COVID-19 Changes to the Practice of Elder Law
No matter how significantly COVID-19 has changed manner in which elder law is practiced (shuttered courthouses, self-isolation, remote computing and video conferencing), the substantive law changes during this period have been even more momentous.
By Daniel G. Fish
No matter how significantly COVID-19 has changed manner in which elder law is practiced (shuttered courthouses, self-isolation, remote computing and video conferencing), the substantive law changes during this period have been even more momentous. The eligibility for Medicaid home care has been drastically altered; the Medicaid application requirements and recertification process are totally revised; remote notarization is permitted; and remote execution of wills and other estate planning documents is now allowed. What was unthinkable just a few short weeks ago is now the “new normal.” These changes will require a complete rethinking of the practice of elder law and the advice given to clients.
Medicaid Home Care Will Have a 30-Month Look-Back Period
The Governor did not attach Medicaid cuts to his initial budget proposal this year. He handed that off to a group called the Medicaid Redesign Team II (MRT II). Among the recommendations of MRT II was a 60-month lookback period for Medicaid home care services, the elimination of spousal refusal and a reduction to the Community Spouse Resource Allowance (CSRA). The 2020 New York State budget that was enacted has imposed instead a 30-month look-back period on Medicaid home care applications and rejected the proposals for spousal refusal and the CSRA.
There are two distinct Medicaid programs in New York state: institutional (nursing home) and community (home care). They have different eligibility rules. Those seeking Medicaid nursing home benefits must disclose whether they have made any uncompensated transfers within five years of application. If such gifts were made, a penalty will be imposed, delaying eligibility for benefits. This is frequently called the look-back period.
Those seeking Medicaid home care benefits have had no look-back period. Gifts made before the application were not penalized. Home care applications filed on or after Oct. 1, 2020, will be subject to a 30-month (two-and-a-half-year) look-back period and if transfers of assets were made eligibility will be delayed, and a penalty imposed. The new law will require careful attention to the date that the penalty period commences and the calculation of the length of the penalty period.
New Procedure for Determining Hours of Coverage
Medicaid eligibility is a two-step process. First, the applicant has to demonstrate financial eligibility. Then the applicant has to demonstrate medical need for home care services. This new provision appears to be aimed at limiting the number of hours of care provided to individuals. Clients may be found eligible, but their hours of care restricted to a level that compromises the individual’s ability to remain in the community and out of a nursing home.
Medicaid home care applicants who have proven financial eligibility must then demonstrate medical eligibility. The medical necessity is currently determined by a two-step assessment process. First, New York State Medicaid makes an assessment of the need for homecare, without assigning a particular number of hours. Then the applicant goes to a home care agency that had a contract with Medicaid, called a Managed Long Term Care (MLTC) Plan. The MLTC sends its own nurse out to make a clinical assessment and decide upon the number of hours per day and the number of days per week that home health aide services will be provided.
In the future, the need for home care services will have to be prescribed by a “qualified independent physician selected or approved by the department of health.”
The individual will need to demonstrate the need for “limited assistance with physical maneuvering with” a minimum of three activities of daily living or if diagnosed with dementia a minimum of two activities of daily living.
In addition, the commissioner is authorized to “adopt standards, for the provision, management and assessment of services for individuals whose need for such services exceeds a specified level to be determined by the commissioner.”
These provisions have lead to concerns that the import of the legislation is to limit the number of hours of home care provided. However, The statute specifically requires adherence to Olmstead v. LC, 527 US 581 (1999). That U.S Supreme Court decision recognized the right of individuals, under the Americans with Disabilities Act, to remain in the community rather than in institutions. It is expected that the statutory inclusion of that decision in the New York state statute will act as a counter-weight to attempts to restrict the hours of coverage that are required for individuals to safely remain in the community.
Medicaid Application COVID Rules—GIS 20 MA/04
The logistical problems of processing Medicaid applications and ensuring continued eligibility have been strained by the COVID-19 virus. In response, the New York State Department of Health issued GIS 20 MA/04. This gave instruction to the local Medicaid agencies as to new procedures to be put into place.
New applicants had been required to submit proof of a long list of items, including age, residency, marital status, health insurance, income, and savings. Many of those documents are not available with so many institutions being closed. Therefore, applicants are now permitted to attest to their eligibility without providing documentation, with the exception of proof of citizenship and immigration status.
Each year, Medicaid re-evaluates program participants to see if they continue to remain eligible (recertification). Medicaid recipients who were due to recertify in March, April, May and June 2020 do not need to recertify. They will be automatically recertified for one year.
These changes continue in effect for the duration of the COVID-19 public health emergency.
In recognition of the difficulty and medical danger of requiring in-person notarization, New York State Executive Order No. 202.7 authorizes remote notarization if certain requirements are met. The Order has been extended until June 6, 2020.
The video conference method must be real-time and the person seeking notarization must be physically within New York state and must show photo identification during the remote session unless the notary personally knows the person.
After the party signs and the notary sees the signing, the person must send by facsimile or electronic means, a legible copy of the entire document to the notary, on the same day. The notary can then sign and seal the copy. The notary can then transmit back to the person a copy of the fully executed document. The original document signed by the person can be notarized by the notary if the notary receives the original document within 30 days.
The space where the notary signs and affixes the seal should include language that it was made pursuant to the Executive Order and it should recite that the formalities were observed.
As an example of the possible language:
On the ______ day of ____________ in the year 2020 before me, the undersigned, a Notary
Public in and for the State of New York personally appeared ______________________
*by way of video conference in accordance with New York State Executive Order No. 202.7, issued March 19, 2020 and Executive Order 202.14, issued April 7, 2020, and Executive Order 202.28, issued May 7, 2020,* personally known to me or *who presented valid photo identification during the video conference* to be the individual whose name is subscribed to the within instrument and swore to me that *she was physically present in the State of New York* and executed the same in her capacity and that by her signature on the instrument, the individual, or the person on behalf of whom the individual acted, executed the instrument; *a legible copy of the signed instrument was transmitted to and received by me on the same day it was signed*.
Remote Witnessing for Wills and Estate Planning Documents
New York State Executive Order No. 202.14 authorizes the remote witnessing of last wills and testaments; powers of attorney; health care proxies; disposition of remains; real property transfers; and inter vivos trusts. The Order has been extended until June 6, 2020.
The requirements are almost the same as those for remote notarization, except that there is no requirement that the signer affirm their presence in New York State; and only the signature page (and not the whole document) must be received by the witnesses the same day as the signing.