05/28/2017










Medicaid Redesign Team Proposes Changes to Medicaid Eligibility in New York

Governor Cuomo recently accepted proposals from New York’s newly created Medicaid Redesign Team (“MRT”). While it is early in the process, and the proposals may not be implemented in their present form or at all, budgeting pressures at all levels of government make it likely that some changes in the Medicaid program will occur. Here are a few of the particularly troubling features of the MRT’s proposals:

Elimination of Spousal/Parental Refusal

Currently, a spouse may refuse to support their spouse who is an applicant for Community Medicaid or Medicaid Home Care. When this occurs, Medicaid is obligated to provide care or services to the applicant, assuming he is eligible (under $13,800 in resources), even if the spouse can afford to pay. The MRT is proposing that the resources and income of the spouse should be considered in determining whether the applicant is eligible for Medicaid. This means that spouses, and parents of disabled children, will be required to spend down virtually all of the household’s assets, and contribute a share of their income, before their ill spouse or disabled child will be eligible to receive care.

5-year “Look Back” for Community Medicaid and Home Care

Currently, the 5-year look back and transfer penalties apply only to applicants for Institutional Medicaid (for Nursing Home Care). Currently, applicants for Community Medicaid or Home Care are able to transfer their assets to family members, friends, or trusts, and thereby become eligible for Community Medicaid benefits. The MRT’s proposal would extend the 5-year look back to Community Medicaid and Home Care, which means that many potential applicants will find that they are ineligible for Medicaid, or subject to a lengthy penalty period before benefits can be obtained.

Estate Recovery

Currently, it is difficult for Medicaid to recover from the estates of medicaid recipients where the recipient has effectively transferred their assets during life to a family member or trust. The proposed law would allow medicaid the ability to seek recovery in these cases.

Impact of these proposals

If these proposals become law, many Medicaid applicants and their families will be severely affected. Some will find their financial situation and lifestyle significantly diminished, and others may find it difficult to pay for even basic living expenses. Many may to apply for food stamps, another program funded by the government.

What to do? Now, more than ever, people who need, or may need (even if they think they will never need it), long-term care should make it a top priority to consult a Long Island Elder Law attorney. Planning may need to be taken earlier than previously seemed necessary. As always, with proper planning, t will still be possible to improve your situation, even if these new measures find their way into law.

How to Pay for Nursing Home Care on Long Island

The cost of a Nursing Home in Long Island is generally $12,000 – $15,000 per month. This cost can deplete savings very quickly. As a result, proper planning is extremely important.

There are three ways to pay for a Nursing Home. First, one can use their savings. Clearly not a great plan – especially if your spouse must rely on that money to live. Second, one can purchase Long Term Care Insurance. Unfortunately, not many people can afford the premiums and the policies do not always cover the entire cost of care.

The third way to pay for Nursing Home Care on Long Island is Medicaid. Medicaid is a federal program which is administered by the States. In 2006, the Deficit Reduction Act of 2005 (DRA) was passed, making it more difficult – NOT IMPOSSIBLE – to qualify for Medicaid benefits. There are two ways in which the DRA made qualifying for Medicaid more difficult.

First, it extended a look back period on assets transfers from 3 years to five years. This means that when applying for Institutional Medicaid to pay for the Nursing Home, the local Department of Social Services will review your bank statements for the previous five years. If you have transferred any assets to a non spouse, they will impose a penalty period, during which the resident of the Nursing Home is responsible for payment. At the conclusion of the penalty period, Medicaid will “pick up” the cost of care.

The second way that the DRA affected eligibility is that he penalty period now begins when who enter the nursing home and apply for medicaid. Under the old law, the penalty period began when the asset was transferred. Therefore, under the old law, even if you made a large transfer within the 3 year look back, there is a possibility that the penalty period is over when you enter the nursing home. Under the DRA, the penalty period does not begin until one applies for Medicaid. Therefore, if there was a transfer of assets within the 5 years, there will always be a penalty period.

This does not mean that you cannot apply for Medicaid when you enter a Nursing Home. To the contrary it means that YOU MUST APPLY IMMEDIATELY because you want the penalty period to begin as soon as possible. Additionally there is a planning strategy that can cut the penalty period almost in half.

The above only applies to those who do not have spouses. If a Medicaid Applicant has a spouse, they can transfer their assets to the spouse and that transfer is not considered in the look back period – hence there would be no penalty period. The spouse simply signs a form called a “Spousal Refusal” and Medicaid will not impoverish the well spouse. There are certain limits to this, however. if the Community spouse has over $100,000 in assets, Medicaid can seek a contribution from them. Fortunately, the contribution is often minimal.

