. CODES R. & REGS. tit. 18, §§ 360-1 et seq.Both Administrative Directives (ADMs) and Informationals (INFs) contain specific information about the procedures to be followed by the localMedicaid agency in particular cases.6–1034

Practising Law InstituteMedicaid for the Elderly, Blind, or Disabled§ 6:2.1The advocate should also be aware of the Medicaid ReferenceGuide (MRG).16 This is the desk reference guide used by all Medicaidintake personnel when processing applications. The MRG explainshow the intake worker should deal with a large variety of issuescovered by Medicaid regulations, for example, the income andresources of the Medicaid applicant. The MRG covers the mostcommonly encountered questions regarding income and resources,and it provides citations to the New York Code of Rules andRegulations as well as the state’s ADMs (Administrative Directives).§ 6:2.1Internet ResourcesThe following is a list of website resources for Medicaid-relatedinformation:1.New York State Medicaid Planwww.hcfa.gov/medicaid/stateplan/toc.asp?state NY2.N.Y. State Medicaid Reference Guide dex.htm3.N.Y. State Admin. Directives, GIS, Local Commr ’s htm4.Fed. Medicaid Regulations—42 .html ns/federalmisc.htm5.State regulations—titles 10 (Dep’t of Health) and 18 (Medicaid m/phforum.htm6.N.Y. State Bar Association Website—Elder Law Sectionwww.nysba.org7.New York Health Access—A website for not-for-profit advocates for the aging www.wnylc.com16.Medicaid Reference Guide, available at www.health.ny.gov/health care/medicaid/reference/mrg/.(N.Y. Elder Law, Rel. #36, 9/15)6–1135

Practising Law Institute§ 6:3New York Elder Law§ 6:3Eligibility CategoriesMedicaid is generally thought of as an assistance program for thepoor, but it does not cover all poor people. Applicants for Medicaidmust first fit into one of the categories of eligibility described below.The financial eligibility requirements may vary for the differentcategories.§ 6:3.1Supplemental Security Income (SSI)Recipients17Some applicants are “automatically” or “categorically” eligible forMedicaid benefits because they receive cash benefits under Supplemental Security Income (SSI), which is the federal assistance programfor the aged, blind, or disabled.18 There are, however, certain situations where individuals may become ineligible for SSI and still remaineligible for the Medicaid program. Individuals who become ineligiblefor SSI as a result of Social Security cost of living increases may still beeligible for Medicaid even though they are no longer receiving SSI orstate supplemental payments.19§ 6:3.2Disability ClaimantsIndividuals who meet the standards used to determine eligibilityfor disability payments under the SSI and Social Security disabilityprograms are also eligible for the Medicaid program. 20 Generally, ifthe Social Security Administration has determined that an individualis disabled, Medicaid accepts that determination and the individual is17.18.19.20.N.Y. SOC. SERV. LAW § 360-3.3(a)(3).42 U.S.C. § 1396A(a)(10)(A)(i), § 1396c; N.Y. SOC. SERV. LAW § 366.1(a)(2);N.Y. COMP. CODES R. & REGS. tit. 18, § 360-3.3(a)(3).Four groups of individuals remain eligible for Medicaid even though nolonger receiving SSI or state supplemental payments: those who havereceived the 20% increase in Social Security benefits (OASDI) in 1972, 42U.S.C. § 1396; those who lost SSI or state supplementary payments dueto OASDI benefits after April 1977 only because the increase was notdeducted from income (“Pickle people”), 42 U.S.C. § 1396(a); N.Y. COMP.CODES R. & REGS. tit. 18, § 360-3.3(c)(10); widows and widowers wholost Medicaid due to 1984 increases, 42 U.S.C. § 1396a(a)(10)(A)(1)(II),§ 1383c(b); 87 ADM-29; and widows and widowers ages sixty to sixty-fouras of Apr. 1, 1998, whose widows’ benefits made them lose SSI (“Kennellywidows”), 42 U.S.C. § 1383c(d), § 1396a(a)(10(A)(i)(II).N.Y. COMP. CODES R. & REGS. tit. 18, § 360-5.1–360-5.9; 87 ADM-41.For a detailed description of the disability program, see supra chapter 3.6–1236

