Lookback For Nursing Home Care
Because the DRA is a Federal law, it was implemented differently in each State. CMS, the Federal agency administering Medicaid, issued guidance to the States on implementing the DRA .
Two key New York State Department of Health directives give NYS policy on transfers of assets:
NOTE that these rules on transfer penalties apply to people who are Disabled, Aged 65+ or Blind . People who are not in this category or who do not have Medicare are in the “MAGI” Medicaid category. If they need nursing home care, they do have a “lookback” and transfer penalty, but the rules are slightly different. See this link below.
The Evelyn Frank Legal Resources Program published these training materials explaining the effects of the DRA on New York State’s Medicaid program, including strategies for avoiding or minimizing transfer penalties:
What Benefits Does Community Medicaid Provide
The NYS Department of Health lists the following Community Medicaid benefits and services:
- Doctor and clinic services, lab tests, and x-rays
- Medicaid drug coverage for prescription and non-prescription drugs
- Home care and personal care aides
- Adult daycare and transportation to medical care
- Physical, occupational, and speech therapy
- Mental health services
- Durable medical equipment, orthotic and prosthetic appliances
- Light housekeeping
Patients who continue to live at home, as well as residents in assisted-living facilities, may be eligible for these services through Community Medicaid.
Section V Beneficiary Impact
The State reviewed current utilization of services while preparing this proposal, and developed estimates of potential asset transfers. It is estimated that in 2022 and annually thereafter, approximately 3,700 new non-institutionalized applicants seeking Medicaid coverage of CBLTC through enrollment in a Managed Long Term Care Plan and approximately 70 applicants through Medicaid fee-for-service would be subject to an average penalty period of .91 months as a result of an average $10,000 prohibited transfer during the 30-month transfer of assets lookback period. These are services that might be necessary for an individual to avoid institutionalization and remain in the community. However, these transfers would also result in a penalty period for Medicaid coverage of nursing home care, for consumers who are admitted to a nursing home during a transfer penalty period. It should be noted that once a penalty is imposed, the penalty impacts both levels of care – the same penalty period is not applied twice.
The proposal to apply a 30-month look-back rather than 60 months will decrease the documentation required at application as compared to applications for Medicaid coverage of nursing home care, and reduce the review of transactions that may potentially result in a transfer of assets penalty for non-institutionalized individuals seeking CBLTC services through Medicaid fee-for-service or enrollment in MLTC.
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Important Update About New Yorks New 30
Update: The implementation date for the look back has been extended from July 1, 2021 to April 1, 2022, and may be pushed back again. This means that you have a few more months before the increased restrictions take effect. If you feel you are likely to need Community Medicaid services soon, the time to take action is now.
The reason the extension is required, is that the Federal Public Health Emergency established by the Federal government has been extended to January 15, 2021. Protections enacted under the Families First Coronavirus Response Act, prohibit states from increasing the restrictions on their Medicaid programs until the quarter that follows the end of the PHE. That means New York State will not be able to begin the implementation of the look back, and of the possible resulting transfer penalties, until at least April 1, 2022.
This change extends the opportunity for New Yorkers to apply for Community Medicaid services without being subject to the look back. It is possible that the extension will continue past April 1, but nothing is known at this time.
When the look back is implemented, disclosure of transfers of assets going back to October 1, 2020, will be required. Per the most recent notice, applications filed on or after April 1, 2022, will be subject to the look back, and to a penalty period, if the applicant transferred assets on or after October 1, 2020.
Access To Home Care Services Will Be Limited And Require More Hoops To Jump Through
Final state regulations were posted on the NYS DOH website on August 31, 2021 published in the NYS Register on Sept. 8, 2021. Direct link to regulation is here. The regulations have an effective date of Nov. 8, 2021, but they will not all be implemented on that date. DOH’s announcement about the regulations said that the “Independent Assessor” procedures will be implemented before the new Minimum ADL restrictions on eligibility for PCS and CDPAP.
to see the earlier version of the regulations when proposed, DOH requests to CMS to approve these changes, along with NYLAG’s comments on these proposals.
Eligibility for Personal care and CDPAP services and enrollment in MLTC will now require the need for assistance for THREE Activities of Daily Living or dementia. They must be prescribed by an independent physician under contract with DOH, and approved by an independent assessor under contract with DOH instead of the local district Medicaid agency and MLTC plan. Current recipients will be grandfathered in.
