Upcoming Changes to NY Medicaid 2022-23

Medicaid is operated on both federal and state levels, which provides a range of benefits in medical and health. Medicaid primarily is for individuals who suffer from chronic illness, are in cognitive or physical decline, injured/disabled, and require consistent medical treatment. Laws surrounding who qualifies for Medicaid change constantly, meaning it’s necessary to stay informed on the latest changes to be aware of your eligibility status. Below are some new and upcoming changes to Medicaid.

Upcoming Changes to Medicaid

Upcoming Changes to Medicaid in 2022:

Independent Assessor for Home Care - In Effect May 1, 2022

As of May 1 2022, Medicaid applicants over the age of 18 applying for Personal Care or Consumer Directed Personal Assistance Program (CDPAP) services will need to go through nurse assessments conducted by New York Independent Assessor (NYIA). The NYIA will conduct nursing assessments for “Immediate Need” applicants and others who apply to the local Department of Social Services, which is the Human Resource Administration (HRA) in NYC for personal care or CDPAP.

The NYIA will be conducting a clinical assessment in addition to a standard nurse assessment by either a doctor, physician’s assistant, or nurse practitioner. With these tests, the NYIA will determine if an applicant is eligible for personal care or CDPAP. If the applicant is deemed ineligible, they have Fair Hearing rights, meaning they can appeal their decision.

If the NYIA deems the applicant eligible, they are referred back to their local Medicaid office. The previous assessments will then be used to determine how many hours of personal care or CDPAP should be authorized. If you are approved for over 12 hours of personal care a day, the Medicaid Office or plan must refer the case back to the Independent Assessor for a third assessment, which is an Independent Medical Review (IMR). An IMR is used to determine whether the proposed plan of care is safe and can maintain the health of the applicant when they are home.

Increases in Medicaid Eligibility of Applicants 65+ and Blind/Disabled Individuals - In Effect January 1, 2023

New York Governor Hochul and State Legislature passed four increases in Medicaid eligibility for New Yorkers who are 65+ blind, or disabled in the NYS budget. Below are the four changes that will go into effect:

  • Medicaid Asset Limit has increased by nearly 50%
  • Medicaid Income Limit has increased to the same amount used for Modified Adjusted Gross Income (MAGI) Medicaid for younger people (138% Federal Poverty Line or “FPL”)
  • Medicare Savings Program: Qualified Medicare Beneficiary limit increased from 100% to 138% FPL. Individuals with higher incomes not exceeding 186% FPL will be eligible for QI-1.
  • Undocumented Immigrants Age 65+ will not be eligible for full Medicaid benefits as opposed to only “emergency” Medicaid

New Medicaid Limits in 2023 for 65+, Blind, & Disabled

Benefit Federal Poverty Line % SINGLES COUPLES
2022 2023 2022 2023 2022 2023
Income Limit Per Month
Medicaid 82% 138% $934 $1,563 $1,367 $2,106
QMB 100% 138% $1,133 $1,563 $1,526 $2,106
QI-1 135% 186% $1,529 $2,107 $2,060 $2,838
Medicaid Asset Limit $16,800 $28,134 $24,600 $37,908

Public Health Emergency - Extended Through July 2022

The Biden administration extended the COVID-19 Public Health Emergency on April 13, 2022 for 90 days. This means that the government is prohibited from discontinuing or cutting funding for Medicaid through July 2022. 

This means restrictions on eligibility cannot be implemented before October 1, 2022, which would include the 30-month “lookback” that would disqualify applicants from obtaining home care benefits, or require applicants from needing physical assistance with 3 activities of daily living or two if diagnosed with dementia in order to qualify for CDPAP.

For more information on NY Medicaid changes from 2022 to 2023, contact the Law Office of Inna Fershteyn at 718-333-2395.

Should I Create a Life Estate or an Irrevocable Trust?

