national disability rights network - p&a - cap | ndrn€¦  · web viewthat is where the katie...

TASC is sponsored by the Administration on Developmental Disabilities (ADD), the

Center for Mental Health Services (CMHS), the Rehabilitation Services Administration (RSA), the

Social Security Administration (SSA), and the Health Resources Services Administration (HRSA). TASC is a division of the National

Disability Rights Network (NDRN).

TRANSCRIPT OF MEDICAID 101 WEBCAST

Medicaid Administration and Eligibility Part 1 of 5 Part Series: originally broadcast on September 27, 2006

Speakers: Jane Perkins, Staff Attorney, National Health Law ProgramElizabeth Priaulx, Senior Disability Legal Specialist, National Disability Rights NetworkSarah Somers, Staff Attorney, National Health Law Program

Elizabeth Priaulx (National Disability Rights Network): Hello and thank you for joining us on the Medicaid 101 administrative and eligibility portion of a five part Medicaid web cast series. Our presenters are Elizabeth Priaulx from the National Disability Rights Network and Jane Perkins and Sarah Somers, attorneys at the National Health Law Program.

Before I begin, I want to thank the federal partners who were able to make this web cast possible1. First, take a look at these pictures of the presenters, now you can envision the speakers as you listen. The first speaker is going to be Sarah Somers, an attorney with the National Health Law Program, who’s going to be talking about some general Medicaid data and why it’s so important to understand this program for people with disabilities. Then Elizabeth Priaulx will be discussing Medicaid administration and how services are provided through the states generally. Then both Jane and Sarah are going to be talking about Medicaid eligibility, which is the topic of this particular conference call, and then at the very end, I will give you information about the future web casts in this series. Medicaid is a huge topic and so we’ve had to break it down by eligibility first and then services for adults second, services for kids third, Medicaid waiver services, followed by Medicaid enforcement issues.

Sarah Somers (attorney with NHeLP): Good afternoon and morning to some of you. This is Sarah Somers from the National Health Law Program. As Elizabeth mentioned we have a contract with NDRN to provide technical assistance in Medicaid and court access and disability rights issues. Jane Perkins and I 1 In additiona to the TASC grant, I also want to thank the Substance Abuse and Mental Health Services Administration for their support for this project under the initiative to support states in promoting community based care through state Olmstead coordinators.

located in Chapel Hill and helps main offices in Los Angeles and we also have a Washington D.C. office. I. MEDICAID DATA

I assume that because you are on the Medicaid 101 training call that you’re probably aware that Medicaid is pretty complicated. Judges have torn out their hair over this statute for decades, describing it as an aggravated assault on the English language. So we are going to spend the next five sessions trying to shed a little light into this thicket of statutory language. Now it’s important to remember what a crucial linchpin of the healthcare system Medicaid really is. For Americans who have family incomes below the federal poverty limit, Medicaid covers about 40% of those people. Those people’s employers cover maybe another 15% and then there are other sources that cover negligible proportion of these people who are under the poverty level.

Now when you look at how may people are covered by Medicaid, you see that less than half of them are covered by Medicaid and you could look at this two ways. First of all it’s important to keep in mind that just because people have a low income, doesn’t mean they qualify for Medicaid. Many people who are indisputably poor don’t qualify. On the other hand, if Medicaid were no longer to exist or were to be severely curtailed then 40% of those people below the poverty level would have no insurance. Medicaid also, as those of you know who have been working with people with disabilities, it is absolutely essential insurance for people with disabilities. It covers about one in five people with disabilities who are under the age of 65. Medicaid has really been asked to shoulder a burden that private insurance has shrugged off and the federal government hasn’t chosen to take up.

Medicaid really is a place of last resort for a lot of people who have preexisting conditions or who have maxed out on their insurance coverage. Medicaid pays for ¾ of people who are living in nursing homes and is crucial for children and adolescents. About one third of all births are financed by Medicaid. Over 22 million children, as many as one in five, are covered by Medicaid. About a third of all pediatrician visits are covered by Medicaid. And children are relatively the less expensive part of the Medicaid population to cover. About half of Medicaid enrollees are children, but that’s only about 18% of Medicaid costs.

II. MEDICAID ADMINISTRATION

Elizabeth Priaulx (NDRN): Thank you Sarah. Now I’m going to talk in general about how Medicaid is administered. Medicaid is a publically financed program and its goal is to provide healthcare to certain groups of low income people in the United States and when I say, certain groups, that’s going to be the topic of part one of this web cast. Eligibility is particularly important in 2006 because it is the subject of many of the cost cutting options that states are now permitted under the recent deficit reduction act of 2005 which gave states greater flexibility in

2

administering their Medicaid programs and eligibility is one of those areas where we expect significant changes.

