In April 2020, New York State passed laws that significantly changed the Community Medicaid program, making it more difficult for New Yorkers to obtain benefits for long-term care at home. These changes include creating a 30 month lookback of an individual’s finances for Community Medicaid and creating a penalty period for uncompensated transfers made during the 30 month lookback period. These new laws were written to take effect October 1, 2020.
As we approach October 1st, the Department of Health (DOH) and Department of Social Services have clarified some of the issues that elder law practitioners had with regard to the changes in the law, including the following:
- The implementation of the 30 month lookback period will be postponed to January 1, 2021. However, other provisions in the new laws regarding home care and CDPAP, such as the requirement that applicants require assistance with three Activities of Daily Living (ADLs) or two ADLS if the applicant has been diagnosed with dementia or Alzheimer’s, will likely begin October 1, 2020.
- The 30 month lookback will only apply to transfers made on or after October 1, 2020, and thus will be phased in over the 30 months following October 1, 2020.
- The DOH is reviewing the start date of any penalty for transfers made on or after October 1, 2020 and working on establishing a penalty period start date once both financial and medical eligibility are established. Medical eligibility will likely be established by either a letter or form from the applicant’s physician confirming the applicant’s need for the requisite level of care required under the law (the requisite number of ADLs and/or cognitive impairment required at the time of application).
- The use of pooled trusts to shelter excess income will still be an available planning technique. While transfer penalties would generally apply to a person over the age of 65 who transferred income to a pooled trust, such transfer will note be considered as such if the income contributed is used for the benefit of the applicant.
- The 30 month lookback period will not apply to those who are already receiving community Medicaid benefits when it is time to re-certify.
If you need help or assistance, and you want to remain home, it is imperative that you prepare your estate planning and apply for Community Medicaid sooner rather than later. To avoid delays in processing and the availability of caregivers, applications for Community Medicaid benefits should also be submitted as sooner rather than later.
You may not be in need of Community Medicaid benefits at this moment. However, proactive planning, especially if done under the current laws, is a recommended course of action when it comes to estate and asset protection planning. With proactive planning, clients are often able to preserve significantly more of their assets, rather than waiting until the need for Medicaid benefits arises.
With the new changes to Community Medicaid still in flux, asset protection and Medicaid applications are not something you should try to do on your own. You should retain the expertise of an experienced elder law attorney.
To schedule a consultation to discuss your asset protection and/or Medicaid needs, contact us.