Protecting Assets of Older Residents and Spouses Requires Legislative Action, Elder Law Attorneys Tell Lawmakers

The Connecticut Chapter of the National Academy of Elder Law Attorneys is seeking a series of revisions to Connecticut law that would better protect the assets of individuals seeking to stay at home in their later years when they require at-home care under certain circumstances, and their spouses.

Joan Wilson, a lawyer with RWC and vice president of Connecticut’s chapter of the National Academy of Elder Law Attorneys (CT-NAELA) said this month that the proposals top the organization’s legislative agenda, based on their work in the field and experience with Connecticut clients. The CT-NAELA membership is comprised of attorneys in the private and public sectors who deal with legal issues affecting the elderly and disabled.

Elder law is the practice of law involving the counseling and representation of older persons and their representatives. It encompasses the legal aspects of health and long-term care planning and financing; public benefits like Medicaid, Veterans Benefits, and Social Security; alternative living arrangements and attendant residents’ rights; special needs counseling; decision making regarding capacity; conservatorships; and administration of the estates of older persons, according to CT-NAELA. 

Wilson, appearing on the Connecticut-based podcast Win the Future, told Brett Broesder “that retroactivity of the home care program is one of the big things we're working on. We'd really love to get that program, it's called the Connecticut Home Care Program for Elders … to become a retroactive program. Which would mean even though the application process might take four or six months, which is kind of the average of how long it takes to get approved for Medicaid, once that person is approved, the family would get paid back or the home care agency that's been providing the care would be paid back, back to the date of the original application.”

She added that is precisely how it already works when individuals go into nursing homes, rather than remaining at home with necessary care. “Unfortunately right now it's not retroactive for home care, so that becomes a problem when somebody is running out of money.” Raised in Guilford, Wilson lives in Wethersfield and is a member of the Middlesex County and Clinton Chambers of Commerce. Her firm has offices in Middletown and Clinton. The expertise that CT-NAELA member attorneys provide can be tremendously helpful to individuals, and their families, who are facing or preparing for the financial ramifications of extended at-home care.  Knowing how to navigate the ins and outs of the legal system in these specialized areas can both protect assets and provide peace of mind.

Another proposal that CT-NAELA is focused on “is the community spouse protected amount, which is the amount of money that a spouse can keep,” Wilson explained. “So when you're a married couple and one of the couple needs long-term care, and we're applying for Medicaid for that person, there's a calculation where the spouse, called the community spouse, that's the one that's not getting Medicaid, is allowed to keep.”  The discrepancies between state and federal law requirements is currently preventing some Connecticut residents from being able to keep the maximum amount allowed, depending on their individual circumstances.

These two proposals are now actively being considered by state lawmakers, having been introduced by Rep. Mitch Bolinsky of Newtown.

Senate Bill 813 would grant retroactive Medicaid eligibility to home-care applicants consistent with federal law.  At a virtual public hearing held last week, Linnea Levine, past President and current member of the Legislative Policy Committee of CT-NAELA, explained that the “sole purpose” of the legislation “is to make sure that there is no gap in care from the date a person runs out of money to pay privately for home care and the date the home health care aid is paid by Medicaid.” 

Levine added that “this legislature cannot ignore the dangers to life and health caused by lack of coverage between the time an individual has spent down assets…and months later when the Medicaid home care application is finally approved.”  If approved by the legislature, the bill would “assure that the impoverished, elderly population can receive care in their home without a dangerous gap in the provision of essential home health care services,” which, she pointed out, would be a safer alternative to entering a nursing home, particularly in the midst of the coronavirus health crisis. 

Support for the proposal was also provided by Sheldon Toubman, a staff attorney with New Haven Legal Assistance Association, who said the legislation “makes good economic sense for the state, while meeting clients’ needs.”  Toubman noted that he represents low income seniors and people with disabilities with significant care needs who wish to avoid institutionalization at state expense.  He indicated that the provision is “very important for elderly and disabled people with a Medicaid application pending who immediately need extensive home care services.”

Senate Bill 818, An Act Permitting the Community Spouse of an Institutionalized Medicaid Recipient to Retail the Maximum Amount of Allowable Assets, aims to “prevent impoverishment of spouses of institutionalized residents.”  The proposal was also on the agenda at the Aging Committee’s February 9 public hearing. 

Marie Allen of the Connecticut Association of Area Agencies on Aging, which includes five regional Connecticut Area Agencies on Aging, was among those testifying in support.  She said the legislative proposal would “decrease the economic anxiety and reduce the likelihood of a community spouse’s trajectory towards needing State assistance for their own care.  Maintenance of older adults and individuals with disabilities in the least restrictive setting and the setting of their choice is a key pillar toward rebalancing Connecticut’s Medicaid system.”

Connecticut chapter of AARP also supported the proposal, because of “the increased stability it would bring for community spouses,” explaining that currently when spouses are required to spend down their assets, “they lose their personal rainy day fund and are not as well equipped to address any future needs that may arise.”

The Connecticut Department of Social Services opposed both Senate Bill 818 and Senate Bill 813, citing federal law and potential unfunded fiscal impact to the state, respectively.