As you are getting older, Asset protection and Elder Law planning becomes relevant.  As you are researching an optimal estate plan to preserve assets from nursing home bills, a life estate deed transfer may initially sound appealing. After all, a life estate deed is a legal means for transferring home ownership rights. However, there are downsides you must fully understand before making this commitment. Prior to making the decision of adopting a life estate, it is crucial to fully understand the risks.

Creating A Life Estate or Irrevocable Trust

Life estates are characterized by two or more people having ownership over a property for non-overlapping periods of time. These parties are the life tenant and the remainderman. The life tenant owns the life estate and has full control during their life. The remainderman has ownership interest upon the death of the life tenant. 

In many circumstances, executing a life estate makes the most sense. It is useful for those looking to simplify estate planning and avoiding the probate process. The transfer of the property to the remainderman is automatic, providing convenience without the need for a will. For example, parents can easily pass homeownership to their children while possessing their property for their entire lives. This provides transparency to the beneficiaries and affirms the life tenant exactly what will happen to their property when they pass away. 

Additionally, a life estate deed protects the property from a Medicaid lien and increases the tax basis. If eligible for Medicaid, the government may try to recover the costs of care from their estate once they pass away. A life estate protects the home from being included in the Medicaid recovery process.

Although a life estate may seem appealing, some caveats come with them. There are three main unfavorable aspects. If you consider these reasons as dealbreakers, a life estate will not work for your personal estate goals. 

Real Estate Related Challenges 

Upon establishing a life estate, obstacles will arise if you plan to sell or mortgage property. The remainderman must agree if you decide to borrow or sell against the property. Nevertheless, this can be solved with a Testamentary Power of Appointment in the Deed. This allows life tenants to change who receives their property by directing its disposition in their will. While it won’t sell the property, it gives the life tenant more leverage in negotiation over the remainderman. An alternative to this is the Nominee Realty Trust, where one or more children act as Trustees for all so that decisions must be followed on a majority vote.

Another obstacle is that if the property is sold, the remainderman is entitled to a portion of the profits equal to what their interest is determined to be at that time. It is also difficult to remove or change a name once it is on a real estate deed.

Legal Responsibility of Remainderman 

The problems of the remainderman become your problem as well. If this individual is in any legal predicament, such as being sued, getting a divorce, owing taxes, or filing for bankruptcy, the interest in the home is not protected. However, while claims can be made against the property, nobody can kick you out for the duration of your lifespan.

Medicaid and State Assistance Disqualification 

Giving away an interest in the property could result in disqualification from Medicaid assistance, should you need long-term care within five years of the transfer. To add on, that state could file a claim against the income portion of the payments it has made on your behalf. In this case, at least the portion of the proceeds allocated to your child would be protected.

Irrevocable Trust

Irrevocable trust is a much better alternative to protect your property from creditors including Medicaid liens and nursing home costs. For more information on irrevocable trust, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

3 Reasons to Create a NY Irrevocable Trust

Elder planning is an important and necessary step to take in order to make sure that your wishes for the future are carried out in the way you intended. In this process, a decision you will make is what type of trust is best for you. A trust allows a trustee to hold assets on behalf of beneficiaries.

Creating An Irrevocable Trust

One type of trust is an irrevocable trust, which cannot be changed or revoked after signing. Giving up control over your assets is a big commitment that must be carefully considered. Individuals who would benefit from an irrevocable trust typically fall into one of three categories.

3 Reasons to Create NY Irrevocable Trust

  • Minimize Estate Taxes

The primary benefit of an irrevocable trust is minimizing estate taxes. An irrevocable trust removes all incidents of ownership, meaning your assets are removed from your name. Assets in an irrevocable trust are no longer a part of your estate, which allows for tax efficiency.

  • Government Programs 

Unfortunately, Medicare does not cover all costs that a senior citizen needs. Medicaid would pick up the tab for long-term care, but the program has strict need-based limitations. To qualify for the Medicaid income threshold, you could transfer your assets into an irrevocable trust. As long as you fund the trust at least five years before submitting your Medicaid application, the assets will not count in your qualification. After executing your irrevocable trust, a tax ID number is created which allows individuals qualifying for Medicaid to move their assets out of their name.

