Helping the Elderly Stay Put

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Dr. Lichtenstein and Patient

Helping the Elderly Stay Put

By Motoko Rich, The New York Times

March 4, 2004

Elderly New Yorkers who would rather stay in their apartments than move into nursing homes got a potential boost last week from the New York State Department of Health.

Until now, many aging residents have faced a conundrum. In order to be eligible for Medicaid-subsidized visits from home health care workers, they have had to give up income they were using for rent and food — money that was allowing them to stay in their homes in the first place.

But the new state ruling allows an elderly New Yorker, whom his lawyer identifies only as M. O., to place a part of his income in a special living-expense trust for the disabled. By doing so, he can qualify for Medicaid-sponsored home health care. The ruling is so new that lawyers are not yet sure whether it will apply to any other cases, or to residents of New York City only or to those throughout the state.

In Manhattan, where rents average $2,391 a month, advocates for the elderly hope the ruling will help hundreds, if not thousands, of aging residents on fixed incomes to claim benefits under Medicaid while remaining in their homes.

"It is a fair way to address what would otherwise be a tragic situation forcing people into nursing homes simply because they cannot pay their rent," said Ira Salzman, an attorney who represents the elderly in New York City. And because nursing homes are expensive, Medicaid could end up saving money.

Under rules set by the city's Human Resources Administration, which oversees Medicaid in New York City, M. O., who is 67, was in danger of losing the Manhattan apartment that he shares with his former wife. Because he receives a monthly Social Security check of $1,078.70, well above the $642 maximum for subsidized visits, the city said he would have to pay the $358.01 difference to home health care workers hired by Medicaid.

According to his lawyer, Aytan Y. Bellin, the rent on his apartment was $2,160.51. Although M. O.'s former wife is helping to cover it, the man would still not be able to live at home on just $642 a month. To the man and his ex-wife, the extra $358.01 meant a lot. "They are already pretty financially strapped, so that extra bit makes a big difference," said the man's son, who asked to be identified as J. O. to protect his father's identity.

Without the ability to use the extra income to pay for living expenses, the man risked being forced to move to a nursing home — potentially at greater expense to Medicaid, a fact not lost on Mr. Bellin.

"It's quite typical that on the one hand, Medicaid is not going to let you get access to a few hundred dollars that would allow you to stay at home," he said. "But they'll allow you to move into a nursing home where they'll be paying, on average in New York City, $8,695 a month."

Mr. Bellin's client, who suffers from dementia and needs 12 hours of home help a day, hoped to maintain his eligibility for Medicaid by placing his excess $358.01 in a trust operated by Nysarc, a nonprofit group that provides services for the disabled. Mr. Bellin argued that federal law allows Medicaid recipients to shelter some income in a trust as long as it goes toward basics like rent, food, electricity and telephone service. The city disagreed.

But in the new ruling, Betsy J. Segal, an administrative law judge with the State Department of Health, said the money should be exempt from Medicaid's maximum income requirements, provided that the trust administered the money and paid rent and other expenses directly.

If the ruling stands, it could help thousands of New Yorkers who want to remain in their homes even after they grow too frail to take care of themselves. In 2000 there were 630,667 people 65 and older in New York with reported incomes of $18,000 or less, according to an analysis of Census Bureau figures by the Queens College Department of Sociology.

Jim Hayes, a trustee of three trusts managed by Nysarc, said the state's decision could touch off a wave of requests by other low-income residents in need of home health care.

Martin Petroff, a lawyer who represents low-income residents in need of home health care, said: "For most of these people that income isn't excess at all. It's their lifeblood."

Some lawyers say the state could still rule differently in other cases. Peter J. Strauss, an attorney and a director of the Elder Law Clinic at New York Law School, said he had three appeals of New York City decisions pending before the State Department of Health. In one case, a 91-year-old retired teacher who is blind and unable to eat solid foods receives about $5,750 a month in pension, Social Security and life insurance payments, still not enough to cover $8,168 in round-the-clock home health care without help from Medicaid. The city said she must spend all of her income on those costs, except for the $679 a month she is now permitted to keep under Medicaid. If the state does not allow her to funnel the excess income into a trust, said Mr. Strauss, she will likely lose her Manhattan apartment, which costs $1,400 a month.

Patricia M. Smith, first deputy commissioner of the New York City Human Resources Administration, said the city would honor the state's decision in the case of Mr. Bellin's client. But, she added, "We don't think it will set a precedent."

She said she believed the city had acted correctly in directing Mr. Bellin's client and others to pay excess income to home health care aides hired by Medicaid. "We will ask the state to review their decision," she said.
A spokeswoman for the State Department of Health declined to comment.
David Goldfarb, a lawyer who represents the elderly in New York City, said he applauded any policy that allows people to avoid institutionalized care.

"It's a quality-of-life issue," he said. Uprooting an elderly person who has lived in the same apartment for years can be more than traumatic, he said, and "is probably one of the greatest causes of death and setbacks to health."