Critical Changes to Medicaid Home Care Eligibility

Critical Changes to Medicaid Home Care Eligibility

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As this pandemic continues into the second wave, we at Finkel & Fernandez are here to help you with your legal issues and planning needs. Given the safety concerns of in person meetings, planning is certainly more challenging to accomplish. Although in-office and at-home consultations are not being currently offered, successful planning opportunities are available. We are meeting with our clients by telephone and video conferences, enabling you to move forward with your planning and your documents at this critical time. Eight months post Governor Cuomo’s Emergency Executive Orders, we have assisted many clients to achieve their planning goals.

As many of you are aware, the 2020-2021 (Fiscal Year 2021) New York State Budget enacted by Governor Cuomo on April 3, 2020 will have a severe impact on Medicaid eligibility rules and requirements. Significantly, the implementation of the rules has been pushed forward from its prior designated start date of October 1, 2020 to April 1, 2021 for some of the aspects of the changes. This extends the time to put your planning in place.

Given the Secure Act provisions, the Internal Revenue Service has suspended the Required Minimum Distributions on qualified retirement accounts for 2020. However, Medicaid in New York State exempts qualified retirement accounts in payout status from their eligibility determination. Persons receiving Medicaid long term care services should take their RMDs for 2020 if receiving long term care services through a Medicaid provider.

Medicaid Changes Appear to be Scheduled to Take Effect on April 1, 2021: For New York State to maintain eligibility for federal relief under the March 18, 2020 “Families First Coronavirus Response Act”, which may provide more than $6 billion in additional federal health care funds to New York, the current New York Medicaid eligibility standards and procedures must not be made more restrictive than those in effect on January 1, 2020. For the duration of the federal emergency, increased federal funding may remain available, and the implementation of the new Medicaid rules and requirements, originally slated to take effect on October 1, 2020, have been delayed until April 1, 2021.

If you were accepted into the Medicaid program on or before March 18, 2020, your Medicaid coverage cannot be terminated until the last day of the month during which the declared COVID-19 public health emergency ends.

Implementation of the 30-Month Lookback for Community (Home Care) Medicaid: In addition to meeting the requirements for income and resource eligibility, Community Medicaid applicants will be subject to a lookback period of 30 months when the new rules are implemented, currently set for April 1, 2021. Transfers of assets to others for less than fair market value, or gifts made, with certain exceptions, will create a penalty period for home care Medicaid coverage. The length of the penalty period computed will be based on the amount transferred.

The penalties for home care coverage are anticipated to be calculated in the same manner as applications for Institutional (Nursing Home) Medicaid coverage, using the monthly divisor for the county of application. The larger the uncompensated transfer(s) or gift(s) made, the longer the penalty that will be incurred. There are certain exemptions, transfers and allowable expenditures which will not incur a penalty, even if made within the 30-month lookback period. The rules are technical and strict compliance is required.

It is anticipated that non-exempt transfers/ gifts within 30 months prior to application will incur a penalty for Community Medicaid for New York City for the amount transferred divided by $12,844.00 (the New York City divisor in 2020, to be adjusted for 2021) commencing the first day of the following calendar month. In Nassau and Suffolk counties, the 2020 divisor is $13,407.00, and in Westchester, Dutchess, Rockland, Putnam, Orange, Ulster, and Sullivan Counties, the 2020 divisor is $12,805.00.

Although we anticipate the effective date to now be April 1, 2021, while we remain in a declared state of emergency, this may be further delayed.

Consumer Directed Personal Assistance Program (CDPAP) and Personal Care Services will be more restrictive in eligibility criteria and compensable services: Going forward, once these rules are implemented, to qualify for CDPAP and or personal care services, applicants will have to require assistance with more than two activities of daily living, or be diagnosed with Dementia or Alzheimer’s Disease and require assistance with more than one activity of daily living. Housekeeping and other level 1 services will no longer be counted as care categories. An independent physician selected or approved by the New York State Department of Health, and not the applicant’s treating physician, will be required to prescribe personal care services.

Documentation: Going forward, once these rules are implemented, the application process and gathering of documentation will gain an added layer of preparation, complexity, and review. We anticipate that there will be substantial delays in approvals of applications, scheduling of Fair Hearings and appeals. If Medicaid Home Care services are on your horizon, you will be required to provide all financial statements (each and every page for each and statement for each and every account) throughout the lookback period.


What can you do now to get ready? Be proactive, save all financial statements, and get your advance directives in place, know your options, and do your planning ahead of time.


If you or a loved anticipate needing home care services, please feel free to contact us, or another knowledgeable practitioner, to discuss the specifics of your situation and planning opportunities.

