By Brian L. Miller, CELA®

In April of 2020, New York passed legislation requiring individuals applying for Community Medicaid to meet a minimum threshold of assistance or supervision with Activities of Daily Living (ADLs). The implementation of these new rules was delayed due to the COVID pandemic. Now, more than five years later, the Centers for Medicare & Medicaid Services (CMS) has allowed New York to implement its minimum ADL requirement.

CMS identifies ADLs as: eating, bathing, dressing, toileting, transferring, and maintaining continence.

New York State, on the other hand, defines ADLs as:

• Bathing (includes transfer in/out of shower/tub and washing body, but does not include washing back or hair);
• Personal Hygiene (brushing teeth, comb hair, wash face);
• Dressing upper body;
• Dressing lower body;
• Walking;
• Locomotion;
• Transfer on/off toilet;
• Toileting/commode use;
• Bed mobility; and
• Eating.

At this time, it is unknown if the New York State Department of Health will combine any of the aforesaid ADLs, to create a shorter list similar to the six ADLs identified by CMS.

Beginning September 1, 2025, individuals applying for Community Medicaid, Personal Care Services (PCS) or Consumer Directed Personal Assistance Program (CDPAP) benefits will need to meet the following ADL requirement:

• Individuals will need require physical maneuvering with three (3) or more ADLs to medically qualify for Community Medicaid, PCS or CDPAP benefits.
• Individuals who have been diagnosed with dementia or Alzheimer’s disease will need supervision or cuing with two (2) or more ADLs to qualify for the aforesaid benefits. However, individuals will also be required to submit an Alzheimer’s Disease or Dementia Form (DOH-5821) that needs to be completed with the individual’s identifying information; diagnosis information including ICD-10 code(s); diagnosing provider information (must be a MD or DO); information on provider completing form if different than the diagnosing provider (must be a MD, DO, NP or PA); and must be signed and dated by the provider completing the form.

Individuals who are already receiving Community Medicaid, PCS or CDPAP benefits, will receive a “legacy status” and will not be required to meet the new ADL eligibility requirement. However, if the legacy status individual has a gap in his/her enrollment of one month or more, or is disenrolled from an MLTC plan because of a nursing home stay of more than three months, the individual will lose their legacy status and will need to meet the new ADL eligibility requirement upon reapplication for benefits.

Individuals who have already applied for benefits and have conducted their New York Independent Assessor (NYIA) assessment prior to September 1, 2025 will also receive a legacy status, and need not meet the new ADL eligibility requirement if the individual begins receiving services within one year of their NYIA assessment.

This new ADL requirement will make it more difficult to qualify for Community Medicaid, PCS or CDPAP benefits. If you have questions or would like to discuss your or your loved one’s Community Medicaid application, contact Littman Krooks LLP to schedule a consultation.

Should you have any questions about your Medicaid eligibility and to ensure that your estate and asset protection planning complies with the current laws, please contact Littman Krooks LLP.