By Steven J. Gibbs, Esq.
In general, Medicaid is a need based program to provide aid to those with chronic medical conditions. As a bit of background, Medicaid and Pre-Medicaid planning in Florida is an important part of creating a Florida estate plan and designing a wealth transfer and preservation strategy in Florida. In the fast changing world of healthcare and public policy, changes are common and policy makers continue to strive for ways to provide aid while attempting to balance budgets. This endeavor, spurred on by the Affordable Care Act (“ACA,” a/k/a “Obamacare”), has precipitated many changes nationwide, making today’s topic of Florida Medicaid and the Affordable Care Act a hot one for Florida residents.
When the ACA was enacted in 2010, it mandated that each state expand its Medicaid program by 2014 to provide assistance to adults earning less than 138% of the federal poverty level. However, a subsequent U.S. Supreme Court decision in National Federation of Independent Business v. Sebelius, though generally finding the ACA constitutional, ruled unconstitutional the statute’s proposed withholding of federal funding to non-expanding states. As a result of the ruling, Medicaid expansion became effectively optional for the individual states.
Nonetheless, 36 states have opted for Medicaid expansion, including four rolling out new programs in 2019 (Idaho, Utah, Virginia, and Nebraska). Florida, though, remains among the 14 states which have thus far elected not to expand Medicaid coverage. Thus, Florida’s Medicaid program remains available only to the traditional categories of blind, disabled, and elderly beneficiaries, along with caretakers of eligible minors or disabled dependents.
ACA State Medicaid Waivers
While encouraging expanded Medicaid coverage, the ACA also permits states to request waivers from various provisions of the law for “demonstration projects…likely to promote the objectives of the Medicaid program” and for state programs designed to promote innovation in healthcare insurance coverage. To obtain a waiver, a state must first submit an application to the Department of Health and Human Services’ Center for Medicaid and Medicare Services (“CMS”). If the waiver is approved, the state can then implement its proposed program subject to any modifications or limitations imposed by CMS.
Supporters of the waivers view them as a means of spurring innovation through federalism, allowing states to serve as “laboratories of democracy” (in the famous words of former Supreme Court Justice Louis Brandeis), “try[ing] novel social and economic experiments without risk to the rest of the country.” Detractors express concern that waivers could allow states to avoid providing Medicaid coverage to disadvantaged groups.
Florida’s Recently Approved Medicaid Waivers
Under the standard Medicaid system, applicants are potentially eligible for retroactive coverage for up to 90 days prior to submitting an application. Florida, though, is currently testing a rule, approved via a CMS waiver, limiting retroactive coverage to not more than 30 days. Florida’s framework makes coverage effective as of the first day of the month in which an application is filed. Notably, the retroactive coverage kicks in based on filing date (as opposed to approval date), so delayed processing does not limit coverage.
The Florida legislature thinks the program will encourage Medicaid beneficiaries to maintain continuous coverage by applying for the Medicaid managed-care program proactively, rather than waiting until after receipt of medical treatment. Early estimates suggest the waiver will result in savings of around $98 million during the initial six-month trial period. Opponents of the waiver argue it “will limit access to healthcare for the poor, elderly and those with disabilities,” according to the Miami Herald. Children and pregnant women are expressly exempted from the reduced period of retroactive Medicaid coverage.
CMS’s approval requires the State of Florida to reevaluate the change before permanent implementation. Passed as part of the budget bill for the first part of 2019, the retroactive-coverage limitation became effective on February 1, 2019, and expires at the end of June, 2019, unless extended by the legislature. The limitation has not yet been extended by the legislature.
CMS also recently approved a Florida pilot program expanding Medicaid coverage for mental-health and substance-abuse treatment from community health care providers, including qualifying social workers and psychologists. And another CMS-approved program allows Florida to introduce a Medicaid managed dental program, which is gradually being rolled out beginning in the southeastern part of the state.
Medicaid Work Requirements: Possible National Trend
Several of the states that have expanded Medicaid to include non-disabled, low-income adults have sought to impose work requirements as a condition for continuing eligibility. As with Florida’s limitation on retroactive coverage, work-requirement programs must be approved by CMS. Although the Obama Administration was reluctant to consider approval of any employment conditions for Medicaid, CMS under the Trump Administration has encouraged pilot programs “to help lift individuals out of poverty and improve their health and well-being through work and community engagement.”
Individual program specifics vary from state to state, but work eligibility is generally only applicable to non-disabled adults who are otherwise Medicaid eligible. In most states, at least part-time work (usually 80 hours per month) is required, though the requirement can usually be satisfied through qualifying volunteer activity or evidence that the beneficiary is actively seeking employment. In most cases, beneficiaries with young dependents are specifically exempt. In Tennessee, for example, work requirements do not apply to beneficiaries with one or more dependent under six years of age.
Wisconsin’s “Badger Care” approach applies work requirements to childless, non-disabled Medicaid beneficiaries under the federal poverty line. Total Medicaid coverage for individuals within that category is capped at 48 months between ages 19 and 49, with each month in which the beneficiary works or receives work training in excess of 80 hours excluded from the monthly tally. Wisconsin also proposed a drug-screening requirement, which was rejected by CMS.
Thus far, Tennessee, Kentucky, Indiana, Arkansas, New Hampshire, and Wisconsin have adopted work requirements. Maine and Michigan have also received CMS waivers allowing for pilot programs, but changes in state electoral politics have raised doubts as to whether the programs will be implemented.
A March, 2019, decision from the DC Federal District Court created uncertainty over the viability of Medicaid work-eligibility programs. The DC court suspended implementation of the Kentucky and Arkansas plans on the grounds that CMS, in granting approval, did not sufficiently consider the impact the programs would have on Medicaid coverage. Finding CMS acted “arbitrarily and capriciously,” the court vacated the approval and remanded the waiver petition for further consideration. On April 10, 2019, the Department of Justice filed a notice of appeal with the DC Circuit Court of Appeals, seeking reinstatement of CMS’s prior approval.
Advocates of Medicaid work requirements say that they ease state budgets while still providing support to elderly and disabled beneficiaries, low-income children, and people attempting to lift themselves out of poverty. Detractors say the requirements deny coverage to vulnerable groups, forcing them to rely on emergency room treatment and forego preventative care, thereby resulting in higher overall long-term costs.
As always, how you or your loved ones may be impacted by recent Medicaid changes should be discussed one on one with your trusted Florida elder law attorney.
Steven J. Gibbs is a trust and estate planning attorney who provides complete Estate Planning, Trust Planning, Business Planning, Asset Protection, Elder and Medicaid Planning, Real Estate, Probate and Trust Administration legal services in Florida and California. Steve’s main offices are located in Fort Myers, Florida, and San Juan Capistrano, California. Estate planning legal services are provided statewide in these locations.
The Gibbs Law Office was founded by Steven Gibbs in January 2009 upon the commitment to provide client-centered legal services.
Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.
Steve as he would rather be called, is not your typical attorney. If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client. Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law. It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.
Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was admitted to the California State Bar in 2014.
Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues. Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills. He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children. The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.
Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path. To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”
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