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Empire Justice Comments on Bill to Change Medical Support Guidelines

April 24, 2009

 

This bill is a response to the federal medical support regulations promulgated by the United States Department of Health and Human Services on July 21, 2009 (73 FR 42416 (7/21/08).  These regulations require states to revise their medical support guidelines to make a number of changes, including when private health insurance is “reasonable in cost,” and “reasonably accessible.”  These changes will assist the Courts in determining when child care is “available.”

This memo provides an analysis of S. 4214 (which is the same as OTDA Departmental bill #84), and makes several suggestions, which primarily focus on improving access to health care for low income families. Overall, we strongly support the bill, particularly, the 5% of gross income standard that it uses to define affordability, as well as its application of the same standard to the collection of confinement costs.

Sections 1 and 2: Repeal SSL 413(1)(c)(5)  and DRL 240(1-b)(c)(5),  and replaces the sub-paragraph with a new provision which directs the proration of future health care expenses and amends provides the following guidelines with respect to the payment of medical support:

Summary: Defines “cash medical support; the statute then has different rules depending upon whether health insurance is available, and if not, what publicly subsidized program the family is eligible for:

1.  Where health insurance is available, the cost of providing health insurance is pro-rated between the parties. If the custodial parent is or ordered to provide such benefits, the non- custodial parent’ s pro-rata share is added to the basic support obligation;   if the non-custodial parent is ordered to provide such benefits, the custodial parent’ s pro-rata share is deducted from  the basic support obligation; 

2.  Where health insurance is not available

a. and the child is eligible for Medicaid managed care, the parents shall be required to pay the lesser of the amount that would be the family contribution under Child Health Plus if the children were in a two parent household with income equal to the combined income of the parents, or the premium paid by the medical assistance program on behalf of the child or children to the managed care plan. The court shall separately state the non-custodial parent’s monthly obligation, which shall not exceed five percent of his or her gross income or the difference between the non-custodial parent’s income and the self-support reserve, whichever is less.

b. and the child is eligible for fee for service coverage under the Medicaid program, the Court shall determine the non-custodial parent’s maximum annual cash medical support obligation which shall be equal to the monthly amount that would be required as a family contribution under Child Health Plus if the children were in a two parent household with income equal to the combined income of the parents times twelve or the number of months that the child or children are authorized for fee for service coverage during any year The court shall separately state the non-custodial parent’s monthly obligation, and upon proof that the non-custodial parent has failed to pay the public entity for incurred health care expenses, the court shall order the non-custodial parent to pay such incurred health case expenses up to the maximum annual cash medical support obligation. Such amounts shall be considered arrears /past due support.  The total annual amount that the non-custodial parent is ordered to pay under this clause shall not exceed five percent of his or her gross income or the difference between the non-custodial parent’s income and the self-support reserve, whichever is less.

c. and where Medicaid expenses were incurred prior to the court’s order, the court shall calculate liability as described in the two preceding paragraphs, provided that the amount that the non-custodial parent is order to pay shall not exceed five percent of his or her gross income or the difference between the non-custodial parent’s income and the self-support reserve, whichever is less, for the year when the expense was incurred, whichever is less. Such amounts shall be considered arrears /past due support. 

d. and the child is eligible for Child Health Plus, the  court shall prorate each parent’s share of the cost of the required family contribution in the same proportion as each parent’s income is to the combined parental income, and state the non-custodial parent’s monthly obligation, which shall not exceed five percent of his or her gross income or the difference between the non-custodial parent’s income and the self-support reserve, whichever is less.

3. In addition to the forgoing, the court shall prorate each parent’s share of reasonable health care expenses not reimbursed or paid by insurance, Medicaid or Child Health Plus in the same proportion as each parent’s income is to the combined parental income, and state the non-custodial parent’s percentage in the order. The non-custodial parent’s share determined to be due and owing shall be considered support arrears/past due support. The Court may direct that the share be paid in one sum or period sums, including direct payment to the health care provider. However if the court orders payment of a period sum, the total of periodic payments shall not exceed 20% of the non-custodial parent’s gross income or the difference between the non-custodial parent’s income and the self-support reserve, whichever is less.

The court retains the power to deviate from the forgoing guidelines, provided that the court set forth in the order the factors it considered.

CommentsWe strongly support the aforementioned guidelines.  However, we do have a concern that the 20% cap on the periodic payment on non-reimbursable medical expenses is too high, particularly for low income individuals who have support orders that already reduce their income to the self support reserve as well as individuals supporting second families.

Where the cash support order or the cash medical support order already bring the individual’s income to the self-support reserve, no additional amount should be added for unreimbursed medical expenses since this bill defines both cash medical support and unreimbursed health care expenses as part of the “basic support obligation,” triggering the self-support reserve protections FCA 413(d) and DRL 240(1-b)(d)).   If there is any doubt that this is the effect of the interplay of these two provisions, the protection should be made explicit.

