To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of April 2, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
The Families First Coronavirus Response Act signed on March 18, 2020, will increase New York State’s federal Medicaid funds, but only if New York maintains eligibility standards, methodologies, and procedures that are no more restrictive than what the state had in place as of January 1, 2020. To take advantage of the federal funding, the cuts enacted in the budget will not be effective until after the federal emergency has ended.
The changes to the Medicaid Home Care program are expected to apply to all new applicants after October 1, 2020. Current recipients would continue to receive services.
Here’s the link to the Final Health Budget Law relevant section begins at page 259).
Medicaid Financial Eligibility– New Lookback of 30 Months for Home Care Services
The law applies to home health care services, private duty nursing services, personal care services and assisted living program (ALP) services.
For applicants in need of a home health aide applying for community-based long term care services, a 30 month (2.5 year) lookback will be instituted on October 1, 2020.
In order to obtain any home care services, an applicant and their spouse (if any) will need to submit records of all financial assets for the 30 months before the application.
Spousal Refusal remains intact, along with Parental Refusal.
If there were transfers of assets during the 30 month lookback period that are not “exempt” transfers, the applicant will be denied Medicaid coverage for a penalty period. GIS 20 MA/01 contains the current penalty rates for each region of New York State.
Exempt transfers found in The Deficit Reduction Act of 2005 are to the spouse, by an individual under 65 to a supplemental needs trust, or a transfer to a disabled child. The primary residence is exempt while the individual is living in it, subject to the home equity limit, however upon death the home is subject to estate recovery.
Narrowing the Definition for Personal Care and Consumer Directed Personal Assistance Program (CDPAP) Services
The Consumer Directed Personal Assistance Program (CDPAP) is a New York State Medicaid program that allows consumers to recruit, hire, and direct their own care. Under the new regulations, program eligibility requires the need for assistance with three (3) activities of daily living (ADLs) or dementia.
The new regulations do not permit the applicant’s own treating physician to prescribe personal care services or CDPAP services. Instead, the services must be prescribed by an independent physician contracted with the New York State Department of Health (NYSDOH) and approved by an independent assessment from an assessor under contract with the NYSDOH instead of the local Medicaid office and managed long term care plan (MLTC).
The consumer will need to arrange an assessment by this independent physician in order to apply.
To qualify for personal care services or CDPAP, and for enrollment into MLTC plans, new applicants after October 1, 2020, must need assistance with:
- “Physical maneuvering with more than two ADL’s” or;
- For persons with dementia or Alzheimer’s diagnosis, need “at least supervision with more than one ADL.”
- Housekeeping Level I services authorized by local social services offices are eliminated
The law authorizes using Maximus (NY Medicaid Choice) as the contractor.
A new standardized task-based assessment tool will be obtained to determine hours, by April 1, 2021. It will be “evidence-based” and used “to assist managed care plans and local departments of social services to make appropriate and individualized determinations for the number of personal care services and CDPAP hours of care each day.”
The tool is supposed to identify how Medicaid recipients’ need for assistance with activities of daily living can be met through telehealth and family and social supports. (The relevant section of the Health Budget Law begins on page 273).
The Department of Health will contract with an “Independent Assessor” to replace the function now performed by local districts, Managed Long Term Care plans and Medicaid managed care plans, for determining how much Personal care and CDPAP to be authorized.
The law permits the Department of Health to expand the NY Medicaid Choice contract to do conflict-free assessments to include service authorization for immediate needs assessments, and home care determinations. Services that are exempt excluded from Managed Long Term Care may remain with the local department of social services. (The relevant section of the Health Budget Law begins on page 269).
Additional Review of High-Hour Consumers to consider whether they are Capable of Safely Living in the Community
The law authorizes the New York State Department of Health to adopt standards, by emergency regulation, for extra review of individuals “whose need for such services exceeds a specified level to be determined by the Department of Health” The budget bill does not define “high-hour” but in earlier drafts was defined as consumers who required 12 hours a day or more.
The assessor will review whether the consumer, “with the provision of such services is capable of safely remaining in the community in accordance with the standards set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider whether an individual is capable of safely remaining in the community.” (The relevant section of the Health Budget Law begins on page 264).
Miscellaneous Other Changes:
Transportation will be carved out of Managed Long Term Care services and the New York State Department of Health will contract with a transportation provider. (The relevant section of the Health Budget Law is in the middle of page 6 Part LL).
Mandatory Auto-Enrollment of dual eligible individuals enrolled in Medicare Dual Eligible Special Needs Plan (Dual-SNP) into Medicaid Advantage plans when they turn 65, or into Medicaid Advantage Plus (MAP) plans if they receive home care. This is part of the push to the usage of plans that cover consumers who have both Medicaid and Medicare.
The Modified Adjusted Gross Income (MAGI) Medicaid program started January 1, 2014, as part of the Affordable Care Act (ACA). These changes will primarily affect people who were enrolled in MAGI Medicaid under age 65, who then transition to non-MAGI Medicaid at 65 years of age. Consumers upon transition will be transferred to the Medicaid Advantage Plan of the same company. The relevant section of the Health Budget Law is at the top of page 267).
Medicaid Advantage similar to Medicaid Advantage Plus except only Medicaid Advantage Plus plans provides Medicaid long-term care services.
New applicants for Medicaid seeking home care will no longer be informed of the availability of CDPAP. The relevant section of the Health Budget Law is in the middle of page 271).
The New York State Department of Health is scaling back usage of Managed Long Term Care plans that does not include Medicare services. The Department of Health will be expanding Medicaid Advantage Plus and PACE.
The New York State Department of Health will be setting a cap on enrollment by individual managed long term care plans, to limit the rapid growth of certain plans, as a result of aggressive marketing by the plan and its contractors. The penalty for exceeding the cap will be withholding of up to three (3%) percent of the premium.
Managed Long Term Care plans will assess consumers once a year rather than every six (6) months unless there is a need for an additional assessment. (The relevant section of the Health Budget Law is at the bottom of page 273).
Prior Keane & Beane Covid-19 Legal Alerts
Keane & Beane, P.C. has prepared several Legal Alerts concerning the Federal and State response to COVID-19 and the impacts on employers and local governments.
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Trust and Estates Practice Group with questions regarding specific situations. We note that there are legislative developments in Congress and New York which impact each of these questions, which we are closely monitoring. Because of the frequent developments, you should consult counsel regarding specific questions. As always, if you have any questions on trust and estates issues or need immediate assistance, please email Steven A. Schurkman, David Glasser, Patrick J. O’Sullivan, Christopher J. Aventuro, Jeffrey A. Cohen or any of our attorneys in the Trust and Estates law practice.