By Frank E. Hemming, Esq.
One area that causes a lot of confusion regarding Medicaid is the lookback period. What exactly does it mean for applicants? Unlike Medicare, Medicaid is a means-based program. In other words, you are only eligible for Medicaid if you have very few assets.
The government does not want you to transfer all your assets on Monday to qualify for Medicaid on Tuesday, so it has imposed a penalty on people who transfer assets without receiving fair value in return.
What to Know When Applying for Medicaid
States require Medicaid applicants to disclose all financial transactions they were involved in during the five years before they applied for Medicaid for a nursing home. This five-year period is known as the lookback period. The state Medicaid agency then determines whether the Medicaid applicant transferred any assets during this period for less than fair market value.
For home care, New York currently has no lookback but that may change sometime in the year 2025 if the State Department of Health rolled out a 30-month, phased in lookback.
Any transfer can be scrutinized, no matter how small. There is no exception for charitable giving or gifts to grandchildren. If you have a caregiver, make sure you have a written agreement in place. (If you make an informal payment to a caregiver, it may be considered a transfer for less than fair market value.)
Similarly, loans to family members can trigger a penalty period if there is no written documentation. It is up to the applicant to prove that the transfer was not made in order to qualify for Medicaid.
Are There Exceptions?
Transferring assets to certain recipients will not trigger a period of ineligibility even if the transfers occurred during the lookback period. These exempt recipients include the following:
- A spouse (or a transfer to anyone else as long as it is for the spouse’s benefit)
- A blind or disabled child
- A properly drafted trust for the sole benefit of a blind or disabled child
- A properly drafted trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances).
In addition, special exceptions apply to the transfer of a home. For one, the Medicaid applicant’s home may be transferred to the individuals above. In addition, the applicant may also freely transfer their home to the following individuals without incurring a transfer penalty:
- A child who is under age 21
- A child who is blind or disabled (the house does not have to be in a trust)
- A sibling who has lived in the home during the year preceding the applicant’s institutionalization and who already holds an equity interest in the home
- A caretaker child defined as a child of the applicant who lived in the house for at least two years prior to the applicant’s institutionalization and who, during that period, provided care that allowed the applicant to avoid a nursing home stay
If the state Medicaid agency determines that an applicant has made a transfer for less than fair market value, it will impose a penalty period. This penalty is a period of time during which the person transferring the assets will not be eligible for Medicaid. The penalty period is determined by dividing the amount transferred by what Medicaid determines to be the average private pay cost of a nursing home in your state.
Speak to an Elder Law Attorney
If you have transferred assets within the past five years and are planning on applying for Medicaid, consult with an estate planning or elder law attorney. A Pierro, Connor & Strausselder law attorney can guide you in legal strategies to become Medicaid eligible and file your application, as well as determine any steps you can take to prevent a penalty.
Frank E. Hemming is a Partner at Pierro, Connor & Strauss, concentrating his practice on helping clients prepare and file both community and chronic care Medicaid applications.