We are here to remotely and safely guide you in accomplishing your goals, and are available during regular business hours for telephone or video appointments. Please do not hesitate to contact us with any questions or concerns we may be able to assist you with. Above all, we wish you and your loved ones safety and good health during this difficult time. Please be safe, stay healthy, and keep yourself socially connected while remaining physically distanced and protected.

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“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Jane Smith
New York, NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
John Doe
John Doe, Westchester NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Maria Feliby,
Merrick, NY
Abby C. Zampardi, Associate Attorney
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Abby C. Zampardi

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Abby C. Zampardi has been with Finkel & Fernandez, LLP since 2015, assisting clients in the drafting of all advance directives and drafting petitions and motions for guardianship litigation.

Prior to becoming the associate attorney at Finkel & Fernandez, Abby worked in the Foreclosure Part of the Nassau County Supreme Court, specializing in preparing orders and other documentation to assist with the adjudication of foreclosure cases.

Abby received her Juris Doctor degree from The George Washington University School of Law in 2014 and is admitted to practice law in New York and New Jersey. She received her Bachelor of Arts and Bachelor of Science, summa cum laude, from Binghamton University in 2011.

Abby was a Notes Editor and the Technology Editor of the Public Contract Law Journal, a publication of The George Washington University Law School in conjunction with the Public Contract Law section of the American Bar Association.

Abby is a member of the New York State Bar Association and the Brooklyn Women’s Bar Association.

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Here is what our clients are saying

“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Jane Smith
New York, NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
John Doe
John Doe, Westchester NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Maria Feliby,
Merrick, NY
Fern J. Finkel, Esq., Partner
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Fern J. Finkel, Esq.

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Fern J. Finkel, Esq. is a co-founding partner at Finkel & Fernandez, LLP, concentrating in elder law, estate planning, asset protection, benefits and guardianships. She has been in private practice since 1990. Fern brings a wealth of experience and compassion to her clients. She is known for her skillful analysis of financial and personal circumstances and for providing practical planning to enable seniors and disabled clients to remain independent through advance directives, asset protection, benefits planning and trusts.

Fern graduated with honors from New York University College of Business and Public Administration in 1981. She received her Juris Doctor Degree from Boston University School of Law in 1984. She has been recognized as a New York Super Lawyers selectee in the field of Elder Law in 2014, 2015, 2016, 2017, 2018 and 2019.

Fern has been selected by the Courts, as well as by family members, to serve as the appointed Guardian and/or Trustee for many individuals in need of personal needs and property management. She represents clients in all aspects of guardianship proceedings and has been appointed as Counsel and as Court Evaluator by the New York State Supreme Court in countless cases. She has helped thousands of seniors through her extensive community outreach and pro bono services on behalf of the indigent elderly of New York City. Fern spearheaded the Legal Education and Assistance Project, known as LEAP, at the Brooklyn Bar Association Volunteer Lawyers Project. LEAP’s mission is to train and support pro bono attorneys in providing community outreach and education on all aspects of advance planning to seniors, with the goal of maximizing their independence and ability to remain at home long term.

Fern is the Treasurer of the New York State Bar Association Elder Law and Special Needs Section, Vice President of the National Academy of Elder Law Attorneys (NAELA) New York Chapter, Chair of the Brooklyn Bar Association Foundation Law Committee, Co-Facilitator of the Working Model of Guardianship – WINGS (Working Interdisciplinary Network of Guardianship Stakeholders), a Founder of the Touro Center Aging and Longevity Institute Guardianship Certificate Program, a Special Master of the Appellate Division Second Department Mandatory Civil Appeals Mediation Program, and Vice Chair of the Brooklyn Bar Association Elder Law Committee. She served for years as a volunteer certified mediator with Safe Horizons for community disputes, PINS cases and custody matters, as well as with the United States District Court, Eastern District.

Fern lectures for various Bar Associations and Continuing Legal Education providers on topics including the Role of the Guardian, Role of the Court Evaluator, Role of the Attorney for the AIP, Advance Directives, Medicaid and Asset Protection, Aging in Place, Supplemental Needs Trusts and Guardianships. She is a mentor attorney at the Brooklyn Law School HELP (Helping Elders Through Litigation and Policy) Clinic, the Touro Law School Externship Program, and the New York Law School Elder Law Clinic. Fern serves on the Committees on Character and Fitness for the Second Judicial Department.

Fern has received numerous awards for her pro bono service including: Selection as a 2019 “Champions of Justice: Women in Leadership in Law and Administration of Justice” Honoree by the Brooklyn Daily Eagle the 2013 Brooklyn Bar Association Volunteer Lawyers Project Building Bridges Award, the 2013 Brooklyn Bar Association Distinguished Service Award, the 2009 Brooklyn Bar Association Distinguished Service Award, the 2004 Women’s Bar Association of the State of New York Hanna S. Cohn Pro Bono Award, the 2003 New York State Bar Association Pro Bono Award for the Second Judicial District, the 1999 Brooklyn Bar Association Volunteer Lawyers Project Pro Bono Award, the 1996 Brooklyn Bar Association Frieda S. Nisnewitz Award for Pro Bono Service, and an Award of Merit from the National Center for Missing and Exploited Children 1997.