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Common Mistakes And Violations
GiftsSince the federal government permits U.S. citizens to gift money via the estate and gift tax exemption without paying tax on it, one may not realize that Medicaid does not consider the transaction to be exempt from the Medicaid look-back period. Even gifts for special occasions, such as holidays, weddings, and birthdays, may result in penalization by Medicaid. The same holds true for charitable donations. Further complicating matters is the fact that gifting rules change by state.
Lack of DocumentationEven if one sells an asset and receives a value equal to the fair market value, if they are unable to provide documentation of the transaction, they might be found in violation of the look-back period. This is of particular relevance for assets on which the government has a record, such as with boats, motorcycles, or vehicles via registrations.
The term, Medicaid Qualifying Trust, is inaccurately named and often violates Medicaid eligibility, thereby causing considerable confusion. One should take extra caution when hearing this phrase.
How Has The 20
Until now, a look back period only applied to Chronic Medicaid for nursing home or institutional care. However, the new budget has imposed a 30 month look back period for individuals applying for Community Medicaid where previously there was none. This change takes effect on October 1, 2020.Certain transfers will remain exempt. Most notably, exempt transfers will continue to include transfers to a spouse, a disabled or blind child, or a trust for the sole benefit of such a child, or to a trust established solely for the benefit of an individual under sixty-five years of age who is disabled.
New York Community Medicaid Community
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.
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?
Are all assets subject to the new community Medicaid 2 ½ year lookback period?
Contact our experienced attorneys at Ely J. Rosenzveig & Associates P.C. either online or at 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.
How The Look Back Period Works
The Look Back Period reviews all financial transactions made by the applicant.
Any violations of the Medicaid Look Back Period will result in a penalty and that penalty results in a period of ineligibility. This can be a challenge for seniors who may need more urgent placement in a nursing facility.
The penalty is calculated based on the amount of money that violated the Look Back Period divided by the average monthly rate for a private nursing home room in that state. The latter is referred to as the penalty divisor. The penalty is the period of the time that you will have to wait from the time of your application before you will be considered eligible for Medicaid.
Example 1: The penalty divisor in your state is $6,000 per month. You give away $60,000 during the Look Back Period. That means that you will be ineligible for Medicaid for 10 months from the time of your application.
Example 2: The penalty divisor is $6,000. You give $12,000 away to your niece each year over 10 years. Because only the last five years count towards the Medicaid Look Back Period, you are in violation of $60,000, not the full $120,000 amount. You will be ineligible for Medicaid for 10 months from the time you apply.
Example 3: The penalty divisor is $6,000. You sell your house to your daughter for $120,000 less than fair market value the year before you apply for Medicaid. You will be ineligible for Medicaid for 20 months after applying.
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What Happened To The Three Year Medicaid Look Back Period
It is true that the Medicaid look-back period was initially three years in most states. The CMS reported on the new regulations, effective February 2006, after the passing of the Deficit Reduction Act of 2005.
The DRA brought about several changes to the Medicaid look-back period. California, which still abides by its 30-month look-back period, became the only state not to extend the look-back period from three years to five years.
This potentially affects many people seeking nursing home senior care paid for by Medicaid, perhaps leaving some individuals to consider other means of paying for senior living options.
Another rule that changed is the fact that the Medicaid look-back period previously started with the day you transferred your assets. Now it begins 60 months prior to the date the person applies for Medicaid.
What Are The Eligibility Requirements For Community Medicaid In New York
Since Community Medicaid is a means-tested program, there are specific requirements that must be met in order to qualify for benefits. Firstly, an individual must be aged 65 or older or disabled. There must also be an established need for services. Prior to 2021, an applicant needed to show that they need assistance with at least two activities of daily living .
As of July 1, 2021, applicants must show a need for assistance with a minimum of three ADLs. If the individual has an Alzheimers or dementia diagnosis, the applicant needs to show they need help with more than one ADL. These ADLs include:
- Bed mobility turn and position
There are also personal care tasks that may be factored in when determining eligibility. Examples of Level II personal care tasks include:
- Administration of medications
- Preparation of meals with modified diets
- Providing routine skincare
- Changing of simple dressings
Also, recipients need to be financially eligible. In order to determine someones eligibility, there is an assessment of the applicants income as well as assets. The state will review two categories within the applicants financials including their income and applicable resources.
