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Medicaid Application Process Changes Due to COVID-19

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May 082020

GIS 20 MA/04, dated 4/2/20, details some changes to the Medicaid application process which were prompted by the COVID-19 crisis.

The changes are to remain in effect for the duration of the COVID-19 public health emergency. GIS 20 MA/04, at 1.

Some of the changes for people applying for Medicaid to pay for nursing home care include being allowed to attest to income and resources. This includes attesting to any transfer of assets during the look-back period. It also includes attesting to naming the State as remainder beneficiary of an annuity. Proof/documentation will be required at renewal. GIS 20 MA/04, at 4.

For people in hospitals and nursing homes, the Medicaid application and Supplement A can be signed by someone acting on the applicant’s behalf. If the applicant or the applicant’s spouse cannot sign, Form DOH-5147 should be used for Upstate applicants; Section C of the form should be filled out to indicate that the applicant cannot sign the form due to rules preventing access to people in hospitals/nursing homes. Form MAP-3044 should be used for NYC applicants; the Reason for Submission/Section II should be filled out the same way. If the applicant is able to sign to authorize someone to apply for them, the applicant should sign Section D of Form DOH-5147. GIS 20 MA/04, at 4.

People turning age 65 must not be required to apply for other benefits, such as Medicare and Social Security, as a condition of Medicaid eligibility. GIS 20 MA/04, at 5.

People with health insurance will not be required to provide information about it. DSS is not required to make new cost effective determinations for possible reimbursement if sufficient information is not available. GIS 20 MA/04, at 5.

DSS may accept attestation of the amount being received from retirement accounts and annuities. GIS 20 MA/04, at 5.

No documentation should be requested based on Asset Verification System responses. GIS 20 MA/04, at 5-6.

Updated 05/08/2020

Economic Impact Payments for COVID-19: Medicaid treatment

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May 082020

GIS 20 MA/05, dated 04/20/20, says that for non-MAGI determinations (such as SSI-related people in nursing homes), stimulus payments received under the CARES Act are not countable as income. They are an exempt resource for 12 months. After the 12-month period, any part of the payment which remains is a countable resource.

Posted 05/08/2020

Obtain CLE credit while you stay at home

More info for NY Trusts & Estates and Elder Law attorneys Comments Off

Apr 142020

Attorneys: if you would like to earn some CLE credit while you are social distancing, the Broome County Bar Association has a number of programs which are available on DVD. Send an e-mail to the Bar Office for more information: BroomeBar@stny.twcbc.com

Discounts are available if you are a Broome County Bar Association member.

PROGRAMS WHICH MAY BE OF INTEREST TO TRUSTS & ESTATES AND ELDER LAW PRACTITIONERS:

– Article 81: Guardian, Court Evaluator & Attorney for AIP (1 ETHICS credit hour and 6 professional practice credit hours) – this qualifies you to join the list to get Court appointments

– Estate Administration 101 (4 credit hours)

GET THOSE ETHICS CREDITS:

– Ethics & Professionalism 2019 (4 ETHICS credit hours – fulfill your requirement all at once!)

– Ethics & Professionalism 2018 (4 ETHICS credit hours)

AND A DIVERSITY, INCLUSION & ELIMINATION OF BIAS CREDIT:

– Navigating Trauma Across Cultures (1 DIVERSITY credit hour)

– Parentage in Family & Matrimonial Matters 2018 (1 DIVERSITY credit hour and 3 professional practice credit hours)

– Trauma Informed Training 2019 (1 DIVERSITY credit hour, 1 professional practice credit hour and 1 skills credit hour)

– Update 2019 (1 DIVERSITY credit hour and 4 professional practice credit hours)

OTHER PROGRAMS AVAILABLE:

– Appellate Courts 2018 (3 credit hours)

– Bail Reform/Discovery Legislation & Padilla Update 2020 (5.5 credit hours)

– Benches to Trenches (4 credit hours)

– Corporate/Business Law 2019 (4 credit hours)

– Court of Appeals Update with Brian Shoot (2 credit hours)

– Debt Collection (4 credit hours)

– Hot Practice Tips 2018 (5 credit hours)

– Housing Stability & Tenant Protection Act 2019 (4 credit hours)

– Matrimonial/Family Law 2019 (4 credit hours)

– Multi Court Tips for the Practitioner (4 credit hours)

– Real Estate 2018 (4 credit hours)

– Skills Every Lawyer Needs for a Successful Practice (3 credit hours)

– Solo & Small Firm Practice 2019 (4 credit hours)

– Supreme Court Walk-Through 2019 (4 credit hours)

– Taxes, Taxes, Taxes (4 credit hours)

– Town & Village Courts (3 credit hours)

Posted 04/14/2020

Economic Impact Payments for COVID-19: not for estates or trusts

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Apr 122020

Economic Impact Payments were prompted by the Novel Coronavirus (COVID-19).

