In a significant and constructive development, the New York State Department of Health (DOH) has confirmed that it will advise local Medicaid districts to no longer impose a restrictive Medicaid position that unnecessarily forced seniors into nursing homes. The New York State Bar Association Elder Law and Special Needs Section reported the change and was instrumental in the negotiations to bring it about.

The prior policy adversely affected Medicaid recipients who needed to sign documents to enroll in a pooled income trust. Some of them lacked the current mental capacity to sign the forms but had signed powers of attorney when they had capacity. Many of those powers of attorney did not include a statutory gifts rider. The prior DOH policy required local Medicaid districts to reject pooled income trusts that were signed by an agent under a power of attorney without a statutory gifts rider. The new policy states that Medicaid cannot reject a pooled income trust enrollment by an agent under a power of attorney without a statutory gifts rider. By eliminating the onerous requirement, enrollment in the pooled income trust will now be more equitable and consistent with General Obligations Law and the Social Services Law. This article is an update to “New Restrictive Rule Regarding Medicaid and Power of Attorney” (Fish, Daniel G., NYLJ, Aug. 15, 2019).

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