In December of 2022, the Department of Social Services (DSS) and the Human Resources Administration (HRA) sent out over 140,000 notices to Medicaid recipients with surplus income. Some of our clients received one of these notices.

The purpose of the notice was to inform the Medicaid recipients with 'surplus income' (the amount that would be required to be spent toward the cost of your care OR deposited into a Pooled Income Trust), that there was a new income limit for 2023.  The new limit significantly increased the amount of income which Medicaid recipients are permitted to keep in their personal accounts before making any contributions to a Pooled Income Trust.

The income limit for a household with one recipient in 2022 was $934. In December 2022, it was announced that the 2023 income limit would increase to $1,563.  Then unexpectedly, in mid-February 2023, it was increased again, to $1,677.  We have not previously seen an increase this large.

Currently, people who are using a Pooled Income Trust have two options. The first option is to continue to make monthly deposits to your Pooled Income Trust in accordance with last year’s income limits. At the time of your next renewal date, your surplus income will be recalculated using the new figures.

The second option is to request a recalculation of your income and initiate a budget review. If you choose to recalculate your income, you may be able to significantly reduce the amount of funds you deposit monthly into your Pooled Income Trust, or you may be able to eliminate the need for a Pooled Income Trust altogether.

If your renewal date is within the next several months, it probably does not make sense to request a budget review.  By the time it is completed, your renewal date may already have passed.  If your renewal date is farther away, it is in your interest to request a review, because it will mean you can keep more of your income in your own personal name, to spend on yourself or others in whatever manner you choose.

Lamson & Cutner, P.C. is available to complete your renewal applications and/or budget review requests. If you would like to engage us for this work, we recommend that you contact us soon. DSS and HRA will be receiving thousands of renewal requests, and we would like to submit the requests for our clients as soon as possible and hopefully get you to the front of the line.

If you are over 65 years of age, need health care or long-term care, and hope to  receive Medicaid benefits, Medicaid will determine your financial eligibility by first calculating the amount of your total “resources,” as defined by them.  Your resources include real estate and monetary assets that are titled in your name, such as savings accounts, checking accounts, and investment accounts, plus any insurance that has a cash value.

Only if you have very little in total resources (please refer to our Quick Reference Chart for the current level) are you financially eligible for Medicaid.  Medicaid usually increases this amount slightly every year.  But what about retirement accounts?  How are IRAs, Keoghs, 401(k)s and other qualified retirement plans  treated?  They are  monetary assets, and therefore  countable resources, aren’t they?  Under certain circumstances, the answer can be “no,” and the principal amount in the retirement account will not be considered a resource for determining Medicaid eligibility.  For a qualified retirement account NOT to be counted as a resource,  it must be in “payout status.”

What does “payout status” mean?

The laws governing retirement accounts require that you start taking periodic payments  from your qualified retirement account the year you turn  age 73.  However, you can begin withdrawals without a  penalty as early as age 59 ½.  For a retirement account to be considered in payout status  for Medicaid purposes, you must be withdrawing at least the Required Minimum Distribution amount according to Medicaid’s rules each year.

What is the Required Minimum Distribution (RMD)?

The concept of a retirement account is to provide financial support for you for the rest of your life.  Your Medicaid RMD for the current year is calculated by taking the amount  in your account on December 31^st of the previous year, and dividing it by the number of additional years you are expected to live at that point, based on a life expectancy table. The life expectancy table you are required to use can differ, based on your geographic location and marital status.  The calculation itself is not difficult, but you must be sure to use the correct life expectancy table, and finding the correct one can be confusing.

The life expectancy table Medicaid requires you to use is published by Medicaid, if you live anywhere in New York State except for the five boroughs of New York City.   Within New York City, Medicaid permits you to use a different life expectancy table, one published by the IRS,  to calculate your required distributions.  When using the Medicaid tables the distributions will be greater than the RMD as determined  using the IRS table.  The Medicaid table provides for substantially shorter life expectancies and therefore higher annual distributions.  Be aware that tax and estate planning strategies for retirement accounts are different from Medicaid planning.  Medicaid is a world unto itself, and is not concerned with harmonizing its rules with IRS laws and regulations.

