Blogs from 2020

October 2022 Update: Medicaid Lookback Further Delayed – Click here for more recent updates.

Update!

The implementation of the new 30-month lookback period for Community Medicaid in New York State has been delayed to April 1, 2021. That means that you still have an opportunity to preserve your assets without a penalty and access Community Medicaid, including home care, if you act now.

Once the law is implemented (expected on April 1, 2021), assets transferred since Oct. 1, 2020 will still be subject to the lookback and penalties will be assessed for uncompensated transfers.

If you need but haven’t yet applied for Medicaid community care and have assets, you still have time to transfer your assets and submit an application seeking eligibility with no lookback or transfer penalty. 

Call us to help you through this process. Act now.

The New York State budget passed in April 2020 for the fiscal year 2020-2021 includes changes to the Medicaid program that may greatly impact those seeking Medicaid for long term care assistance.  Particularly, many seniors and disabled individuals who require a home health aide or assisted living services will likely face greater challenges to retain such services.  With these changes, it will be more important than ever to do your estate planning early, or if you missed the opportunity to plan early, then to obtain the guidance of an elder law attorney to help you navigate the process optimally.

The Medicaid program is a federal and state program that helps with medical costs, including long term care in a nursing home or in the community, for people with limited resources and income. It is administered by each state with each state having broad leeway to determine eligibility requirements.

Until now, New Yorkers were fortunate to receive the benefits of the Medicaid long term care program with more lenient eligibility requirements than their fellow citizens in other states. For example, while other states impose a five year “lookback” to review if a Medicaid applicant has transferred money out of their name to become financially eligible for Medicaid long term care whether it is in a nursing home or in the community, New York has only had a five year lookback for nursing home long term care and not for applicants seeking long term care for home care or in an assisted living environment. In illustration, that means that until now, an applicant could legally transfer their $1,000,000 house and investments of several hundred thousand dollars to a trust, and then apply for Medicaid to pay for a home health aide without a waiting period.  The recent budget passed in April will change that effective beginning October 1, 2020.

Below are highlights of some of the changes the new budget’s impact will have on the Medicaid program.

New Two and a Half Year “Look-Back” for Care in the Community

Beginning October 1, 2020, there will be a two and a half year look-back for long-term care in the community, such as home health aides and assisted living care.

If an individual is seeking Medicaid coverage of long-term care services in the community, starting October 1, 2020, New York rules will require a full review of an individual’s finances, going back two and a half years. For example, if someone applies for Medicaid to cover the cost of a home health aide, or assisted living care, the application review process will include looking back 30 months to review if the applicant or his or her spouse transferred any money or property out of their name (either to a trust or gifted to another person). In addition to the new curtailment on the ability to protect one’s hard earned assets in the face of needing long term care, this new law will result in greater challenges and effort for seniors and the disabled community when applying for community care. Each applicant will be required to gather 30 months of their full financial records (such as bank statements for each account). This may prove to be very burdensome for family members and caretakers. In addition, the extensive review of additional documentation may cause approvals to take longer, while applicants are left without the care they need. Without the right support and guidance during this more complicated process, individuals may ultimately lack the care they need that is often critical to maintaining their health and well-being.

In light of the additional challenges that one may face with these changes, careful planning can still allow individuals to obtain the help they need, even with opportunities to preserve their assets. It will be more important than ever to consult with an elder law attorney to carefully navigate this process.

What is a “look-back”?

Medicaid applications are submitted to the applicant’s local Department of Social Services (DSS) along with supporting documents. The applicant must prove that his resources (the amount of money and other non-exempt assets that he has in his name) is below the Medicaid limit. If his resources are below the Medicaid limit, assuming he meets the additional criteria, he may be eligible for Medicaid benefits. When there is a lookback, the local DSS is not only reviewing whether the applicant’s resources are currently below the Medicaid limit, but they will look back to see whether the applicant has either simply spent down his money until there is little left (which is okay), or gave away his money without receiving anything of equal value in return to be below the resource limit (which is generally not okay).  During the application review process, the supporting documents with the application would need to include all financial records, i.e. bank statements for every account, for the full look-back period. When reviewing the months (or years) of statements, if DSS determines there were transfers made for less than fair market value, commonly referred to as an “uncompensated transfer,” then a penalty period is imposed based on the amount of the uncompensated transfer.  The applicant must then privately pay for his or her own long term care services for the length of the penalty period BEFORE Medicaid will begin to cover the services.

Until now, New York had a 60 month look-back only for nursing home care, with no look-back for community care. The new budget will impose a 30 month look-back for community care which will greatly limit the ability to do last minute planning.

Assuming you don’t have a crystal ball or other means of fortune telling, it is imperative to plan early for maximum protection of your assets because you don’t necessarily know when you may need long term care. If you missed that opportunity, and did not do advance planning, there may still be strategies to preserve assets, although you may be more limited.

