Author Archive

Assuring Medicare Coverage for Rehab Days

Medicare provides some coverage for residents receiving rehabilitation or physical therapy in a facility such as a nursing home. I order to qualify for this coverage, Medicare requires a 3 day hospital stay and a skilled care need. To meet the 3 day requirement, hospital days are counted only if you are actually admitted to the hospital as an inpatient. If you are in the hospital for observation or as an outpatient, the days do not count.

In addition to the 3 day hospital stay, Medicare requires that the rehabilitation begin within a short time, generally 30 days, of leaving the hospital. Medicare will cover a stay for rehabilitation for up to 20 days in full and all but $148 co-pay (2013 figure) for the next 80 days for a maximum of 100 days of coverage. The co-pay is covered by some Medicare Supplement plans. You will be billed the co-pay if you are not covered by a plan. The coverage is terminated prior to the 100 days if it is determined that the rehabilitation efforts are not providing any benefit. Please note that Medicare plans other than direct Medicare coverage, such as HMO’s, may have different requirements.

There are currently legislative efforts to change the 3 day hospital stay to include outpatient and observation days.

2013 Medicaid Eligibility Figures

New Medicaid Eligibility Criteria

The new Medicaid eligibility criteria for 2013 were recently announced. A Medicaid applicant/recipient is eligible with available resources of $14,400 up from $14,250 in 2012. Residences and retirement funds continue to be protected in certain circumstances under the new eligibility criteria. A spouse in the community who has an ill spouse in a nursing home or the Lombardi program may retain assets ranging between $74,820 and $115,920 and income of $2,898. The actual amount is determined by the value of the couple’s combined resources. Some community spouses may successfully argue for an even higher income or resource allowance.

If assets are gifted by the applicant or spouse within 5 years of seeking Medicaid nursing home benefits, a period of ineligibility will result if the gift is not exempt. In 2013, the value of the gift is divided by $12,034 in Nassau and Suffolk counties and $11,350 in New York City to determine the length of the period in which the applicant will be ineligible for Medicaid benefits. There is a proposal to extend the look back period to ten years. It may be a reason to consider making a plan sooner than later.
Penalty periods are not imposed on those who apply for Medicaid benefits at home. However if the home care recipient later requires nursing home care the prior gifts are an issue. Considerable planning can be done to address this concern.
New Medicaid Eligibility Criteria


Delegation to Cuba

On December 14, 2012, Ellen Makofsky and Judy Raskin returned from a fascinating trip as members of a delegation to Cuba on behalf of the National Academy of Elder Law Attorneys, Inc. to analyze the long term care system in that country. We met with Cuban officials and attorneys regarding how Cuba delivers and finances services to its elderly and disabled population. Particularly interesting was the cultural perspective and how that affects the way care is provided. We will be writing about our trip and what we learned in the near future.

Super Lawyers

Ellen Makofsky was named one of the Top 50 Women in the New York metropolitan area of New York City, Long Island, and Westchester County for the third consecutive year.  She is the only attorney concentrating in Elder Law included in the list of Top Woman Attorneys.


Additionally, both Judy Raskin and Ellen Makofsky were named as Super Lawyers in the Elder Law category.

The Super Lawyers designation begins with nomination by one’s peers and factors in credentials, experience and awards.  The designation represents the top 5% of lawyers in New York State.



Many New Yorkers have signed health care proxy statements that designate a relative or friend as an agent to make medical decisions for them if they are unable to communicate. Surprisingly, due to a recent court ruling, their agent may be prohibited from directing an ambulance driver to their preferred hospital.
A federal court decision (Stein v. County of Nassau, et al.) concerning an incident that occurred on Long Island held that – when outside of a hospital or other medical institution- a health care agent does not have the authority to direct where a patient is transported. In fact, the court said that state law requires that the agent must first consult a medical professional to confirm that the patient lacks capacity.
Shortly following the filing of the lawsuit, the plaintiff contacted Ellen Makofsky, who has authored numerous articles about health care proxies. Ellen was very sympathetic to plaintiff Stein who was denied the right to direct her husband’s ambulance driver to the hospital where her husband was previously treated and where the doctors were familiar with his medical history, because no doctor had opined that her unconscious husband patient lacked capacity. It was an outrageous situation.
Ellen Makofsky urged the Elder Law Section of the New York Bar Association to take action so that the wishes of an unconscious patient could be respected. With the help of others, Ellen drafted a proposed amendment to the health care proxy law. The proposed amendment permits an individual designated as a health care agent to make decisions about transporting a patient to a particular hospital, mental hygiene facility or residential health care facility when the patient is unconscious or unresponsive without a certification of incapacity. The proposed amendment does not apply in cases involving major medical trauma when a patient requires immediate medical treatment.
The New York State Bar and other legal groups urged passage of the proposed amendment and in June 2012 the bill passed in both the New York State Assembly and Senate (A-8389 and S-5014-A). The bill currently awaits Governor Cuomo’s signature and then officially becomes the new law. It is a wonderful outcome derived from a difficult situation.