While Medicaid will not count the underlying retirement asset as a countable resource if the account is in payout status, it WILL count the periodic distributions as additional income.  An individual applying for Medicaid home care services can protect this income by contributing it to a Pooled Income Trust.  An individual applying for Institutional Medicaid in a nursing home must contribute this income to the nursing home each month.  Because of Medicaid’s strict income requirements, there may instances when taking a lump sum distribution in excess of the required distribution may be beneficial, despite the income tax consequences of such a distribution.  In other instances it may not make sense to take any distributions greater than what is required.

Examples of how to calculate the distribution amounts from retirement accounts  for Medicaid purposes are given below, one for New York City and one for outside the five boroughs.

First example:  you are a 72 year old woman who lives in Queens and you are applying for Medicaid.  You need to start making distributions from your IRA, which totaled $120,000 on December 31^st of the previous year.  The New York City Human Resources Administration allows the use of the IRS life expectancy table, which provides a life expectancy of  27.4 years.  For that year only, your RMD is $120,000 divided by 27.4, or $4,380.  Let’s say the next year your IRA has grown by 4%, from $115,620 to $120,250.  Now you are 73 years old and the IRS table provides a life expectancy of 26.5 years.  So your annual RMD is $120,250 divided by 26.5, or $4,538.  Medicaid will divide the annual RMD into 12 monthly installments of $378.17, which they will include in your monthly income computation along with your other sources of income.

Second example:  your twin sister lives in Westchester County, is also applying for Medicaid, and has an identical amount in her IRA, $120,000.  The life expectancy table that is required by the Departments of Social Services throughout most of New York State estimates that she will live another 15.25 years (She may want to move to New York City, where somehow magically she is expected to live much longer!).  For that year, the amount that must be distributed  to her as a Westchester County resident for her retirement account to be considered in “payout status” is $120,000 divided by 15.25, or $7,869.  Assume the next year her IRA has grown by 4%, like yours did; now it is $116,616.  Now that she is 73, the Medicaid table shows a life expectancy of 14.52 more years.  Medicaid will require that her distribution for that year is $116,616 divided by 14.52, or $8,031.  When divided into 12 monthly installments she will have an additional $669.28 of monthly income.  You can see that the IRA will be depleted at a significantly faster rate when using the Medicaid table.

Each year you and your twin sister must continue to withdraw from your accounts at least the RMD, as calculated under the life expectancy table  that is used in your county.  The distribution will be added to your monthly income, but if you do not take these periodic payments, the entire underlying amount in your retirement accounts will be counted as a “resource,” and you will likely not be eligible for Medicaid.

But the bottom line is that you CAN have a significant amount of assets in a retirement account, and still be eligible for Medicaid, as long as you are withdrawing from your retirement account in the right way and in the right amounts.  If you are intending to apply for Medicaid, you will want to consult with your Elder Law attorney to make sure that your retirement accounts are handled properly and in the most advantageous way.

Be Informed and Take Action Now!

While almost everyone was focused on the coronavirus pandemic, the New York State Legislature, flying under the radar, took the opportunity to include new Medicaid rules in the budget.  The changes will make it more difficult for New Yorkers to access Community Medicaid services.

Once these changes take effect, Community Medicaid applicants will face greater challenges in obtaining services, including Home Care.  As a result, New Yorkers who fail to plan ahead may wind up spending tens of thousands of dollars out-of-pocket before they can access Medicaid benefits.  We are urging our clients, and any senior or person whose long-term care is a concern, to act before the changes in eligibility rules take effect. 

The changes that will have the largest impact are currently scheduled to become effective on March 31, 2024.   The window for seniors and disabled persons to put plans in place under the current, more generous rules regarding this vital government program has been extended several times, but that is no reason to delay.  The process of applying for Medicaid is complicated and time-consuming.  Acting quickly will give you the best chance possible of achieving the best outcome for you without undue stress and anxiety.  There is still a lot of discussion surrounding the implementation of these changes; contact our firm for the latest status.

Among the changes that will adversely affect seniors and disabled persons, these are the most significant:

 

 1. The New 30-Month “Look Back”

In New York, it is currently possible to access Community Medicaid quickly, but that will be changing.  Formerly there was no “look back” period when applying for Community Medicaid services.  However, the new rules will, once implemented, count uncompensated gifts and transfers starting October 1, 2020.  From that point on, new applicants will need to provide bank statements and financial information for a period of 30 months (2 1/2 years) when applying for Community Medicaid benefits.  Our article "Changes to Community Medicaid Begin Soon" has more details.

