§ 7.3 Medicaid for Long-term Care

• Library: Elder Law (OSBar) (2017 Ed.)

§ 7.3 MEDICAID FOR LONG-TERM CARE

§ 7.3-1 Introduction

§ 7.3-1(a) Generally

Medicaid is a joint federal-state program created to help people with limited income and resources obtain better access to health care. This chapter discusses Medicaid coverage that results from a client's being eligible for long-term care services, which is referred to in the Oregon Administrative Rules as the "OSIPM" program. (OSIPM is the acronym for the Oregon Supplemental Income Program Medical. See OAR 461-101-0010(16).) This chapter does not discuss the "Medicaid expansion" provisions of the Affordable Care Act, which provide health insurance to low-income individuals who are not covered by Medicare. This is commonly referred to as "MAGI Medicaid" because eligibility is based on the modified adjusted gross income of the applicant, not the complex asset and income rules discussed in this chapter. See Nat'l Council on Aging, Transitioning to Medicare from MAGI Medicaid through the Marketplace, available at < www.ncoa.org/wp-content/uploads/MAGI-Medicaid-to-Medicare-FAQ.pdf >. Unlike Medicare or Social Security, people seeking long-term care coverage through Medicaid (see 42 USC §§ 1396-1396w-5) must satisfy an "income test" and a "resource test." See § 7.3-3 to § 7.3-3(b)(4) (income, resources, and exclusions). An applicant who fails to meet these tests will not qualify for Medicaid benefits to help cover the cost of paying for long-term care, but may be eligible for health coverage under the MAGI Medicaid rules. All references to Medicaid throughout this chapter refer only to the OSIPM program.

To qualify for Medicaid benefits, a person must be in a defined group. A person whose income and resources are within Medicaid-qualifying limits may be eligible for Medicaid if the person is:

(1) Age 65 or older;

(2) Disabled according to the Social Security definition of disability (see 42 USC § 423(d)(1)(A));

(3) Blind;

(4) Institutionalized in a hospital or nursing facility; or

(5) Receiving Supplemental Security Income (SSI) (see § 4.5-1 to § 4.5-2, § 4.5-5(a) to § 4.5-5(e)).

See OAR 461-135-0750.

In Oregon, a person is eligible for Medicaid benefits if he or she is aged, blind, or disabled; is institutionalized in a hospital or nursing facility; is below the Medicaid resource limits; and has a gross income of no more than 300 percent of the SSI standard. OAR 461-135-0750. The income cap is $2,199 per month for 2016, which is three times the SSI benefit standard ($733 per month). See < www.osbar.org/sections/elder/ElderLaw.html >. Oregon has a waiver from the federal Department of Health and Human Services to provide benefits to persons who would be eligible for Medicaid if they were institutionalized but are receiving long-term care services at home or in a community-based care facility, such as an adult foster home. Oregon also allows the use of an "income cap trust" to provide coverage to individuals whose income exceeds the income cap. See OAR 461-145-0540(10)(c).

§ 7.3-1(b) Controlling Law

Grants to states for medical-assistance programs are governed under 42 USC chapter 7. Most of the rules governing the Oregon Medicaid program are scattered throughout OAR chapter 461. These rules are searchable by key word or by number online at < www.dhs.state.or.us/policy/selfsufficiency/ar_search.htm >. The Seniors and People with Disabilities Division (SPD), under the Department of Human Services (DHS), administers the Medicaid program in Oregon for long-term care. See < www.oregon.gov/DHS/seniors-disabilities/Pages/index.aspx >.

PRACTICE TIP: The interpretation and application of specific Oregon Administrative Rules (OARs) pertaining to Medicaid may vary from county to county, and may even differ between branches in a single county. If a caseworker interprets a particular OAR in a way that is disadvantageous to a client, the lawyer should seek to discuss the matter informally. The lawyer should ask the caseworker to cite specific OARs supporting his or her interpretation, and present OARs that support a more favorable interpretation. If the caseworker cannot be persuaded to reinterpret an OAR, the lawyer should discuss with the client whether to proceed to an administrative hearing.

§ 7.3-1(c) Terminology

Oregon DHS has a web page entitled "Acronyms and Terms Commonly Used in DHS," which is accessible at < www.dhs.state.or.us/policy/selfsufficiency >.

