Update on NYS Department of Health 30-Month Lookback and Transfer Penalty for Community Based Home Care
09/29/2022A Medicaid lookback period is the timeframe proceeding the application during which a penalty for transferring assets for less than fair market value can be assessed. Penalties cannot be assessed for transfers which took place prior to the lookback period. A penalty period is the time during which Medicaid coverage is unavailable due to a transfer of assets during the lookback period.
New York State intended to implement the Medicaid Redesign II Amendment as of January 1, 2021. However consistent with Maintenance of Effort requirements under Section 6008(b)(1) of the Families First Coronavirus Response Act (FFCRA), and the requirements for Home and Community Based Services under the American Rescue Plan Act, the earliest date that the State will seek implementation is March 31, 2024. Medicaid Redesign Team (MRT) II (ny.gov)
The Families First Cares Act (FFCRA) prevents States from restricting eligibility for Medicaid until the end of the quarter in which the Public Health Emergency ends FFCRA Section 6008(b)(3). The FFCRA requires states, as a condition for receiving the temporary Federal Medical Assistance Percentage under section 1905 (b) of the Act to maintain the enrollment and coverage of all Medicaid beneficiaries through the end of the month in which the Public Health Emergency (PHE) for COVID-19 ends.
Under this guidance, states are prohibited from making any changes to the benefits available to a beneficiary or to a beneficiary’s required cost sharing or, in the case of institutionalized beneficiaries, to their financial responsibility for the cost of care under the post-eligibility treatment of income rules. This is why departments of social services have not implemented penalty periods without an applicant recipient waiving their rights under this section of the code when a promissory note is needed after an applicant recipient has been approved for Medicaid in a skilled nursing facility.
The Biden Administration in correspondence dated January 22, 2021 to state governors has stated that 60 days’ notice will be provided before the Public Health Emergency for COVID-19 ends. The Public Health Emergency was extended on July 15, 2022, through October 15, 2022. Due to notice not being provided by the Biden Administration to the state governors, it appears that the public health emergency is headed for another three-month extension allowing special powers and programs to continue past the midterm election. In addition, the Consolidated Appropriations Act of 2022 (P.L. 117-103) provides a 151-day extension to some flexibilities once the federal PHE ends.
The American Rescue Plan prevents states from restricting eligibility for home and community based services until the earlier of when they spend the federal American Rescue Plan funds or March 31, 2025. As the implementation of the lookback restricts eligibility for Home and Community Based Services, the lookback cannot be implemented until the American Rescue Plan funds allocated to New York have been spent or March 31, 2025.
In addition, before the lookback is implemented, the Department of Health will issue guidance and request a state plan amendment from the Centers for Medicare & Medicaid Services. After New York State requests the amendment there will be a public comment period. These statutory procedures provide additional time for practitioners and potential Medicaid applicants to conform to the new rules when they are implemented. Also, the Department of Health’s request to amend the 1115 waiver to allow a lookback to be used to limit eligibility for MLTC enrollment has not yet been approved by the Centers for Medicare & Medicaid Services.
For effective asset protection planning, if Medicaid may be part of your long-term care plan the lookback period must be considered while looking to the future. While the lookback will not prevent you from applying for Medicaid, it may result in a delay of your eligibility for benefits. Thus, it is important to understand your situation and to plan ahead.
