DPSS ePolicy

SI Provisions are designed to prevent the spouse of an institutionalized person from becoming impoverished due to the high cost of institutionalization.  Provisions in the SI Program allow a greater portion of the income and assets (for evaluations prior to January 1, 2024) of the institutionalized spouse to be allocated to the at-home spouse.

An institutionalized individual is someone who was admitted or is residing in a Nursing Facility (NF) (a.k.a. LTC facility).  However, the Affordable Care Act (ACA) expanded the definition of “institutionalized spouse” to include married couples or Registered Domestic Partners (RDPs) who live at home or in a non-health facility, such as Board & Care (B&C), and receive or are requesting HCBS.

The expanded definition allows SI Provisions to be applied when:

• One spouse/RDP is receiving or requesting to receive HCBS services; or
• One spouse/RDP passes a Needs Assessment and will likely qualify for, or is receiving, IHSS/Community First Choice Option (CFCO).

CFCO is the only program within IHSS that requires NF Level of Care (LOC); therefore, it is the only IHSS Program that meets the criteria for applying SI Provisions.  The other programs within IHSS (In-Home Operations [IHO], Personal Care Services Program [PCSP], and Residual) do not require NF LOC and consequently, do not meet the criteria for applying SI Provisions.

Married couples and RDPs who have or will have a Share of Cost (SOC) must be screened for potential eligibility under SI Provisions as part of the eligibility determination at:

• Intake;
  
• Renewal (RE);
• Reported Change-In-Circumstances (CIC); and
• At any time the case is reviewed.

The screening process must include informing applicants and beneficiaries of how to qualify for expanded SI.

Property/Assets

Effective January 1, 2024, assets are no longer counted to determine eligibility under Non-MAGI Medi-Cal.  EWs no longer need to determine the CSRA when the initial month of eligibility is on or after January 1, 2024.

In addition, the Continuous Coverage Unwinding (CCU) Period Asset and Property Waiver was in effect March 1, 2023 through December 31, 2023.  This waiver allowed for the processing of all Non-MAGI determinations at RE and CIC without verification of assets/property.

Any reference to assets/property or the CSRA throughout this document applies to policy prior to the CCU Asset and Property Waiver and the January 1, 2024, asset/property test elimination.

Any requests for retroactive coverage for months prior to the CCU Asset and Property Waiver and the January 1, 2024, asset/property test elimination, will be subject to asset/property eligibility determinations and verification requirements.

On August 15, 2023, the Centers for Medicare and Medicaid Services (CMS) announced that SI Provisions for married couples and RDPs who are participating or requesting to participate in HCBS have been extended through September 30, 2027.

HCBS Waivers

The HCBS waivers are special programs that waive certain Federal Medicaid rules that allow individuals to become eligible or continue their Medi-Cal eligibility while residing at home instead of being admitted into a NF.

SI Provisions

Prior to the ACA expanding the definition of “institutionalized spouse,” SI Provisions applied when a Medi-Cal beneficiary was admitted into an LTC facility while their spouse lived at home, or if living at home, was enrolled in a 1915(c) Medi-Cal Waiver.

SI Provisions allow the at-home spouse also known as the Community Spouse (CS) to retain income and assets (for evaluations prior to January 1, 2024) above regular Medi-Cal limits.

• Income – A portion of the income belonging to the institutionalized spouse/RDP that can be set aside for the use of the at-home spouse/RDP.
  
• Assets/Property – A portion of the couple's combined resources that are protected for the at-home spouse/RDP.
   

Criteria for Evaluations under SI Provisions

SI Provisions must be applied in the first month when both of the following requirements are met:

• The request for HCBS or IHSS is made; and
• The need for NF LOC is established.

Medi-Cal applicants must meet both requirements before they can be evaluated under SI Provisions.  If only one requirement is met, the individual does not meet the criteria for an evaluation under SI Provisions.

Needs Assessment for HCBS or IHSS

A Needs Assessment is a requirement for HCBS waivers and the IHSS Program.  The purpose of the Needs Assessment is to assess the need for services by the individual.  It is conducted by clinical staff from the waiver agency or by the IHSS Social Worker at the individual’s home, hospital, nursing facility, or rehabilitation center.

