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By Joseph A. Bollhofer, Esq. 

            In my November article I explained that the Health Department’s new Medicaid regulations were set to expire on December 6, 2011 if they were not extended before that date. The regulations have not been extended or made permanent and have expired.

            We believe that the regulations were allowed to expire largely as a result of the efforts of attorneys who explained to members of the Governor’s office and the State Health Department various problems with the proposed plan. The Health Department has instructed local Departments of Social Services to cease any efforts to recover from non-probate assets of the estates of Medicaid recipients. A planned lawsuit challenging the regulations likely also had some influence in achieving this result.

            We have been advised that the Health Department now plans to issue  regulations that will be effective for the estates of Medicaid recipients dying on or after July 1, 2012. There will be a sixty day period before that during which comments can be made regarding the proposed regulations.

            Unfortunately, it appears that the Health Department still intends to include “life estates” within the expanded definition of “estate” and to make the application retroactive. This means that the actuarial value of a life estate of all persons dying on or after July 1st will be included and potentially recoverable by Medicaid, no matter when that life estate was created. Although there is some clarification of the proposed procedure regarding the filing of liens in the respective County Clerk’s offices, if the regulations are implemented as proposed, there certainly will be lawsuits challenging their legality.

            It is likely that opponents of the regulations will have an opportunity during the legislative budgetary process to push for action to correct the problems with the proposed regulations.

            This promises to be the hottest topic in elder law and Medicaid planning during at least the first half of 2012. I will continue to report on any update in the process.





Copyright 2012 Joseph A. Bollhofer, Esq.


Editor’s Note:

Joseph A. Bollhofer, Esq., is an attorney who practices law in the areas of elder law, Medicaid, estate and business planning and administration, real estate and personal injury. He is a member of the National Academy of Elder Law Attorneys (NAELA) and of the Elder Law, Real Property, and Surrogate’s Court Committees of the Suffolk County Bar Association and  the Elder Law, Real Property Law and Torts, Insurance and Negligence Sections of the New York State Bar Association. He has been serving area residents since 1985 and is admitted to practice law in New York and New Jersey. His office is located at 291 Lake Ave., St. James, NY. (631-584-0100). For reprints of this article and others send a request to info@bollhoferlaw.com or visit www.bollhoferlaw.com.