With respect to individuals supporting second families, the 20% cap may take away their ability to support the children currently in their care.  For example, if a respondent is paying 25% of his income for two children that are not in his household, plus 5% of his income for cash medical support, an additional 20% would mean that the individual will be paying 50% of his income in combined cash support, cash medical support and unreimbursed medical expenses.  Although the self-support reserve provision will provide sufficient protection for a single individual with no other dependents, we suggest that where a non-custodial parent is also a custodial parent,  the total of periodic payments shall not exceed 20% of the non-custodial parent’s gross income or the difference between the non-custodial parent’s income and  twice the self-support reserve, whichever is less.

Sections 3 and 4 : Adds a new subdivision (d) to 416 of the Family Court Act and a new paragraph 3 ot DRL 240(1)(b) to define health insurance as reasonable in cost if the cost of health insurance does not exceed five percent of the combined parental income. Cost is defined as the cost of extending health insurance benefits to the child or children or the difference between self-only benefits and extending health insurance benefits to the child or children when there is no existing coverage.  In no instance shall health insurance be considered reasonable in cost if a parent’s share of the cost would reduce the income of that parent below the self support reserve.

The section further defines when health insurance benefits are reasonably accessible as when the child lives within the geographic area covered by the plan or within 45 miles of services covered. This presumption may be rebutted for good cause shown.

Comment: We recommend that in the case of a health insurance policy with a total annual deductible of more than $200, the deductible be considered as part of the cost of health insurance when determining whether the health insurance is reasonable in cost. We also suggest that the definition include the cost of foreseeable out of pocket costs such as vision, orthodontia, and dental checkups.[1]  At a minimum we recommend that the Medicaid rate for these services be used to determine conservative foreseeable costs.[2]   Including deductibles and non-covered services in the definition of reasonable cost will minimize the occasions where there are sizeable unreimbursed medical expenses that need to be assigned to the parents pro-rata.

In addition, we would like to see the definition of “reasonably accessible” track the definitions used in the Medicaid Managed care contracts – 30 miles, or in urban areas, thirty minutes.  Also the term “medically necessary” should modify “services to ensure that specialty services must also be geographically accessible for those that need them. 

Sections 5 and 6:    Amends FCA 416(e)(2)(iii) and DRL240(1)©(2)(iii)   to provide that nothing shall limit the authority of the medial assistance program to determine when it is considered cost effective to require a custodial parent to enroll in an available health insurance plan.

Sections 7 & 8: Repeals 416(f) of the FCA and 240(1)(d) of the DRL to provide that the cost of providing Medicaid or Child Health Plus is deemed cash medical support. 

Section 9:  Amends 514 and 545(1) of the Family Court Act to make confinement costs cash medical support and the determination of liability is made in accordance with the provisions governing liability for determining health care expenses incurred prior to the Court’s order.

Comment: This would mean that liability for confinement costs could not exceed five percent of the non-custodial parent’s gross income or the difference between the non-custodial parent’s income and the self-support reserve, whichever is less, for the year when the expense was incurred.  We strongly support this provision.   We strongly support this provision, and have one suggestion for an amendment.

Under current state policy, local districts are advised not to pursue confinement costs where the father made his income and resources available to the mother at the time of her Medicaid application, or if the father was Medicaid eligible or a recipient of Medicaid at the time of the child’s birth.[3]  We recommend that this policy be continued and made explicit in the statute.

Further, we recommend that where the father lives with the child at issue no confinement costs be pursued.  This would assure that where the mother and father are living together as an intact family, that his ability to support the family is maintained.


Section 11: Amends CPLR 5241(b)(2)(i) to change some paragraph references.

Section 12: Amends CPLR 5241(h) regarding the priority of certain levies. In particularly that deductions for health insurance premiums have priority over deductions for support arrears.

Comment: How are arrears for cash medical support treated when there are also child support arrears owing?  If the medical support arrears are owed to the local social services district for Medicaid reimbursement, the statute should be amended to explicitly provide that arrears for cash child support due and owing to the children be paid first.

Section 13:  Effective date: The bill shall take effect the 90th day after it becomes law and shall apply to any proceeding to establish or modify a child support obligation commenced after that date.


End Notes

[1]  Vision and dental care are covered by Child Health Plus; Vision, dental care and orthodontia are covered by Medicaid.  See http://www.health.state.ny.us/nysdoh/chplus/what_benefits_can_you_get.htm

[2]  These rates are a matter of public record and could easily be incorporated into a chart that would be available to the courts.  

[3]  See GIS 08 MA/03, available at: http://onlineresources.wnylc.net/pb/docs/08ma031.pdf    and 12/5/2000  “Dear Commissioner Letter from M. Bean (OTDA) and Kathryn Kuhmerker (NYS DOH), available at: http://onlineresources.wnylc.net/pb/showfaq.asp?fldAuto=91 

 


 

For more information, please contact:


Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 


(518) 462-6831
(518) 935-2852
santos@empirejustice.org