The COVID-19 federal public health emergency (PHE) has repeatedly been extended, most recently on July 15, 2022, by an order from the US Department of Health and Human Services (HHS). These extensions, including the current extension, have been authorized for three months; therefore, the current PHE will be effective through October 15, 2022.
The effect the extension of the federal PHE has on the New York State Medicaid eligibility rules is as follows:
Under the Families First Coronavirus Response Act (FFCRA), signed on March 18, 2020, there was a moratorium on closing Medicaid cases or reducing Medicaid coverage. As a result, no Medicaid recipient could lose coverage after March 18, 2020, through the end of the PHE, which has now been extended until at least October 15, 2022. This was the “Maintenance of Effort” requirement contained in the FFCRA that allocated additional federal funding to the states for their Medicaid programs during the COVID-19 pandemic. Specifically regarding New York State’s Medicaid eligibility rules, the extension of the PHE will yield the following two important results:
- New York State may not cut off or reduce Medicaid coverage for any individual who was covered on March 18, 2020, or who enrolled thereafter, through the end of the month the PHE expires.
- New York State may not make or change eligibility standards, rules, or procedures for any Medicaid program to make them more restrictive than eligibility requirements effective on January 1, 2020. This means the 30-month lookback and asset transfer penalty for community-based Medicaid long-term home care has been postponed and the more-restrictive activities of daily living (ADL) thresholds for personal care under the Consumer Directed Personal Assistance Program (CDPAP), as enacted in April 2020, have been postponed until at least January 1, 2023.
Furthermore, in March 2022, the Centers for Medicare & Medicaid Services (CMS) provided additional guidance regarding the expiration of the PHE. CMS promised to give states a 60-day advance notice before ending the PHE in order to give states the time for “unwinding” the COVID-19 moratorium on Medicaid case closings. Therefore, any new Medicaid restrictions on eligibility in New York State cannot start until after January 1, 2023.i
As a result of the COVID-19 pandemic and the complicated interplay between federal and state law and regulations, the Medicaid eligibility criteria for various Medicaid long-term care programs is a fast changing area of the law. Therefore, it is highly advisable that clients seek guidance before applying for any Medicaid-covered long-term care.
If you have questions regarding current Medicaid regulations or if you would like to undertake Medicaid planning, please contact Lisa Arrington, Terry Emmens, or Bridget Dehmler for assistance.
If you have any questions regarding the content of this alert, please contact Lisa Arrington, partner, at larrington@barclaydamon.com, or another member of the firm’s Trusts & Estates Practice Area or Elder Law & Medicaid Planning Team.
iThe changes to the Community Medicaid Home Care Rule are likely to be effective at an even later date since these programs are banned from placing more-restrictive eligibility criteria by a separate “Maintenance of Effort” requirement in the American Rescue Plan Act (ARPA) until the earlier date of March 31, 2023, or when they have depleted all of their federal ARPA funding.