A. Authorizing Statute

Medicaid is authored under title 19 of the Social Security Act. The Medicaid statute and regulations are at 42 U.S.C. 1396 and 42 C.F.R 400. I encourage you to read the eligibility sections. This training is going to seem very abstract unless you can look at the specific section and compare it to the our Webcast discussion of that specific section.

B. Financing Structure

So now we’ll go on to the financing structure. Medicaid is jointly funded by states and the federal government. And what that means is that states receive matching funds from the federal government to pay for Medicaid coverage. Most states have statutes requiring them to provide for the health and safety of their citizens and Medicaid allows states to do this at a lower cost because of the federal match. It’s all voluntary, but currently all states participate. The matching rate is called FMAP, Federal Medical Assistance Percentage, and that’s likely to be a term that you’ll hear regularly, so remember FMAP. FMAP is based on the state per capita income and ranges from 50% to 83%. In general, the poorer states get the highest match. Medicaid is a good deal for states and like I said, states would probably have to provide these services under state law, Medicaid helps with this obligation by giving states matching funds for the health services states do provide.

C. Federal Requirements When States Accept Matching Funds

On the other hand, the matching funds do not come without obligations attached. Any state that participate in Medicaid and therefore gets federal matching funds, must agree to certain requirements.

First, States have to have to provide services to certain categories of low income individuals (eligibility - the subject of this call). States have to provide certain mandatory services and assurances that services will be provided, as well as certain appeal rates and other due process protections. The actual services that must be provided to each category of Medicaid beneficiaries will be the subject of Part 2 of this series.

Second, States must have a single agency responsible for administrating the program and must develop a Medicaid state plan that describes specifically what services will be offered by the state and this plan must be reviewed and approved by the Center for Medicare and Medicaid Services within HHS. The Center for Medicare and Medicaid Services is known as CMS. CMS wants to assure that the states are meeting federal the obligations in exchange for the matching funds. The way they check on compliance is to review a copy of the

3

“State’s plan for providing medical assistance”.

One other reason that is important to note that currently all states are voluntarily participating in Medicaid is that in recent years some states have considered not participating in the Medical program. These states would lose the federal match, however, states think that meeting all the requirements of Medicaid is too onerous and expensive – that if they designed their own health care program they could spend so much less that it would not matter that they were not receiving the federal match. So far, no states have actually left the Medicaid program.

Except for some specific federal requirements, states do have broad flexibility of what to cover. The states have a range of optional services that they can chose from and that’s going to be the discussion of part two. For example, States can provide waiver services to cover services not covered in the state plan or beyond the limits allowed in their state plan and that provides them great flexibility. Waivers also allow them to control cost, which is something that will be discussed further in part four and states can set limits on services and provider pay - as long they are providing certain due process protections and some assurances of quality. States flexibility is going to be discussed more in both parts two and three of this series.

The overall purpose of Medicaid is to allow the states to furnish rehabilitation and other services to help families or individuals attain or retain the capacity for independence and self care. Medicaid is an entitlement program. In other words, If a state agrees to provide a particular service in its “state plan for medical assistance”, than the state must provide that service to all individuals wishing to make an application for medical assistance and that such assistance should be furnished with reasonable promptness.” So for attorneys out there, this is the provision that really gives you some legs to stand on when you are arguing as to why an individual should have received the Medicaid that he or she applied for.

That concludes the portion of the webcast on “Medicaid Administration”, now Jane and Sarah are going to talk more about “eligibility”.

III. MEDICAID CATEGORIES OF ELIGIBILITY

Jane Perkins (NHeLP): Hi. This is Jane Perkins. The eligibility rules are probably the most complicated part of Medicaid. I know there are both lawyers and non lawyers on the call today. For the lawyers on the call what I would say is just analogize the eligibility to when you took Criminal Law in school and you learned that you had to meet the elements of the crime – it is only if you meet al elements that a person can be found guilty. For non-lawyers, what I would say is just suspend every bit of logic that you’ve ever gone through life with, and just go ahead and plug in clients who come into your office to see if they might fit within

4

the eligibility options I am about to mention.

A. The 4 Doors of Eligibility

As you heard from Elizabeth, the eligibility rules give the states some flexibility as to which categories of persons must be covered and within these categories, which services they can get. With each person that you encounter, ask four questions, the four doors to eligibility, an individual must be able to walk through all four doors if they’re going to get Medicaid.

