Home and Community Based Services (HCBS) – also known as Medi-Cal Waiver programs — provide services and supports to allow Medi-Cal beneficiaries who would otherwise require nursing home care to stay at home. A person must, therefore, first qualify for community based Medi-Cal before Medi-Cal will pay for HCBS programs.

Community Based Medi-Cal is a needs based program that pays for physician visits, hospital care, prescription drugs, and in home care services (e.g., In Home Support Services). Medi-Cal (California’s version of Medicaid) should not be confused with Medicare, an entitlement program that people pay into through their employment earnings.

For reasons discussed below, for some married persons applying for community based Medi-Cal to pay for an HCBS program can sometimes cause them to become eligible for community based Medi-Cal and In-Home Support Services (“IHSS”) when they otherwise would not.

Many California residents did not receive HCBS programs because they did not qualify for Medi-Cal: They had too much countable income and/or owned too many nonexempt assets.

Consequently, many elderly persons were forced into residential skilled nursing facilities where Spousal Impoverishment protections then applied that made them eligible for long term skilled nursing home Medi-Cal.
Spousal Impoverishment protections permit the Stay at Home Spouse of an Institutionalized Spouse (i.e., the “Community Spouse”) both to retain $120,900 (2017) in nonexempt assets (i.e., the Community Spouse Resource Allowance) and to keep $3,023 in monthly income (i.e., the Minimum Maintenance Needs Allowance”). The Spousal Impoverishment protections are to allow the Community Spouse to continue to live at home.

Until more recently, Spousal Impoverishment protections only applied to long term care Medi-Cal applications. Spousal Impoverishment protections did not previously apply to any type of community based Medi-Cal application because Spousal Impoverishment protections typically only applied when an Institutionalized Spouse at a skilled nursing facility is requesting Medi-Cal payments.

In 2014, however, the federal Affordable Care Act redefined the term Institutionalized Spouse to include persons who receive HCBS Medicaid (CA Medi-Cal) programs at home. Accordingly, married persons applying for Medi-Cal to pay for HCBS (Medi-Cal waiver) programs became Institutionalized Spouse. As such they could apply Spousal Impoverishment protections when applying for community based Medi-Cal eligibility — so long as their spouse was not institutionalized or on Medicaid (CA Medi-Cal).

Until 2017, however, the California Department of Health Care Services (“DHCS”) did not apply the expanded Spousal Impoverishment rules to Medi Cal applications requesting payment for an HCBS program. This changed after a lawsuit, and on July 19, 2017, DHCS released its “All County Welfare Directors Letter” (“ACWD”) # 17-25. ACWD #17-25 implements the expanded Spousal Impoverishment rules in California.

A California resident who requests Medi-Cal to pay for an HCBS program must be determined to be eligible for Medi-Cal under any one of the community based Medi-Cal coverage groups for persons: First, Medi-Cal pursuant to the Affordable Care Act (aka, “MAGI Medi-Cal”) for persons under age sixty-five; Second, Aged, Blind and Disabled Federal Poverty Level Medical (“ABD FLP Medi-Cal”); Third, the 250 Percent Working Disabled Program (“WD Program”); and Fourth, the Medically Needy (“MN Medi-Cal”).

Spousal Impoverishment protections apply to the community based Medi-Cal application as soon as the applicant meets the criteria for the HCBS (Medi-Cal Waiver) program and is otherwise eligible.

At a minimum, eligibility for any HCBS program requires an applicant to need nursing facility level of care for at least 30 consecutive days in the absence of the HCBS services and support. Determining eligibility for an HCBS (Medi-Cal waiver) program involves either a completed “Doctor’s Verification Form” or a “Needs Assessment” form (completed by a HCBS’s Waiver Administrator or Coordinator).

Once an HCBS program applicant is approved the HCBS applicant also becomes eligible for community based Medi-Cal services. This is true even if the applicant is placed on a waiting list for the HCBS program. Thus, if you are married — and would like to receive community based Medi-Cal, and perhaps IHSS too – then perhaps requesting Medi-Cal to pay for an HCBS (Medi-Cal waiver) program on your Medi-Cal application might also qualify you to receive community based Medi-Cal, now that you get to apply the expanded Spousal Impoverishment protections discussed above.

ACWD Letter #17-25: www.dhcs.ca.gov/services/medi-cal/eligibility/Pages/2017ACWDLs.aspx

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