Trusts and Estates attorneys need to be aware that the law authorizes payments to eligible individuals. Section 2201 (d)(3) of the law says that estates and trusts are not eligible individuals.

These payments are authorized by the CARES Act, which is H.R. 748- 116th Congress (2019-2020), the federal Coronavirus Aid, Relief and Economic Security Act. It was signed into law by the president on 03/27/2020.

If someone filed an income tax return for the year 2018 or the year 2019, a check might have been sent to them even if they have since died.

The IRS website was updated on May 6, 2020, to address this issue.
Q10 of the EIP Eligibility and General Information section asks if someone who has died qualifies for the payment.
A10 says that the answer is No. A payment which was made to someone who died before receiving the payment should be returned to the IRS. If the payment was made solely to the deceased person, return the entire payment. If the payment was made to joint filers and one spouse was still alive when payment was received, you only need to return the portion of the payment made for the deceased person.

A41 says that if payment was made by a paper check, and the check was not cashed:
Write “Void” in the endorsement section on the back of the check. Mail the voided check to the appropriate IRS location listed on the website. Do not staple, bend or paper clip the check. Include a note stating the reason for returning the check.

If payment was made by a paper check, and the check was cashed, or if payment was made by direct deposit:
Submit a personal check, money order, etc., to the appropriate IRS location listed on the website. Make the check or money order payable to U.S. Treasury. Write 2020EIP and the recipient’s taxpayer identification number on the check. Include a brief explanation of the reason the payment is being returned.

The address to which the payment should be mailed depends on where the person lived. For New York, payment should be mailed to Brookhaven Refund Inquiry Unit, 5000 Corporate Ct., Mail Stop 547, Holtsville NY 11742. The mailing address is different for people who lived in other states.

The information on the IRS website can be found by going to:
www.IRS.gov
Click on GET CORONAVIRUS TAX RELIEF
Click on ECONOMIC IMPACT PAYMENTS
Click on ECONOMIC IMPACT PAYMENTS INFORMATION CENTER
Click on EIP ELIGIBILITY AND GENERAL INFORMATION

The CARES Act can be found at:
www.congress.gov/bill/116th-congress/house-bill/748
Click on the TEXT tab
Click on PDF
SEction 2201 (d)(3) is on page 55.

Posted 04/12/2020. Updated 05/08/2020.

Remote witnessing of documents

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Apr 122020

The rules for witnessing documents are among the New York law changes, prompted by the Novel Coronavirus (COVID-19), which impact Trusts & Estates attorneys and Elder Law attorneys.

The New York Governor’s Executive Order 202.14, dated April 7, 2020, authorizes the use of audio-video technology for witnessing certain documents, if certain conditions are met.

The laws which are impacted by this authorization are:

– Estates, Powers & Trusts Law section 3-2.1 (a)(2) and Section 3-2.1 (a)(4): Execution and Attestation of Wills; Formal Requirements

– Public Health Law section 2981 (2)(a): Appointment of Health Care Agent; Health Care Proxy

– Public Health Law section 4201 (3): Disposition of Remains; Responsibility Therefore

– Real Property Law Article 9: Recording Instruments Affecting Real Property

– General Obligations Law section 5-1514 (9)(b): Certain Gift Transactions; Formal Requirements; Statutory Form

– Estates, Powers and Trusts Law section 7-1.17: Execution, Amendment and Revocation of Lifetime Trusts

The conditions for compliance are:

– the person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;

– the video conference must allow for direct interaction between the person and the witness(es) and the supervising attorney, if applicable (a pre-recorded video of the person signing is not acceptable);

– the witnesses must receive a legible copy of the signature page(s), which may be transmitted by fax or electronic means, on the same date that the pages are signed by the person;

– the witness(es) may sign the transmitted copy of the signature page(s) and transmit them back to the person; and

– the witness(es) may repeat the witnessing of the original signature page(s) as of the date that the document was signed, if the witness(es) receive the original signature pages and the electronically witnessed copies within 30 days after the date that the document was signed.