“is the person financially eligible?” “does the person fit within a category?” That is, are they among the

worthy poor. “is the person a citizen or in an acceptable immigration status?” And “is the person a resident of the state where they’re applying?”

Again, you have to be able to answer yes to all four questions to get Medicaid and it’s those four questions that we are going to be talking about today. When we go through the categorical eligibility, that is the question of whether or not you fit within a category, please don’t try to write down all the one, two, three, four, and fives steps to qualify for each category - Those rules are written down. NHeLP has “An Advocate’s Guide to The Medicaid Program” that includes the steps within its category along with supporting documentation. All of the P&A offices should have copies of this guide. We are updating it now to include recent changes from the Deficit Reduction Act and we’ll be circulating that around. I think it’s important at this point, given the time we have available, just to listen and get a sense of how this categorical eligibility works and to begin thinking categorically when you think about Medicaid eligibility.

B. Three broad eligibility categories

mandatory categorically needy. These are the groups that Congress has deemed to be the poorest of the poor who are the most worthy and states have to cover them.

optional categorically needy. These are people who are equally poor, but for some reason states are not required to cover them. They are given the option to cover them. And

medically needy. These are people who have a disability, but their income is slightly higher than categorically needy people.

Within all three of those categories they’re really two divisions or two pipelines wherein people will be funneled into the program. The first is families with children. The second is people who are aged, blind, or disabled. So let’s look a little bit at some of the Medicaid categorical eligibility mandatory categories and you can see them listed on the slide there in front of you and in fact we have a couple of slides that talk about this.

5

6

1. Mandatory Categorically Needy

There are 30 mandatory categorical eligibility groups that each state must cover and this first slide is looking at the families with children funnel so that you see that pregnant women and children under the age of 6 whose incomes are below 133% of the federal poverty level must be covered. Just to give you a sense of it, in terms of the federal poverty level for a family of four in the 48 states and the District of Columbia, that’s 20,000 dollars. If there’s any people listening from Alaska, it’s 25,000 dollars and if you’re in Hawaii 23,000 dollars. Children who are between the ages of 16 and 19 are eligible if their family income is at or below 100% of the federal poverty level. Newborn children of Medicaid eligible women are deemed to be eligible for Medicaid for one year so long as the mother remains eligible for Medicaid or would be eligible if she continued to be pregnant beyond nine months.

There is another mandatory categorically needy group called the section 1931 group. One of the things that can be confusing about Medicaid is that sometimes you hear people refer to the actual part of the United States code that is at issue and that will be the slide that Elizabeth showed earlier, which is the section 1396 provision. Medicaid is a part of the Social Security Act and you can also hear people, lawyers, policy makers, or even groups referred to….a population eligibility group referred to by the provision of the Social Security Act that made them eligible. And the section 1931 group is an example of that. To add to the confusion, we also call the 1931 group, the “fictional AFDC group”. Because in 1996 AFDC was abolished and prior to 1996 if you were eligible for AFDC, you were automatically eligible for Medicaid. So when AFDC was abolished, section 1931 was added – it says, if an individual will meet the income and resource eligibility thresholds that were in effect in the AFDC program as of July 16, 1996, then they are eligible for Medicaid today.

Some other categories of mandatory categorically needy are families and children, for example, transitional Medicaid category, to help families make the move from welfare to work without the very strong work disincentive of losing their Medicaid; and sort of an odds and ends category of what are called deemed AFDC recipients - These are people who get Medicaid because they are treated as though they were receiving AFDC, as of July 16, 1996.

The next big group of Medicaid categorical eligibility mandatory people are people who walk into Medicaid because the category that they fit into is being an aged, blind or, a disabled person. In most states if you receive SSI, supplemental security income, you automatically get Medicaid.

First, let’s look at how Medicaid eligibility through SSI applies to children. For children under the age of 18, it used to work that they would qualify for SSI based upon the impairment listings of the Social Security Administration. However, there was concern in Congress that children were faking their

7

disabilities. So they changed the rule to require children under 18 to show that their physical or mental disability resulted in marked and severe functional limitation that would end in death or last more than a year. And this has made it more difficult to qualify for SSI for children under the age of 18.

Next let’s look at SSI and Medicaid eligibility for individuals with alcoholism or drug addition. In 1996, SSI benefits were eliminated for individuals who were or had previously been eligible because of alcoholism or drug addiction. Because the SSI benefit was eliminated, so of course was the Medicaid eligibility that came with SSI eligibility.

