When Advocacy Creates Policy Change

Morgan and DiSalvo, P.C. | Attorneys at Law

by Diane Weinberg

Martha Jo “Marty” Wagner, Esq., an attorney with Kilpatrick Townsend & Stockton LLP, gave me one of the best pieces of advice I ever received. I worked with Marty when I was a young associate at that firm more than two decades ago. When we started working together, she advised me to assume that everything she told me about the law was wrong until I had verified the statutes and regulations myself. I needed to understand both what the law actually said and the policy that the law hoped to achieve. Fast forward 20 years, this training helped benefit a family with a disabled spouse and create two changes to the Georgia Medicaid Manual.

Harry and Wanda, both in their early forties, have a young daughter, Daisy. (Not their real names.) Wanda suffers from a degenerative condition that has taken away her ability to care for herself. When Harry and Wanda first came to my office over a year ago, they wanted Wanda to receive care at home through a Medicaid waiver program. (Please see my recent article on Medicaid waiver programs.) Since then, Wanda’s condition has deteriorated, and she now resides in a skilled nursing facility.

As a result of my advocacy for my clients, the Department of Community Health (DCH) (the body overseeing Georgia’s Medicaid programs) changed how it calculates the monthly co-payments made by the Medicaid beneficiary for the service received.1 To determine a beneficiary’s co-payment, Medicaid determines the beneficiary’s monthly income and offsets this amount by certain expenses. The balance of the beneficiary’s income after the offsets is the co-payment. I was able to secure changes to the Medicaid manual for two offsets – a diversion to a dependent child and insurance premiums paid by the spouse through his payroll deduction.

Dependent diversion. Despite public perception to the contrary, Medicaid policy does not require the impoverishment of an entire family to obtain these benefits. Indeed, Medicaid policies are designed to provide benefits to an elderly or disabled family member while allowing the remaining family members to remain financially self-sufficient (i.e., not reliant on welfare benefits). To allow family members to remain financially independent, Medicaid has a policy by which the Medicaid beneficiary can “divert” up to a certain amount of monthly income to a spouse or dependent child. This diversion amount can then be used by the spouse or dependent child to pay for their expenses. In 2019, a Medicaid beneficiary can divert up to $3,160.50 of her monthly income to her spouse or up to $2,114.00 for the benefit of her dependent child.

As mentioned above, Wanda and Harry have a minor daughter, Daisy. When Wanda first became disabled, she began to receive Social Security Disability Insurance benefits. As Wanda’s dependent, Daisy also began receiving a monthly Social Security check. Wanda had been a high-income earner before her disability and, as such, Daisy received a monthly benefit of over $900 each month. Under the former Medicaid regulation, dependent diversion was not permitted if the dependent child received a monthly income of over $750.00. Federal law did not permit this income cap, and DCH removed the cap. Wanda is now able to divert over $1,000.00 of her monthly income toward her daughter’s care.

Insurance premiums. Under the Georgia Medicaid Manual and federal law, a Medicaid beneficiary’s monthly co-payment is offset by any medical expenses paid by the beneficiary. These medical expenses include amounts paid for insurance premiums for private health insurance. In this matter, Harry is in his early 40s and works full-time. His employer offers a health care benefit in which his employer pays for part of the insurance premium and Harry pays the balance of the insurance premium through his payroll deduction. The payroll deduction covered the health insurance premium for all three family members – Harry, Wanda, and Daisy.

Under the former Medicaid regulation, Wanda’s co-payment could only be offset by the health insurance premium if she directly paid that premium. However, in this matter, Harry, not Wanda, pays Wanda’s health insurance premium through payroll deduction. Fortunately, federal law provides that a Medicaid beneficiary’s co-payment should be offset by the health insurance premium payments made by a family member like a spouse.

The policy allowing for the offset of the health insurance premium makes perfect sense. Both private health insurance and Medicaid pay for Wanda’s medical care. To keep Medicaid costs low, Medicaid wants to encourage individuals to keep their private insurance policies. The private insurance serves as the primary insurer, and Medicaid assumes the role as the secondary insurer to cover expenses not covered by the private insurance. If Medicaid policy did not allow an offset for the private insurance premium, Harry would have had no incentive to keep paying for Wanda’s private insurance. He would have cancelled her insurance at his company’s open enrollment period, and the Medicaid program would become Wanda’s primary insurer, and Medicaid would have to cover all of Wanda’s expensive medical care. Again, DCH was receptive to making the change to the manual to comport with federal law.

On some level, I wish I could say that I engaged in a great battle with DCH over these two issues and won these changes through persuasive legal briefs and compelling oral arguments. Actually, I achieved these changes with polite emails to DCH attorneys saying, “Hi! Can you check this regulation in the manual because it seems to contradict the federal statute found at this U.S. code section.” And I received responses from the DCH attorneys and staff saying, “We agree that the policy contradicts federal law and will make the change.” In each case, the caseworkers and attorneys were polite and helpful.

I cannot overstate how much I enjoyed working with DCH. I typically attend two to three national conferences a year, and each year I hear horror stories about caseworkers and attorneys in other states who expend tremendous efforts to ensure that someone does not have access to Medicaid. Here in Georgia, DCH views its job as confirming that its policies reflect federal and state law, and it will ensure that eligible individuals will receive those benefits. We can argue about the interpretation of the regulations, but DCH policy is not “denial at all costs.”

I am thrilled I was able to get a favorable outcome for Harry, Wanda, and Daisy. As an elder law attorney, I can purchase software designed to help me engage in Medicaid planning for my clients. But the software does not have the benefit of Marty Wagner’s advice to dig deeper into the statutes and regulations to ensure that the Medicaid manual provisions are correct, nor do they have the ability to make lasting changes to aid Georgia’s Medicaid beneficiaries.

Thank you to Harry, Wanda, and Daisy for allowing me to tell your story.

Although I am very proud of my advocacy in this matter, I find writing about this accomplishment and tooting my own horn to be somewhat awkward. So if you would like solid and possibly awkward answers to Medicaid or other elder law questions, please make an appointment to speak directly with me by contacting Cheryl Hess at CHess@MorganDiSalvo.com or the Morgan and DiSalvo office directly at 678-720-0750.


1These co-payments are called the “cost share” or “patient liability,” depending on the benefits received.

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