Elder Law/Long Term Health Care and Medicaid Planning

Whether in advance of clients needing long term care, or when they are in crisis, we advise on the programmatic and financial rules for choosing between, obtaining and financing long term care.

The attorneys in our group regularly counsel clients on:

  • The differing levels of long term care and how Medicare and Medicaid may help pay for them.
  • The use of long term care insurance as a component of planning long term care financing.
  • How family assets may be preserved for spouses and other family members and assist them to do so through the use of trusts, gifting and other planning techniques.

We assist with Medicaid applications, and represent our clients in administrative hearings and court appeals if benefits are wrongfully denied, or if claims are made for recoveries by Medicaid or nursing homes. For younger individuals with special needs, we can help them or their families establish supplemental needs trusts so savings or inheritances will be available for those needs without disqualifying them from public benefits.


Coronavirus (COVID-19) Updates

Update 4-4-20

Well, the State budget has passed, and there are big changes in store for Medicaid applicants and recipients, all of which deal with home and community based care.

Beginning October 1st, 2020 (unless otherwise extended by the legislature), there will now be a thirty (30) month lookback period for all home and community base long term care services. This is essentially a brand new requirement, as the lookback (which is 60 months for nursing home care) previously solely applied to applicants for nursing homes. It is unclear at this time how the penalty for any transfers of assets within the lookback will be calculated. This requirement will only further delay the processing of Medicaid applications, and will, in our opinion, have a great impact on the ability of families to access Medicaid benefits to help keep their parents at home. Look for further details in the weeks to come.

To further exacerbate the home care issues raised by this new requirement, the legislature has raised the bar to qualify one for Medicaid long term care services in the community. Previously, an applicant would need to show an inability to perform two out of six activities of daily living. The new requirement is three out of six (unless one has a diagnosis of Alzheimer's or dementia , than one out of six still sufficient).

Finally, it has been the case that an individual's personal treating physician could authorize and recommend a certain number of care hours per day for a treatment plan for his/her patient, which could be submitted by an applicant for the Consumer Directed Personal Assistance Program (CDPAP) to access home care services. The CDPAP is, in many respects, the lifeblood of home care in upstate New Yok It now appears that such treatment plan must be made by "qualified independent physician" selected or approved by the Department of Health . Again, the details of how this will work have yet to be finalized, but having a State approved physician involved is, in our opinion, not good news for our clients who desperately need home care services.

Despite all of this, our Elder Law/Medicaid Practice Group stands at the ready to assist our clients through these difficult times. If you or your loved ones are in need of planning for long term care, please do not hesitate to contact us.

Our clients need us now more than ever, and we remain optimistic that better times are ahead for all of us!

Update 3-22-20

Our Elder Law/Medicaid Practice Group is closely monitoring budget negotiations in Albany that may greatly impact the Medicaid Program, and consequently the clients that we serve. The COVID-19 virus has only heightened tension over proposed cuts to the Medicaid Program. Both Rick Marchese and Rene Reixach are vigorously participating in lobbying efforts on behalf of the New York Chapter of the National Academy of Elder Law Attorneys, as well as the Elder Law and Special Needs Section of the New York State Bar Association, to try to help insure that the interests of Woods Oviatt Gilman clients, as well as the interests of all elderly and disabled New Yorkers, in receiving needed care in the community, are not compromised. We will post further updates as the budget process is finalized.