Posted by: BlogMaster | March 3, 2014

Is Spousal Refusal Still Legal?

The annual budget proposed by Governor Andrew Cuomo has a provision about spousal refusal which ‘reads’ like it doesn’t exist. But, if passed, it will in fact extend the opportunity for spousal refusal to married couples where one spouse is a Medicaid recipient at home, receiving home care under MLTC, managed long term care. 

What is spousal refusal?  It is a written statement from the non-Medicaid spouse specifying that he or she is unable or unwilling to contribute excess countable resources and/or income for the cost of care of the other spouse.  In 2014, countable resources are those that exceed up to $117,240.00. 

What other resources are not countable?  Your home, retirement accounts, life insurance without cash value, burial plot, automobile, and in some instances, business property are not countable.  Spousal refusal and the retention of countable resources and income have, in the past, only been available with the nursing home Medicaid program. 

The proposed law would do the following:

  1. For both MLTC home care services and nursing home services, a spousal refusal statement would be lawful (and may trigger spousal impoverishment budgeting, as discussed in my prior blog)
  2. The applicant (or their lawful power of attorney) must sign a statement Assigning Support from their non-Medicaid spouse to the local Medicaid department.  This means that Medicaid still has the right to demand and sue a refusing spouse if there are excess countable resources or income.
  3. But, if the non-Medicaid spouse does not live with the applicant for Medicaid (perhaps they are separated but not divorced, and living apart),  and that spouse fails or refuses to make that income or resources available,  and refuses to sign a spousal refusal statement, MLTC services will still be provided.  The proposed law says an ‘implied’ right of recovery against the non-Medicaid spouse living separately from the MLTC spouse is created for whether during that spouse’s life or in their estate after death.

Advocates see these three problems with the proposal. 

  1. When one Medicaid spouse receives services under Hospice, they may be disenrolled from MLTC and lose the right of spousal refusal. 
  2. In upstate NY counties where MLTC is still not mandatory for home care and the ‘prior’ traditional home care program is used, and for the poor using a Medicaid-based Medicare premium program (called SLMB and QMB), there is no continuation of spousal refusal. 
  3. Many parents have young children under age 18 in Medicaid programs (often called Care At Home) and parental refusal (of their income and resources) seems to be excluded. 

We will keep you up to date on the status of spousal refusal as the budget process progresses. 

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Posted by: BlogMaster | February 11, 2014

Home Care for Seniors and MLTC ‘Spousal Impoverishment’

I often remind my readers about the importance of consulting with a qualified elder law attorney about Medicaid planning and applications. Here’s another reason why.  

The recent statewide programming changes to Medicaid now support my personal and professional focus to keep seniors at home.  But even the ‘simple’ home care application is fraught with complexities that cannot be addressed by a non-lawyer advocate who ‘sells’ a cheaper Medicaid application service.

Why?  The income rules for ‘spousal impoverishment’ have changed.  When one spouse in a marriage requires home care, MLTC income rules are now so complex as to require the couple and their family to get an analysis of the best and most favorable budgeting approach.

What is spousal impoverishment budgeting? 

In the past, nursing home and a former home program (called Lombardi) provided an income allowance for the non-Medicaid spouse ($2,931.00 in 2014) and a resource allowance for countable resources (up to $117,240.00 in 2014).  These allowances were set to make sure that the spouse had sufficient income and resources to pay for their expenses at home.

Similarly, under that prior home care program, there was no spousal allowance for the other spouse who did not need home care services.  This resulted in spousal refusal statements (the legal refusal to contribute income and resources) and the threat of spousal demand lawsuits by the Medicaid department because the law only permitted the couple to retain about $1,100.00 in monthly income and $20,000 in countable resources.

Today, if your spouse is applying for MLTC home care (including day care) services, an analysis must be made to determine which budgeting method will be best for the non-Medicaid spouse, because MLTC Medicaid now permits spousal impoverishment budgeting.  Only a qualified elder care lawyer can evaluate what is appropriate for your circumstances: spousal budgeting or single-person budgeting with a pooled income trust (for income greater than $809/month) and spousal refusal.

Expert legal counsel is essential to determine your rights and lawful opportunities.  Don’t leave Medicaid to non-lawyers if you have income and resources that may need to be legally protected.   

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Posted by: BlogMaster | February 1, 2014

FIDA Information Correction – Oops!

In the dynamically changing world of Medicaid and managed care, there are many rules, guidelines, and deadlines – and we do our best to keep track of all the facts for you.

Thanks to one of my loyal blog readers – the Director of Managed Long Term Care for Amerigroup (Health Plus) – I  learned that I inadvertently reported some wrong information to you. Please make a  note of the following corrections.

Topic: New York State has changed its roll-out for FIDA voluntary and passive enrollment.  