Note that this authorization was effective through May 7, 2020. Executive Order 202.28 extended it until June 6, 2020. Executive Order 202.38 extended it until July 6, 2020. Executive Order 202.48 extended it until August 5, 2020. Executive Order 202.55 extended it until September 4, 2020. Executive Order 202.60 extended it through October 4, 2020. Executive Order 202.67 extended it through November 3, 2020. Executive Order 202.72 extended it through December 3, 2020. Executive Order 202.79 extended it through January 1, 2021. Executive Order 202.87 extended it through January 29, 2021. Executive Order 202.92 extended it until February 26, 2021. Executive Order 202.95 extended it until March 24, 2021. Executive Order 202.96 extended it through March 28, 2021. Executive Order 202.98 extended it until April 20, 2021. Executive Order 202.99 extended it until April 25, 2021. Executive Order 202.100 extended it until April 30, 2021. Executive Order 202.101 extended it until May 6, 2021. Executive Order 202.102 extended it unti May 19, 2021. Executive Order 202.103 extended it through May 25, 2021. Executive Order 202.105 extended it through May 27, 2021. Executive Order 202.106 extended it through June 5, 2021. Executive Order 202.107 extended it through June 9, 2021. Executive Order 202.108 extended it through June 16, 2021. Executive Order 202.109 extended it through June 24, 2021. Executive Order 202.110 extended it through July 5, 2021.

Executive Order 202 had declared a disaster emergency in the State of New York in response to the COVID-19 pandemic. Executive Order 210, signed by the governor on 06/24/2021, states that Executive Order 202 is no longer necessary due to flattening the curve of COVID-19, slowing transmission, administering the vaccine and lowering the infection rate. Executive Order 210 rescinded Executive Order 202, effective 06/25/2021.

Executive Orders can be found on the New York Governor’s website
www.governor.ny.gov
Click on Executive Orders

Posted 04/12/2020. Updated 06/26/2021

Standby Guardian rules changed by COVID-19

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Apr 122020

The rules for standby guardians are among the New York law changes, prompted by the Novel Coronavirus (COVID-19), which impact Trusts & Estates attorneys and Elder Law attorneys.

The New York Governor’s Executive Order 202.14, dated April 7, 2020, modifies sections of the Surrogate’s Court Procedure Act (SCPA) to provide that any parent, legal guardian, legal custodian or primary caretaker who works in a health care facility, volunteers in a health care facility, or reasonably believes that they may otherwise be exposed to COVID-19, may designate a standby guardian by means of a written designation, as per the SCPA subdivisions listed below. The designation shall become effective in accordance with the processes set forth in those subdivisions.

The SCPA sections affected are:

SCPA 1726 (1)
SCPA 1726 (2)
SCPA 1726 (4)
SCPA 1726 (5)
SCPA 1726 (8)
SCPA 1726 (9)

Note that these modifications were effective through May 7, 2020. Executive Order 202.28 extended them until June 6, 2020. Executive Order 202.38 extended them until July 6, 2020. Executive Order 202.48 extended them until August 5, 2020. Executive Order 202.55 extended them until September 4, 2020. Executive Order 202.60 extended them through October 4, 2020. Executive Order 202.67 extended them through November 3, 2020. Executive Order 202.72 extended them through December 3, 2020. Executive Order 202.79 extended them through January 1, 2021. Executive Order 202.87 extended them through January 29, 2021. Executive Order 202.92 extended them until February 26, 2021. Executive Order 202.95 extended them until March 24, 2021. Executive Order 202.96 extended them through March 28, 2021. Executive Order 202.98 extended them until April 20, 2021. Executive Order 202.99 extended them until April 25, 2021. Executive Order 202.100 extended them until April 30, 2021. Executive Order 202.101 extended them until May 6, 2021. Executive Order 202.102 extended them until May 19, 2021. Executive Order 202.103 extended them through May 25, 2021. Executive Order 202.105 extended them through May 27, 2021. Executive Order 202.106 extended them through June 5, 2021. Executive Order 202.107 extended them through June 9, 2021. Executive Order 202.108 extended them through June 16, 2021. Executive Order 202.109 extended them through June 24, 2021. Executive Order 202.10 extended them through July 5, 2021.