  • Protect Assets

To protect your assets from creditors, it usually requires your trust to be irrevocable. The Trustee and Beneficiary must be unrelated parties. For people who face lawsuits frequently, having “asset protection trusts” is important. An asset protection trust allows your hard earned money, property, etc. to be safe from creditors.

Living In a Property Transferred in an Irrevocable Trust

If you are living in a property transferred in an irrevocable trust, the creator of the trust will still play a role. For example, they are responsible for all household expenses but reserve the right to live in the house. This is known as a “life estate.” Your house becomes safe from creditors and estate taxes. However, if you change your mind about having an irrevocable trust, the grantor cannot make any changes without the permission of the beneficiary(ies). Moreover, having an irrevocable trust is a significant commitment that should not be taken lightly. 

For more information on how to decide if an irrevocable trust is right for you, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

The Importance of Creating an Asset Protection Plan

Asset protection planning is important for everyone, from all walks of life. If you have any money, investments, or property that you want to protect, if you own a business or are starting one, you need to make sure you have a solid plan in place to protect your personal assets. There are many different risks to your financial security, and your plan for asset protection needs to focus on the things that are most likely to impact your savings.

why is creating an asset protection plan important

Why is Asset Protection Planning Important?

Asset protection planning will benefit you by keeping your property and money protected during your lifetime. It can also ensure that you can leave a legacy for your loved ones. There are many specific reasons why asset protection planning is important including:

  • The risk of incapacity: If you become incapacitated (ex: diagnosed with Alzheimer’s) you won’t be able to take care of your assets or manage your finances. Substantial losses could accrue unless you assign someone trusted and reliable to manage your assets. You should plan ahead and assure that you have chosen the right person to manage your assets in case you’re ever incapacitated. Incapacitation can be gradual (ie. dementia) but it can also happen suddenly (ie. falling comatose). It’s better to plan ahead and early; better be safe than sorry. A living trust and/or a power of attorney are useful legal tools that could be used to protect your assets in case of incapacity. 
  • The risk of business losses: If you run your own business, you could face the risk of personal loss if your business goes bankrupt or if you or your business is sued. You don’t want your own personal home or other property to be lost because of business problems so you should explore legal methods to ensure your own assets are kept safe. Incorporating or forming a Limited Liability Company (LLC) could be an appropriate solution because, as long as you follow corporate rules, you will limit the risk of losing money invested in your business and limit the risk of losing personal assets. 
  • The risk of going into a nursing home: As everyone ages, nursing homes are a common long-term care plan. However, the cost of a nursing home can be extremely costly and nursing homes are not covered by most types of insurance, including Medicare. Many people are forced to spend all of their money and even sell their property to pay for a nursing home if they need care. Once the money is spent, then Medicaid begins to pay. However, if you create an asset protection plan, you can prevent your property from being included when determining if you’re eligible for Medicaid so you can get nursing home costs covered without giving away or spending your assets.
  • Losses due to estate tax: When you pass away and leave your assets to heirs, estate taxes could be imposed which could significantly reduce the value of an inheritance. This is mainly a problem for people with larger estates. As of 2021, estate taxes are assessed only if an estate exceeds $5.93 million. But, people with farms or business assets that count as part of their estate could quickly reach this amount and an inheritance could be at risk if there isn’t enough money to pay the taxes on potentially inherited farmland or business assets.
  • The risks presented by your heirs: You should protect your money and property even after you are gone. You can structure an inheritance so it will not be lost or spent recklessly if heirs get divorced or go bankrupt. You can also opt for creating trusts like special needs trusts or spendthrift trusts to meet the specific needs of beneficiaries who will inherit your assets. 

You work hard to amass money and property, and you deserve to protect what you have built so you can enjoy financial security in your old age and so you can make a difference by giving to people or causes you believe in after your death.

What Are Some Ways to Protect Assets? 

