Ronald Fatoullah & Associates - Elder Law

Governor Proposes to Eliminate Spousal Refusals in Community Applications


Anyone who is aged or infirm would probably prefer to remain at home. Nonetheless, in New York State, the eligibility requirements for a couple to receive community-based Medicaid are quite restrictive. Under current law, a couple's resources cannot exceed $20,850 and their available income is limited to $1,159 per month. It is almost fiscally impossible for a couple to subsist in the community with such a restrictive budget. When only one spouse requires care, his/her resources may not exceed $14,250 and available income is limited to $812 per month. In a spousal situation, the well spouse can sign a "spousal refusal," thereby refusing to use his/her assets and/or income in order to support the ill spouse.

Article VII of Governor Cuomo's NYS Budget Bill has proposed to eliminate the spousal refusal option in the context of community-based Medicaid coverage. The elimination of spousal refusal will have many negative results.

Before spousal refusal was adopted as part of federal law in 1988, research found that many female spouses had cared for their husbands at home without paid assistance until they were no longer physically or emotionally able to do so. Such caretakers ultimately became impoverished with their savings completely depleted.

The spousal refusal policy was intended to offer a reasonable measure of financial protection to the community or non-applicant spouse. New York State followed federal legislation and adopted a similar policy regarding a spouse seeking long term care in the community context.

The elimination of spousal refusal as a viable option for spouses at home will likely produce many undesirable outcomes. First, such a change in the law would encourage separation and divorce. The inability for a couple to meet day-to-day living expenses will have the effect of terminating marital relationships in order for the couple to avoid impoverishment. Such legal action would result in both the physical and emotional separation of spouses in addition to a financial parting of ways. It could also result in the removal of an important caregiver from the home.

Further, since spousal refusal in the nursing home Medicaid context is protected by federal law, the state would be generating an incentive for ill spouses to enter nursing homes. In order to cope financially, the ill spouse would enter a nursing home so that the healthy spouse would be permitted to retain the higher resource and income levels allowed under the spousal impoverishment protections for nursing home Medicaid.

With respect to nursing home based Medicaid, federal and NYS law set forth spousal asset and income allowances to ensure that a community spouse does not become impoverished. There is a community spousal resource allowance that allows the community spouse to retain assets up to $113,640. Further, there is also a spousal income allowance of $2,841, and if the community spouse's income exceeds that allowance, he/she is asked to contribute 25 percent of the excess towards the care of the institutionalized spouse. The law does allow Medicaid to bring an action against the refusing spouse for support and recovery. This system protects those who are truly needy and mandates contribution to the cost of care from those who are financially able.

In light of the detrimental impact of eliminating spousal refusal in the Governor's proposed budget, we urge you to contact your NYS representative to encourage him/her to fight to retain such recourse in the community setting.

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