This article is intended as a condensed road-map for using a pooled income trust to eliminate the Medicaid spend-down. This article contemplates that the individual is applying for Medicaid in order to obtain home care services. The sequence of events will be different if that is not the case.
I am leaving out some of the details here, so if you are planning on trying this, I advise you to also review our longer memo on this topic (updated 2018)(Spanish version) You don't need to have a lawyer to enroll in a pooled income trust, but you should have a social worker or someone else familiar with Medicaid to help you.
Step One - Apply for Medicaid Home Care with a Spend-Down
The first step is to apply for Medicaid home care with a spend-down. In New York, certain categories of Medicaid applicants can get Medicaid health coverage even though their income is over the income limit. Those who receive Medicaid home care services can "meet" their spend-down by getting billed for their home care. They will get billed for the amount by which their income exceeds the applicable income limit (e.g., a single person with $1200/mo. countable income would get billed $433/mo [$1200 - $767 = $433]). It is those clients who are unable to afford to pay this bill who are most appropriate for a Pooled SNT. Read this memo for more information on eligibility for Medicaid home care.
Step Two - Enroll in the Supplemental Needs Trust
The second step, which can actually start at the same time as the Medicaid application, is to enroll in a pooled income trust. A pooled income trust is a type of Supplemental Needs Trust operated by a non-profit organization for the benefit of many people with disabilities. There are many Pooled SNTs in New York, with different minimum deposits, fees, and policies. Thus, the process of enrolling in a pooled trust varies by organization. Generally, it involves submission of the following:
NOTE: An agent appointed by a valid Power of Attorney may execute this agreement on behalf of applicant. However, HRA in July 2017 issued a policy saying that POA's executed after Sept. 1, 2009 must include a Statutory Gift Rider (SGR) along with the POA form. In a June 2018 directive, HRA said it will defer, rather than reject the trust, to give the applicant an opportunity to execute a new POA with a Statutory Gift Rider (assuming she has capacity to do so). The June 2018 directive does not say whether, if a new POA is submitted, HRA will approve it retroactively to the initial submission. The June 2018 directive points out that under state law, a POA must be executed at the same time as the SGR, so that an SGR cannot simply be added to a pre-existing POA. The applicant, if s/he has capacity, can presumably also sign a new joinder agreement directly. At least one pooled trust -- CDR-- will amend an existing trust if provided with the re-executed documents. Then that re-approved trust should be sent to HRA with the request for approval.
NOTE: NYLAG Evelyn Frank Legal Resources Program and some elder law attorneys dispute HRA's position that an SGR is legally required to establish a pooled income trust. Contact firstname.lastname@example.org for more information.
For help determining the appropriate amount to contribute each month to eliminate your spend-down and obtain the Medicare Savings Program, you can use this Excel worksheet.
Eventually, Medicaid will reduce your spend-down to zero retroactively to the month you began contributing to the trust. For this to work, you must continue sending your contribution to the trust every month. However, once you are approved for Medicaid homecare with a spend-down, you will be expected to pay your spend-down to your Managed Long-Term Care plan every month, which you will be unable to do because you're sending it to the trust. You can explain to the plan that your spend-down will eventually be retroactively reduced to zero, and therefore the plan will be able to back-bill Medicaid for the spend-down.
Once approved, the pooled trust organization will send you the documents you will have to send to Medicaid to get your spend-down rebudgeted.
Step Three - Notify Medicaid About the Supplemental Needs Trust
The last step is to notify Medicaid that you have a pooled trust. For all documents below, send copies and keep the originals for your files. There are two things you have to show to the DSS: that you are enrolled in an SNT (and making contributions), and that you are disabled:
STEP FOUR - Follow-Up and Ensuring Medicaid Re-Budgeting Done Correctly
Once you have submitted the SNT and disability documentation to your DSS, they will typically take many months to process this information. You should eventually get a written notice stating that your Medicaid case has been rebudgeted with no spend-down. Make sure that the effective date of this notice is correct - it should be the month that you first began contributing your excess income to the trust. If it is not correct, you may have to request a Fair Hearing to appeal the notice (click here to request a hearing).
As you can see, this is one of the most complicated things you can do involving Medicaid. Many people find that it is worth hiring a private elder attorney or geriatric care manager to help with this process. Some free legal services may be available to help, also. For more in-depth information on SNTs, including how an SNT affects eligibility for other public benefits, see our Training Outline for Advocates.
TROUBLESHOOTING - Each local Medicaid office may have contact people to troubleshoot problems.
In NYC - here are suggested contacts within HRA. CAUTION: Time limit to request a hearing can run out, even when you are trying to informally advocate. Keep your eye onthe deadlines!
HOME CARE CASES - where client seeking or has MLTC or CASA personal care or CDPAP, Medicaid app and trust documents filed at 785 Atlantic Avenue, 7th Floor, Brooklyn, NY 11238
NON-HOME CARE CASES - Medicaid application and trust filed in "regular" Medicaid office or Spend-Down unit
Eileen Fraser-Smith email@example.com TEL (929) 221-0868/69
Fax (718) 636-7720 (updated June 2016)
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.