1.) Trusts- Irrevocable, Revocable, Medicaid asset protection

Trusts are legal documents that establish legal transfers of your assets. There are many different types of trusts, each serving its own purpose. Three common types of trusts used to protect assets are irrevocable trusts, revocable trust, and Medicaid asset protection trust. 

  • Irrevocable trusts are trusts that cannot be amended once created. Once it has been made, it cannot be changed or terminated without the permission of the grantor’s beneficiary. You also relinquish control of the trust’s assets and control is transferred to the trustee, the person who is legally responsible for managing the trust, and all changes/distributions are left to their judgment. There are many types of irrevocable trusts like asset protection trust, special needs trust, charitable trust, and Medicaid trust. The most common is asset protection trust because, in the event that a creditor files a lawsuit against you, the assets you transferred to the trust will no longer be considered yours. 
  • Revocable trusts (aka living wills) are the opposite of irrevocable trusts. It lets you freely make changes to it up until you die. It allows you to keep control of your assets while you are alive as opposed to giving up control in an irrevocable trust. You can also use it to determine who will inherit your assets after you die. A revocable living trust is preferable to a will since it does not require probate and can be revoked or amended at any moment while you are still alive. Revocable living trusts actually provide little asset protection but are a great way to ensure that your estate avoids the probate procedure after you die. 
  • Medicaid Asset Protection Trust sometimes called Pooled Income Trust, is a tool to protect your assets and allow people to qualify for Medicaid long-term care. A Medicaid Asset Protection Trust is a type of irrevocable trust so the transfer of assets into this kind of trust is considered a “gift.” To protect your assets, the trust has to be created 2.5 years before home care Medicaid is needed or 5 years before nursing home care is needed. This is because Medicaid inputs a look-back period when someone applies for Medicaid. 

2.) LLCs 

A limited liability company (LLC) is a legal status given to businesses. This establishment means the business will be its own legal entity and the owner(s) can be relieved of personal responsibility for their company’s debts or liabilities. An LLC will protect a business owner’s assets like bank accounts, properties, and cars in the event of a bankruptcy or other legal disputes. The owner’s assets cannot be viewed as the company’s assets.

3.) Retirement accounts 

If you have a 401(k), you might want to consider moving some cash into it. Individual retirement accounts (IRAs) enjoy protection under federal law as long as they are ERISA-qualified (such as a 401(k)). ERISA-qualified generally means the retirement account is employer-sponsored so pensions would count too. Your IRA might have even more protection depending on your state’s laws. Retirement accounts are also useful to avoid the probate process so some of your possessions can directly pass to your heirs without being dictated in the will

How can an Elder Law Attorney help?

Asset protection planning is not just for wealthy people, it’s important for everyone. If you have any money, property, or investments that you want to protect, you should create a plan. Planning is also important when you are young, because you can protect more of your assets if you take action early.

To learn more about asset protection planning and discover what plan works best for you, contact the Law Office of Inna Fershteyn at (718)-333-2395 for highly qualified advice.

Why Elder Law Attorneys Aren’t Just For Seniors?

An Elder Law Attorney serves as an advocate for the elderly and their loved ones when it comes to the legal issues related to healthcare and financial assets. Individuals who have reached an old age or are approaching the 65 benchmark should consider hiring an Elder Law attorney to assist them with the matter of retirement, social security, Medicaid, long term care planning, guardianship, disability, etc. An Elder Care Attorney will address the importance of creating an estate plan composed of a will, trust, health care proxy, power of attorney, and letter of intent in order to effectively prepare for the future. There are numerous benefits to hiring an Elder Law attorney, some of which include guidance in long term care planning, assistance in creating a durable power of attorney, aid in receiving Social Security benefits, and protection against elder abuse. Elder Law Attorneys are specialists in their field, as they have much experience handling similar cases related to the specific needs of seniors. The attorney will utilize a holistic approach in ensuring that the key issues pertaining to long-term care, housing, well-being, and financial asset protection adhere to the wishes of the elderly individual. In terms of requiring assistance in creating trusts and wills for an elderly loved one, an esteemed Elder Attorney will be able to guarantee that the documents have the individual’s best interests at heart. The lawyer will work with you to protect your assets in the best manner possible to ensure that necessary payments are made on the home and other personal costs, while making sure that there is no form of financial exploitation of assets that could harm your loved ones.