Establishing the NF LOC

For individuals requesting an evaluation under SI Provisions, the need for NF LOC can be established by either:

• A completed Needs Assessment for HCBS or IHSS; or
• The Doctor’s Verification Form (MC 604 MDV) indicating the person would likely require NF LOC for 30 consecutive days in the absence of HCBS.

Doctor’s Verification

The purpose of the MC 604 MDV is to verify that the individual needs NF LOC for at least 30 consecutive days in the absence of in-home care and supportive services.  The doctor’s verification will be used in most cases where a Needs Assessment has not yet been completed by HCBS or IHSS.

SI Provisions are Part of the Eligibility Determination

SI Provisions must be applied as part of the Medi-Cal eligibility determination for individuals who also request HCBS or IHSS/CFCO at:

• The initial Medi-Cal application;
  
• The three-month retro period prior to the Medi-Cal application submission date; or
• In the month of the initial request for HCBS or IHSS/CFCO going back to January 1, 2014.

Impacted Programs and Waivers

The expanded federal definition of “institutionalized spouse” permits the SI rules to be applied to the following HCBS Programs and Waivers:

1. Section 1915(i) Developmental Disabilities State Plan Services;
2. Assisted Living Waiver (ALW);
3. Cal MediConnect Duals Demonstration Project for members eligible to receive HCBS and who would require institutionalization in the absence of HCBS – (Community-Based Adult Services, Multipurpose Senior Services Program [MSSP]) and in lieu of institutional services provided under the Care Plan Options;
4. California Community Transitions HCBS Money Follows the Person Grant;
5. Home and Community Based Alternatives (HCBA);
6. Community-Based Adult Services (CBAS) Medi-Cal 2020 Demonstration Waiver Benefit;
7. HCBS for Persons with Developmental Disabilities (DD) Waiver;
8. Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome Waiver;
9. IHSS/CFCO;
10. Multipurpose Senior Services Program (MSSP) Waiver;
11. Pediatric Palliative Care Waiver;
12. Program of All-inclusive Care for the Elderly;
13. San Francisco Community Living Support Benefit Waiver;
14. Self-Directed Program for Persons with DD Waiver; or
15. Senior Care Action Network Fully Integrated Dual Eligible Special Needs Plan.

In addition to the minimum requirements of NF LOC for at least 30 consecutive days, all HCBS Waivers or Programs have additional requirements/criteria as described in the HCBS Programs and Eligibility Chart for the corresponding program.

HCBS Waiver Waiting Lists

DHCS manages the HCBS waivers.  The waivers have specific limits on the number of people that can receive services during a calendar year.  After the yearly limit has been reached, new applicants are placed on a waiver waiting list and are processed on a first-come, first-served basis.

SI Provisions will apply regardless of the individual’s length of time on the waiver waiting list.  This means that even if the HCBS spouse is on the waiting list for many months or even years, the HCBS spouse can remain eligible in a separate budget unit from their CS/RDP until DHCS makes an eligibility determination for the specified program.

Criteria for HCBS Waivers

The minimum criteria to participate in any of the HCBS waivers or programs is to “need NF LOC for at least 30 consecutive days in the absence of HCBS.”

If the individual is institutionalized (in an LTC facility), approved for any HCBS waiver or approved for IHSS/CFCO, then the need for NF LOC has already been established.

If the individual requests to participate in HCBS or applies for IHSS, then the need for NF LOC still needs to be established.

Citizenship/Satisfactory Immigration Status

Citizenship or satisfactory immigration status is no longer a requirement to participate in a waiver program if the individual meets the waiver criteria.

Referrals to Waiver Agencies

Eligibility staff designated to evaluate waiver cases are required to maintain open lines of communication with waiver agencies and refer individuals to waiver programs when necessary.

Designation of the Community Spouse

SI Provisions apply to cases for married couples or RDPs, where only one spouse is considered institutionalized (i.e., residing in an LTC facility, applying for, or receiving HCBS or IHSS) and the other spouse is considered the CS.

SI Provisions do not apply if both spouses or RDPs are:

• Residing in an LTC facility;
  
• Applying for, or receiving HCBS; or
• Approved for IHSS/CFCO.

Since in these situations, the spouses or RDPs would both be considered institutionalized, and there would not be a CS.

Institutional Deeming will apply in cases where both spouses are considered institutionalized.

Coverage Groups

When evaluating the HCBS spouse for Medi-Cal, eligibility must be determined for the various coverage groups in accordance with the established Medi-Cal hierarchy.