As with Nursing Home Medicaid, the Community Medicaid application will require disclosure of any gifts or transfers that have been made without consideration (e.g., monetary gifts to children or transfers to a trust) during the “look back” period.  If so, the applicant will be subject to a “penalty period” during which he or she will not be eligible for Community Medicaid benefits.  Those who need Home Care, for example, could be forced to pay out-of-pocket for up to 30 months, which could wipe out their savings.

2. More ADLs will be required to qualify for services

Personal care services for Medicaid recipients will also have more restrictive rules, and services will not be as widely available as they are currently.  In order to qualify for personal care services by enrollment with a Managed Long-Term Care agency (“MLTC”) or under the Consumer Directed Personal Assistance Program (“CDPAP”), the new rules will require that an applicant need assistance with three or more Activities of Daily Living (“ADLs”) where before, needing assistance with two ADLs made a person eligible.

There is an exception for people with a diagnosis of Alzheimer’s Disease or dementia, in which case a person needing assistance with two or more ADLs is eligible.  So, for example, if your Mom does not have dementia, but needs assistance with two ADLs such as getting out of bed and dressing, she will no longer be eligible for Medicaid personal care services.  She will have to pay for the help she needs with her own funds.

3.  A prescription from an independent physician will be required

Personal care services (whether MLTC or CDPAP) will be required to be prescribed by an independent physician selected or approved by the Department of Health.  This rule will likely cause delays because the independent physician will not be familiar with the applicant, and may have little or no experience or medical knowledge regarding the applicant’s specific health issues or diagnosis.

 

The above changes, and others, are the largest changes to New York’s Medicaid program in many years.  New York Medicaid will still be one of the most generous programs in the country, but once these changes take effect, it will be harder for people to access Medicaid services.

The new rules are also likely to result in long delays on submitted applications.  The rules will create far more work for Medicaid caseworkers.  Some ambiguity in the new regulations will lead to confusion and different ways of applying them.  It will take time to create and institute standard practices.  Will the various Medicaid offices increase their staffs to be able to give prompt attention to these more complicated applications?   That’s doubtful, in our opinion.  

Without being alarmist, now is the time to take action.  Seniors need to learn how these changes could affect them, and decide on the best course of action.  Creating a plan that incorporates long-term care planning with an estate plan would be wise.  If someone already has an estate plan, now would be a good time to review and update it.

The sooner you act, the greater your ability to protect your savings and property against the ruinous costs of long-term care.  

Helping clients create and execute effective long-term care plans has always been a key focus for Lamson & Cutner.  We have years of experience with these situations, and have had tremendous success in helping clients protect their life’s savings from being wiped out by long-term care expenses.  

Since the beginning of the coronavirus pandemic, we have been having meetings, consultations, Will signings and more by video conference.  Even our most senior clients have found video conferencing easy and effective.  For those who don’t have computers, consultations by telephone or conference call are simple and effective.

If you wish to learn more, please look at our website, www.lamson-cutner.com, or call us at (212) 447-8690 to schedule a consultation about your personal situation.  We are also planning to conduct educational online programs about the changes in Medicaid’s rules.  Information will be posted on our website, and you can also email us at info@lamson-cutner.com.

The New York State budget enacted in April 2020 made dramatic changes to the state’s Medicaid Program.  Two key, and extremely consequential, changes are (a) a new 30-month “look back” for Community Medicaid services, and (b) new requirements to qualify for Medicaid personal care services.  Due to the pandemic and to major modifications that will be required to the Medicaid system in New York, these changes have not yet been implemented.  If and when they are implemented, these changes are going to be costly – and in some cases, very costly – to those who need home care or assisted living care, and who have not taken action to protect themselves.  Other modifications will make accessing Medicaid benefits more difficult and cumbersome.

The budget left open many important questions, but the Department of Health is providing guidance on how these changes will be implemented, with the caution that the rules have not yet been finalized.

For now, New Yorkers who apply for Community Medicaid are not subject to any disclosure or review of gifts or transfers of their assets made prior to their application.  Officially, March 31, 2024, applications for Community Medicaid will be subject to the new “look back” for gifts or transfers made on or after October 1, 2020.  It is possible that the new "look back" will be delayed again, but the situation is unknown.  If the look back is implemented, many applicants will wind up spending far more of their own money before they become eligible for Medicaid.

