Posts Tagged ‘medicaid planning’

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.

2011 SuperLawyers Both: Ellen G. Makofsky and Judith B. Raskin

I am honored to announce that I have been named one of the 2011 TOP 100 SuperLawyers and one of the 50 TOP WOMEN SuperLawyers in the New York Metropolitan area. This is the third consecutive year that I have received the SuperLawyers designation , second  time I have been named to the 50 Top Women Lawyers list but the first time I have been named to the Top 100 Lawyers.

Judy Raskin, my partner at Raskin & Makofsky, has also been named to the 2011 SuperLawyers list for the second consecutive year in the Elder Law category.  In fact, she is spotlighted in the SuperLawyers publication counseling other lawyers on how to create a client-friendly office.

The SuperLawyers list is created by peer nominations and recognition plus an analysis of the nominated lawyers background, credentials, experience, honors and awards. The final SuperLawyers selection represents the top 5 percent of lawyers in New York State.

We are very proud of the work we do at Raskin & Makofsky, and are honored to have both of our firm’s partners recognized in this way.

A Sea Change in Medicaid Law in NY

On April 1, 2011, New York enacted changes to its Medicaid law by significantly expanding the list of estate assets from which Medicaid can recover its costs.  This is of course a huge concern for anyone contemplating or receiving Medicaid benefits.

Prior to this new law, Medicaid could only recover its costs from assets that passed from the deceased Medicaid recipient (or in some cases the spouse’s estate) through a court proceeding. The assets would have been in the sole name of the decedent.  Assets such as jointly held accounts, accounts with named beneficiaries, life estate interests passed directly to the beneficiary. That is no longer the case under this new law.

On September 8, 2011, the NYS Department of Health promulgated emergency regulations clarifying the new law and the assets now available for recovery.  The emergency regulations define an estate for recovery purposes as those assets passing by will or intestacy as well as “any other real and personal property and other assets in which the decedent had any legal title or interest at the time of death, including such assets conveyed to a survivor, heir, or assign of the decedent through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement, to the extent of the decedent’s interest in the property immediately prior to death.”

The regulations allow recovery from the estate of the deceased Medicaid recipient’s interest in a retained life estate even where the deed was executed many years prior.

The emergency regulations allow recovery from irrevocable trusts to the extent the decedent had an interest in the principal of the trust or was entitled to income from the trust that was not distributed prior to death.

We are working with these changes to develop the best planning options now available for our clients.

New NAELA Leadership Position

My colleagues recently elected me to the Board of Directors of the National Academy of Elder Law Attorneys (NAELA) New York Chapter at the group’s January 2011  Annual Meeting.  One of the main functions of the Chapter is to advocate and lobby for legislation which will benefit older adults and the disabled and their families.

Now is an especially auspicious time to be in a leadership position within this organization because there is much work ahead for the NAELA New York Chapter.  New York State is in the midst of a budget crunch. Governor Cuomo recently created a Medicaid Redesign Team whose purpose is to find ways to save money within the Medicaid program.  In the Governor’s 2011 proposed New York State budget he slashed $2.8 billion in spending for Medicaid programs. The likely loss of Federal matching funds will roughly double these proposed cuts to the Medicaid program.  In searching for ways to implement these cuts it is possible that spousal refusal will come under attack and that penalty periods will be proposed for those applying for Medicaid at home.

 I look forward to assisting  NAELA in advocating for the protection of those individuals who rely on the Medicaid program.  I will keep you posted on what happens next.

Medicaid 5 Year Look Back in Full Effect February 2011

An applicant for institutional Medicaid benefits must submit financial documentation so that Medicaid can determine whether the applicant made non exempt transfers of assets prior to applying. Such transfers would result in a period of ineligibility for the applicant. For several years, an applicant needed to supply financial documentation for the prior 3 years. The Deficit Reduction Act of 2005 (DRA) changed the look back period to 5 years effective February, 2006.

This 5 year Medicaid look back period has been phased in slowly. For each month after the DRA was enacted, one month was added to the 3 year look back. Assets transferred before February, 2006 came under the 3 year rule.

Starting in February, 2011, the look back will be the full 5 years set out in the DRA.

Mediation

At a recent networking event I met a woman who is an attorney and licensed social worker. She currently provides mediation services for couples seeking a divorce. She is considering using the benefits of mediation in elder law matters. I think that such a service might be very valuable in matters such as contested guardianships, family issues in estate planning matters, disagreements over medicaid planning strategies, conflicts when 2 agents under a power of attorney, executors under a will or trustees of a trust must act together and cannot agree.