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April 21, 2020

Changes to NYS Community Medicaid Eligibility Rules

There has been an amendment to Social Services Law Section 366 subd. 5 (NY Laws Chapter 56, Part MM, Sections 13 and 14) that will require a 30-month lookback review of applications for Community Medicaid along with a transfer penalty to be assessed against non-institutionalized individuals who have transferred or gifted assets and are seeking Medicaid coverage for their community-based long-term care.

The 30-month lookback period will begin immediately preceding the date of application for medical assistance coverage of long-term care services. Long-term care services are defined in the amendment as home health care services, private duty nursing services, personal care services, assisted living program services, and consumer directed personal assistance program and managed long-term care plans.

The law provides an effective date of October 1, however, the director of the budget may, in consultation with the commissioner of health, delay the effective date for a period of time not to exceed 90 days following the conclusion or termination of an executive order issued pursuant to Section 28 of the executive law declaring a state of emergency for the entire state of New York.

It is currently unclear whether the lookback and transfer penalty will affect existing cases. The divisor for the penalty period will be the same as the regional rates for nursing home care SSL section subd. 5(e)(5), and the transfer exemptions should also apply to Community Medicaid applicants.

At Barclay Damon, we are well prepared to assist all of our clients with asset protection planning and to help them access Medicaid coverage for long-term care services.

If you have any questions regarding the content of this alert, please contact Lisa Arrington, partner, at larrington@barclaydamon.com or another member of the firm’s Elder Law & Medicaid Planning Team.

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