What is the new look back?

Once implemented, for the first time in New York, people who apply for Community Medicaid needing home care or assisted living will be required to provide complete financial records for themselves and their spouses for a period of 30 months preceding the date of their application. This period is called the “look back.”

Any “uncompensated transfers” (gifts or transfers to family members or to a trust, for example) made during the “look back” period will subject the Medicaid applicant to a “penalty period” of ineligibility for benefits. The length of the penalty, according to the Department of Health, will be calculated in the same manner as for nursing home care. There is an explanation of how to calculate the “penalty period” on our website that you can find here.

What is the timing of the phase-in?

The change is currently scheduled to apply to applications for Community Medicaid services filed on or after MARCH 31, 2024.  This deadline has been pushed back several times and may get pushed back again.  Not surprisingly, Medicaid needs time to work out the rules and logistics as well as to train its staff to handle what will be a far more complex application. Systems will need to change as well.  The timing of the changes is also affected by restrictions on changes to the Medicaid program that were instituted because of the coronavirus pandemic.

The “look back” will apply to transfers made on or after October 1, 2020. So if you transferred money or property prior to that date, you will not be subject to a “penalty period” for Medicaid home care or assisted living.

The “start date” of the penalty, according to the Department of Health, will be from the month that the applicant is both financially and medically eligible for Medicaid home care.  So if it takes Medicaid three months to process your application, but you were eligible at the time you applied, three months of the “penalty period” will already have passed when your application is approved.

Other important issues

1. 1. One worry for those considering Community Medicaid was whether New York State would permit the continued use of Pooled Income Trusts to protect monthly income.  Fortunately, it appears that transfers of monthly income into a Pooled Income Trust will not be treated as an uncompensated transfer. However, it is still an open question whether any income that is not spent from the trust in the month that it is deposited will remain protected.
   2. Personal Care Services – Requirements and Timing.  New York State has proposed regulations (128 pages of them) regarding the new restrictions on eligibility for personal care and for Consumer-Directed Personal Assistance Program (“CDPAP”) services.  Those regulations are still under review. None of the changes except the one discussed in  paragraph 3 below will occur before March 31, 2024 (And this date may still change).  Read more about them in our article here.
   3. Starting Nov. 8, 2021, a change in regulations made it easier for MLTC plans to reduce services for new members who were required to transfer to that plan, either because their previous MLTC plan closed, or because they received home care through the “Immediate Need” program and, after 120 days, are required to enroll in MLTC, or for other [specific] reasons.

The above issues and other important questions remain on the table, as Medicaid works its way through the logistics of implementing the new rules. What has become crystal clear, however, is that now is the time for those who need Community Medicaid services to prepare and submit their applications. The window of opportunity to apply under the current, more generous rules is closing soon.

Consulting with an Elder Law attorney will give you the best possibility to secure your financial future and your peace of mind.  Our firm works hard to help our clients, and these developments make planning now even more urgent.

Update:  The effective date for the "look back" continues to be delayed, but the implementation may be near.  If you feel you are likely to need Community Medicaid services soon, the time to take action is now.  

The reason the extension is required, is that the Federal Public Health Emergency (“FPHE”) established by the Federal government has been extended numerous times.  Protections enacted under the Families First Coronavirus Response Act, prohibit states from increasing the restrictions on their Medicaid programs until the quarter that follows the end of the FPHE.  That means New York State will not be able to begin the implementation of the “look back,” and of the possible resulting transfer penalties, for now.  Please contact the firm to find the current status of this change.

This change extends  the opportunity for New Yorkers to apply for Community Medicaid services without being subject to the “look back.”

When the look back is implemented, disclosure of transfers of assets going back to October 1, 2020, will be required.   Applications filed on or after the effective date will be subject to the look back, and to a penalty period, if the applicant transferred assets on or after October 1, 2020.

If you are worried about long-term care costs, now is the time to start planning.  You may think you’re not eligible for Medicaid, but there are steps most New Yorkers can take to achieve eligibility, while also protecting their assets.  These steps can allow them to keep their money working for them and still qualify for Medicaid benefits, affording them access to high quality health care and long-term care.

Call us or email us today to make an appointment for a consultation.  There’s no time to waste – applying for Medicaid takes time no matter how simple you think your case might be, and the deadline will be here before you know it.