The Covid-19 pandemic resulted in the delay of the implementation of the thirty (30) month lookback period for the Medicaid Homecare Program in New York that was to become effective on October 1, 2020. The sixty (60) month lookback period nursing home Medicaid remains in place. Because the federal government declared a health care emergency due to Covid-19, New York was not allowed to implement this new lookback. Thus, transfers can continue to be made to third parties and a Medicaid Asset Protection Trust without creating a lookback period (period of ineligibility). As of the date of this writing it is anticipated that the 30-month lookback for Medicaid covered homecare services will now become effective on July 1, 2022 for transfers made on or after October 1, 2020.
When the 30-month lookback was signed into law by the then Governor Andrew Cuomo, there was a consensus in New York that access to the Medicaid homecare program needed to be tightened as the cost of the program was becoming significant and rising. However, the thinking that prevailed in the NY Legislature and the office of the Governor on or about the spring of 2020, has apparently changed. In the current budget proposed by Governor Hochul, there is a provision which eliminates the resource tests (financial eligibility) for Medicaid homecare and Medicaid nursing home eligibility for the aged, blind or disabled. Thus, if this budget is passed and the elimination of the Medicaid resource limit for the aged, blind or disabled is approval by CMS (Center for Medicare and Medicaid Services) no matter how much money one has in savings, they can be eligible for Medicaid homecare and/or Medicaid nursing home. Thus, it would be possible for millionaires over the age of 65 to immediately become eligible for Medicaid homecare and nursing home without having to worry about making transfers of their assets and creating, and waiting out, lookback periods, either 30 months for home care or 60 months (period of ineligibility) for the nursing home program. Additionally, because New York does not have a residency requirement, it will open the door to residents of neighboring states such as New Jersey and Connecticut that do have a Medicaid resource test coming to New York to receive Medicaid homecare and/or nursing home. Furthermore, New Yorkers that have previously retired to states with warmer climates will see this as an opportunity to return to New York and not have to use their life savings for homecare and/or nursing home services.
As those who already have Medicaid homecare services and/or nursing home services know, both programs are struggling to keep up with demand for services and the quality of those services have already been impacted by Covid labor shortages and low pay for health care workers. It is hard to imagine how expanding these programs to the affluent without any resource limitations will not detrimentally impact the needy New Yorkers that require the services.
The proposed budget estimates that the cost of the proposed expansion of Medicaid would be an additional 5 million to 20 million dollars. It is hard to imagine that allowing all aged, blind or disabled New Yorkers and residents of other states to obtain Medicaid homecare and/or nursing home without regard to their savings would cost so little. Thus, the question we should all be asking the Governor, our State Senators and Assembly Persons is whether New Yorkers can afford millions of dollars or billions the proposed Medicaid expansion would cost its residents.
Anthony J. Enea is a member of Enea, Scanlan and Sirignano, LLP of White Plains and Somers, NY. He focuses his practice on Elder Law, Wills, Trusts and Estates. Mr. Enea is the Past Chair of Elder Law and Special Needs Section of the New York State Bar Association (NYSBA). He is the Past Chair of the 50+ Section of the NYSBA. Mr. Enea is the Past President and Founding Member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). Mr. Enea is the President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is also a Certified Elder Law Attorney as accredited by the National Elder Law Foundation. He is fluent in Italian.
Mr. Enea Can be reached at (914) 948-1500 or at a.enea@esslawfirm.com
