Spousal Refusal Saved – But Look Back for Homecare Timeframe Shrinks

Good news for New Yorkers regarding Medicaid and Spousal Refusal – the New York State Education and Health Budget Bill is making progress through the New York State legislature. Due to the efforts of the NYS Bar Association Elder Law Section and the New York Chapter of the National Academy of Elder Law Attorneys, the state legislature has rejected proposals to eliminate Spousal Refusal and severely reduce the minimum Community Spouse Resource Allowance (CSRA).

However, it is not all good news. Beginning October 1, 2020, there will be a 30 month (2 ½ years) look back for all home care services. Any asset transfers made during or after that date will cause a penalty period determined the same way as for Skilled Nursing Level Medicaid. This change will mainly affect single people. Married couples can still use Spousal Refusal, and transfers between spouses are not subject to the look back or penalty periods.

The earliest effective date for the Home Care Look Back is October 1, 2020. If we are still in a New York State-declared state of emergency (and let’s hope we are not),  the Director of the Budget can delay the effective date for another 90 days.

Some of the other changes are not great.

To determine whether a person is eligible for care, they must need assistance performing three (3) Activities of Daily Living (ADL); previously, the requirement was the inability to perform only two (2) ADLs.  There are exceptions for individuals with a diagnosis of Alzheimer’s or other Dementia diagnoses; in those cases, they will need to show a need for assistance with only one ADL. That also starts on October 1, 2020.

Effective October 1, 2020, the individual’s personal treating physician necessarily may not be permitted to approve their treatment plan for Medicaid Personal Care Services (PCS) and Consumer Directed Personal Assistance Program (CDPAP) services. A “qualified independent physician” selected or approved by the Department of Health must determine the plan of treatment. There is no guidance as to what this means.

Finally, there is a long-range plan for Local Departments of Social Services (LDSS), Managed Long Term Care (MLTC), and Medicaid Managed Care (MMC) for the assessment and approval of the number of hours. It will require using a Task-Based Assessment Tool developed, starting on April 1, 2021, and the date for the full takeover of the Assessment and approval process by DOH is October 1, 2022.

The above are significant changes. There are still questions about implementing these changes. My colleagues and I are reviewing these provisions, and I’ll continue to keep you posted.