Elder Law for the Long Run

Under SSL § 366, when a New Yorker applies for institutional (nursing home) Medicaid, the agency reviews the 60 months immediately preceding the application. Any uncompensated transfer in that window — a gift to a child, a transfer into a MAPT, a below-market sale of property — creates a transfer penalty. The penalty is calculated by dividing the value of the transferred asset by the regional monthly cost of care to determine the months of ineligibility.

New York passed a 30-month lookback for community Medicaid (home care, CDPAP, certified home health) in 2020, but enforcement has been delayed repeatedly through the state budget process. As of 2026, the community lookback is still not being enforced — but this is a moving target, and the enforcement decision can be made each budget cycle. Plan as if it will be enforced, and verify the current enforcement status before any final transfer.

A Medicaid Asset Protection Trust is an irrevocable trust into which the client transfers the family home and liquid assets, with the goal of removing those assets from the Medicaid eligibility calculation after the 60-month lookback. The grantor cannot serve as trustee and cannot retain access to principal, but typically retains the right to income generated by the trust assets and (importantly) the right to live in the home. Children commonly serve as trustees, and at the grantor’s death the assets pass to the beneficiaries with a stepped-up basis under IRC § 1014.

Yes. A properly drafted MAPT reserves the grantor a life estate or a retained right of occupancy in the family home. The grantor continues to live in the home, pay the property taxes (with the STAR/Enhanced STAR exemption intact in most cases), and treat the home as their residence. The grantor cannot, however, sell the home or borrow against it directly — those decisions belong to the trustee.

When one spouse needs institutional Medicaid and the other does not, the community spouse can formally refuse to contribute the community spouse’s resources or income beyond the CSRA and MMMNA to the institutionalized spouse’s care. New York recognizes spousal refusal, although DSS routinely files a recovery action against the refusing spouse for the cost of care that exceeded the institutionalized spouse’s share. We file the refusal letter and defend the recovery action.

The CSRA is the portion of a married couple’s combined countable resources that is sheltered for the community spouse when the other spouse applies for institutional Medicaid. For 2024, the CSRA floor is $74,820 and the ceiling is $154,140, with the actual allocation falling somewhere in that range based on the couple’s combined resources at the snapshot date. A community spouse with documented higher need can apply for an upward adjustment through a fair hearing.

No. A pooled income trust operated by a New York nonprofit captures the excess income each month and applies it to the beneficiary’s living expenses. The trust preserves Medicaid eligibility without forcing the applicant to spend down to the income cap. There is no lookback on contributions to a pooled income trust — the excess income can be diverted immediately at application without penalty.

Community Medicaid applications typically resolve in 45 to 90 days from filing. Institutional Medicaid applications take longer — three to six months is common, particularly for filings that include MAPT transfers or other complex transactions requiring detailed documentation. The clock is paused each time DSS issues a deficiency notice, so a clean initial filing materially shortens the timeline.

Crisis planning still has real tools. A spousal refusal letter can immediately protect the community spouse’s resources above the CSRA. Gifts to children combined with promissory notes can convert a portion of the assets into a tolerable transfer penalty. Conversion of countable resources into exempt assets (paying off a mortgage, prepaying a funeral) can reduce countable resources without triggering a transfer penalty. The toolkit is narrower than pre-planning, but it is not empty.

Generally yes. New York Medicaid estate recovery under federal law targets the deceased Medicaid recipient’s "estate" — defined for New York purposes as the probate estate, not the broader expanded definition used in some states. Assets held in a properly drafted MAPT pass outside probate to the named beneficiaries, beyond the reach of estate recovery. The same is true for assets passing by beneficiary designation, joint title with right of survivorship, or transfer-on-death designations.