Proper planning can alleviate many concerns and protect assets against the high cost of care at Nursing Homes on Long Island. However, even if planning has not occurred, it it possible to protect some assets should you require Nursing Home Care. It is advisable to seek the advice of an Elder Law Attorney in Long Island as soon as your spouse or family member enters a nursing home. Getting a jump on the application process can save you a month or two of nursing home costs.

With questions about how to apply for Nursing Home Medicaid benefits, please call this office for a free consultation at 516-605-0625.

Deficit Reduction Act of 2005 – Impact on Medicaid

By Andrew M. Lamkin, Esq.

On February 8, 2006, President Bush signed into law the Deficit Reduction Act of 2005 (DRA). The Act reduces federal entitlement spending for Medicaid, among other federal programs. The Medicaid program pays for services for disabled seniors who meet the eligibility requirements. Most commonly, Medicaid pays for the cost of home health aides and nursing home care.

The effects of the Deficit Reduction Act on Medicaid are significant, especially when applying for nursing home benefits. First, the look back period on asset transfers has been increased from three to five years. When an uncompensated transfer, or gift, is made during this look back period, Medicaid will impose a “penalty period.” The “penalty period” is the length of time during which Medicaid will not pay for the cost of nursing care, during which time the family of the applicant is responsible. At the end of the penalty period, Medicaid will pick up the cost of care. Due to this change in the law, the goal when establishing an estate plan is to protect assets five years before having to apply for Medicaid. Unfortunately, it is difficult to anticipate when a family member may be forced to enter a nursing home. To ensure you are eligible for Medicaid should the need arise; it is advisable to plan well ahead of time.

The second major change as a result of the DRA, is in regard to the start of the penalty period. Under the old law, the penalty period began on the date when the assets were transferred. Depending on the fair market value of the transfer, the penalty period may have expired by the time the application was filed. Therefore, an applicant who transferred assets within the three year look back may have qualified for Medicaid before the time they apply.

Under DRA, however, the penalty period begins when the applicant applies for nursing home benefits. Therefore, any transfer made within the 5 year look-back period will certainly result in a penalty period. This is a drastic change and many applicants will be ineligible for a longer period of time. This will require applicants to pay for the cost of the nursing home with their savings, and perhaps require the sale of the family home.

A common misconception is that if proper planning has not occurred by the time a person enters a nursing home; there is no option other than to exhaust his savings. In reality, this is not the case. The opportunity to protect all of the assets may be lost, but by utilizing a strategy known as “Reverse Rule of Halves,” it is possible to protect up to one-half of the applicant’s assets. In order for this strategy to work, it is vital to transfer assets as soon as the person enters the nursing home.

It is also important to note that there are a few exceptions to transfers made during the look-back period. Transfers made within the look back period to a spouse or disabled child do not result in a penalty period. Furthermore, an applicant can transfer his home to a “caretaker” child. This exception applies only in a situation where a child of the applicant has been residing with the applicant in the applicant’s home for at least two years. In this situation, the applicant can transfer the home to the “caretaker” child while, retaining a life estate.

Fortunately, the eligibility requirements for Community-based Medicaid, where a home health aide is provided, are more lenient than nursing home based applications. Most importantly, there is not a look-back period on assets transfers. Hence, an applicant for Community Medicaid may transfer assets for the purposes of qualifying without the imposition of a penalty period. Therefore, an applicant can transfer assets to anyone in March and be eligible for Community Medicaid in April.

A big concern with community based applications is the “spenddown” requirement imposed on income over $767.00 per month. Any income over this amount must be “spent down” on the cost of care and Medicaid will pay for the remaining cost. For example, if an applicant receives Social Security benefits and a pension totaling $2,500 per month, he is allowed to keep only $767.00 per month. He is required to contribute the difference of $1,733 per month to the cost of the home care aide. If the aide costs more than $1,733 per month, Medicaid will pick up the difference. However, with proper planning and the use of a Pooled Income Trust, it is possible to protect 100% of the applicant’s income and he will not have to contribute to the cost of the home care aide. Therefore, by utilizing a Pooled Income Trust, Medicaid will pay for the entire cost of the home care aide.

Overall, the Deficit Reduction Act makes it more difficult for those in need to qualify for Medicaid benefits. The new provisions are complex and can be difficult to navigate. With these changes, it is even more important for the protection of your family to have a plan in place.

Taking time to speak with an Elder Law attorney can help to devise a plan that will insure that your loved ones receive the necessary care they need, while at the same time protecting their income and assets for their use.




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