• Mega Mandatory;
• MAGI;
• Non-MAGI Optional Categorical;
• Non-MAGI Medically Needy/Medically Indigent (MN/MI); or
• Non-MAGI (State Only).

Continuous Period of Institutionalization

A continuous period of institutionalization is 30 or more consecutive days of inpatient medical care in a medical institution or nursing facility.   A continuous period of institutionalization begins when an institutionalized person is expected to remain an inpatient for 30 consecutive days and ends when the institutionalized person is no longer an inpatient for a full calendar month.

If at the beginning of the period of institutionalization, it is determined that the individual is expected to remain in the facility for 30 days or more, then the individual is considered “institutionalized.”

Ongoing Eligibility under SI Provisions

The HCBS spouse remains eligible under SI Provisions unless there is a CIC that will require a redetermination of eligibility, the request for HCBS is denied, or they are approved for an IHSS Program other than CFCO.  The other programs within IHSS (IHO, PCSP, and Residual) do not require NF LOC and consequently, do not meet the criteria for applying SI Provisions.

Request for Services from Multiple Waivers

Individuals can apply for multiple HCBS waivers.  If an individual is denied participation in one HCBS Waiver and the individual applies for a second waiver before the end of a full calendar month after the first waiver is denied, then the continuous period of institutionalization does not end.  Eligibility under the SI Provisions continues until the Needs Assessment for the second waiver is completed, and if approved, there is no break in the continuous period of institutionalization.

Reevaluation under SI Provisions for CFCO Individuals

In the past, SI Provisions have been allowed for Medi-Cal individuals enrolled in HCBS waivers and programs.  However, SI Provisions were not allowed for individuals participating in IHSS/CFCO.

Since SI Provisions were not allowed in the past for IHSS/CFCO, a Medi-Cal evaluation under SI Provisions is required for individuals receiving IHSS with a SOC.

SI Provisions must be applied to Medi-Cal individuals who requested IHSS and:

• Pass the Needs Assessment or were approved for IHSS/CFCO on or after January 1, 2014;
• Provide a signed MC 604 MDV identifying they were likely to require NF LOC for 30 consecutive days beginning January 1, 2014, or a later date as specified in the MC 604 MDV; or
• Received IHSS/CFCO on or after January 1, 2014.

For Medi-Cal reevaluations under SI, the eligibility of Medi-Cal individuals who are, or were, in CFCO aid code 2K with a SOC on or after January 1, 2014, must be reviewed.  The review must include retroactive application of expanded SI eligibility rules back to the month in which the individual first became eligible to IHSS/CFCO.

Retroactive Implementation of SI Provisions

The expanded definition of “institutionalized spouse” mandated by the ACA allows for the application of SI Provisions to be applied retroactively to January 1, 2014.  If requirements are met, SI Provisions must be applied retroactively to the first month of expanded SI eligibility:

• At application - Evaluate all applicants for the earliest possible month of expanded SI eligibility back to January 1, 2014;
• At annual RE - Evaluate all beneficiaries for the earliest possible month of expanded SI eligibility back to January 1, 2014;
• For CFCO beneficiaries in aid code 2K with a SOC on or after January 1, 2014, evaluate all beneficiaries for the earliest possible month of expanded SI eligibility back to January 1, 2014;
• For married couples or RDPs who requested HCBS any time since January 1, 2014, but were denied or discontinued due to excess property;
• For married couples or RDPs who request a retroactive SI Provisions determination; and
• For married couples or RDPs who filed a fair hearing requesting a retroactive SI Provisions determination.

Acceptable Documents/Verification

HCBS 

• An HCBS Waiver Approval from an HCBS Waiver Administrator indicating the individual has been approved for an HCBS waiver or program.
• An HCBS Waiting List Confirmation Letter from an HCBS Waiver Administrator indicating the individual has been placed on the waiting list for an HCBS waiver or program.

HCBS & IHSS

• An MC 604 MDV signed by a doctor, as evidence that the individual would likely require NF LOC for at least 30 consecutive days in the absence of HCBS.

IHSS

• Medi-Cal Eligibility Data System (MEDS) Supplemental screens indicating participation in the IHSS/CFCO Program.  IHSS/CFCO can be verified by aid code 2K in MEDS Supplemental screens (e.g., Q1, Q2, Q3).