Practising Law InstituteMedicaid for the Elderly, Blind, or Disabled§ 6:3.4categorically eligible for Medicaid coverage as a disabled individual,regardless of their age. However, where there has been no previousdetermination of disability by Social Security Disability, Medicaid willhave to make a determination about the applicant’s disability beforeeligibility can be established.21§ 6:3.3Medically Needy ClaimantsThe “medically needy”22 are those who do not receive cash grantsunder the SSI program. These individuals would be otherwise eligiblefor the SSI program, except that their income and/or resources areabove the established income and resource limits established for theSSI program. Medically needy individuals who are age sixty-five orolder are known as “SSI-related” by virtue of their age. Persons whoare certified blind or certified disabled are also SSI-related. Thesemedically needy individuals can qualify for Medicaid if they meet thefinancial income and resource limits set by New York State for themedically needy. The current income and resource levels for SSIrelated individuals can be found in Appendix 6A.Individuals with income above the allowable limits may still beeligible for medical assistance under the “income spenddown program,” which allows the individual to contribute the surplus incometoward the cost of medical care. (The income spenddown program isdiscussed later in this chapter.)§ 6:3.4Medicaid Buy-In Program for the WorkingDisabledThe “Medicaid Buy-In Program”23 is designed to help thosedisabled working persons who are not eligible for traditional Medicaidbecause their income or resources exceed the allowable Medicaid (SSILevels), yet they meet the medical criteria of having a disability. Thisprogram allows working disabled individuals to obtain Medicaid by21.22.23.N.Y. COMP. CODES R. & REGS. tit. 18, § 360-2.4(a)(2).42 U.S.C. § 1396(a)(10)(C); N.Y. COMP. CODES R. & REGS. tit. 18,§ 360-3.3(b).Sections 62–69 of Part A of Chapter 1 of the New York State Health Workforce Recruitment and Retention Act of 2002 (signed into law1/16/02); 03 OMM/ADM-4. For more information about the MedicaidBuy-In program, see Medicaid Buy-In program for Working People withDisabilities Toolkit, available at www.health.ny.gov/health care/medicaid/program/buy in/docs/working people with disabilities 030413.pdf.(N.Y. Elder Law, Rel. #36, 9/15)6–1337

Practising Law Institute§ 6:4New York Elder Lawpaying an out-of-pocket premium. All the Medicaid rules, regulationsand services discussed in this chapter apply to participants eligiblefor this program, as long as they meet the following additionalrequirements: the Applicant must be certified disabled by the Social SecurityAdministration;24 he or she must be at least sixteen years of age, but under agesixty-five; he or she must be engaged in either part-time or full-time paidwork; he or she must have a gross annual income at or below 250% ofthe federal poverty level (FPL); he or she may have non-exempt resources up to 20,000 forindividuals and 30,000 for couples (homestead and car areexempt).Once eligibility has been established, an out-of-pocket premiumwill be based upon the individual’s “countable” income.However, at this time no premiums are being collected fromeligible applicants pending the implementation of an automatedpremium collection system.The application process is handled through the local Departmentof Social Services (DSS) by completing the general public assistanceapplication (form 2921). In addition the local DSS must conduct aface-to-face interview to ensure that the applicant meets the basicrequirements of age, disability, and work, as well as income andresource limits. To learn more, visit the New York State Departmentof Health website and search, “Medicaid Buy-In Program” (www.health.ny.gov).§ 6:4Elderly, Blind, or DisabledThe first eligibility requirements for Medicaid eligibility is for theapplicant to be either elderly, blind, or disabled.24.Certified disabled under the SSI rules. If the individual receiving “Buy-In”is no longer considered disabled under the SSI rules, but continues to havea “severe” medically determined impairment, then coverage will continueunder the “Medical Improvement Group” category (the individual mustbe employed at least forty hours a week and earn at least federal minimumwage).6–1438

Practising Law InstituteMedicaid for the Elderly, Blind, or Disabled§ 6:4.1§ 6:5.1ElderlyAn individual is considered elderly if they are sixty-five years of ageor older.25§ 6:4.2BlindTo be considered blind an individual must be determined “legallyblind” by the New York State Commission for the Blind.26§ 6:4.3DisabledThe standard used to establish disability for Medicaid eligibilitypurposes is the same as that used in determining disability forSupplemental Security Income (SSI) or Social Security Disability(SSD).27 Therefore, a disability is defined as a physical or mentalincapacity to perform any gainful employment, which is expected tolast at least one year.§ 6:5What Medicaid CoversThis section describes the types of services covered by Medicaid,including the “sub-programs” which exist within the MedicaidProgram. Once a Medicaid applicant is accepted into the programhe or she will find that there are many separate sub-programs whichhave their own rules, regulations, and eligibility requirements.§ 6:5.1Provider ServicesNew York State Medicaid covers the costs of a wide range ofprovider services for qualified b

A graduate of Rutgers Law School (Camden), Mr. Chu is admittedto the Bars of New York, New Jersey, and Washington, . Homestead [E][1][a] Vacant Homesteads [E][1][b] Vacant Non-Liquid Homesteads . § 6:9.4 Budgeting When One Spouse Is Residing in a Nursing Home [A] Snapshot of the Budget § 6:9.5 Budgeting When One Spouse Is Receiving MLTC .