Recent Developments in Connecticut Elder Law
| Pages | 161 |
| Publication year | 2021 |
84 CBJ 161. RECENT DEVELOPMENTS IN CONNECTICUT ELDER LAW
Volume 84, No. 2, Pg. 161
June 2010
The last year reflects a tension in policy and practice that has as its counterpoints a new emphasis on liberalization of home and community-based options for older adults, but also new constraints on eligibility standards and scope of coverage for public supports for long-term care.
From a policy standpoint, the state of Connecticut has through its Long-Term Care Plan endorsed the concept and practice of "re-balancing" the long-term care system to shift resources from institutional-based settings to services and supports in the community, and to establish a more meaningful choice in the array of available options. This is reflected in state investments in major programs of support including the Connecticut Home Care Program for Elders and the Connecticut Pharmaceutical Contract for the Elderly and Disabled (ConnPACE). It is also emblemized by the state's Money Follows the Person Demonstration project, through which enhanced federal Medicaid match funds are permitting individuals who have resided in nursing facilities for at least six months to return to independent living in the community with supportive services. Concurrent with these commitments, however, are amendments to both federal and state law that have made eligibility requirements for Medicaid more stringent.
Connecticut has historically made a range of investments in home and community-based long-term care. Notable among these is the Connecticut Home Care Program for Elders (CHCPE). Since 1987, Connecticut has elected to offer care management and home and community-based services (HCBS) to eligible older adults through a Federal 1915(c) Medicaid waiver (the Waiver). As a complement to this program, Connecticut has also appropriated General Fund revenues in support of serving older adults at slightly higher income and asset levels than are permitted under the Waiver. These two components make up the CHCPE. In 2010, the CHCPE has an active client population of over 14,000 individuals, more than 9,000 of whom receive services through the Waiver. The CHCPE serves a critical function in enabling older adults to remain independent in the community, consistent with their preference to do so and also achieving significant cost savings in preventing unnecessary institutionalization. Motivated by those same goals of consumer preference and cost savings, attention has in recent years also been directed to assessing residents of nursing facilities to identify individuals who have the desire and capability to return to independent living in the community.
A. Money Follows the Person
Connecticut's Money Follows the Person initiative, which represents a partnership with the federal government under which Medicaid match funds are used to assist individuals in transitioning from institutional settings back to community-based living, was implemented in December 2009.
Money Follows the Person has its origins in the federal Deficit Reduction Act (DRA).(fn1) Enacted in 2005, the DRA provided states with three new options for providing Medicaid-funded home and community-based care under the "New Freedom Initiative":
* the Money Follows the Person Demonstration (MFP), an initiative intended to assist individuals in transitioning back to the community from nursing facilities;
* an option through which states could forego "waivers" and instead offer home and community-based services to older adults and individuals with disabilities with income less than or equal to 150% of the Federal Poverty Level (FPL) under existing state plans; and
* Cash and Counseling, a "self-directed" option through which an individual is given a budget with which to purchase his or her preferred array of personal care services.
Each of the three options was considered by Connecticut policy-makers, and it was decided to pursue an MFP project. In 2006, the Connecticut legislature enacted P.A. 06-188, which authorized DSS to apply to the Centers for Medicare and Medicaid Services (CMS) to establish an MFP project for no more than 100 persons.(fn2) Excitingly, DSS subsequently submitted and received an MFP award that significantly exceeded the 100-person scope that was originally contemplated by the legislature. In the 2007 session the legislature therefore enacted Section 5 of P.A. 07-2, which increased from 100 to 700 the total number of individuals to be served.