Fern was previously an Associate Attorney at the law firm of Damashek, Godosky and Gentile, where she litigated medical malpractice and personal injury cases.

Testimonials

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“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Jane Smith
New York, NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
John Doe
John Doe, Westchester NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Maria Feliby,
Merrick, NY
Julie Stoil Fernandez, Esq., Partner
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Julie Stoil Fernandez, Esq.

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Julie Stoil Fernandez, Esq. a co-founding partner of Finkel & Fernandez, LLP is a highly experienced attorney who has been fighting for the safety and welfare of seniors and persons with disabilities since 1993.

Before beginning her legal career, Julie worked as a counselor for homeless men and women and, later, ran a 500-bed emergency overnight shelter for homeless men, forging close bonds with those in need of protection. Seeking to have greater impact, Julie attended law school at Northeastern University and graduated in 1992.

Immediately following law school, Julie worked at Manhattan Psychiatric Center on Ward’s Island in New York City for Mental Hygiene Legal Service, Appellate Division First Judicial Department, representing psychiatric patients in mental hygiene law retention hearings and treatment over objection proceedings in state and private psychiatric hospitals. Her representation included children institutionalized on Ward’s Island, and insanity acquittees at Kirby Forensic Psychiatric Center.

Julie Stoil Fernandez, Esq., Partner and ShirleyNext, Ms. Stoil started a solo elder law practice in Park Slope, Brooklyn which she continued for 15 years, providing guardianship representation, mental health advocacy and estate probate and administration. She also has since 1993, been appointed by judges in the New York State Supreme Court in all counties in New York City as Court Evaluator in Guardianship proceedings and as a Guardian and Trustee for persons adjudicated incapacitated. In 2015, she co-founded Finkel and Fernandez with Fern J. Finkel.

Julie is skilled at analyzing issues which arise when a person’s legal capacity is in question. She is quick to grasp complex fact patterns and excels at predicting the likelihood of success of a case. She creatively addresses emergencies which often arise while litigants are waiting to be heard on a guardianship matter and effectively negotiates agreements between oppositional family members in contested cases. She is a fierce advocate for her clients and, when litigation is necessary, Julie brings her extensive experience and passion to the cause.

Julie has assisted thousands of clients – protecting housing benefits; individual liberties and patients’ rights in institutional settings and the community; and through litigation, advocacy and special needs planning. Julie also is certified as an Elder Law, Family and Divorce Mediator and offers mediation services to parties who seek workable solutions to conflicts without litigation – an often-preferred method when addressing issues of mental illness and treatment compliance.

Julie is Co-Chair of the New York State Bar Association’s Elder Law and Special Needs Section’s Mental Health Committee, the National Academy of Elder Law Attorneys (NAELA) and the Brooklyn Bar Association where she is a member of the Elder Law Committee. She has been selected as a Super Lawyer in both 2019 and 2020.

Both Fern and Julie serve as mentor attorneys to students from New York Law School’s Elder Law Clinic, Touro Law School’s Elder Law Externship Program and the Brooklyn Law School’s Helping Elders Through Litigation and Policy (HELP) Clinic.

Julie has written several elder law articles and she lectures in continuing legal education programs and in the community, providing guidance on using advance directives to help seniors age in place and retain independence.

Julie received her Bachelor of Arts degree from Hampshire College in Amherst, Massachusetts in 1985 and received her Juris Doctor degree in 1992 from Northeastern University School of Law. She was admitted to the New York State Bar in 1993.

Testimonials about Julie Stoil Fernandez

Here is what our clients are saying

“Five stars for Julie Stoil Fernandez and Finkel & Fernandez. I hired Julie to help me get authority to remove a dangerous family member from my mother's home, when my mother, due to Dementia, was no longer able to say she wanted the family member removed. Julie worked diligently, and tirelessly during this very lengthy process. Julie was always encouraging and confident that we would prevail, and we did!!”
-Michele S.
“I first hired Julie in 2004, when my partner suffered a stroke and needed the appointment of a guardian in Queens County. It was a hotly contested matter with one of the parties even getting violent in the courthouse. Julie worked tirelessly with great patience to assist in resolving the legal and personal issues. Her dedication to her clients is extraordinary. She followed up on every detail until the Guardians were in place and we were enrolled in all the proper rehabilitation programs. Later, my partner regained his capacity and Julie assisted us in terminating the guardianship. Finkel & Fernandez then assisted us in preparing our advanced directives last year and making sure my partner’s funds were protected from predatory family members.”
-Eileen M.

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