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Are you aware of the upcoming changes in NYS Medicaid?

New York legislatures have always had their eyes on making budget cuts to the Medicaid program. This past April, the legislature passed the 2020-2021 budget, which included significant changes to the Medicaid program that will impact residents across the state, specifically the elderly and disabled that receive services in the community. As a member of the legal community that serves many disabled and elderly clients, I can personally say that we are bracing ourselves for very challenging and uncertain times for our clients in need. As we prepare for these new changes, let’s take a look at three of the major changes that will have the greatest impact on those receiving services.

Change #1 - 30-Month Look Back Period Now Applies to Community-Based Services Beginning October 1, 2020

Starting October 1, 2020, Medicaid rules will require a full review of an applicant’s financial history for the preceding two and a half years if they are applying for community-based services. A look-back can be very difficult for clients to get through. During the financial review, the Department of Social Services (DSS) reviews all of the applicant’s finances and looks for transactions that may be considered an uncompensated transfer (i.e., a transfer that was done with the intention of qualifying for Medicaid). DSS will require further clarification on the nature and details of each transfer and how the proceeds of the transfer were spent. For example, I’m often asked by clients if it’s wise to transfer their home to a family member in order to qualify for Medicaid. If during their review, DSS discovers a transfer of the applicant’s home, DSS will inquire as to how much the house was sold for, whether it was for fair market value, and how the proceeds of the sale were spent.

If DSS determines that the transfer was an uncompensated transfer, a penalty period will be imposed. The penalty period is a period of time in which the applicant will be required to pay for services out of their own pocket. The penalty period is determined by adding up the value of all of the uncompensated transfers and dividing by the cost of nursing home care in the region where the applicant lives. The 2020 regional rate for New York City is $12,844.

Penalty periods can add up quickly and have devastating financial effects. Many applicants would not be able to afford to private pay for their own care, which could force them to forgo necessary medical services.

Change #2 – More Stringent Eligibility Requirements for Consumer Directed Personal Assistance Program and Personal Care Services

Under the current rules, in order to be considered “medically-needy” for services, all applicants would undergo a conflict-free assessment to determine if the applicant would need at least 120 consecutive days of care. If the applicant met that requirement they would be eligible for enrollment for community services through the Consumer Directed Personal Assistance Program (CDPAP) or Personal Care Services (PCS).

However, as of October 1, 2020, the requirements for the CDPAP and PCS programs will require applicants to be eligible for services only if they require assistance with at least two activities of daily living (ADLs). For those with Alzheimer's or dementia, they are only required to need assistance with one ADL. ADLs include everyday tasks, like bathing, dressing, feeding, walking, personal hygiene.

The new rules will now make it more difficult for disabled individuals to enroll in certain programs. However, individuals who are currently receiving services in the community will not have to qualify under the new standard to maintain their services.

Change #3 – Determination of Eligibility Will be Determined by an Independent Assessor

Under the current rules, individuals receiving services are assessed for their medical needs by the agency that provides their care. Starting October 1, 2020, these agencies will no longer provide the assessments. Instead, an independent assessor hired by the Department of Health will complete the assessments. The Department of Health has not yet determined or released the criteria that will be used to determine how much assistance an individual will require, which is disconcerting. An agency that provides the care for an individual will be the most familiar with the individual's history and condition and the level of care needed. An individual assessor does not regularly interact with or treat the individual and would not likely

be familiar with their unique needs. It’s likely that under the new assessment criteria, it will be more difficult to qualify for services.

Despite these three major changes, there were two provisions of the Medicaid program that remain intact. The first provision: Spousal Impoverishment budgeting that was designed to help spouses of Medicaid recipients. These rules apply when one spouse was in need of medical services and the other is not. The rules prevent the well spouse from having to pay portions of their income or resources towards the cost of the care for their sick spouse. Currently, spouses that remain in the community are allowed to keep income up to $3,216 each month and resources up to $74,280, or half of the couple’s resources up to $128,640, whichever is greater.

The second provision: Spousal Refusal provision, also remains intact, which is considered a major win for future Medicaid applicants. Spouses have a legal obligation to contribute to the cost of the care for the sick spouse. For many couples, this obligation would create a financial hardship. The Spousal Refusal provisions allow for the well spouse to refuse to contribute their income or resources towards the cost of care for their sick spouse. If not for this provision, many couples would be forced to consider a divorce as the only option to ensure the sick spouse receives services and the well spouse can keep their income.

Applying for long-term care services under Medicaid is an already complicated and lengthy process. If you or your loved one is in need of medical care or is on the verge of needing care, it is imperative that you consider applying immediately to determine eligibility under the current rules that will expire on September 30, 2020. However, before applying, it is always important to consult with a knowledgeable attorney that can help you properly protect your assets and help you get through the application process. Contact Ms. Monteleon with all your questions and concerns.

Alssa Monteleon

Monteleon Law Group, PLLC


(914) 840-2529


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Mentorship Empowerment, Inc.


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