In this case, income is considered as any monies generated regardless of the source. This income can include Social Security, wages, pensions, alimony, IRA in distribution, or gifts.
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The State Has Delayed The Implementation Of The Lookback Period
Lawmakers in New York made changes to Medicaid rules that specifically apply to those seeking long-term, community-based care coverage. However, federal rules about Medicaid restrictions have forced the state to delay the rollout of the lookback period rules.
The plan has always been to start with a smaller lookback period and then increase it a little at a time. Eventually, the lookback period in New York will go back 30 months, although it will likely only be 18 months when the state first adopts this policy. Currently, it looks like this rule will start to take effect beginning on April 1, 2022, although the state has already pushed that date back before. It is possible that it may be July 1, 2022, or later before the rule actually takes effect.
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Please Note: Information provided herein is for convenience purposes. Nothing on this page or website constitutes legal advice, and we recommend that you verify all information on your own and seek legal counsel where appropriate. Please see full disclaimer at the bottom of this page.
When it comes to Medicaid in NY State, the first thing that one needs to determine is the applicants budgeting category. People in different age groups and circumstances are subject to different eligibility rules, and the services available in each category may also vary. In this section we will be discussing eligibility and services for the aged, blind, and disabled. This category includes people who are 65 and above, certified blind by the Commission for the Blind and Visually Handicapped, and certified disabled by Social Security or NY State . There are three levels of Medicaid for this category:
- Community Medicaid
What is Covered by Community Medicaid?
While Medicaid covers prescription drugs, people with Medicare will not have their prescription drugs paid for by Medicaid directly. Rather, Medicaid will pay Medicare to provide a free Medicare Part D prescription drug plan for these beneficiaries. Click here to learn more about this.
Community Medicaid with Long-Term Care provides everything that Community Medicaid does with the addition of community based long-term care services such as home care, adult day care, and assisted living .
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Professional Medicaid Planning Assistance
The Medicaid look-back period is a very serious and complicated matter. The best way to avoid violating this period and receiving a penalty of Medicaid ineligibility is to consult a Medicaid planner before gifting or transferring any assets. A Medicaid planner can also offer assistance if you have violated the look-back period. One can learn more or be connected with a Medicaid planner here.
Are There Ways To Avoid Medicaid Look Back Period Penalties
There are several exceptions to penalties for transferring assets during the Medicaid look-back period. If your transferred asset is a home and you transferred title to your spouse, there is no penalty. If your child lived with you for at least two years before you enter the nursing home and that child provided care to you during that period so you could continue living at home, you also avoid the penalty. If you have a child under age 21 who is blind or totally and permanently disabled under state-specific guidelines or if you transferred the home to your sibling who has an equity interest in that home and lived there for at least a year prior to your entering a nursing home there is no penalty.
NOLO points out that other exempt assets include household goods, personal effects, one automobile and some pre-paid funeral plans.
When considering nursing home senior care and senior living, make sure you avoid improper transfer of assets and know other guidelines of the Medicaid look-back period.
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Irrevocable Trusts And The Medicaid Look Back Period
An irrevocable trust is not usually countable as an asset when determining Medicaid eligibility. That is, unless it was established within the past five years . Medicaid treats these trusts as if they were gifts, and for that reason, they are subject to the Medicaid Look Back Period.
There are resources, however, that can be protected for the spouse of the applicant if they still live in the community. These do not count towards the Medicaid Look Back Period. The Spousal Impoverishment Standard changes every year. In 2021, the Minimum Monthly Maintenance Needs Allowance for the community spouse is set for $2,155 . Depending on the state, the spouse may retain assets ranging from $26,076 to $130,380. Home equity limits fall between $603,000 to $906,000.
Should I Give All My Assets Away Five Years Before I Need The Nursing Home
An attorney would rarely, if ever, advise giving all of your assets away – for a number of reasons. Most people do not want to give their assets away but if you had children you trust and you want to try to preserve assets for their inheritance, you may want to consider a Florida irrevocable asset protection trust. Irrevocable trusts used to protect assets are preferable to outright gifting to children for a number of reasons.
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