While most states automatically tie Medicaid eligibility to the receipt of SSI, there’s a small group of states, 11 of them, and you know who you are, that are called 209B states and these are…Connecticut, Hawaii, Illinois, Indiana, Minnesota, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma, and Virginia. In 1972, three different programs were merged into one program, including: 1) people who were receiving old age assistance, 2) assistance for the blind, and 3) assistance for the disabled. These three programs were merged into one SSI program. Some states were worried that the new eligibility rules would make it difficult for them to participate, thus, 209B status was created - it allows states to apply more restrictive definitions of blindness or disability or to apply more restrictive financial eligibility criteria to people who are blind or disabled and those restricted definitions or eligibility criteria can be the ones that were in effect on July 1, 1972 when these three programs were merged into SSI. So those 209B states sort of sit out of here with a whole different set of rules and restrictions that are applied to people when they apply for SSI and for Medicaid rather on the basis of disability.

Other groups of mandatory eligible people you see listed here, disabled, widows, and widowers, “pickle people”, basically, these groups are people who are…or who were at some point…receiving SSDI and SSI. Yet, for some reason they lost their SSI, usually because of a cost of living adjustment. What these “other groups” I just mentioned do is allow you to ignore those costs of living increases so that you’re treating the person as though they were still receiving SSI and thus enabling them to continue to receive Medicaid. Again, the steps that the person has to meet are set forth in our advocate’s guide and you need to just match individuals up with them. The important thing is, if you have someone come in and they’re receiving SSDI and they’re not receiving SSI, that should send the alarm bells off to look and see if you have a widower, a qualified widow or widower, or a “pickle person” who might fall into a category that allows them to continue to receive Medicaid.

Another mandatory categorically needy group that I what to mention are, individuals who are qualified as working disabled people. This category is for qualified severely impaired individuals and qualified disabled and working individuals. I’m going to go ahead and just step through very quickly the qualified

8

severely impaired individual eligibility criteria so you can see how that program works. These are people who are earning enough income to make them lose SSI eligibility; yet loosing their Medicaid coverage would severely affect their ability to work. There are 4 criteria an individual must meet to be placed in this category: 1) they’re eligible and receive SSI and Medicaid; 2) they continue to be disabled; 3) except for their earnings, they would continue to be eligible for SSI and Medicaid; and 4) not receiving Medicaid would severely affect their ability to work. If an individual meets these 4 criteria and if you can also conclude that their earnings won’t make up for what they’re going to lose if they lose SSI and Medicaid, then they can qualify for Medicaid as a qualified severely impaired individual.

The final group of mandatory categorically eligible people, that we will discuss, are “dual eligibles” (some states call this group by different names, including: QMB, Qualified Medicare Beneficiaries; or just “qualified beneficiaries”) There are four or five mandatory groups of dual eligible people that - depending upon their income - will be entitled to have Medicaid pay for various parts of their Medicaid cost sharing. One example of a “dual eligible” or qualified Medicare beneficiary, is someone who is: 1) entitled to Medicare part A. That means that they’re either under 65 and have worked enough to qualify or they have kidney failure or they’re under 65 and they’ve received Social Security Disability for 24 months; 2) their income is at or below 100% of the federal poverty level; and 3) their resources, their bank accounts, property, things of that nature are at or below two times the SSI resource cut off. If a person meets these three requirements, then Medicaid will cover their Medicare part A and B cost sharing amounts, i.e. premiums, and co-payments.

2. Optional Categorically Needy Groups

The next couple of slides show some examples of the 28 possible Medicaid optional categorically needy groups. Again, states have a tremendous amount of flexibility here with 28 different groups from which to choose. The slides give examples of optional categorically needy that are women and children groups, caretaker and children groups, and then other examples on the next slide of people who are aged, blind, and disabled. On that first Medicaid categorical eligibility optional slide, you see pregnant women and infants or infants and pregnant women with income between 133 and 185% of the federal poverty level. Remember you’re mandatory if you’re an infant or a pregnant woman and your income is below 133%. Children over the age of 6 can really be covered without limit. There is no limit to what percentage of the federal poverty level a state can go in covering children up to age 19. You see children under state adoption assistance agreements, adolescents in foster care who have been in foster care and then at the age of 18 are going out of it and often women with breast or cervical cancer.

9

There is also a presumptive eligibility program that makes women, pregnant women, and children whom a healthcare provider looks at and concludes should or will probably be eligible for Medicaid, become presumptively eligible for Medicaid and receive Medicaid coverage while they’re going through the Medicaid eligibility process.

Another group to mention of optional categorically needy are noninstitutionalized children with disabilities. These are often called TEFRA children or Katie Beckett children. And I wanted to just mention a couple of things about these. First of all this is not a waiver. We often hear this group referred to as the Katie Beckett waiver. It isn’t a waiver. It is an optional state program that if the state exercises it, must be applied statewide and made available to any child who can meet the eligibility criteria for it.