Granny Pods

We became aware of a new option to keep an elderly parent at home when reading an article in the New York Times on May 8th.  We wanted to share this information as it might be a perfect solution for someone out there.

A few companies offer small stand alone pre-fabricated cottages that can be placed a backyard. The cost seems to range from about $67,000 to $85,000 which represents about 5 months in a nursing home in the New York area. The parent has independence and the children can easily provide assistance when needed.  Safety and convenience issues are addressed and kitchen and bath are included. In the United States these units are sometimes referred to as “granny pods.”

The article says that many states are allowing these buildings and New York is considering legislation to permit them.

No Expanded Estate Recovery!

We  blogged recently about the status of the legislation in New York expanding the definition of “estate” for Medicaid recovery purposes. This legislation would enable Medicaid to recover its costs from assets including those jointly held, life estates and even possibly retirement accounts.

We are very happy to report that the Governor and the Legislature have agreed to repeal the legislation expanding estate recovery.  They have also rejected a proposal to eliminate spousal refusal.

Medicaid recipients and future Medicaid applicants will benefit greatly from this repeal of expanded estate recovery and the continuation of spousal refusal.

Medicaid recovery in NY: Where are we?

Several months ago we blogged about New York’s emergency regulations which expanded the definition of “estate” for Medicaid recovery purposes. These regulations, allowing recovery from interests such as jointly held assets and life estate interests, enhanced Medicaid’s ability to recover its costs from a decedent’s estate.

The emergency regulations expanding the definition of “estate” expired last fall.  New York law referring to this expanded definition of “estate” is still in place without regulations to clarify what the new definition is.

We are hearing two possible alternatives going forward. The first is that final regulations will be issued effective for Medicaid recipients dying after July 1, 2012. These would be similar to the emergency regulations that have expired with some changes. The second alternative which we think is more likely is the elimination of the law expanding the definition of “estate” and going back to the original law. This would mean that for Medicaid recovery purposes, only assets passing from the decedent pursuant to a court process (probate or administration) would be available for recovery.

We will keep you posted as we know more about New York’s attempt to expand estate recovery.

2012 Medicaid Income and Resource Allowances

Medicaid income and resource allowances for eligibility change every year. The  numbers effective January 1, 2012 are:

Nursing home resource allowances

Applicant: $14,250

Applicant’s spouse in the community: $74,820-$113,640

Nursing home income allowances

Resident: $50 (plus cost of health insurance, if any)

Spouse in the community: $2,841

Community Medicaid resource allowances

Single care recipient: $14,250

Married care recipient: $20,850 (this includes resources for both spouses)

Community Medicaid income allowances

Single care recipient: $792 (plus $20 if over age 65

Married care recipient: $1,159 (including spouse’s income)

Anyone considering a Medicaid application whose income and or resources exceed these figures should consult a knowledgeable attorney.  There are many opportunities to achieve Medicaid eligibility when these allowance are exceeded.

Congratulations to Monica!

Congratulations to Monica Ruela. She passed the Bar Exam given in July, 2011.

Monica has been working for us since she was a high school student of 16. She managed to work for us almost full time while attending Nassau Community College and then St. Johns, doing very well in her studies. After graduation she attended Touro Law School while continuing to work at our firm part time.

Monica will now be our second associate,  joining Anne Dello-Iacono who has been with us for 3 1/2 years. We have always valued Monica’s excellent work over the years. We look forward to working with Monica as an admitted attorney.