  • Notices to existing MLTC home care recipients are expected to be mailed later in 2014. 
  • Active but voluntary enrollment may begin in October 2014 (not in January).  
  • Passive enrollment in a FIDA is expected to occur in January 2015 (not in July 2014).  Note: Passive enrollment means the senior or disabled person with Medicare has failed to select a FIDA and will be automatically enrolled. 
  • NYS has also pushed back to late 2015 the FIDA enrollment for seniors who receive Medicaid services for nursing home care.

I apologize for any confusion the errors may have caused. My next post is coming soon.

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Posted by: BlogMaster | January 25, 2014

About FIDA … Continued

This post continues the review of FIDA from where my previous blog left off. 

The contract between NYS and the federal agency, CMS, will overhaul the delivery of home care (and eventually, nursing home) services to Medicaid/Medicare dual eligible recipients. 

The ‘umbrella’ of delivery of all medical services means that the senior who is also enrolled in Medicaid home care must select physicians who are in the FIDA network. Existing home care recipients should receive notices by U.S. mail in January or February. 

If a voluntary enrollment is not made by July 2014, Medicaid seniors who do not voluntarily enroll in a FIDA plan by September 2014 will be automatically enrolled. 

However, FIDA enrollment will also be affected by the senior’s ‘Medicaid authorization period.’  This refers to seniors currently in MLTC where services are authorized only for 6-month blocks of time, after which the seniors are re-assessed for care and service plans. Thus, the voluntary or passive enrollment for these seniors may be different.

In October 2014, NYS will begin FIDA enrollment for seniors who receive Medicaid services for nursing home care. Automatic enrollment is expected to begin in January 2015. 

Once enrolled, the Medicaid FIDA senior, now called a ‘member,’ must be assessed within 30 days of enrollment by a nurse employed or contracted with the FIDA for the care plan and medical professional services.

In an upcoming blog post, I will cover in detail the ability to ‘opt out’ of FIDA. 


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Posted by: BlogMaster | January 18, 2014

The “Alphabet Soup” of Medicaid and Special Needs Law

The New Year brings an alphabet soup of change – FIDA, MLTC, CSS, DDRO – and new catch-phrases – Front Door, Self Determination, Internal Appeal, and External Appeal. 

Wondering what’s going on? 

Check this law blog often to stay up-to-date on what you need to know about the immediate changes expected in 2014.  This week’s topic:  FIDA.

In 2013, New York State began to overhaul the delivery of services to seniors and persons with disabilities (developmentally disabled and intellectually disabled) who receive Medicaid or are certified to receive services with OPWDD (Office of Persons with Developmentally Disabilities).

For seniors who needed home care for more than 120 days, MLTC – managed long term care – became the means for delivery of home care services. 

What’s the difference between Medicare and Medicaid in this scenario?

Medicare (for seniors and disabled persons under age 65 receiving Social Security Disability) pays for doctors, rehabilitation therapies at home, certain supplies, and the prescription drug plan (Part D or through private employee retiree plan). 

Medicaid pays for a home health aide. 

Persons receiving both Medicare and Medicaid are called ‘dual’ eligibles.

Here’s where things change.

In 2014, New York State’s contract with CMS, the federal agency, morphs into FIDA – the Federal Integrated Duals Advantage program. FIDA is a ‘demonstration’ program to be tested and used from 2014 until at least 2017. 

How do MLTC and FIDA differ?

Medicare and Medicaid dual recipients may not be able to continue using their preferred Medicare medical professionals after enrolling in Medicaid.  The FIDA plan will permit the senior to use only the doctors and specialists who are members of the FIDA network selected by the senior. Medicaid services provided through the FIDA plan network are required to meet the same minimum of core services as on MLTC plans, but if your doctors are not in the FIDA plan, you must select other Medicare doctors who are.

Remember, FIDA will only affect seniors who require Medicaid with home care services and who are Medicare recipients.

We expect current Medicaid/Medicare home care recipients on Long Island (and certain other NYS areas) will receive enrollment notices by U.S. mail in January 2014.  If the Medicaid recipient does not select a plan within a specified period, he or she will be automatically enrolled in a FIDA plan. 

We anticipate that 25 FIDA plans will be approved. Many that will be operating as FIDA plans have already been operating as MLTC managed care plans. 

Of significance to you and your family – Medicaid recipients may ‘opt out’ of FIDA enrollment, which will require legal counsel and advice. Don’t leave this decision to a non-lawyer, a hunch, or your MLTC company.  My law office is available to discuss options with you and answer your questions in this often confusing system.

The FIDA discussion continues in our next blog.

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Posted by: BlogMaster | January 4, 2014

Key Life Decisions Seminar: Are you prepared?

On January 9, Beth Polner Abrahams is speaking at a seminar about life planning. Please attend if appropriate and forward this information to others who may find the event beneficial. Open to the public. No RSVP is required. No fee.