The second thing to mention about Katie Beckett is that it is addressing problems that arise with Medicaid’s normal rules on what’s called “deeming”. A normal rule of the Medicaid program is that you deem income from parent to child and from spouse to spouse. Thus, when you apply for Medicaid, the income that the parent makes will be deemed to the child, unless the child is in an institution and then the parents’ income is no longer deemed to them. Obviously, what this creates is an incentive towards institutionalization. That is where the Katie Beckett option comes in, the state can “waive” or ignore deeming rules if a family and a child can show: 1) that the child has a disability; 2) the child is younger than 18 years old; and 3) the child is living at home; 4) the child requires an institutional level of care, but can be cared for appropriately at home and wants to be cared for at home; and 5) that the cost of home care is less than or equal to appropriate institutional care. Again, if these five criteria are met a child can use the “Katie Beckett option” and be eligible for Medicaid regardless of parents’ income.

Additional optional categorically needy groups – I will not discuss on this call are listed on the next slide – as you can see, this includes persons up to 300% of SSI; and working disabled individuals – covered under various “ticket to work” programs.

3. Optional Medically Needy Groups

The third major eligibility category is an optional group called the “medically needy”. 35 states have medically needy programs. 209B states have to have medically needy programs for the aged, blind, and disabled. What this program does is to allow the state to set what’s called a medically needy income level. It is an amount that is typically above your old AFDC levels. It can actually be below your SSI level, but it’s a level that’s above those traditional AFDC 1996 cut offs. Individuals with incomes below the medically needy income level automatically qualify for Medicaid.

10

A nice feature of this category is that persons with incomes above the medically needy income level can “spend down” and become eligible. That is, incur medical expenses, not necessarily pay them, but incur medical expenses that are equal to the amount by which their income exceeds the medically needy income level. The medical expenses they incur “spends down their income” so the individual can qualify for Medicaid for a period of time. You could look at it as a deductible that you have to meet, before Medicaid coverage kicks in. There are some various options that states have for how much, for who they’re going to serve with medically needy programs, and what services they’re going to offer with them, but suffice it to say that this is a very important option for people who are in the midst of a healthcare crisis.

And then the last slide is to help you realize that there is another program sitting out there called State Children’s Health Insurance Program that states are using to serve children whom they are not serving through their Medicaid program, but who nevertheless have limited income.

IV. MEDICAID FINANCIAL ELIGIBILITY

Sarah Somers (National Health Law Program) : This is Sarah. I’m going to talk about Medicaid financial eligibility. As Jane said, people have to walk through the four doors of eligibility and the last door is to look at how much income and resources people have. Income consists of any kind of earned income, or wages. It also consists of in-kind income, such as, if you are acting as a caretaker and your rent is a part of your compensation, the savings on rent is something that can be counted as in-kind income. Also keep in mind that any kind of income from public benefits, for example, SSI, Social Security, pensions, these can all be counted as income. Then there are the resources, this includes any kind of land beyond your own house that’s owned. Cars can be counted, savings accounts, life insurance policies… these resources count against you If your income and resources are too high, obviously you’re not going to be eligible for Medicaid.

On the other hand, as Jane mentioned, Medicaid allows a lot of flexibility to the states within these parameters. This flexibility is why every state Medicaid program looks very different. If you’re interested in comparing one state’s Medicaid program to another, you can go to the Kaiser Commission on Medicaid and the Uninsured web site – this site contains state health facts and it will show you what income eligibility level the states use. For example, if you’re in Alaska, the rules are going to look very different than from Alabama than if you in Arkansas, they’re going to look different from California. But the reason for this is not only because states have the option of covering people with higher incomes, but because different states count income and resources differently.

11

1. Income Disregards and Exclusions

States must and may apply certain disregards and exclusions to people’s income and resources. The general rule is that states have to follow the rules for the cash assistance program that is most closely tied to the person. For example, there are income and resource rules in AFDC. When you were looking at when a state is determining how it’s going to count income and resources for children in poverty states’ need to look to the AFDC rules. However, a state can have income and resource rules that are less stringent than AFDC. It is important to note that no state can have income and resource rules that are more stringent than AFDC rules. What this means is that you can’t exclude people who would qualify for Medicaid under the AFDC resource and income counting rules. Let’s say that a state chooses to cover children under age 6 and pregnant women up to 150% of the federal poverty level. States are permitted to do this. The 150% of the poverty level results in an absolute number. Because the state is concerned with eligibility for pregnant women and children, the most closely related cash assistance program is the AFDC. So the state would apply at least the disregards that are a part of the AFDC program. In AFDC the first 90 dollars of earned income a month must be disregarded. A state could either stick to the AFDC 90 dollar disregard or it could choose to allow a bigger disregard – for instance, the first 120 dollars of earned income.

