Medicaid Homecare in New York 2020

Medicaid in New York is on the verge of big changes- it will go from never having imposed transfer penalties for Community Medicaid to imposing penalties for transfers of assets or gifts made on October 1, 2020 and thereafter. Although Medicaid is not to impose a penalty unless the applicant divested to qualify for Medicaid, it is the applicant’s burden to prove the that gift was made for some other purpose.

A transfer penalty results in the withholding of Medicaid benefits for a period of time due to certain gifts or transfers that the Medicaid applicant or their spouse made on or after October 1, 2020. Not all gifts or transfers will be subject to penalty- some are exempt. Moreover, as stated above, the applicant will have an opportunity to prove that the gift was not made for the purpose of qualifying for Medicaid benefits- but that may not be easy.

If you are considering gifting or transferring assets and do not have sufficient long term care insurance or are not in a position to pay for healthcare privately, you should consider seeking legal advice.

Just a few details, (of which there are many not included here and some that Medicaid has not yet clarified):

  • Financial Eligibility: The asset and income limits for eligibility have not changed.

What is new is, for the first time ever in New York State, a Community Medicaid applicant will be subject to a 30-month (2½ year) lookback period for asset transfers that occur on and after October 1, 2020 over $2,000.00 (in Westchester County over $3,000.00).

If the applicant made non-exempt gifts or transfers of assets for the purpose of qualifying for Medicaid in the 30-months preceding the application, the applicant will not be granted benefits until the penalty period ends which will be phased in over time.

This is similar to the lookback period currently in effect for Institutional Applications. However, the look-back period for Nursing Home Applications is twice as long as Community Applications.

  • The Services Affected Include: Home Health Care Services; Personal Care Services; Assisted Living Facilities (the few that accept Medicaid); most likely the Community Directed Personal Assistance Program known as CDPAP (the program that allows recipients to employ an aide of their choosing); and most likely, Managed Long Term Care Plan enrollment.
  • Physical Eligibility Requirements: More stringentrequirements are imposed for Personal Care and Consumer Directed Services. To qualify for services based on physical needs, the applicant must require:
  1. assistance with three activities of daily living; or
  1. assistance with one activity of daily living and have a diagnosis of Alzheimer’s or dementia.
  • Determination of Care: The decision as to whether the applicant’s physical limitations render him or her eligible for benefits lie with and must be prescribed by:
  1. an independent physician who is under contract with the Department of Health; and by
  1. independent assessor, also under contract with the Department of Health.

The applicant will have to arrange for these assessments after financial eligibility is determined- it is a two-step process:

  1. First, the Department of Social Services renders a decision regarding the applicant’s financial eligibility;
  1. Then, if financial eligibility is verified, a decision is made concerning the necessity and appropriateness of homecare and what services will be provided, if any.
  • Services and Hours Granted: The number of hours and services that will be provided is the second step. Eventually, a new evidence-based tool will be instituted. It will customize the determination of the assistance necessary, taking into account the availability of family and/or other assistance.
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