Woman caring for a elder woman

NEWS UPDATE: Important Changes to the New Community Based Long Term Care Laws

By Stephen J. Silverberg
New York Elder Law Attorney

Adding new lookback requirements for those applying for community-based Medicaid home care that went into effect on October 1, 2020 have been pushed back to January 1, 2021 because of the renewal of the Federal Public Health Emergency (PHE) Declaration. The renewal is effective as of October 23 and for 90 days thereafter.

All COVID easements (including a ban on terminating or reducing Medicaid) will continue through January 2021, as will all other rules  from the legislation regarding  Coronavirus (COVID-19) – Medicaid Eligibility Processes During Emergency Period. This is because of the “Maintenance of Effort” requirement of the stimulus law conditions New York’s receipt of enhanced Federal Medicaid funding on continuing eligibility for all recipients, and on continuing the same eligibility rules through the end of the Public Health Emergency.

The takeaway for seniors and family members is an increased window of opportunity to conduct Medicaid planning for community home care. It may now be possible to make gifts, transfer assets, and other planning techniques to be used from now to January 1, 2021.

Details are still being worked out, as this change requires significant adjustment and training for the Medicaid and Department of Health personnel, and systems. It is not clear if transfers made before the PHE ends would be penalized, as that would be a prohibited restriction on eligibility. So it is possible that lookback period might even be moved to February 1, 2021, but this is still unclear.

We will continue to keep you up to date as this change to the law and Medicaid planning continues to evolve.

We encourage you to contact our office 516-307-1236 if you have questions or anticipate needing to file for community Medicaid or Medicaid home care within the next few months. This is an unusual planning opportunity, and one that should be explored.

About the Author
Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning, and elder law. He is a past president of the prestigious National Academy of Elder Law Attorneys (NAELA), and a founding member and past president of the New York State chapter of NAELA.