2. Resource Disregards and Exclusions

States have similar flexibility in how to count resources. The state has to allow the disregards that are in the most closely related cash assistance program. Let’s say if a person is eligible for Medicaid because they have a disability. Then they would have to apply the disregards in the SSI program. And in the SSI program, there are certain resource exclusions like the house, a burial plot, insurance policies, that don’t have a cash surrender value. So when a state is getting together it’s rules for people with disabilities, then it would need to apply, at least those, and possibly can go beyond them. But the state has to stay within a “reasonable” estimate of the value of an asset. Also, the resource being counted, or disregarded, has to be actually available. What that means is the person has to have the power to reduce a resource to liquidate assets. They have to be able to sell it. They have to be able to cash it in, etc. So that’s why life insurance policies with a cash value can present a problem, because that can be reduced to cash. There are certain kinds of trusts that do not count as resources because they are not available to the person by their very terms. A trust is sort of like a contract. If the terms of the trust state that the resources in the trust do not become available to the person for whom you’re looking at eligibility until they turn 30 and the individual is only 28 years old, then the trust does not count against the individual. Of course, let me just give you a little bit of a caveat here. The wonderful world of special needs trust is very complicated and highly technical and there’s a real malpractice trap. So don’t try this at home unless you have a lot of experience with it or you’re working with somebody who

12

knows a lot about it.

NHeLP collects pretty much any Medicaid case of interest regarding income eligibility. Recently there have been a number of new cases dealing with availability of resources and so if you’re interested in that, just drop us an e-mail.

Jane talked earlier about “deeming” - deeming is a concept of attributing a person’s income or resources to another person. The typical rule is spouse to spouse. You deem one spouse’s income to the other and parent to child. With the notable exception being the Katie Beckett category of eligibility that Jane mentioned and certain home and community based waivers. So that is deeming.

Another financial consideration is “transfer of assets”, especially transfers of assets for less than fair market value. This is a hot issue. Because many people who are technically middle class are able to qualify for Medicaid because, as they get older, they shed some of their assets and sell them or give them to their children. By transferring assets formerly middle class individuals can go get Medicaid to cover long term care in a nursing home or other long term care setting.

The Deficit Reduction Act in 2005 has tightened up the rules on transfer of assets. It has made it more difficult to qualify for long term care by having a longer “look back period”. I will use an example to explain the look back period. A person is contemplating the need for a nursing home and they sell their house or they give it away to their children. Before the DRA tightened the rules, the clock started ticking at the point a person applied for Medicaid and looked backward a set number of years. If you had disposed of the asset during that “look-back” period there would be a time of disqualification from eligibility. The Deficit Reduction Act changed the trigger of the look back period from the time that you disposed of the asset to the time that you apply for Medicaid eligibility. And so and they’ve made the look back period longer. So what this means is that it will exclude more people from eligibility for a longer period of time. In your individual state of course, you will see the specific rules for how they count and what they start the look-back period.

V. Medicaid Eligibility Citizenship Requirements

Citizenship is the first of the 4 doors that you need to walk through in order to become eligible for Medicaid. As Jane mentioned, certain categories of immigrants can be eligible for Medicaid, but that is a shrinking pool of people. Ten years ago, there were some AFDC changes, some Medicaid changes, and some immigration changes. These changes narrowed the pool of immigrants who can be eligible for Medicaid. One of the things that the Deficit Reduction Act did is require states to obtain specific documentation that people are American citizens. Technically, the DRA does not make this an eligibility requirement as it’s written in the statute, but effectively it is an eligibility requirement because

13

CMS has told the states - we are not going to give you the matching funds for Medicaid services you provide - unless you have obtained the appropriate documentation.

Citizenship documentation is going to apply to new applicants of course and CMS is also going to go back and re-check citizenship for people who’ve already been eligible for Medicaid at their next recertification meeting. CMS enacted a regulation with a specific hierarchy of documents that can be accepted. The classic document that proves both citizenship and identity is a passport. Now as you might expect, many people on Medicaid do not have the need for international travel and so they don’t have a passport. What’s more it costs about 100 dollars to get a passport. CMS does have alternatives to the passport. There are documents that will prove people’s citizenship. For example, a birth certificate. There are documents that will prove people’s identity, like a driver’s license or a state ID card. There is a hierarchy prescribed that states need to go through to determine if a person has these precise documents.

