By ANEMONA HARTOCOLLIS
For 20 years, federal law has protected married couples from having to choose between divorcing or becoming impoverished when one spouse needs expensive nursing home care, allowing the healthier spouse to retain assets and income while the sicker one’s care is covered by Medicaid.
New York State has routinely extended the same benefits to people with illnesses like Alzheimer’s disease or cancer who receive care at home, which is both less expensive and less disruptive to relationships.
Now, the federal government has ruled that New York has been too generous in applying the income protections to people at home, forcing several thousand couples to make a stark choice by March.
“They’re saying if you put your spouse in a nursing home, you’re going to get to keep more income than if you keep your spouse out of a nursing home,” said Mark L. Kissinger, deputy commissioner of long-term care for the state Health Department. “That’s completely opposite to public policy and research of the last 10 years.”
Motivated by horror stories of the wives of institutionalized spouses being left without money for groceries, Congress in 1988 passed a law intended to protect healthy spouses with lower incomes and fewer independent assets from being reduced to poverty by their better-off spouses’ need for long-term care.
For 2009, federal guidelines allow the couple to keep up to $2,739 a month in combined income and $109,560 in assets not including a home or car and still have Medicaid take care of the nursing home costs.
New York applies the same income guidelines to people getting nursing home-level care at home. But the federal Centers for Medicare and Medicaid Services sent a letter to state health officials in the fall of 2008 outlining a legal ruling that declares that couples in which both partners live at home are not entitled to the same protection.
The state Health Department estimates that 3,000 couples — out of 30,000 people in the long-term home-care program — are affected by the change, because the healthy spouse depends on the sick spouse’s income to survive; advocates for the elderly say the number is closer to 4,000.
Federal Medicaid officials say that the dispute raises some challenging issues about who is truly needy. They say that when Congress gave the states the option to extend the so-called spousal impoverishment protections to home health care, it intended to protect only the neediest people, and that New York State is protecting people with too much retirement income. But even federal officials say that it is hard to know with certainty how far above certain minimum levels is too much. They said they have offered to work with New York to figure out what those levels are.
“They can’t really protect anything here,” said Sue Kelly, associate regional Medicaid administrator in New York. “Basically this person has to spend down to New York’s medically needy income standard, and the rest of it under the statute is supposed to help pay for the cost of the person’s care.”
Roy Trudel, technical director of federal Medicaid eligibility policy, added, “You could argue that there is a shortcoming in the statute there.”
In a letter protesting the federal ruling, Gene Coffey and Valerie J. Bogart, lawyers who represent the elderly, said that the federal agency was proposing to protect spouses who “are so poor that they have no excess income, let alone any income to give their spouse.” The letter added, “Congress could not have intended this absurd result.”
Claudia Hutton, a spokeswoman for the state Health Department, said that New York wanted to keep the home health care program the way it was, and that any talk of changing income criteria was a “smokescreen” to gut the program.
Ms. Kelly said “it turns out that New York had been erroneously applying the statute” since it was established.
But Mr. Kissinger of the Health Department said the federal government “changed the rules of eligibility midstream” after approving New York’s program all along.
“The Bush administration is trying to pull the rug out from under thousands of seniors in New York who depend on this critical program year in and year out just to survive,” Senator Charles E. Schumer, a New York Democrat, said in an e-mailed statement before this week’s transition.
Of New York’s current practice, he said: “This policy makes imminent sense to ensure that seniors and the spouses who care for them do not fall in to poverty.”
The change was originally supposed to go into effect in December, but the Paterson administration and the New York Congressional delegation have won a delay until March 1, and are hoping that President Obama will reverse the Bush administration’s ruling.
Advocates say that in the meantime, thousands of couples are in limbo.
They are couples like Armertine and Douglas Robinson of the South Bronx. Mr. Robinson, 84, a retired taxi dispatcher, gets $980 a month from Social Security, which covers their rent. Mrs. Robinson, 64, a former nursing assistant in a nursing home, collects $1,363 a month in pension and Social Security checks.
A diabetic who is on dialysis for end-stage renal disease, Mrs. Robinson has a home health aide 35 hours a week to help with bathing, dressing, shopping, cooking and transportation. She also sees a nurse weekly and a social worker once a month and is entitled to physical and occupational therapy and nutritional therapy when needed — all covered by Medicaid, according to Laura Radensky, a social worker at Jewish Home Lifecare, which provides the services.
Before qualifying for Medicaid, Mrs. Robinson said, she had to skimp on her heart, diabetes and kidney drugs or get samples from her doctor, and the cost of transportation to medical appointments was “killing my pockets.” If the new interpretation takes effect, the Robinsons would have to pay $600 a month for the home health aide, reducing their monthly income to $1,743, Ms. Radensky said.
Or, Mrs. Robinson could go to a nursing home, something she is loath to do.
“I’m not ready for no nursing home yet — I worked there for 22 years,” she said. “I might have to at a time, but right now I’m not ready for it.”
The advocates say that the federal interpretation makes little sense.
“The root of their interpretation is that Congress wanted to give states the option of extending these protections, but only to those whose incomes are so low that they would have no income to share with their spouse,” Ms. Bogart said. “It would be so absurd that no one would ever qualify.”
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