This memo explains how to use a Pooled Supplemental Needs Trust to eliminate the Medicaid spend-down (updated July 2017)
N. Y. Social Services Law § 366, subd. 5 (f) - Law enacted Dec. 18, 2017 - NEW LAW enacted that requires the State Dept. of Health to provide written notice in plain language to an applicant for or recipient of medical assistance who reasonably appears to be eligible for medical assistance except for having income exceeding applicable income levels ... , that in certain circumstances the medical assistance program does not count income . .. if it is placed in a trust .... The notice shall be included with the eligibility notice ...and shall reference where additional information may be found on the department’s website....” L. 2018, Ch. 475, enacting A 5175-A /S 1241-A (Search bill bill number here )
Note that new State forms (486T and 1151) were released in October 2012 for proving disability, as needed for approval of a Supplemental Needs Trust. See this article for links to the new forms.
Also, while an agent appointed by a valid Power of Attorney may execute the joinder agreement on behalf of an applicant, HRA in July 2017 issued a policy saying that POA's executed after Sept. 1, 2009 must include a Substantial Gift Rider (SGR) along with the POA form. HRA will reject the trust as invalid without this rider. Under state law, a POA must be executed at the same time as the SGR. Therefore, if there is no SGR, either a new POA and SGR must be executed together as new or the applicant, if s/he has capacity, can 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. HRA has not yet said if such amended trusts will be approved.
Also see these new tools to help clients who want to enroll in pooled trusts, developed by NYLAG:
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.