Key Life Decisions Seminar: Are you prepared? Learn how a team approach can help you look at the financial, legal and tax decisions for each stage of your life – from a young family with children to senior citizen and elder care planning.

Beth’s co-panelists:

  • Lisa Doht, Financial Advisor, Edward Jones
  • Sheryl Badalato, CPA, Hoenigmann & Cohen
  • Diana Dost, Funeral Director, M.A.Connell Funeral Home

January 9, 2014 at 7:30 – 8:30 pm

South Huntington Library, 145 Pidgeon Hill Road, Huntington Station, NY 11746

Phone: 631-549-4411

RSVP to Beth at only if you wish to be notified if the event is cancelled due to inclement weather.

Handouts will be provided. Q&A follows the presentation.

For more info, please email Beth at

Posted by: BlogMaster | August 29, 2013

Upcoming Special Events with Beth Polner Abrahams

In September, Beth Polner Abrahams is speaking at two events and attending a worthwhile fundraiser event. Details below.

Please attend if appropriate and forward this information to others who may find the events beneficial. For more info, please email Beth at

Seminar for Parents of Special Needs Children / Teens / Adults: Special Needs Planning and Guardianship

September 18, 2013 from 7:00 – 8:30 pm at the Sachem Library - 150 Holbrook Road, Holbrook, NY 11741

As your special needs child ages into adulthood, it is imperative that you start planning for their future without you. Will your child’s rights change (marriage, voting, driving, etc.) if there is a guardian?

Beth Polner Abrahams, Esq., will address these and other questions about guardianship, plus an overview of Medicaid, SSI, OPWDD and special needs trusts.  Hand-outs will be provided.

Pre-registration is required. Library district residents: Register at using Program Code SASSNP9. Non-residents: Call (631) 588-5024. 


Fundraiser Event: Nassau / Suffolk Law Services “Commitment to Justice”  - 5th Annual Wine Tasting and Dinner


September 19, 2013 from 6:00 -9:00 pm at the Carltun in Eisenhower Park, East Meadow

This marvelous event supports Long Island’s largest civil legal assistance program, of which Beth is proud to be a proud sponsor. The organization serves low-income and disadvantaged families and persons with disabilities, to help them maintain their public benefits, prevent homelessness, foreclosure prevention, landlord/tenant law, and social security, and special education. 

Tickets: $85 per person. Purchase at Ticket includes wine, hors d’oeuvres,  dinner buffet. The event also features a raffle.

Treat yourself and your clients, family and friends to a fun, social evening that benefits a very worthy cause. Please contact Beth with any questions.  


Teleconference for Lawyers and Accountants: “SNTs in a Nutshell” – Sponsored by NBI

Online on September 19, 2013 from 1:00 - 2:30 pm

Beth will review the basics of pay back special needs trusts, issues in drafting and SSI rules, as well as recent federal court decisions. 

Register online at and click Teleconferences

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Posted by: BlogMaster | July 28, 2013

Managed Long Term Care (MLTC) Medicaid Update

Beginning in January 2013, certain applicants and recipients of Medicaid – those requiring a personal care aide and assistance at home for more than 120 days – are required to enroll in a Managed Long Term Care (MLTC) plan.

My prior blogs outlined the enrollment and transition issues faced by current Medicaid recipients in traditional home care services. 

But Medicaid recipients who received their home care services through a Lombardi program (long term care at home – or sometimes called ‘nursing home without walls’) were  initially excluded by New York State from mandatory MLTC enrollment.

That has now changed.

Effective with May 2013, persons living on Long Island, New York City, or Westchester County who are already receiving Lombardi services for home care – and who are also Medicare recipients – can expect to receive a Notice to Enroll letter by mail.  The letter gives the recipient 60 days to select an MLTC plan.   

There will no longer be enrollment in Lombardi plans, which are being phased out. 

Person receiving Lombardi services but who are not Medicare recipients may have already received letters in April directing them to select and enroll in an MLTC plan.  However, these non-Medicare recipients have the option of enrolling, if eligible, in other types of non- MLTC waiver programs such as TBI (traumatic brain injury), Care At Home (for critically ill or disabled children under age 18), OPWDD (for developmentally or intellectually disabled persons) or NHTDW (Nursing Home Transition and Diversion waiver program moving qualified persons out of nursing homes into the community). 

If you or a family member receive a notice of enrollment, it is advisable to consult with a qualified elder law attorney about your rights.

My office can help you. Please call to make an appointment to learn how we can assist you with this process. 

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You may not be aware that probate of an estate in New York State is most often not a lengthy, drawn out process.   But sometimes, there is a need to avoid probate, particularly for individuals who have no direct heirs, who are missing heirs, who have unknown heirs, or who choose to disinherit their heirs. In these instances, consider instead a Revocable Living Trust.

