07 Dec New York Community Medicaid (CBLTC) – Community-Based Long Term Care
New Lookback Rules Affecting Applicants For Homecare In New York Through Medicaid
What has changed?
Before October 1, 2020, there was no lookback period for community Medicaid applicants. That is, until October 1, 2020, individuals living at home anywhere in the state of New York who were in need of home health aides could qualify for the financial thresholds of Medicaid benefits eligibility by transferring assets out or their names right before they applied for Medicaid assistance. Medicaid would not look back to asset transfers for any period of time prior to the date of their application.
Effectively then, a prospective community Medicaid recipient could take asset protection measures the day before applying for community Medicaid benefits, and then immediately qualify for services financially.
This has changed, effective October 1, 2020. Under the new NY Medicaid look back rules, those who completed their asset protection efforts prior to that date have been grandfathered into the old community Medicaid rules (i.e. no lookback period), no matter when they actually apply for benefits. However, for those who did planning and apply after October 1, 2020, they will now be subject to a 2 ½ year lookback period. However, this new rule will not be applied retroactively. That means that if you apply for community-based services on September 1, 2021, the lookback will only relate back to asset transfers made on or after October 1, 2020 – less than a year. A full 2 ½ year lookback will only kick in for community Medicaid applications filed after April 1, 2023, and financial records retroactive to October 1, 2020 will then need to be produced.
It is important to note that the new lookback period being imposed does not apply to waivered services for disabled adults in need of OPWDD services. It will also not apply to TBI waiver and NHTD waivers.
How will this new lookback period be implemented?
The New York State Department of Health (DOH) has tentatively advised that, on account of the COVID-19 pandemic, the phased-in implementation of the new lookback rules for community Medicaid home care, which were slated to begin with transfers made after October 1, 2020, might well be delayed until January 1, 2021, or possibly later. While we don’t have definitive confirmation from DOH on the issue just yet, this would appear to mean that for new applications filed between October 1st and January 1st, at the very least, applicants will not be subject to the new lookback rules.
There is an added wrinkle as well. On October 23, 2020, the Trump Administration renewed the public health emergency declaration for coronavirus – the Federal Public Health Emergency (“PHE”) Declaration. This renewal was effective as of October 23rd, and for 90 days thereafter. There is also a chance that the PHE Declaration will be renewed again once the current 90-day period ends. These PHE Declarations will likely have an impact on the implementation dates of the new NY community Medicaid lookback period. We will update this issue once DOH provides the necessary guidance over the coming weeks.
Are all assets subject to the new community Medicaid 2 ½ year lookback period?
There are certain assets that are considered available, and are subject to the new lookback period. There are other assets that are considered unavailable, and thus not subject to the lookback. For the most part, the same assets that were considered available to Medicaid previously, continue to be deemed available, and those assets that were considered unavailable continue to be treated as unavailable (e.g.., qualified retirement accounts in payout status).
The main question is the homestead – the community Medicaid applicant’s primary residence. Under 18 NYCRR 360-4.7, the home in which a person is residing is considered an exempt asset at the time they are applying for and are receiving community-based Medicaid services. Unlike an institutional care Medicaid applicant for whom there are more restrictive exempt transfer rules (19 NYCRR 350-4.4(c)), a community Medicaid applicant is living in their home. Perhaps then, since ownership of the home does not affect the applicant’s eligibility for community Medicaid services, the transfer of the home to a child or to a trust should be exempt as a transfer made for purposes other than applying for Medicaid. We are still waiting for clarification from DOH. However, if DOH accepts this position, transfers of the homestead would not be subject to the new lookback rules.
Contact our experienced attorneys at Ely J. Rosenzveig & Associates P.C. either online or at (914) 816-2900. We welcome the opportunity to visit with you and answer your questions regarding your specific health care needs, Medicaid benefits, and how we may help you to protect and preserve your assets.