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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

February 9, 2021

COVID-19: NYS Attorney General Warns Against Unlawful Withholding of CARES Act Payments in Adult Care Facilities

On February 1, 2021, the NYS Office of the Attorney General notified the assisted living provider community that it has received complaints that some adult care facilities are retaining or withholding residents’ Economic Impact Payments (EIP) issued under the CARES Act and other stimulus packages. The attorney general warns that any retention or withholding of these funds is a violation of state and federal law and that the facility is precluded from demanding that any part of these funds count as income for purposes of Social Security eligibility.

While NYS regulation requires adult care facilities to assist residents with certain case management services including applying for income entitlements and public benefits, the attorney general cautioned that facilities are strictly prohibited from pressuring residents to sign agreements to use some or all of their EIP to pay “back rent.” Residents may, however, consent to the use of stimulus funds to pay for services rendered.

Given that additional stimulus payments could be forthcoming, we urge facilities to maintain documentation that the resident received their stimulus payment and none of the funds were used to pay for services rendered by the home. To the extent that any resident consents to the use of the funds as income to pay for services, we recommend that the facility memorialize that consent in a written agreement that details for which services the funds may be used.

If you have any questions regarding the content of this alert, please contact Mary Connolly, associate, at mconnolly@barclaydamon.com, or another member of the firm’s Health Care & Human Services Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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