N A E L A - National Academy of Elder Law Attorneys

Vermont’s Long-
Term Care Waiver
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struck an extraordinary blow
against the historical institutional
bias of the Medicaid program.
And by expanding services to a
segment of its potential longterm
care population, including
individuals who would not otherwise
qualify for Medicaid, 4 the
state is truly taking an
innovative, consumerfriendly
approach to
its long-term care
model.
But just as the
obvious, prominent
benefit of CRC is its
blow against the institutional
bias of
Medicaid, the obvious,
prominent drawback
of CRC is the end of
the entitlement to
long-term care services
for “high need”
individuals. Federal
law mandates that, at a minimum,
states provide their
Medicaid beneficiaries in need of
long-term care coverage for
nursing facility services, or home
and community-based services if
a slot is available in a state’s
HCBS program. 5 However, under
CRC, a Vermont Medicaid beneficiary
who demonstrates a need
for long-term care by meeting
the high need clinical eligibility
criteria may be forced onto a
waiting list if funding is not currently
available for services. 6
The state maintains that the vast
majority of Medicaid beneficiaries
demonstrating a need for longterm
care will meet the highest
need standard, which will entitle
them to coverage for services. 7
Even if that is so, the fact
remains that some high need
individuals qualifying for coverage
will not be entitled to receive
services until funds become
available.
Vermont’s
approach clearly
is a more enlightened
approach
and broadens
the dialog about
possible methods
of modifying
health care
approaches.
Is it the Right Model?
What is positive about
Vermont’s approach is that it actually
has any “pros” at all.
Heretofore, the prevailing idea in
both Congress and in states (e.g.,
Massachusetts, Minnesota, New
Hampshire) has been to address
the potential increase in demand
only by drastically reducing the
pool of eligibles through more
punitive asset
transfer rules. 8
Vermont is seeking
to reduce or
limit costs too, but
is also striving to
enhance consumer
satisfaction
and allow for
expanded enrollment.
Vermont’s
approach clearly is
a more enlightened
approach
and broadens the
dialog about possible
methods of
modifying health care approaches.
But, as outlined above, the plan
contains some serious drawbacks,
and it is not readily apparent
whether the “pro” will outweigh
the “con.” Obviously, much will
turn on the frequency with which
funds become exhausted, making
services “temporarily” unavailable,
for high need and moderate need
individuals. The good news is
that, with a five year lifetime
(2009), the results of the waiver
will be known before the Baby
Boomers reach age 65.
In the meantime, states’
efforts to redesign their long-term
care programs will continue, which
makes it imperative for advocates
to capitalize on any opportunity to
play a role in the development
process. Both Kentucky and
Florida have submitted demonstration
waiver proposals to HHS within
the last few months to redesign
their long-term care programs
Other states will certainly follow.
There is little doubt that
financial concerns will be the
driving force behind these state
proposals. However, if states
seek only to cut costs and do not
attempt, as Vermont has, to
enhance consumer satisfaction
and expand choice, their programs
will fail. Pure cost cutting
will result either in the denial of
care to those in need or the
damage of care to those receiving
it, which in turn is likely to
increase state costs instead of
decreasing them. Additionally,
forcing family members to fill a
void created by a purely budgetcutting
measure may produce a
consumer backlash. As a result,
nothing will be gained by either
the state or its Medicaid beneficiaries.
Therefore, to preserve the
solvency of state budgets in the
face of increased demand for
expensive long-term care coverage,
states will have to place on
equal footing with their effort to
reduce costs a directive to
ensure that quality care is provided
within a dynamic range of
services.
Gene Coffey, Esq., is a staff attorney
with the National Senior Citizens Law
Center in Washington D.C.
Endnotes
1 “Section 1115” is the common
designation for waivers granted
under 42 U.S.C. § 1315, which
is Section 1115 of the Social
Security Act. This statute provides
the agency the authority
to waive a state’s compliance
with certain provisions of the
Medicaid Act if the state wants
to implement a demonstration
project that, in the judgment of
(HHS), is “likely to assist in
promoting the objectives” of
the Act. Section 1115 waivers
are generally more broad than
their counterparts, Section
1915 waivers (42 U.S.C.
§1396n). Section 1915 waivers
are narrowly tailored to allow
states to offer home and com-
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