In response to advocacy by the NYS Bar Association Elder Law Section, on November 3, 2014 the NYS Dept. of Health issued yet another directive on the new Spousal Impoverishment protections as they apply to married persons enrolled in Managed Long Term Care programs.
GIS 14 MA/025 - Spousal Impoverishment Budgeting with Post-Eligibility Rules Under the Affordable Care Act (PDF), dated Nov. 3, 2014, rescinds an earlier NYS DOH GIS 14 MA/015, issued August 5, 2014, and reinstates two even earlier directives. Pending further clarification from the federal CMS, "districts are to resume applying the policy provided in GIS 12 MA/013 and NYS DOH GIS 13 MA/018,. . .These GIS messages provide for spousal impoverishment budgeting with post-eligibility rules only when it is more advantageous to the applicant."
The effect of reinstating these earlier GIS messages is to allow married MLTC participants to continue using pooled trusts (or individual supplemental needs trusts) if it is more advantageous than using spousal impoverishment protections.
This change is made pending further clarification of CMS, so is not the last word. It is a reprieve, however, for many Suffolk County residents who were already rebudgeted with large spend-downs after the County banned them from using pooled trusts. Read more here.
For those who DO want the spousal impoverishment protections - unfortunately, the initial Medicaid budget will not include them. You have to apply first using regular community budgeting - which may have a large spend-down. Using spousal refusal may help reduce the spend-down, but not if the APPLICANT SPOUSE's income is high. But - as soon as client is enrolled in an MLTC plan, you can ask the local Medicaid program to revise the budget with the spousal impoverishment protections - used in "Post-Eligibility Budgeting." In many cases this will reduce or even eliminate the spenddown because the APPLICANT SPOUSE's income can be allocated to the community spouse's income, to bring the community spouse's income up to $2,931/month.