FALLING BETWEEN THE CRACKS: NEEDING TOO LITTLE CARE

It almost goes without saying that people do not want to live in nursing homes. While nursing homes remain a vital facet for the care of the elderly and disabled – and will continue to serve an important role in the continuum of care – most people would prefer to reside in their own homes, if they were capable of doing so.

In fact, many would choose to forego care in its entirety if presented with the sole option of residing in a nursing home. Some can be cajoled or persuaded into obtaining such needed care by family or loved ones; yet, there are others, who have few close individuals left in their lives – the most forlorn of the needy – who simply do without care because of fear and the lack of a support system. For them, their home is all they have left, and they simply will not leave.

There are a number of Medicaid programs that share the costs of long term care provided in the community or the home; however, the existence of these programs is often unknown to those individuals in need of such care.

New Jersey has a dual system of Medicaid. We have programs of Medicaid for which your monthly income cannot exceed a certain level, called an income cap. Currently, the income cap is $1,590 per month. Other programs of Medicaid, called Medically Needy, allow an individual to qualify, even if they have monthly income in excess of $1,590. The problem is, the Medicaid programs that share the cost of care in assisted living residences and at home work off of the income cap system of Medicaid; therefore, a person can only qualify for those programs if they have no more than $1,590 per month in income.

What that means is, there are a number of individuals falling between the cracks of our system – individuals who could reside in the community but who do not have enough money to pay for the community-based care they require. For these individuals there are two choices: remain in the community and receive very little care, placing their health in jeopardy; or reside in a nursing home and qualify for the Medically Needy Medicaid program, which will pay for their nursing home care. While a nursing home may provide the care these individuals require, such care is in no way the least restrictive means of care these individuals could receive.

While an Elder Law attorney can do much for those individuals who would not initially qualify for Medicaid because they own assets with a greater value than Medicaid allows – the average Medicaid planning client may own $250,000 in assets or more, yet eventually qualify for Medicaid – there is very little that can be done about income.

The elderly are living on “fixed incomes.” Their income consists of Social Security and, perhaps, a pension. By law, a person’s Social Security income cannot be assigned to anyone else, and pensions can only be assigned through a Qualified Domestic Relations Order, or QDRO, which is most often entered in the context of a divorce proceeding.

The harshness of this reality means that an individual with $1,700 a month in income, consisting of social security and pension income, would fail to qualify for community- and home-based Medicaid programs, yet an individual with $1,500 a month in income would qualify. The former individual, like the latter, may not be able to afford the community-based care he requires, yet unlike the latter individual, he would not have the benefits of the Medicaid programs. The law then leaves this person no choice other than residing in a nursing home.

This is a real problem with no easy solution. As I discussed in a prior article, the Supreme Court of the United States has addressed this issue in its Olmstead decision. In the Olmstead case, the Court indicated that States should develop programs of assistance that place the frail and disabled into the least restrictive settings possible, bearing in mind budgetary constraints. But the Court’s decision is by no means a solution, because the debate has always been over budgetary constraints. Without those constraints, perhaps the States would place every individual in the optimal setting; with the constraints, are system stands as is, at least for now.

Last week, President Bush issued an Executive Order directing States to begin implementing the Olmstead decision. The choices regarding Medicaid options for community- and home-based care will, undoubtedly, be changing in the future – hopefully, for the better.