Making the Law More ABLE: Reforming Medicaid for Disability

64 Pages Posted: 8 Oct 2015 Last revised: 12 Oct 2015

See all articles by Stephanie R. Hoffer

Stephanie R. Hoffer

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: October 12, 2015

Abstract

Passed on the eve of Medicaid’s fiftieth anniversary, the Achieving a Better Live Experience (ABLE) Act was a hard-fought victory for individuals with significant disabilities and their families. The law, which creates a new form of tax-preferred savings account, represents an invaluable work-around for highly restrictive Medicaid eligibility requirements. Medicaid eligibility is crucially important for individuals with intellectual, developmental, and other significant disabilities because it provides nearly exclusive access to government-coordinated habilitative care, such as in-home assistance, job supports, and adaptive equipment. These services are necessary to maintain a base-level quality of life, facilitate independent living, and preserve the dignity of individuals with disabilities. Despite their importance, they are difficult to purchase and coordinate in the private market, and due to income and asset-holding restrictions on eligibility, only the very poor can access them through Medicaid, even after passage of the Affordable Care Act. This Article argues that despite their facial neutrality, income and asset-holding restrictions, commonly referred to as means testing, result in undue hardship when they are applied to the provision of government-coordinated habilitative care for individuals with significant disabilities. Congress’s attempts to mitigate this hardship, including the recently passed ABLE Act, are important steps forward, but they also can impose economic, dignitary, and emotional harms on individuals with disabilities.

Based on the distinctive needs of individuals with significant disabilities, this Article takes the counter-intuitive position that these individuals should be afforded access to government-coordinated habilitative care without regard to income or wealth. Under current market conditions, non-means tested access to habilitative care is a normatively superior solution because it preserves the autonomy and dignity of individuals with disabilities and may be simultaneously cost-neutral and utility increasing. Granting unrestricted access to government-coordinated habilitative care to individuals with significant disabilities would eliminate perverse employment and financial planning incentives created by Congress’s past attempts to broaden access. Finally, it would create parity among parents who plan for the future of children with disabilities and those whose children are typically-abled, as well as parity for retirement savings among workers with significant disabilities and those without. As a result, Congress should revisit and revise means tested access to disability-related services through Medicaid.

Keywords: Achieving a Better Life Experience, ABLE, disability, Medicaid eligibility, 529A, tax-preferred savings, integration

Suggested Citation

Hoffer, Stephanie R., Making the Law More ABLE: Reforming Medicaid for Disability (October 12, 2015). Ohio State Law Journal, Forthcoming; Ohio State Public Law Working Paper No. 309. Available at SSRN: https://ssrn.com/abstract=2670821 or http://dx.doi.org/10.2139/ssrn.2670821

Stephanie R. Hoffer (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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