The “5 Year Look Back” & Exceptions

medicaid-look-back-period

The 5 Year Look Back, as it’s commonly known, is a retroactive time-period that is applicable when seniors or disable persons are applying for Medicaid (Masshealth) coverage in a Nursing Home. The look back refers to Masshealht’s ability to require you to disclose all of your current assets, as well as any assets you may have sold or given away in the last 5 years. .

Upon filing a 31 page application signed under the pains and penalties of perjury, your case gets assigned to a well trained Masshealth case worker at one of the 4 offices across the Commonwealth. The assigned Caseworker will review your application and will request statements for up to the last 5 years for any open or closed accounts that you disclosed on your application. Your case worker will look closely at each statement and typically looks for any transactions over $1000 or out of the ordinary, both in and out of the accounts. For these transactions they will require you provide supporting documentation as to where the funds came from or went. The regulations aren’t specific to a dollar amount, so technically that $25.00 check to your grandchild for her birthday  2 years ago may be looked at and penalized by Masshealth.

How the penalty system works is that for any assets Masshealth considers a disqualifying gift during the lookback, that gift will exclude you from receiving Masshealth coverage for a time period equivalent to what that gift woudl have covered in a nursing home, beginning on the date you first need coverage. The So for example if you gave away $20,000 2 years ago and now need Masshealth on February 1, 2017 then they will take the $20,000 and divide it by $354 (which is the average cost of a daily rate in a nursing home) and then issue you a penalty period of 57 days, resulting in eligibility begining om April 8, 2017. You will then be eligible for Masshealth for the remainder of your life however there will be a gap of 57 days in which the nursing home you are residing in will not get paid. it has been my experience that nursing home has very little practical recourse against you for that time period because in most cases you have no money left for them to sue on and collect because the catch 22 is that this penalty does not get assessed until you are below the $2000 Medicaid asset limit.

APPEALS & EXCEPTIONS TO THE 5 YEAR LOOK BACK

Any penalty assessed by the Masshealth Agency can be appealed to the Office of Medicaid Board of Hearings. There are some exceptions to the 5 year look back that may save you. Some examples of exceptions to the rules are:

  1. The assets were transferred to a totally and permanently disable Child either outright or through a Trust for that child. Any person receiving SSDI or SSI qualifies as being permanently and totally disabled.
  2. The assets were transferred for a purpose exclusively other than to qualify for Medicaid benefits. This is the most commonly used exception on appeal but the least successful. For example if 3 years ago you gave a child $10,000 to save their house from bankruptcy, then this is a purpose exclusively for a purpose other than to qualify for Medicaid. The intent of the gift is determined by the subjective review of a Division of Medical Assistance Hearing Officer, and potentially a judge depending on how you fight it.
  3. Real Estate can be transferred to a “Child Caretaker” Which is a child by birth or adoption that has resided legally in the elders home for the last 2 years and has been instrumental in providing care for the elder that allowed he or she to stay out of a nursing home.
  4. There are also special hardhsip waivers that can be requested in certain circumstances.

Filing an application timely for Masshealth benefits as well as strictly complying with all requests and forms during the application process is crucial to protecting your rights. It is best you consult with an experience elder law attorney who is familiar with the application process. The author of this blog has filed 1000 plus Medicaid applications and medicaid appeals over the last decade.

Bryan P. Woodford Esq.

Bryan@woodfordlaw.com

http://www.woodfordlaw.com

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