By David R. Okrent // Managing Attorney
and George L. Roach // Legal Aid Society of Suffolk County

Gubernatorial Candidate and Nassau County Executive Thomas Suozzi scored a bit of press when announcing that the county successfully sued persons who had assets over a million dollars, but used “spousal refusal” so that their spouse would qualify for Medicaid to avoid nursing home costs that can exceed $10,000 per month on Long Island. While the County is proper to seek funds from those that can clearly afford nursing home care, the County Executive and Governor Pataki, who recently has directed that spousal refusal should be eliminated over the legislature’s objection, are misguided about the realities of Medicaid and the predicament many area seniors face when caring for loved ones.

Consider the following scenario:

It’s Sunday morning. Grandma and Grandpa wake up to start their day. At 84, Grandpa struggles to get out of bed, falling to the floor from a multitude of health related problems. Though Grandma is also 84, she is in a touch better health as she goes to help him up. As she approaches her husband, he calls out to her by their daughter’s name. Due to his diminished capacity, he is no longer able to recognize his wife of 50 years. Grandpa is afraid and demands his wife not touch him, and when she attempts to help him up, he starts to battle her. She eventually is able to get him back in bed. Once again, he rests comfortably, and in a few minutes he will not remember the event at all.

Having over exerted herself for her husband’s sake, Grandma sits in the big easy chair next to their bed. She begins to have chest pains and reaches for her heart medication to help stabilize her. After a few minutes when she realizes that the pain has not receded, she reaches out to her daughter who lives nearby. Her daughter has three children of her own and a husband that works two jobs. Her daughter immediately calls for an ambulance for her. When the ambulance arrives it takes both Grandma and Grandpa to the hospital.

A few days later, Grandma is ready to be discharged, but the doctors refuse to release Grandpa to her care. It is the hospital’s doctors opinion that her husband will need 24 hour custodial care and the doctors do not believe Grandma is capable of providing such care. They determine that it would be an unsafe discharge. When Grandma is informed of their decision, she starts to panic. She worries, “How will I afford his care, pay my bills, keep my house, and have enough for my own care should I need it?” So great is the strain that Grandma has a setback and has to remain in the hospital while the doctors fill her with anti-depressants in an effort to help her stabilize. The hospital’s social worker quickly recommends that their daughter seek out the help of a qualified elder law attorney.

Upon meeting with the attorney, the daughter learns about the Medicaid program with its benefits and detriments. At that meeting she learns the following:

To qualify, an institutionalized Medicaid recipient may retain only $4,150 in available assets and $50/month in income. If the recipient’s spouse lives at home, he or she may retain between $74,820 and $99,540 plus the family home and car, which are exempt assets in computing Medicaid eligibility. This person is referred to as the “community spouse” and may retain $2,489/month in income. For home care services such as personal care attendants, home health aides and certain day programs, the couple’s income and resources are counted jointly. A couple may not retain more than $5,400 in resources (excluding the family home and car) and only $900/month in income to be expended on items other than medical needs.

In 1998 a law was passed that authorized a community spouse to refuse to have his or her assets used in the computation of the institutionalized spouse’s Medicaid eligibility. Known as “spousal refusal,” this legal option helps to prevent husbands and wives from becoming impoverished when their loved ones are faced with such need. It is recognized in the 1998 law that the exemptions provided in the Medicaid computations may be wholly insufficient for a spouse to maintain themselves. The law now permits couples to access the Medicaid program and later resolve how much the spouse living at home needs to maintain his or her existence without becoming a charge on the state. In the event a mutual amount cannot be agreed upon, the court system can resolve it.

Spousal refusal was enacted after full congressional hearings determined that to force healthy community spouses to impoverish themselves resulted in an increased drain on the public. Spousal refusal is a right existing under explicit federal law. The vast majority of the elderly who do file for Medicaid under spousal refusal have provided extensive care for their spouse at home. It is as a last resort that the assistance is sought. If spousal refusal were to be eliminated, the only avenue left to healthy spouses would be to divorce. Spousal refusal allows the healthy elderly spouse to maintain assets to generate income for his or her own living expenses and future long term care needs. Proposals to eliminate spousal refusal will hurt the frail elderly of modest means who may be unable to remain in the family home.

On Long Island, it is very hard for anyone to live on the exemptions. Spousal refusal gives the government and the spouse the ability to agree on a proper amount of assets and income the spouse can keep, while reimbursing the program as to the excess.

The Governor’s proposed budget eliminated this program altogether, except in extreme hardship cases, and made further changes to community Medicaid resulting in greater institutionalization of individuals. Despite both the State Senate and Assembly’s rejection of the Governor’s position, and override of his line item vetoes of the program, the Governor is directing the Department of Social Services go forward with implementation necessary to disallow spousal refusal claims.

From a public policy perspective we owe these citizens a debt of gratitude for their myriad contributions and sacrifices. The question Mr. Suozzi and the Governor should be asking is “WHY is the cost of long term care so expensive?” “Why does it average $450.00 per day?” For a year that’s $164,250. At those rates, only millionaires will be able to afford nursing home care.

No one yearns to be on a program like Medicaid. Seniors engage in Medicaid planning mainly because they find themselves in a corner. When they lose their health and need long-term care, they come face to face with these nursing home costs. They learn that they will have to lose virtually their entire estate to pay for long-term care, paying 100% out-of-pocket until they reach Medicaid definition of impoverishment. Congress created a partial remedy to this harsh result under Medicaid by allowing people to protect part of their estate if they are willing to pay the penalty of non-eligibility for a period of time.

Many of those using “spousal refusal” are those who fought in World War II, the Korean conflict and the war in Vietnam – Tom Brokaw called them “The Greatest Generation” for a reason. They are the people who built this country and made it great. They paid their ‘dues’ and their taxes on time. Now, in their golden years, and through no fault of their own, one of them has succumbed to the vagaries of simply living too long and now requires long term care in a nursing home. As an aging society, we need a viable, rational, affordable long term care policy from our elected officials. Not piecemeal lawsuits designed to gain media attention in a run for Governor. Not unilateral action that supersedes the legislature’s wishes.