By Brian L. Miller, Esq., Littman Krooks LLP

In April of 2020, New York State passed laws significantly changing the Community Medicaid program for all New Yorkers, including the implementation of a thirty-month lookback for all asset transfers.  These laws were intended to take effect in October 2020 but have been pushed back several times since then. As elder law attorneys, we continue to follow any updates and guidance from the New York State Department of Health (DOH) on the implementation and interpretation of these new laws.  As of today, the new Community Medicaid laws have not been approved by the Federal government and are unlikely to take effect before January 1, 2022.

The good news about the delay in implementing the new Community Medicaid laws is that you have not missed out on your opportunity to complete your asset protection plans and submit a Community Medicaid application.  You still have time to effectuate a plan and submit a Community Medicaid application before the new laws go into effect.

In understanding the new laws, one drawback for future Community Medicaid applicants is that the DOH is taking the position that it will not allow for the exempt transfer of one’s primary residence to a ‘caretaker child,’ which is considered a permissible exempt transfer when applying for nursing home Medicaid.  Whether or not the DOH is correct in this position, it is important to understand that this planning technique may not be available to future Community Medicaid applicants.

Another issue that the DOH has addressed is the use of Pooled Income Trusts that many Community Medicaid recipients use to shelter their excess income each month.  Currently, many beneficiaries of these trusts allow their income contributions to accumulate over several months to pay their property taxes, school taxes or similar large price expenditures.  However, the DOH has indicated that it may consider amounts that accumulate in the Pooled Income Trust to be an available resource, thus putting one’s Medicaid eligibility at risk.  We will keep an eye on this proposed change and are already working on planning techniques to alleviate the risks of becoming over resourced.

The DOH has implied that the changes should only affect those who submit their Community Medicaid application after the laws go into effect.  Thus, there is still time to prepare and effectuate your asset protection plans and submit a Community Medicaid application under the current laws.  To learn more about how our dedicated team of attorneys can assist you with your asset protection plans and Community Medicaid applications, call (914) 684-2100 to schedule a no-obligation consultation today.