On the front lines of battle to preserve “spousal refusal”

With the East Coast’s greatest concentration of senior citizens, Brooklyn and New York City residents would feel the greatest impact from Governor Andrew Cuomo’s Executive Budget proposal to alter “spousal refusal” – a federal law that grants a healthy spouse the right to separate his or her income and assets from that of their sick spouse, providing access to health care assistance and thus protecting the well spouse from bankruptcy.

The new law proposed would not fully eliminate spousal refusal, since it is guaranteed under federal law. However, it would restrict spousal refusal to only those couples who send the sick husband or wife to a nursing home – no home care allowed. It would also reduce the amount of lifetime assets protected from $113,640 down to $20,850.

While spousal refusal has been on the chopping block every year, then saved at the last minute, senior advocates say that this year, Cuomo seems to have taken a “much more aggressive stance” on it.

That is why local politicians, seniors and their advocates have begun sounding the alarm.

“Eliminating spousal refusal will force [seniors] to a crossroads [between] providing care and not affording to pay real estate taxes, divorcing my sick spouse, or putting them in a nursing home,” said Judith Grimaldi, a partner in the Bay Ridge elder law firm of Grimaldi & Yeung LLP. “I serve regular folks who have husbands and wives facing long-term illness and they want to keep their spouse home with them and participate in their care.”

Joanne Seminara, also of Grimaldi & Yeung LLP, added that her law firm sees people coming in “practically every day with issues like this, already afraid, beaten down, terrified and sad because they’re living with someone who is deteriorating, and they often have their own health concerns.”

One of those people is Sherman Heller, a 75-year-old college professor who for 18 years has been the primary caregiver for his wife, Linda, who has Alzheimer ’s disease.

Heller describes the experience as “an ever-accelerating and losing battle to her illness” that has required just about all of his time, resources and energy, and said that if it weren’t for the emotional support of close friends and the financial support of “spousal refusal,” he wouldn’t have been able to stay afloat.

“Watching the love of your life literally disappear in inches and watching them deteriorate… it’s hard to describe what it’s like when the person you know is not there,” noted Heller, saying Linda is bedridden and barely able to communicate, needing two people to bathe her and someone to monitor her 24/7.

Still, he says, it is better to have the person who was “the best thing that ever happened to [him]” at home with him.

“The few times we had my wife in a nursing home or hospital, it’s been dramatically worse,” he said. “She no longer walks or talks. But she still eats and smiles. And if I can get one kiss a day, that’s what gets me through the night.”

He added that under normal circumstances, he would be in retirement. “But I can’t retire. I have to keep the wheels of my life going always with this guillotine over my head that we may lose this benefit. I’m grateful for what has been there and I dread the loss of it,” he said.

Assemblymember Nicole Malliotakis said stories like Heller’s have inspired her to take action.

“Last year we were able to preserve spousal refusal because of advocacy by people like Sherman, and pressure from legislators,” she said at a press conference held at St. Nicholas Home on Ovington Avenue. “We cannot stand by while state government attempts to raid everything elderly couples have worked for their lives [resulting] in long term costs for Medicare and greater depression and illness for the well spouse.”

“The problem with healthcare spending isn’t [people],” said Malliotakis. “It’s waste and inefficiency and fraud and abuse. That’s where government should be focusing.”

Cuomo’s budget proposal is not final. The Senate and Assembly are each due to present budget drafts shortly.