IMPENDING COMMUNITY CARE MEDICAID CHANGES – AN UPDATE

By Joseph A. Bollhofer, Esq.

            This past spring, I wrote about significant amendments to New York’s Social Services Law that occurred with the passage of the New York State budget in early April. Due in part to all of the upheaval caused to our lives by the virus, those amendments have received little attention. They will have an adverse impact on many of the elderly applying for Community Care (“Home Care”) Medicaid and their families.

             Recently, members of the New York State Bar Association had a conference call with staff from the New York State Department of Health (“DOH”) to clarify how these changes are likely to be implemented. Although the clarifications are based on a single phone call thus far, it is important to gather as much information as possible, so that those likely to seek Medicaid coverage for “community-based long term care services” (outside of a nursing home, such as home health care services) are as prepared as they can be.

             For general rules and guidance regarding planning and eligibility for Medicaid, both in a nursing home and out, read the various articles on my website at www.bollhoferlaw.com.

  The new law states that, effective for all Medicaid applications filed October 1, 2020 and later for community Medicaid, New York State will assess a penalty for gifts made by the applicant or spouse (“uncompensated transfers”) during the 30 month period immediately prior to the month of the Medicaid application. The DOH representatives recently clarified that the penalty will only apply to transfers made on or after October 1. The 30-month lookback period reportedly will be phased in.

             A “lookback period” (and therefore a financial penalty) has for many years been applicable to asset transfers in nursing home Medicaid applications (60 months). However, in New York State there has been and currently is no look-back period for Medicaid eligibility for community care.  Therefore, for example, you could gift all of your assets to anyone by the end of a month and effective the next month you would be eligible for Medicaid coverage for care at home to the extent that you need it, and subject to, potentially, part of your income being used for that care.  The limit of nonexempt assets that you are allowed to keep and still be eligible for Medicaid, either at home or in a Nursing Home, currently is $15,750.

             As with nursing home Medicaid eligibility, there are certain exemptions that will apply and not create a penalty, including transfers to a spouse, to a disabled or blind child, or to a trust for the benefit of that child.

             The law also permits the State director of the budget to delay the effective date for up to 90 days after the termination of the Governor’s executive order that declared a state disaster emergency. There is no indication as to whether the director will do that.

  Until a State Administrative Directive or other written policy is issued, no one can be sure that the verbal statements recently made by DOH officials can be relied upon. One thing is clear though: at some point in the not-to-distant future, gifts made by a Community Care Medicaid  applicant or spouse within the “lookback period” will cause the applicant to be ineligible for coverage for a certain period of time. Suffice it to say that if you are considering applying for Community Care Medicaid, or planning for that possibility, now would be a good time to seek legal assistance so that you will be as prepared as possible.

 Copyright 2020 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 National Academy of Elder Law Attorneys, and 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.