As you might expect, proving citizenship can be difficult for people. There are people in this country who were not born in hospitals and don’t have birth certificates. Many of those people are African American and live in the segregated south and didn’t even have access to hospitals. There are people who have lost their records. There are people who for many reasons are going to have difficulty putting their hands on these items. If people are aware in their states of people who are being denied Medicaid or being cut off of Medicaid, they should get in touch with NHeLP and talk more about this issue. In particular, we’re interested in children who are in foster care and receiving adoption assistance.

1. Immigrant Eligibility

Basically, there are very few legal immigrants who are eligible for Medicaid and for those that are eligibility is time limited. Mostly the immigrants who are eligible are people who establish residency before August 22, 1996 which was when these immigrations reforms were enacted. For people who established residency after August 22, 1996, there’s a five year bar for eligibility. And this isn’t for every immigrant. These are just the subset of qualified immigrants. Qualified immigrants include refugees, people seeking asylum, those fleeing domestic violence or other kinds of physical violence, and then legal permanent residents. There are plenty of non-qualified immigrants who can only receive emergency Medicaid. For example, people who are residing under collar of law, which is sort of this gray area status that isn’t illegal, and doesn’t give you the full rights of people who are actually legal immigrants. And then there are students and visitors who are not eligible for Medicaid, who may be able to get emergency Medicaid. We will be talking in a future webcast in this Medicaid 101 series about emergency Medicaid. But suffice to say there is a lot

14

of debate about undocumented immigrants getting “all this Medicaid”, which is really just a myth.

There are almost no undocumented immigrants getting Medicaid only in very limited circumstances when they get emergency Medicaid and really the emergency Medicaid rules are in large part just to benefit healthcare providers, particularly hospitals. Hospitals don’t want to be in the business of figuring out whether somebody is a citizen or not, whether they can pay for care or not when they come in with an emergency. And so emergency Medicaid allows hospitals to go ahead and triage people and treat them. And if indeed it turns out that a person doesn’t have the ability to pay for emergency care, which most of us wouldn’t out of pocket, don’t have insurance, and are undocumented, then the hospitals are going to be able to recoup the cost from the federal government through “emergency Medicaid”.

2. State Residency Requirements

This requirement is relatively straightforward - in order to qualify for Medicaid in that state a beneficiary must live in the state where they’re seeking eligibility. Also, they must have intent to remain or live in that state for an indefinite time or they need to be moving to the state with a job commitment or seeking employment. Keep in mind, that Medicaid beneficiaries are not required to have a fixed address. In fact the Medicaid Act says that Medicaid should not exclude people or have policies that tend to exclude people who don’t have fixed addresses. So homeless people can qualify for Medicaid. What’s more, there cannot be durational residency requirements for Medicaid eligibility. Be aware that states have tried many times over the years to impose a waiting period for people who have just moved to the state. The rationale for the waiting list is to discourage people from moving from one state to another just to better cash assistance benefits or more generous Medicaid benefits than people do in other states. These waiting lists and durational requirements violate the Medicaid Act. The U.S. Supreme Court has ruled that durational residency requirements interfere with the right to travel and are illegal – in a 1999 case called Saenz. So there are and that is because there are special rules that apply to people who are in institutional settings and to people who lack the capacity of forming intent or of having a permanent…or having an intent to reside somewhere permanently.

On the other hand, the Medicaid Act does have regulations listing a number of contingencies for people who are living in institutional settings such as an ICF/MR or a nursing facility and for people who don’t have the capacity to form intent for a permanent residency. With people who don’t have the capacity to form intent, their residency depends on when they lost that capacity. For example, you can have a situation where a person doesn’t have the capacity to form intent to reside somewhere because their cognitive disabilities are so severe. Their parents may place them in an ICF/MR type of setting when they’re a child. Time goes on and the parents move to another state. Now the person is

15

present in let’s say North Carolina. Under the federal regulations their residency is going to be North Carolina, because that’s where their parents were living when they were placed. Once their parents move away from North Carolina the parents’ residency changes, yet their child’s residency remains North Carolina because the child says in North Carolina. Wrinkles on this residency question can arise when the child in the institution has severe cognitive disabilities.

Inmates of a public correctional facility, including: jails, prisons and juvenile detention centers do not receive Medicaid – while they are incarcerated their Medicaid payments are put on hold. Also, individuals living in “institutions for mental disease” are not covered by Medicaid, for example, state psychiatric facilities. The rationale for not covering individuals in state hospitals is that traditionally, mental health was the responsibility of counties and states of local authorities.

