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Is Spousal Refusal in Jeopardy Again in New York?


Government, at both the Federal and State level, is telling its constituents that they are instituting programs to allow the aged and infirm to stay in their homes and receive care. Yet, currently in NYS, eligibility requirements for a couple to receive Community Medicaid are: Resources no greater than $20,850, and available income limited to $1,159.00 per month. It is fiscally impossible for a couple to meet day-to-day living expenses under these limitations, i.e. food, utilities, property taxes, insurance, etc. These desperate circumstances are likely to produce desperate reactions.

  1. Elimination of Spousal Refusal Will Encourage Separation and Divorce: The inability to meet living expenses will have the effect of terminating married relationships in order to avoid the loss of their home and total impoverishment of the well spouse. It will also remove an important care-giver from the home.
  2. Elimination of Spousal Refusal Will Force the Elderly to Enter Nursing Homes: In order to maintain some dignity, and ability to cope financially, the ill spouse will end up in a staying at homenursing home so that the well spouse may retain the more reasonable resource and income levels allowed under the spousal impoverishment protections for nursing home Medicaid.
  3. Elimination of Spousal Refusal Would Violate Federal Law: Implementation of this legislation now would violate the “Maintenance of Effort” requirements of the Affordable Care Act.
  4. The Potential For Abuse Of Spousal Refusal Can Be Remedied Using Existing Laws: Just as is accomplished in nursing home based Medicaid, the State has the ability to bring support and contribution proceedings against refusing spouses who have sufficient resources and income to pay toward the ill-spouses care. This approach protects the truly needy and provides flexibility, while requiring contribution from those able to pay; however, it does not rend the marital relationship asunder.
  5. The 2012-2013 New York State Executive Budget would apply the elimination of Spousal Refusal retroactively to April 1, 2011. This appears to be a constitutionally suspect re-appropriation to recoup the value of previously authorized Medicaid services. The State appears to be transforming Medicaid services properly received into Medicaid services improperly received to allow recovery from an ill spouse, even if such spouse is no longer a Medicaid recipient. Such recoveries would be unfair to persons who made decisions based on current law.

For community based Medicaid, current law provides that the income and resources of a non-applying spouse are not considered available if the spouse refuses to contribute to the medical expenses of the Medicaid recipient even if living in the household. However, under current law where there is such a refusal, there is an implied contract to pay for care and the Medicaid agency has the right to commence proceedings against the refusing spouse for income support and a resource contribution from the refusing spouse. Therefore current law provides an adequate remedy to the Medicaid agency to sue the refusing spouse and provides for case by case analysis and local agency flexibility.

Every effort must be made to let the Governor and the NYS legislature know that Spousal Refusal is an essential right that must be given to community spouses so they can properly take care of their spouse at home.

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