About 1,400 Minnesotans with disabilities and their spouses are hoping for a waiver from the Centers for Medicare and Medicaid Services (CMS). Changing longstanding state practice called spousal disregard or anti-impoverishment provisions which could be very disruptive, possibly resulting in individuals losing Medical Assistance (MA) Home- and Community-Based Services (HCBS).

The proposed federal change, which is tied to the Affordable Care Act (ACA), would affect married couples who are age 65 and younger with one spouse using home- and community-based waiver services. Families that could be affected worry that the federal change would force them into poverty, divorce, or that the spouse with disabilities would lose MA coverage.

“Please don’t devastate our lives any further,” a speaker told state staff at a January 14 public hearing. Minnesota Department of Human Services (DHS) staff gathered comments on the proposed change and waiver request in January, holding two public hearings and collecting additional comments online. The comment period closed January 22.

“For us the change would result in a number of people losing coverage,” said Gretchen Ullbee of DHS. She noted that while the federal change may be beneficial in some states, that wouldn’t be the case in Minnesota

The federal change was to have taken effect January 1. But because Minnesota has a waiver request pending, the change isn’t taking effect here yet.

Those who presented oral and written testimony said that making the change could harm marriages and in some cases, force couples to divorce so that services or assets wouldn’t be lost. It was noted that people have already planned their lives around the current system, and that a change wouldn’t be fair. It would also be disruptive to family plans. Another issue raised in favor of retaining Minnesota’s current practices is that it could be a huge disincentive for people with disabilities to get married and for those families to continue to help with care. It could even have the unintended consequence of forcing people into nursing home care instead of allowing them to stay in the community.

Yet another argument made is that the spousal anti-impoverishment provisions were developed to meet the needs of elderly couples when one spouse entered a nursing facility and the other spouse needed income and assets to remain in the community. The effect isn’t the same for younger couples and their families.

“Spousal deeming is working here and I would urge you to leave it alone,” another person said. Spousal deeming means that authorities might consider or “deem” that part of a spouse’s income is not available to the person with disabilities.

The Minnesota Disability Law Center and Mid-Minnesota also submitted comments, outlined the hardships Minnesota families would face if the state’s waiver request is denied. “Because Minnesota has implemented the exemption of spousal deeming policy under institutional rules for many years, the change required by the spousal anti-impoverishment provisions would seriously destabilize and disrupt those affected. We believe the scale of the disruption, while different for each family, will include the loss of HCBS waiver eligibility for some due to the asset limits under the spousal anti-impoverishment rules,” the comments stated.

“Couples will struggle with the new requirements and face extremely difficult choices including forgoing college for their children, whether or not to pay mortgage and home maintenance costs or cash in retirement accounts, in order to divide assets and spend the excess amount on Medicaid health costs. Certainly the ACA provision requiring spousal anti-impoverishment rules for all states was meant to improve the circumstances for married couples with one spouse who needs HCBS waiver services, not to result in the harsh and destabilizing impact which affected Minnesotans would suffer. This waiver request is necessary to avoid the increased risk of institutionalization and the harsh consequences for families.”

Because the CMS project is a five-year pilot, there are also questions as to whether or not the changes will be made long-term or whether states will have to switch again. But by then couples would have been forced to divorce or lose assets.

The 2013 Minnesota Legislature required the Commissioner of Human Services to seek authority from CMS to allow Minnesota to continue its existing eligibility policy for people receiving services under the waivers for brain injury, community alternative care, community alternatives for disabled individuals and developmental disabilities.

Getting an exemption from federal rules would allow Minnesota to continue the current practice of disregarding income and assets of spouses instead of implementing the anti-spousal impoverishment provisions under the ACA. The request, which was submitted to CMS in draft form last year, is called a Section 1115 Medicaid waiver request. A final request and comments will be submitted after the January 22 deadline.

Ulbee said that studied the potential number of people involved and did a fiscal analysis as part of its CMS request, outlining costs and potential savings. Staff said the numbers show it is basically a wash to the state. Another factor DHS is asking CMS to consider is that Minnesota is in the process of converting its existing state plan personal care attendant benefit into a consumer-directed benefit modeled after the Consumer First Choice program as set out in the Social Security Act. This change is part of DHS’s Reform 2020 demonstration.

In its waiver request, DHS states that Minnesota officials are concerned that the spousal anti- impoverishment changes will affect the state’s reform of the personal care benefit “in a manner that will cause confusion and disruption” DHS noted that it isn’t clear how CMS might apply the new law to other groups.

As of Access Press deadline, DHS staff was compiling the comments and submitting the waiver request to CMS. Anyone who missed the state comment period, or who wants to weigh in again, can comment directly to CMS during the upcoming 30-day federal comment period. That can be done by going directly to the website and entering “Minnesota” in the search box. The federal comment period starts when the Minnesota waiver request is deemed to be complete.

DHS will post a copy of the final waiver request on its own website after it is submitted to CMS.