Tougher Eligibility Criteria for Enrollment in Medicaid’s Consumer Directed Personal Assistance Program (CDPAP) and Personal Care Services (PCS)

Medicaid long term care assistance involves two main components. A financial eligibility component that considers resources and income, and a health, or physical, component which evaluates the need for assistance with one’s “activities of daily living,” also known as “ADLs”. With the new budget, Medicaid applicants will have to meet higher standards of physical need to be eligible for certain long-term care services in the community.  Starting in October, to be eligible, an individual seeking coverage with certain programs, such as CDPAP or PCS, will need to require some assistance with not just one, but two or more activities of daily living. (Note: there is an exception to this eligibility requirement for individuals with dementia.) An individual’s need would be determined during an assessment.

Determination of Eligibility will be Administered by Independent Assessors and Not by the Agency that is Providing Care to the Individuals

Currently, the initial assessments and periodic reassessments to determine the level of care are performed by the agencies that provide the care to the Medicaid recipients. However, the new budget directs these assessments to be done by an agency that is contracted through the Department of Health (DOH).  This may adversely affect individuals that need care because agencies will be making determinations when they don’t have familiarity with the individual Medicaid recipient and are not actively involved in the individual’s care.

It is too early to know exactly how each change will ultimately effect the future of Medicaid long term care services in the community, but if you or someone you know is either receiving care or will be in need of care in the future, it is imperative to consult with an elder law attorney to determine what you can possibly do now to plan wisely.

There are many smart ways to plan and protect your life savings and hard-earned assets while still getting the long term care you may need. While planning in advance is always critical, the new New York State budget makes advance planning all the more critical at this time. 

Planning is now more important than ever. We are here to help you. Contact us today for a free consultation.

The Medicaid Application process for long term care benefits can be complex and confusing. The process can be overwhelming in the best of times, and certainly when a family is already faced with the physical, emotional and financial stress of caring for a loved one suffering from illness or disability. When an individual needs long term care services, and seeks Medicaid to pay for it, the application process must be followed through. An experienced elder law attorney, who knows and understands the rules relating to Medicaid eligibility and the process to obtain the benefits needed, provides a tremendous advantage to an individual and his or her family for many reasons. Here are five reasons why you will want the assistance of an experienced elder law attorney when seeking Medicaid long term care.

1. An Elder Law Attorney Can Advise You on a Strategy to Preserve Your Assets So You Don’t Have to Spend Down Your Money to Become Medicaid Eligible.

You worked hard your whole life. Do you want your hard earned savings to be spent down on your long term care needs or do you want leave an inheritance for your loved ones? While a non-lawyer can help you process your Medicaid application, he or she cannot advise you on how you can legally protect and preserve your assets for your family. A lawyer that is well versed in Medicaid planning can identify and implement strategies to protect your assets so that not only can you qualify for Medicaid without spending down your assets, but your assets can be preserved for your loved ones. Ultimately, the price of paying for the lawyer’s assistance will be insignificant compared to the high cost of failing to do so.

2. An Elder Law Attorney Can Advise You on a Strategy to Avoid a Lien or Payback From Assets That Are Medicaid Exempt.

Too many times individuals are either misguided or fail to be guided on potential Medicaid liens and payback. For example, an individual can obtain Medicaid while owning their home. The idea is that an individual needs to live somewhere when they are getting home care services – they aren’t going to get services on the sidewalk! However, when the individual passes away, or permanently moves to a nursing home, the individual no longer needs to live in their home and before a family can inherit the home, Medicaid can lien the home and demand repayment for the cost of care which may be hundreds of thousands of dollars. While a non-lawyer can assist in the Medicaid application process for an individual, they would not be concerned with protecting the home against any claims that may come much later on. An elder law attorney would review the full picture and advise on ways to protect the home so that Medicaid does not seek repayment from the value of the home.

3. An Elder Law Attorney Is Looking at the Applicant’s Whole Picture, Not Just His or Her Immediate Medicaid Needs.

A non-lawyer may assist with getting approval for care for an individual based on the individual’s then current needs. Once there is approval often other aspects of the process may not be addressed, such as preservation of monthly income or future long term care needs. On the other hand, an experienced elder law attorney is confronting the Medicaid application process from a very wide lens. It is not only about the specific Medicaid application and approval, but about the bigger picture, future long term needs of the client and his or her family. For example, if home care is needed, the look back is different than if nursing home care is needed. What may work to successfully obtain home care can disqualify a person from obtaining nursing home care later if needed. A family can ultimately pay a very high nursing home cost because of actions taken earlier to obtain home care eligibility. Further, income rules are different for an assisted living facility vs. home care services or nursing home care services. What may be a great strategy for one kind of service can have adverse effects when seeking another type of service later.

4. An Elder Law Attorney Is Looking at Not Only the Applicant’s Whole Picture, but the Needs of His or Her Spouse and Often Other Family Members as Well.