Executive Orders can be found on the New York Governor’s website
www.governor.ny.gov
Click on Executive Orders

Posted 04/12/2020. Updated 06/26/2021

Remote notarization of documents

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Apr 122020

The rules for notarizing documents are among the New York law changes, prompted by the Novel Coronavirus (COVID-19), which impact Trusts & Estates attorneys and Elder Law attorneys.

The New York Governor’s Executive Order 202.7, dated March 19, 2020, directs that any notarial act which is required under New York State law, is authorized to be performed utilizing audio-video technology, if certain conditions are met.

The conditions are:

– the person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after the video conference;

– the video conference must allow for direct interaction between the person and the Notary (a pre-recorded video of the person signing is not allowed);

– the person must affirmatively represent that he or she is physically situated in the State of New York;

– the person must transmit, by fax or electronic means, a legible copy of the signed document directly to the Notary, on the same date it was signed;

– the Notary may notarize the transmitted copy of the document, and transmit it back to the person; and

– the Notary may repeat the notarization of the original signed document as of the date of execution, if the Notary receives the original signed document, together with the electronically notarized copy, within 30 days after the document was signed.

Note that this directive was effective through April 18, 2020. Executive Order 202.14 extended it through May 7, 2020. Executive Order 202.28 extended it until June 6, 2020. Executive Order 202.38 extended it until July 6, 2020. Executive Order 202.48 extended it until August 5, 2020. Executive Order 202.55 extended it until September 4, 2020. Executive Order 202.60 extended it through October 4, 2020. Executive Order 202.67 extended it through November 3, 2020. Executive Order 202.72 extended it through December 3, 2020. Executive Order 202.79 extended it through January 1, 2021. Executive Order 202.87 extended it through January 29, 2021. Executive Order 202.92 extended it until February 26, 2021. Executive Order 202.95 extended it until March 24, 2021. Executive Order 202.96 extended it through March 28, 2021. Executive Order 202.98 extended it until April 20, 2021. Executive Order 202.99 extended it until April 25, 2021. Executive Order 202.100 extended it until April 30, 2021. Executive Order 202.101 extended it until May 6, 2021. Executive Order 202.102 extended it until May 19, 2021. Executive Order 202.103 extended it through May 25, 2021. Executive Order 202.105 extended it through May 27, 2021. Executive Order 202.106 extended it through June 5, 2021. Executive Order 202.107 extended it through June 9, 2021. Executive Order 202.108 extended it through June 16, 2021. Executive Order 202.109 extended it through June 24, 2021. Executive Order 202.110 extended it through July 5, 2021.

Executive Orders can be found on the New York Governor’s website
www.governor.ny.gov
Click on Executive Orders

The website of New York State’s Department of State has an alert regarding Executive Orders for what it refers to as “electronic notarization.” The alert does not always seem to be updated when a new Executive Order appears. However, sometimes a new Executive Order appears before the extension of the prior Executive Order has expired. To see the alerts, go to:
www.dos.ny.gov
Hover your mouse over Divisions
Click on Licensing Services
Hover your mouse over Professions & Occupations
Click on Notary Public

Posted 04/12/2020. Updated 06/26/2021

Fair hearing rules changed by COVID-19

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Apr 122020

Fair hearing rules are among the New York law changes, prompted by the Novel Coronavirus (COVID-19), which impact Trusts & Estates attorneys and Elder Law attorneys.

The New York Governor’s Executive Order 202.5, dated March 18, 2020, temporarily suspends or modifies some sections of the New York Codes, Rules and Regulations, to the extent necessary to allow or require appearances by any parties to a fair hearing by written, telephonic, video or other electronic means.

