Laments Changes in NY law on Longterm Care at Home

Long Term Care at Home

By David A. Kubikian, Esq., Herzog Law Firm P.C.

Getting old is not easy. Not now, not ever (but especially not now).

Our world, country, state, county and community have been dealing with the ramifications of the COVID-19 virus.

Besides the fact that the virus tends to negatively impact the elderly and immune deficient, the virus has wreaked havoc on the ability for our needy seniors to receive long-term care. This impact has ranged from lockdowns of assisted living and nursing homes to making it much harder  for home healthcare aides to reach their clients who so badly need the assistance.

As if this immediate impact of COVID was not bad enough, the economic impact to our society at-large has and will prove more devastating to the long-term care landscape.

Even before COVID, Medicaid, which is the largest payer for long-term care services, had been under attack. In New York in particular, the Governor had created a Medicaid Redesign Team tasked with finding ways to make the Medicaid Program  more efficient. Translated, the real question was “where could money be saved?”

After months of suggestions and proposals, last month the New York State legislature passed a budget implementing some of the suggestions made by the redesign team. The result is one that  changes the long-term care landscape entirely.  Historically, there have been two parts to Medicaid’s long-term care coverage:

  • Care in a Nursing Home (Custodial Medicaid)
  • Care at Home (Community Medicaid)

For Custodial Medicaid, we have become quite accustomed to the “Five-Year Lookback Period” and the imperative that you need to plan ahead of time for the possibility of a nursing home need later in life. However, for Community Medicaid and the ability to receive long-term care services in your home, apartment, senior living community or even your daughter’s home, there has been no look back period.

Where there is no look-back period, it quite literally means that financial qualification for long-term care help can be achieved in a few days, not five years.

The new New York State budget does away with this last-second planning luxury. Starting October 1, 2020, applications for Medicaid coverage for long-term care assistance at “home” will require 30 months of documentation and implementation of a 2 ½ year look-back.

This change will simultaneously make qualifying for home care services harder while also making the importance of planning ahead that much more so.

The change will also have the impact of increasing the number of Medicaid application filings seeking home care between now and October 1st, as currently there is no look-back period.

In addition to the new look-back, the Community Medicaid changes include making it harder (from a need standpoint)  to qualify for services. Unless there are diagnosed cognitive impairments, those seeking Community Medicaid will need help with three activities of daily living whether they be transporting, toileting, bathing, eating, etc…

Such changes during normal times would result in a confusing and stressful time for the long-term care needy, especially between now and October 1st. Such a change during COVID has resulted in something different: a lack of awareness. It is important to contact your elder law attorney to discuss how these changes will impact you and your family.

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community Medicaid

NYS Budget and Medicaid

As many of you know, New York State has a very large deficit, in part due to large expenditures on Medicaid. This year, as part of the budget process, the governor appointed the Medicaid
Redesign Team II to come up with savings for the Medicaid program. The Medicaid Redesign Team, which was put together very quickly, made final recommendations to the Governor about cuts to the Medicaid budget which would result in $2.5 billion in overall savings. Then, in the midst of this pandemic, the majority of these cuts were included in the 2020-2021 budget which the Governor signed on April 3, 2020.

One of these cuts proposes a drastic change in the way in which the Community Medicaid rules are applied. Currently, anyone can apply for Community Medicaid, which provides home care for disabled and elderly individuals, whether or not they have transferred any assets or established a trust in the past few years. This is different than the rules for nursing home Medicaid (also called Chronic Care Medicaid) which have a 5 year lookback for transfer of assets or establishment of a trust. This meant that there was a huge advantage to Community Medicaid, because one could transfer excess assets to a trust and then immediately apply for Community Medicaid, without a lookback period.

Changes to Community Medicaid

The proposed change puts into effect a 2 ½ year lookback for Community Medicaid applications. This means that if you have made any transfers to a trust or other gifts within the past 2 ½ years then you would not be immediately eligible for Community Medicaid. Instead you would have wait out a certain period of time (the “penalty period”) before you become eligible for Medicaid.
The new rule would take effect on October 1, 2020. The good news is that it didn’t become effective sooner, and was delayed because of the coronavirus national crisis, and may possibly be delayed again.

So what does this all mean? It means that now more than ever it is important to plan in advance. You can still become eligible for Community Medicaid if you create and fund your trust 2 ½ years in advance. So if you are thinking about protecting your assets with an Irrevocable Trust, the time to act is now. If you are interested in learning more about the new Medicaid rules, or Irrevocable
Trusts, call our office at 518-465-7581 to make an appointment to speak to one of our attorneys. During this time of social distancing, we are still working and conducting phone or video

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