A non-lawyer is not qualified to address the planning needs of a spouse of a Medicaid applicant. If there is a spouse, you want to make sure that you are protecting him or her as well, both from a financial perspective of potential Medicaid liability and spousal contribution as well as for his or her own possible future need for long term care. By getting Medicaid approval for one spouse, without having a strategy for protecting both spouse could have tremendously costly consequences. In addition, planning strategies can have both positive or negative effects on the children, which must be considered as well. An elder law attorney will look at the big picture, considering many various scenarios that may affect both husband, wife, children, and even other family members, and not just address the immediate needs of the Medicaid applicant.

5. An Elder Law Attorney Has the Legal Obligation to Advocate for You Without Any Conflict of Interest.

If you use the assistance of someone that works for the agency or institution that will be providing the Medicaid long term care services, there may be a conflict of interest. Although they mean well, ultimately, it is in their interest to get Medicaid approval as quickly as possible so that they can get paid. It is not their job to look out for preservation of your income or assets, protection for a spouse, or for the need for future services that may be precluded without proper advance planning. They cannot provide legal advice to you, and the fact that Medicaid may put a lien on your house in the future or your assets may become subject to estate recovery by Medicaid is really not their concern. The cost of hiring an attorney that will advocate for you and focus on your interests, and not any third party’s interest, will be a very worthy investment.

Elder law attorneys not only understand the rules relating Medicaid benefits but will also advise and advocate for you with regard to many additional considerations that you may not even be aware of. Failing to hire an elder law attorney for the Medicaid process can cost you a fortune. You don’t want to discover later on that you didn’t plan right. If you or a loved one is in need of long term care and is seeking Medicaid benefits, make the right decision and call an elder law attorney.

We would be happy to help you. Start protecting yourself today and call (516) 347-7356 for a free consultation.

Tragically, this is a question I have been asked more than once in recent days. During this horrible COVID-19 pandemic, young adults, without any savings, are being left with the tremendous and heartrending responsibility of arranging a funeral for the untimely death of a parent, and do not have the means to pay for it.

A funeral can cost approximately $8,000 in New York, which does not include burial expenses such as the plot and headstone.

If advance financial arrangements for a funeral were not in place, this expense would fall on the surviving family and would need to be paid immediately.

Where Can You Get the Money for a Funeral Immediately?

If your loved one had an account naming you as a joint owner, then you would have immediate access to the bank account and can use that money for the funeral. But if that is not the case, then unless your loved one gave you money in advance of their death or made financial arrangements during their lifetime (see below), getting access to your loved one’s money for a funeral will be much more challenging, if possible at all.

Being named the beneficiary in a will does not give you immediate access to the decedent’s funds. A will needs to be probated, the court needs to give the executor permission to access and collect the decedent’s funds, and only then can someone get paid back for the funeral expenses they laid out. During the best of times, this can take a minimum of several weeks. Currently during this COVID-19 pandemic, courts are working on a skeleton basis and only processing emergency applications. Unfortunately, access to money is not considered an emergency to the courts.

You may then think that it is enough to be named as a beneficiary on your loved one’s bank account to get immediate access to their funds to pay for the funeral. Yes, this would be quicker than going through the probate process, but the bank will require a death certificate to evidence the death of your loved one before releasing the money in the account to you. Generally, a death certificate is ordered by the funeral home, and will not arrive before a funeral will need to take place and be paid for.

If you are named beneficiary of a life insurance policy, or other assets, there are times when a funeral home will accept an assignment of the funds as payment for the funeral. This means that although the life insurance company (or other financial institution) has not yet released the money, you, as beneficiary, are assigning to the funeral home an amount to cover the funeral expresses from the amount that you are entitled to. The balance of the funds would then go to you.

How Can I Prevent My Loved Ones from the Stress of Paying for My Funeral?

There are several ways that a person can make advance financial arrangements for their own funeral during their lifetime.

As mentioned above, a person can give their loved one a sum of money estimated to cover the cost of a funeral, or can add them as a joint owner on their account, leaving in the account an amount that would adequately cover funeral expenses. These methods obviously come with risk.

There is no guarantee that the funds won’t be spent for a purpose other than their designated use. And the account would be subject to their loved one’s creditor’s claims, divorce, bankruptcy. Therefore, even with the best of intentions, there is no guarantee that the money will be available when actually needed.

Prepaid Funeral Plan

A prepaid funeral plan is an excellent way to give your family peace of mind and protect them from the unnecessary stress of arranging and paying for a funeral in a time of grieving. This is very advantageous for several reasons, some of which are as follows.

1. A prepaid funeral plan relieves the surviving family of the stress of making funeral arrangements a time of mourning so the family can concentrate on what’s important.
2. A prepaid plan relieves a family of the financial responsibility of paying for the funeral.
3. A prepaid plan allows one to choose what they want and how they want final arrangements to be taken care of.
4. A prepaid plan can lock in the cost at current prices.
5. And last, a properly set up prepaid plan can be a planning tool for Medicaid qualification and eligibility.

Our Experienced Team is Here to Help

Whether you are sadly arranging the funeral of a loved one or if you wish to make advance preparations to give you and your family peace of mind, my office can help you navigate the process with skill and compassion. Contact us today for a free consultation.