Immediately following on the award notice, DSS convened and has since managed a progressive, multi-disciplinary work group that has coalesced representatives of the state departments, advocates and direct service providers in development of program protocol and strategies for implementation. In 2008, the legislature expanded maximum number of individuals permitted to be serviced by MFP to a maximum of 5,000.(fn3)
The MFP grant is intended to increase use of home and community-based services, eliminate barriers to flexible use of Medicaid dollars, and assure continued access to services once transition is complete. MFP provides an enhanced federal medical assistance percentage (FMAP) amount to assist individuals with costs of transition (e.g. security deposits, assistive technology). Connecticut's current FMAP is 50%; under MFP, the FMAP has been increased to 75%. It should be noted that MFP is not intended to be a long-term source of payment. Once participants have made the transition, they must be served, ongoing, through one of the existing home and community-based Medicaid "waivers" (e.g. the CHCPE, the Personal Care Assistant Waiver, the Acquired Brain Injury Waiver).
Reflecting an intent to assist individuals who have for some time, even years, been inappropriately institutionalized, MFP requires that applicants, who must be age 18 or older and must meet financial and functional eligibility requirements, have resided in a nursing facility for a minimum of six months. Those found eligible may access the full range of services that are currently offered through the Medicaid "waivers." To date, over 220 individuals have been transitioned to the community.
B. Medicare Cost-Sharing Programs
For those who meet financial eligibility criteria, the Medicare Savings Programs, which include the Qualified Medicare Beneficiary (QMB), Specified Low-Income Medicare Beneficiary (SLMB), and Additional Low-Income Medicare Beneficiaries (ALMB) initiatives, assist beneficiaries with coverage of out-of-pocket costs that are associated with Medicare Parts A and B. Further, enrollment in one of these programs automatically qualifies individuals for the federal Low-Income Subsidy (LIS) benefit under the federal Medicare D prescription drug program, and permits participants to change their Medicare D plan at any point in the calendar year. The LIS benefit helps to offset the out-of-pocket costs of participating in Medicare D, and the option to change drug plans can be of great help to an individual whose plan formulary is modified or becomes more restrictive from a cost-sharing standpoint by permitting him or her to select an alternative plan that is better suited to his or her needs.
In the 2009 session, the Connecticut legislature significantly liberalized the financial eligibility criteria for these programs.(fn4) Specifically, the law required the Department of Social Services to remove the asset limit and to increase income disregards such that income eligibility now mirrors eligibility standards for the Connecticut Pharmaceutical Assistance Contract to the Elderly and Disabled (ConnPACE). Further, effective January 1, 2010, estate recovery no longer applies to benefits paid under these programs.
Effective October 1, 2009, the following criteria apply:
Qualified Medicare Beneficiary (QMB)
For eligible individuals, QMB pays the following:
-Part A monthly premium (if applicable);
-Part B annual deductible and monthly premiums; and
-Part A deductible and coinsurance under Parts A and B.
To qualify in 2010, an individual must have monthly income of $1,778.91 or less and a couple must have income of $2,393.55 or less. There is no longer an asset limit.
Specified Low-Income Medicare Beneficiary (SLMB)
For eligible individuals, SLMB pays the Part B monthly premium.
To qualify in 2010, an individual must have monthly income of $1,959.51 or less, and a couple must have income of $2,636.55 or less. There is no longer an asset limit.
Additional Low-Income Beneficiaries (ALMB)
Based on availability of funds, ALMB pays the Part B monthly premium.
To qualify in 2010, an individual must have monthly income of $2,091.67 or less, and a couple must have income of $2,816.67 or less. There is no asset limit for ALMB.
Individuals must apply for coverage through a Medicare Savings Program at the applicable regional office of the Connecticut Department of Social Services (DSS).
C. Use of Special Needs Trusts
1. Medicaid
Historically, the Department of Social Services recognized in certain circumstances that it was permissible for older adults and individuals with disabilities to divert income and/or assets into a special needs trust without affecting their eligibility for Medicaid. A bulletin issued by the Centers for Medicare and Medicaid Services (CMS) dated May 12, 2008 stated, however, that transfers to (d)(4)(C) trusts by individuals age 65 and older might be subject to penalty for transfer of assets for less than fair market value. Initially, this caused concern that it would no longer be permissible for older adults to make such transfers without risking ineligibility. In response, the Connecticut Department of Social Services issued an Information Bulletin, No. 09-02, on...
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