Elder Law Attorneys Aren't Just for the Elderly

Benefits to Hiring and Elder Care Attorney:

1)Guidance in long term care planning

In the case that an individual’s physical and mental health declines, a long-term care facility is typically the most effective plan of care for the individual. When considering which long-term care facility is most effective for your loved one’s needs be sure to also note that the payment plan for this facility is within your price range. An Elder Care Attorney can assist you in obtaining long-term care insurance that will help cover the expenses of care, as prices are on the rise in NY. In the case that long-term care insurance is out of your financial budget, an Elder Care Attorney can assist in qualifying for Medicaid. You are guaranteed to make the best long term care decision possible for your loved one if you seek proper instruction and assistance from an experienced attorney.

2)Assistance in creating a durable power of attorney

A durable power of attorney serves to grant a third party the ability to make decisions and take actions on behalf of the individual who has become incapacitated, as they are no longer able to make decisions independently. An Elder Care Attorney prefers a durable power of attorney rather than just the typical power of attorney because the durable document remains functional even after the individual loses the ability to make decisions for themselves. On the contrary, the typical document would only function if the individual has not become mentally incapacitated. An attorney will guide you through the process of filling out this document to ensure that your future is well planned for. 

3) Aid in receiving Social Security Benefits

An Elder Care Attorney works to guarantee that you are receiving all of the benefits you deserve based on your current age and overall health. Once you reach the age of 67 you are subject to receive the full Social Security benefits. If you have reached this age and are not receiving your full benefits, an attorney will advocate on your behalf and work to grant you your benefits. If you have a disability and are subject to receive disability benefits, then the attorney will assist you in obtaining those benefits by following a similar legal procedure. According to NY State regulations, Social Security Disability Insurance (SSDI) guarantees that you may begin collecting benefits after 6 months since the start of your disability. With the support of an esteemed Elder Care Attorney, you will certainly receive all of the benefits you rightfully deserve.

4)Protection against elder abuse

With the current foundation, research has shown that many elderly residents in nursing homes are facing unjust treatment. An Elder Care Attorney will work with you by representing your loved ones who have been the victims of physical violence, emotional mistreatment, or financial fraud. The attorney will not just provide guidance on the following steps, but will ensure that justice is served and your loved one will never be treated in this manner ever again. The attorney will advocate for the rights of your loved one to guarantee that they are being properly cared for and looked after, especially during these troubling and challenging times.

So, In Sum, Why Elder Law Attorneys Aren’t Just For Seniors?

Elder Law Attorneys work to assist individuals in creating a plan for their future to ensure that the individuals interests and best wishes are clearly declared. These individuals are not always seniors. As a matter of fact, it is recommended that you hire an Elder Care Attorney prior to the age of 65. It is always better to be prepared for anything, rather than procrastinate on preparing for your future. Many individuals fall victim to the assumption that they have an unlimited period of time left to get all of their assets and legal information together. The unfortunate truth is that life is inexplicable and unexpected events can occur at any point in time. In the case that an individual does not have an elder care in place prior to the point in time when they biome incapacitated, then their loved ones must embark in the costly and lengthy process of earning the legal authority to act on their loved one’s behalf. It is encouraged that you avoid waiting because the guardianship legal procedures associated with waiting too long to create an elder care plan are very complex and expensive. If individuals do not take the time to create a will, then they will not be able to decide how they would like their assets to be distributed or how their minor children would be cared for. The court would then be responsible for distributing your assets and estates, which may not align with your wishes. It is certainly better to be well prepared ahead of time, rather than at a loss when the time comes. Make the decision today to protect yourself and your loved ones by hiring an Elder Care Attorney to draft all of your legal documents and create a plan for the future. 

For Elder Care inquiries please contact the Law Office of Inna Fershteyn at 718-333-2395 to best prepare your legal documents for the future.