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By: Joseph A. Bollhofer, Esq.


            I have been writing about a recent New York State Department of Health regulation that requires the county departments of Social Services to instruct married recipients of Community (homecare) Medicaid that they no longer have the option of using a pooled trust for their excess income.  As a result of the efforts of attorneys in the New York State Bar Association, the Department of Health has rescinded the regulation until the federal government’s Centers for Medicare and Medicaid Services provides clarification regarding the intent of the federal law (part of the Affordable Care Act) that sparked this change. 

            For those of you who are not aware, pooled trusts are a method under which a Community Medicaid recipient with “too much” money, may transfer his or her excess income each month and have household bills paid.  The program is described in more detail in my article “Paying For   Long Term Care At Home” on my website.

            The budgeting rules that the Department of Health mandated in its now-rescinded   regulation would financially harm many married recipients of homecare Medicaid and their spouses.  That regulation and its effect are described in another article on my website (“Community Medicaid: Pooled Trusts Are No Longer Available For Married Persons”). 

            The effect of this change is that prior rules are restored. Those rules state that it must be determined which of two budgeting formulas is more advantageous to the Medicaid recipient.

            The county departments of social services have been instructed by the Department of Health  to “identify any cases that were negatively impacted . . . and redetermine eligibility. The redetermination must be effective retroactive to the month the eligibility was determined . . ..”

            It is unclear how long it will take the local agencies to restore the “pooled trust” option for those who believe it is more advantageous. If any married Medicaid recipient needs assistance, please feel free to contact me.

The rules regarding Medicaid eligibility are extremely complex, and many alternatives exist. Since each particular case has its own unique facts, the reader is cautioned that the above summary cannot be considered legal advice and should consult with an appropriate legal advisor. Please also note that the monetary figures stated herein are applicable to applications filed in 2014, and might vary in later years.

 Copyright 2014 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, and real estate. He is a member of the Elder Law, Real Property, and Surrogate’s Court Committees of the Suffolk County Bar Association and of the Elder Law and Real Property Law 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. (584-0100). For reprints of this article and others concerning Medicaid, Elder Law and Estate Planning, send a request to info@bollhoferlaw.com or visit www.bollhoferlaw.com