Most people are familiar with the rule which provides that most types of asset transfers made during the 5-year "look back" period prior to applying for nursing home Medicaid coverage will result in a Medicaid "penalty period." Any such non-exempt asset transfers during the look back period will result in the Medicaid applicant being rendered ineligible for Medicaid coverage of their long-term health care costs for a period determined by calculating the amount of total non-exempt transfers made during the look back period, divided by the "Regional Rate" determined annually by the New York Department of Health.
For example, the 2014 Regional Rate for the "Northern Metropolitan" Region encompassing Orange, Sullivan, Rockland, Dutchess, Ulster, Putnam and Westchester counties is $11,137 per month. If a Medicaid applicant made total transfers during the look back period of $100,000, the resulting period of Medicaid ineligibility is approximately nine months ($100,000 / 11,137 = 8.97 mos.). Since a person cannot have more than $14,550 of countable resources for the penalty period to even begin to run, nursing homes in which Medicaid applicants reside are often left chasing those persons to whom the asset transfers were made -- typically the resident's children -- to recover the transferred assets so as to cover the cost of the resident's nursing home care during the penalty period.
However, there are many instances where assets transferred during the look back period cannot be readily recovered. Often the children or other recipients have spent the money, and if they don't have other assets themselves, they will likely be "judgment proof". In such cases, the nursing home's only option may be to seek Medicaid coverage on their resident's behalf under the "under hardship" exception to the Medicaid penalty rules that is incorporated in the federal and New York State regulations.
In the recent case of In the Matter of Tarrytown Hall Care Center v. Mcguire, a nursing home was able to convince the Appellate Division for the 2nd Department that Medicaid coverage was improperly denied by the Westchester County Department of Social Services. In that case, Margaret Traino lived at the nursing home for almost three full years. Because she had made gift transfers during the look back period, there was a penalty period imposed (the court's published decision does not state for how long).
The nursing home filed an Article 78 petition requesting that Medicaid coverage be provided notwithstanding the gift transfers because of the "undue hardship" exception. As the court stated, undue hardship is determined to occur, "where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid and is unable to have the transferred assets returned."
The court ruled that in this particular instance the nursing home provided ample evidence that each prong of the "undue hardship" test was demonstrated by substantial evidence, and therefore ordered the Westchester Department of Social Services to grant the nursing home's application on the resident's behalf.