Lawmakers in Florida's two chambers have introduced legislation to severely limit the use of personal service contracts in Medicaid eligibility and to effectively eliminate spousal refusal in the state.
Twyla Sketchley, chairwoman of the Florida Bar's elder law section, said fighting the bills will be an “uphill battle” in a legislature “dominated by conservative Republicans.” The bar has proposed amendments that would bring the proposals into compliance with federal regulations and avoid a lawsuit.
On the issue of personal service contracts between family members, the proposed law would bar these contracts from covering services that duplicate services by other providers or that would normally be provided out of consideration. In addition, the contracts must clearly reflect the number of hours to be provided on a monthly basis and the hourly rate cannot be more than minimum wage. The legislation also prohibits prospective payments.
The elder law bar maintains that the proposed personal service contract provisions would violate federal law. The requirement that these contracts spell out the actual hours to be provided on a monthly basis means that Medicaid recipients would not be able to have contracts that provide for services on an as-needed basis. Federal law allows personal service contracts to both provide for work on an as-needed basis and to be for fair market value.
Small Win on Spousal Refusal
Florida is one of the few states that permit spousal refusal (New York and Connecticut are the other two), but the proposed legislation would change that. The Senate bill allows the state to recover Medicaid expenses from a non-recipient spouse if the spouse refuses to make his or her assets available to the recipient spouse. Up until March 19, the House bill required spouses to be legally separated for three years before spousal refusal could be used. Under pressure from the elder law section, this provision has been removed. But the elder law bar sees other troubling aspects of the bill.
One of the bar's concerns is a provision that the institutional spouse can be denied Medicaid eligibility if the state determines that either the institutionalized spouse or designated representative did not “cooperate” in disclosing the community spouse’s assets. Sketchley noted that there is no definition of cooperation, meaning that the state could deny eligibility on its finding that the institutionalized spouse could force his or her spouse to provide information and didn’t. Another concern is that the bill might implement a doctrine of necessities specifically for people who need long-term care. (Many Floridians have pre- and post-nuptial agreements in a state that currently has no doctrine of necessities for the general population.)
Bad Time to Crack Down on Contracts
The timing of the attempted restrictions on personal service contracts could not be worse, Sketchley noted, in light of Florida's current mandate to move more people into managed care. This includes an effort to “rebalance” 65 percent of the nursing home population to the community without increasing Medicaid funding.
"By restricting personal service contracts, you're really restricting how many people can have a caregiver in the home," said Sketchley. "[Personal service contracts] would be perfect for insuring there was a caregiver in the home that could actually provide care" when "these people are dumped out of a nursing home."
Two Florida Republicans, Sen. Greg Evers and Rep. Jeanette Nunez, have filed the bills in the Senate and House, respectively (SB 1748 and HB 1323).
To read the Florida Senate version of the bill, click here.
To read the Florida House bill, click here.
For a Tampa Bay Times article on the proposed changes to personal service contracts, click here.
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