NAELA Comments on the Home and Community-Based Services Access Act

On April 26, 2021, in a letter to Senators Brown, Casey, Hassan, and Representative Dingell, the National Academy of Elder Law Attorneys (NAELA) commented on the Home and Community-Based Services (HCBS) Access Act. Among other comments, NAELA supported the proposal’s expansion of the criteria for being medically eligible for Medicaid HCBS.

One suggestion was including people who are chronically ill. NAELA argued this addition is badly needed, especially in aged populations. People who do not meet the criteria of being disabled or blind are forced to show that they require health-related services above basic room and board to qualify for long-term care services and supports. This has become a vehicle by which states tighten medical eligibility criteria. People may be chronically ill and yet be unable to access adequate care in the community.

NAELA also addressed income caps associated with Medicaid eligibility. According to NAELA, the Centers for Medicaid and Medicare Services (CMS), states that have medically needy eligibility for Medicaid-covered institutional care may not allow people seeking to move to HCBS care to use QITs if their income exceeds the existing monthly limit. Fortunately, Georgia grudgingly permits the use of qualified income trusts when applying for its Community Care Services Program (CCSP).

NAELA also supported eliminating Medicaid Estate Recovery, ensuring retroactive coverage by amending 42 U.S.C. § 1396a(a)(34), and extending spousal impoverishment protection to spouses applying for HCBS. According to NAELA, spousal impoverishment protection is mandated for institutional care, while optional for waiver services. Fortunately, Georgia extends those protections to the healthy spouse of a CCSP applicant.

See: NCSA Comments; AUCD Comments; and ARC Comments. See also: Casey, Wyden Release State-by-State Factsheet On Benefits of Investments in Home and Community-Based Services