No Deduction for Self-Provided Home Care Services That Medicaid Could Provide

A Medicaid home health services recipient may not deduct the expenses paid for additional in-home services if those services were coverable by Medicaid.

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In re Jean Brett. (Vt., No. 2010-201, Feb. 25, 2011).

Facts.  Jean Brett was approved for five days per week of home-based long-term care services through a Vermont Medicaid waiver program.  The terms of the program benefits required Jean to share a portion of the cost of the home-based services, as determined by her income level.  Since her daughter provided additional care for the remaining two days of each week, and the value of these services was deducted from Ms. Brett’s countable income, her portion of the care costs was reduced to a mere $45 per month.

However, in July of 2009, the state agency determined that the two additional days of home-based long-term care were not medically necessary for Ms. Brett.  Accordingly, the value of the two days of services provided by her daughter was no longer deducted from her countable income, and her share of the costs substantially increased to $1,155 per month.  Ms. Brett appealed the state agency’s determination and the matter was sent to a review board.

The review board determined that the services provided by Ms. Brett’s daughter were medically necessary; however, such services could have been provided by Medicaid if properly requested.  Therefore, the board held that the value of the additional services were not deductible from Ms. Brett’s income.  Ms. Brett appealed this decision, arguing that, since the services were not paid for by Medicaid before July of 2009, they should be classified as deductible “noncovered” expenses.

Court’s Decision.  The Supreme Court of Vermont affirmed the review board’s determination that Ms. Brett could not take a deduction for services that could have otherwise been provided by Medicaid.  The court explained that, if Ms. Brett was permitted to deduct these additional in-home service expenses, she would become “the architect of benefit administration, rather than the agency in which the Legislature vested such authority.”

Alternate Strategies.  Although strictly enforced, the Medicaid rules do make certain allowances for benefit recipients.  For example, in Virginia, a Personal Care Services Agreement can both preserve the Medicaid applicant’s assets and compensate family members for the fair market value of home-based care services.  However, such agreements must be carefully drafted and properly implemented in order to withstand the scrutiny of Medicaid case workers.