Medicaid Home and Community-Based Services in Maryland – An Unfolding Tragedy? The Doors Are Falling Off

By:  Stephen R. Elville, J.D., LL.M. – Managing Principal and Lead Attorney of Elville and Associates, P.C.

As children many of us rode in station wagons with our parents – some in station wagons with wood trim.  Yes, whether you rode in one of these wagons or not, you saw them and you remember them.  I was reminded of this recently when a client told me he was restoring on old pickup truck with exterior wood panels.  That really piqued my interest.  I then remembered admiring these wood-plated vehicles during my teenage years, especially the Jeep Cherokee version, and thinking to myself how awesome they were and how owning such a vehicle would be the real thing, the ideal thing.  Then, years later, I remember seeing some of these vehicles again and being astonished at their appearance.  The wooden panels (or faux wood) didn’t seem to have worn well (without being garage kept or restored), and in short, most of these wooden vehicles had aged badly.  Not only were they exhausted as to their life expectancy (lifetime use and utility), but they were also literally rotting from the outside in.  Alas, the fate of the wooden station wagon of our youth is a metaphor for many things, including the subject of this article, Medicaid Home and Community-Based Services in Maryland.  If you are interested in furthering and significantly bettering Maryland’s delivery of these non-optional and vitally important services to its senior citizens and their families, please read on.

FADE IN:  INTERIOR – WOOD-PANELED 1972 STATION WAGON; CHILDREN “Dad and Mom, are we there yet?”  Well, I’m sorry to say dear reader that regarding Home and Community-Based Services in Maryland the answer is still “no” after all these years.  We are most certainly not “there” yet, especially regarding the Community Options Waiver for older adults in Maryland.  In fact, we are so far from being where we should be, where we want to be and ought to be, that the old saying of Captain James T. Kirk of the Starship Enterprise comes to mind: “We….have (long pause)………a problem”.  And (unfortunately) Lieutenant Commander Scott (Scotti) cannot beam any of us up.  If you’ve read on, I know you won’t want me to parse words, so I won’t.  This means that some of us could and likely will “die or live” based on what we as the citizens of Maryland “do” or “don’t do” about this issue.  Now I would agree with you if at this point you were to ask yourself if the Managing Principal of Elville and Associates has “gone off the rails”.  But stick with me for a moment before you put down this article in disgust and answer your next text message.  Please know from the outset that this is not a political rampage or uncontrolled rambling I am embarking on.  Neither this writer nor Elville and Associates take political positions in The Benefactor or in any other activity relating to the law firm.  What this article does represent is the end of my long-suffering patience, and for that I apologize to all of you in advance.  

So, what am I talking about here?  Thank you sincerely for reading on – I’m describing the current situation as it relates to Maryland’s “look the other way” treatment of the elderly and disabled who need Medicaid (Medical Assistance in Maryland) long-term care benefits in their homes and in assisted living facilities across the state, which is, in brief, shortsighted, inefficient, wasteful, and punitive.  Strong words yes, but as mentioned above, my patience has come to an end.  Now to the substantive information.

Older adults want to stay in their homes.  This is well-known and accepted.  And we also know that during the continuing COVID-19 crisis nursing homes were and continue to be very risky places to be (by the way, they always have been).  Yet access to Home and Community-Based Services is limited in Maryland, especially for those persons in lower income brackets and with few assets – the persons who need these services the most.  Why does this situation exist?  Because the federal government does not require states like Maryland to provide home and community-based services on a broad scale, although federal law does require states to fund and provide unlimited access to long-term care skilled nursing care (nursing home care).  What does “limited” mean in this context?  At the time of this writing, there are over 20,000 people on waiting lists for Maryland’s Community Options Waiver.  Let’s circle back briefly to the previous couple sentences.  Because Maryland is required by the federal government to provide full coverage of long-term care skilled nursing services in a nursing home (long-term care Medical Assistance), this means that if a married couple or a single person meet the level of care, citizenship, income, and asset requirements, Medical Assistance will pay for the cost of care to the extent that the patient is unable to do so.  Conversely, the problem in Maryland for older adults, and the thrust of this article, is that Maryland will not pay for in-home care or assisted living care (care where an individual requires an assisted living level of care) except on a very limited basis.  This means that the cost of in-home care and assisted living care is basically private pay in Maryland.  How is this issue one of such magnitude (as I have asserted above) that it is a matter of life and death?  For the reason that when a disabled spouse or other family member is faced with the prospect of transitioning from an independent living situation (either in a home setting or in an independent living community) to assisted living due to a change in the person’s level of care, the financial considerations of how that care will be paid for more often than not take precedence over the actual care needs of the person and what is in that person’s best interests.  I urge you to read the preceding sentence again, and then once more.  This is where we are and where we have come in the treatment of our aging population.  In a broad sense, this could be considered a human rights issue.  

In the past five years, I have witnessed several clients live beyond 100 years of age.  One person lived to be 105.  Many of these individuals were able to age in place, either in their homes, or in top-of-the line assisted living facilities.  They had the financial wherewithal, family support, or both, to live out their days with dignity, comfort, and security.  Does it not follow that many more qualified seniors and other persons with disabilities who are residents of Maryland should have more robust access to home and community-based services, especially when studies show that after an initial cost-intensive period that the long-term effect will be cost savings to the state of Maryland?  Can the Maryland General Assembly continue to ignore that Maryland continues to be one of the worst places to live in the United States for Home and Community-Based Services?  Unfortunately, they could.  Can we call ourselves a just society when our senior citizens and persons with disabilities (and their families and caregivers) suffer from a lack of access to broad-based Medicaid Home and Community-Based Services year after year?  Arguably, no we cannot.  Along these lines, it is important to note that the best, brightest, and most dedicated minds of the Maryland State Bar Association’s Elder and Disability Rights Section Council, the National Academy of Elder Law Attorneys (NAELA), and others, have taken on this issue and presented both the great need and the positive fiscal cost analysis to the Maryland General Assembly largely without success.  This situation with the Medicaid Home and Community-Based Services in Marylandis unconscionable and cannot stand where costs of care continue to increase, the need for care and care options continues to expand, the COVID-19 crisis continues and institutional long-term care settings place residents at great risk, health care decisions continue to be made, by necessity, based on a financial ability to pay basis rather than what is best for the individual’s health and care, and most egregious and inexplicable, even Maryland’s existing Community Options Waiver slots are not fully funded.  

Truly change is needed and accountability to the public, above and beyond the influence of a strong nursing home lobby, needs to take precedence over short-term thinking.  Residents of Maryland should not have to be counseled by their attorneys that they may need to move to another state to receive these services.  Truly we are at a critical juncture so that justice for our aging population can become a reality.  Fortunately, we know that if the will of the people is strong enough, change will occur.  Maryland state government and the Maryland General Assembly should not and cannot be left unchecked to say to its citizens what our parents and grandparents said to us all those years ago: “No, we are not there yet, and don’t keep asking; I just told you 15 minutes ago; don’t ask again.”  The doors are literally falling off an old system that no longer works in Maryland, and it’s time to remove the rotting wood panels on this health care station wagon that lost its appeal, and its utility, years ago.

If you would like to know more about Home and Community-Based Services in Maryland and what you can do to support change for Maryland’s senior citizens and disabled persons who need access to services, please contact Stephen R. Elville at steve@elvilleassociates.com; or via telephone at 443-393-7696 x108.