Here is a client’s story where the Revocable Living Trust was the appropriate solution.

Miss B., a youthful, cheerful, unmarried 83-year-old retired school teacher, told me that she wants to benefit certain charities at her death.  With most of her siblings long dead, she has many nieces and nephews to consider as beneficiaries, as well. 

During our meetings, Miss B. informed me that she was also worried about managing her bill paying and her substantial assets if her memory were to become impaired. She wanted to designate one niece in particular to be responsible for managing her affairs, if this should happen. 

For the benefit of you, my blog readers, I asked Miss B. to consider her answers to these key three questions – plus one additional question:

  • Where do you want to grow old or age?
  • If you currently live in your own home, how will you be able to stay in this home? That is, what financial resources and income do you currently own to make this possible, and if feasible, what plan should be put into action for you to safely remain at home?
  • What legal documents are essential to implement your plan for aging according to your wishes? 
  • And, what is the least costly method for distributing your assets, after your death, to the desired charities and selected family members?

The simplest solution for Miss B. to meet her needs and achieve her wishes was a Revocable Living Trust. 

As long as Miss B. is well and competent, she can remain at home; she will continue to pay her own bills and manage her own finances. 

If illness or mental frailty become evident, the niece she named as her Successor Trustee will step in to fill the same role.  And, at Miss B.’s death, the niece will ensure that the trust is distributed to those charities and beneficiaries Miss B.  designates – without the expense, notice requirements and cost of a probate proceeding, which is more complex and lengthy for a single individual without children, like Miss B. 

The Revocable Living Trust can be a finely tuned solution for your estate planning – whether you are single or married.  As with Miss B., your legal documents and your plan for aging should never be a cookie-cutter approach. The best solution for you , too, will be personalized meet to your unique needs and  wishes.

My law office recommends that upon turning age 55, you review your estate and elder care plans at least once every 3 to 5 years. This will help ensure  your planning is up-to-date and meets your needs and those of your loved ones. We are available to  work with you to ensure your plans for aging keep pace with changes in the elder care, Medicaid, and estate tax laws. 

You and your family will experience physical and mental changes over the years, which may mean you need to amend your estate plan.  By not revisiting your estate and elder law plan on a regular basis, you run the risk of the plan not meeting your needs and wishes when these life changes occur. Sometimes changes are simple – changing executors, beneficiaries, or guardians of children if the  designated guardians have passed away or are no longer part of your life.

I provide my clients with a no-charge review of their plans every 3 to 5 years. If you are  a client of my law firm and it’s been a few years since you reviewed your plan, I suggest you call now to schedule your review meeting. If you would like to become a client of this law firm and review your planning with me, I invite you to schedule an initial consultation and I look forward to meeting you.

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Posted by: BlogMaster | June 22, 2013

Simple Can Be a Good Thing in Estate Planning

We live in a complex world – and estate planning, including elder care law planning, can be complex, too. But, before you enter into a complex – and expensive – estate plan, it’s important to consult with a qualified attorney about your planning.

First ask yourself these questions:

  1. Who will manage my financial affairs if I am permanently or temporarily incapacitated?
    1. To avoid a costly legal proceeding, consider having an experienced attorney prepare a Power of Attorney for your financial management.
    2. And, if you are concerned about the depletion of your assets if your disability or medical care will never be fully covered by insurance (medical insurance, Medicare, or long term care insurance), consider the Statutory Gift Rider (SGR) to the power of attorney for lawful Medicaid planning.
  2. What happens to my property when I die? 
    1. Most individuals benefit from preparing a Will, particularly if they have minor children or a disabled family member.
    2. Children need someone to manage their financial assets until at least the age of majority (age 18 in NY State).
    3. Persons with intellectual or physical impairments who may rely on government benefits now, or in the future, need a Special Needs Trust to legally shelter their inheritance from potential rapid depletion or claims, and to maintain their public benefits.
  3. I don’t have minor children or a disabled family member. Is there a simpler way to pass property at my death? 
    1. Yes, with discussion and planning.
    2. Consider beneficiary designations for bank accounts (called POD – payable on death) and financial accounts (called TOD – transfer on death).
    3. Don’t forget to name beneficiaries for your life insurance and retirement accounts.
    4. Savings bonds can be re-titled to designate a beneficiary (POD) without surrendering the bonds.
  4. Who will make health care decisions for me if I become incapacitated or temporarily unable to make my own medical choices?
    1. Use a Health Care Proxy so you can avoid legal disputes or the appointment of a guardian through a costly court proceeding.
    2. You may designate one primary agent/proxy and one alternate.
    3. The Health Care Proxy form is available online at these websites:

Sometimes simple estate planning can work for you, but it still requires thought and planning.  My law office can counsel and advise you through this process.

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