Another group of persons who can be denied Medicaid are people who refuse to give the Medicaid agency permission to get the information they need to determine eligibility, for example permission for the Medicaid agency to check their assets.

Everyone has the right to apply for Medicaid. People have the right to bring a representative or someone to help them apply and there’s also a right to receive assistance for the state in which you’re applying. For example, if you need a sign language interpreter or if you have limited English proficiency and need someone to translate for you. As far as the eligibility determination is concerned, the states have to set a reasonable limit for the eligibility determination to be made - that must be no more than 45 days for non-disability related categories- and no more than 90 days for if they’re going to do a determination of disability.

In order to make this web cast free, we had to not include an option for people to ask questions. Hopefully, in future webcasts in this Medicaid 101 series we will be able to allow for questions. You could e-mail Elizabeth.priaulx@ndrn.org with any questions. We’re very interested that everybody continue on with this series and in order to build from one webcast to the next, we urge you to e-mail use questions. We will either address your question prior to the next web cast or by answering it on the next webcast.

Part two of this webcast will be on December 11th on the topic of Medicaid services for adult non waiver populations. So we’ll be going more into what a state must provide mandatory and optional under their state plans and part two will be on services for youth under 21 and that is basically the EPSDT program, which is Early Periodic Screening Diagnosis and Treatment. Part four will be on Medicaid waiver programs, which were alluded to here and part five will go into Medicaid enforcement concerns. That’s the issues around how it is enforced under section 1983 and different challenges to that that have popped up over the

16

past ten years. It’s a rapidly changing area of law and we will also be discussing some of the Medicaid changes under the Deficit Reduction Act and how it makes it important for people to understand the basics in order to understand the changes that are now occurring or may occur in their states under the Deficit Reduction Act. So I encourage you all to continue to come on to this program. If you are a state Olmstead coordinator or a protection advocate program, to pass this on to your colleagues and when I do hear from folks who are not state Olmstead coordinators, I do reply to all of them and let them know that they can download a free version of this web cast approximately two weeks following each web cast. So go ahead and send this out far and wide. Just know that whoever contacts me from that, if they are not a P&A or state Olmstead coordinator, we’ll be told to wait two weeks prior to posting of the conference and download it from the web site. Here is the web cast information about where things will be posted which is again olmsteadcommunity.org and ndrn.org. We have not yet figured out the exact date of the third, fourth, and fifth web casts, but they should all take place within the next six months and so I will be using the list serve both through the P&A system and through the Olmstead coordinator system to get that information out to you. I will also post all the dates of the future web casts on the two web sites listed here and I want to thank again ADD, Administration on Developmental Disabilities, the Center for Mental Health Services, the Rehabilitative Services Administration, and the Human Resources Services Administration for helping to fund this program. Jane and Sarah, if you have last minute things to say, I think we have a few more minutes on this web cast.

Female: Yes I wanted to add that for the last, I guess at this point, five years, NHELP has been doing monthly Q&A’s for NDRN and quarterly fact sheets and as you might expect, many of them are related to Medicaid issues, some of the intricacies of things that we just touched on today. In particular we have a focus on significant Medicaid decisions and we’ve written a number of Q&A’s on those. Elizabeth, how can people find those?

Elizabeth: Yes. We have put a real push in the past month to make those more readily accessible. They used to be hard to find. Right now you can go to the private page of the web site which is the page that….you have to click on something that says TASC, Training and Advocacy Support Center, which is the federally funded portion of our website and then you would go on to publications or training and technical assistance and there is a list of all of the Q&As back through 2000. That’s recently in the past month. So if you haven’t checked it within the past month, I encourage you to do that and we’ll have the titles of all of the web casts. Another way that you could do it is go on to the TASC portion of the web site. Click on the Medicare/Medicaid issues area and then …and once you’re in the there, click on either Q&As and fact sheets and I have them divided by topic area, which is again new and one of the topics that I have it divided by is eligibility. So that might be the quickest way to do it, plus it would be interesting probably to see all of the different Q&A’s and fact sheets that are up there. NHeLP has been extremely prolific for us and for the P&A’s. So again, if you are

17

a state Olmstead coordinator, you can get technical assistance through me and I might be able to send, you know, versions of these or portions of these to you and so I encourage you to call. Again, my number is 202-408-9514 and our web site is http://www.ndrn.org and NHeLP website is http://www.healthlaw.org. I am going to edit these power points so that our address and basic contact information is on them, so hopefully the folks who listen to this after the fact will have that information. I should have put that on there. Thank you, Jane and Sarah, and thank you all for joining us. Please spread the word to your network.

18