The following terms appear in the OARs pertaining to Medicaid:

(1) Long-term care. OAR 461-001-0000(40) defines this term as "the system through which [DHS] provides a broad range of social and health services to eligible adults who are aged, blind, or have disabilities for extended periods of time. This includes nursing homes and state hospitals (Eastern Oregon and Oregon State Hospitals)."

(2) Community-based care. OAR 461-001-0000(16) provides that this term includes any of the following:

(a) Adult foster care—Room and board and 24 hour care and services for the elderly or for people with disabilities 18 years of age or older. The care is contracted to be provided in a home for five or fewer clients.

(b) Assisted living facility—A program approach, within a physical structure, which provides or coordinates a range of services, available on a 24-hour basis, for support of resident independence in a residential setting.

(c) In-home Services—Individuals living in their home receiving services determined necessary by the [DHS].

(d) Residential care facility—A facility that provides residential care in one or more buildings on contiguous property for six or more individuals who have physical disabilities or are socially dependent.

(e) Specialized living facility—Identifiable services designed to meet the needs of individuals in specific target groups which exist as the result of a problem, condition, or dysfunction resulting from a physical disability or a behavioral disorder and require more than basic services of other established programs.

(f) Independent choices—In-Home Services program wherein the participant is given cash benefits to purchase self-directed personal assistance services or goods and services provided pursuant to a written service plan (see OAR 411-030-0020).

(3) Home and community-based care. OAR 461-001-0030(4) defines this term as "Title XIX services needed to keep an individual out of a long-term care facility." The rule goes on to provide that "[t]hese services are":

(a) In-home services except for state plan personal care services.

(b) Residential care facility services.

(c) Assisted living facility services.

(d) Adult foster care services.

(e) Home adaptations to accommodate a client's physical condition.

(f) Home-delivered meals provided in conjunction with in-home services.

(g) Specialized living facility services.

(h) Adult day care services.

(i) Community transition services.

(4) Nonstandard living arrangement. OAR 461-001-0000(45) defines this term (in part) as follows:

(a) In the GA, OSIP, OSIPM, and QMB programs, an individual is considered to be in a "nonstandard living arrangement" when the individual is applying for or receiving services in any of the following locations:
(A) A nursing facility in which the individual receives long-term care services paid with Medicaid funding, except this subsection does not apply to a Medicare client in a skilled-stay nursing facility.

(B) An intermediate care facility for the mentally retarded (ICF/MR).

(C) A psychiatric institution, if the individual is not yet 21 years of age or has reached the age of 65.

(D) A community based care (see section (16) of this rule) setting, except a State Plan Personal Care (SPPC) setting is not considered a "nonstandard living arrangement".

(5) Standard living arrangement. OAR 461-001-0000(64) defines this term as "a location that does not qualify as a nonstandard living arrangement."

(6) Community spouse. OAR 461-001-0030(1) defines this term as "[a]n individual who is legally married (see OAR 461-001-0000) to an institutionalized spouse and is not in a medical institution or nursing facility."

(7) Institutionalized spouse. OAR 461-001-0030(6) defines this term as "[a]n individual who is in long-term care or receiving home and community-based care for a continuous period and is married to a community spouse."

(8) Continuous period. OAR 461-001-0030(2) defines this term as follows:

Reside for a period of at least 30 consecutive days or until death in a long term care facility, home and community-based care setting, or an acute care hospital. There must be sufficient evidence to show there is a reasonable expectation that the client will remain in care for at least 30 consecutive days. For the purposes of this policy, an interruption in care (for example, leaving and then returning to a nursing home, or switching from one type of care to another) that lasts less than 30 days is not considered a break in the 30 consecutive days of care. A new period of care begins if care is interrupted for 30 or more days.

PRACTICE TIP: The OARs regulating DHS are filled with program acronyms. See OAR 461-101-0010 for a list of programs represented by many of these acronyms. When looking for the subsection of an OAR that applies to Medicaid, look for the acronyms OSIP (Oregon Supplemental Income Program) and OSIPM (Oregon Supplemental Income Program Medical).

§ 7.3-1(d) Medicaid Coverage

If a person is eligible for Medicaid, the following long-term care services may be covered:

(1) In-home care can be anything from occasional help around the house to around-the-clock live-in help. Each individual's benefit is based on an assessment of need, and coverage for approved in-home care varies. Medicaid funds are generally insufficient when a person needs 24-hour care by nonfamily members. For this reason, Medicaid benefits for in-home care are more effective when there is a live-in caregiver child or a healthy caregiver spouse.

(2) Adult day services provide respite care for several hours per day at a...