The sections affected are:

18 NYCRR 358-4.3: Responsibilities and rights in the fair hearing process

18 NYCRR 358-5.12: Telephone hearings

18 NYCRR 358-5.13: Video hearings

Note that these changes were effective through April 17, 2020. Executive Order 202.14 extended them through May 7, 2020. Executive Order 202.28 extended them until June 6, 2020. Executive Order 202.38 extended them until July 6, 2020. Executive Order 202.48 extended them until August 5, 2020. Executive Order 202.55 extended them until September 4, 2020. Executive Order 202.60 extended them through October 4, 2020. Executive Order 202.67 extended them through November 3, 2020. Executive Order 202.72 extended them through December 3, 2020. Executive Order 202.79 extended them through January 1, 2021. Executive Order 202.87 extended them through January 29, 2021. Executive Order 202.92 extended them until February 26, 2021. Executive Order 202.95 extended them until March 24, 2021. Executive Order 202.96 extended them through March 28, 2021. Executive Order 202.98 extended them until April 20, 2021. Executive Order 202.99 extended them until April 25, 2021. Executive Order 202.100 extended then until April 30, 2021. Executive Order 202.101 extended them until May 6, 2021. Executive Order 202.102 extended them until May 19, 2021. Executive Order 202.103 extended them through May 25, 2021. Executive Order 202.105 extended them through May 27, 2021. Executive Order 202.106 extended them through June 5, 2021. Executive Order 202.107 extended them through June 9, 2021. Executive Order 202.108 extended them through June 16, 2021. Executive Order 202.109 extended them through June 24, 2021. Executive Order 202.10 extended them through July 5, 2021.

Executive Orders can be found on the New York Governor’s website
www.governor.ny.gov
Click on Executive Orders

Posted 04/12/2020. Updated 06/26/2021

Regional Rates for 2020

Transfer of Assets (Gifting) Comments Off

Jan 112020

The regional rates for the year 2020, for use in calculating Medicaid penalty periods, are found in GIS 20 MA/01, which is dated 01/10/2020. They are:

CENTRAL: $10,451
Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tioga, and Tompkins.

NORTHEASTERN: $11,295
Albany, Clinton, Columbia, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Montgomery, Otsego, Rensselaer, Saratoga, Schenectady, Schoharie, Warren, and Washington.

WESTERN: $10,720
Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans, and Wyoming.

NORTH METROPOLITAN: $12,805
Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester.

NEW YORK CITY: $12,844
Bronx, Kings (Brooklyn), New York (Manhattan), Queens, and Richmond (Staten Island).

LONG ISLAND: $13,407
Nassau and Suffolk.

ROCHESTER: $12,460
Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne, and Yates.

Posted 01/11/2020

Income Levels for 2020

Income Comments Off

Dec 212019

Medicaid income levels for the year 2020 are shown in GIS 19 MA/12, which is dated 12/19/19.

Medicaid Financial Eligibility Rules for Nursing Home Care in New York State should be updated as follows:

INCOME LEVEL FOR 2020 – MONTH ONE – PERSON IN A NURSING HOME WHO DOES NOT HAVE A COMMUNITY SPOUSE
The Medically Needy Income Level for a household of one for 2020 is $875 per month. GIS 19 MA/12, page 2.

INCOME LEVEL FOR 2020 – MONTH ONE – PERSON IN A NURSING HOME WHO DOES HAVE A COMMUNITY SPOUSE
The Medically Needy Income Level for a household of one for 2020 is $875 per month. GIS 19 MA/12, page 2.

INCOME LEVEL FOR 2020 – AFTER MONTH ONE – PERSON IN A NURSING HOME WHO DOES NOT HAVE A COMMUNITY SPOUSE
The person in the nursing home is allowed to keep a Perseonal Needs Allowance of $50 per month for 2020 if they do not have a community spouse. GIS 19 MA/12, Attachment 1.

INCOME LEVEL FOR 2020 – AFTER MONTH ONE – PERSON IN A NURSING HOME WHO DOES HAVE A COMMUNITY SPOUSE
The person in the nursing home is allowed to keep a Personal Needs Allowance of $50 per month for 2020 if they have a community spouse. GIS 19 MA/12, Attachment 1.

INCOME LEVEL FOR 2020 – COMMUNITY SPOUSE
The community spouse is allowed to keep a Minimum Monthly Maintenance Needs Allowance of $3,216 per month for 2020. GIS 19 MA/12, page 2 and Attachment 1.

Posted 12/21/2019

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