What is the Medicaid “Look Back,” what is the “Penalty Period,” and how do they work?

Learning about the "look back" and "penalty period" can help you understand more about how Medicaid works.  Here are the rules and the situations in which they are applicable in New York.

First of all:  In New York, there are two categories of Medicaid services:  Community Medicaid and Nursing Home (Institutional) Medicaid.  Community Medicaid covers a wide variety of services, including Home Care and Assisted Living.  Institutional Medicaid covers care in a Nursing Home. Currently the look back and penalty period ONLY apply to Nursing Home Medicaid.

What is the "penalty period" and what is the "look back?"

A “penalty period” is a period of ineligibility that is imposed if a Medicaid Nursing Home applicant has transferred assets during the five (5) years preceding their application. The five years prior to the Medicaid application date are known as the “look back” period. For now, in New York, the “look back” and “penalty period” only apply to Nursing Home Medicaid. 

Community Medicaid and the look back and penalty periods

Currently there is no look back for New York’s Community Medicaid services.  Legislation was passed in 2020 that would impose a look back, but to date it has not been implemented. Whether it will ultimately be implemented is uncertain.

Not having a look back means that there is no Medicaid penalty period if you transfer assets out of your name prior to filing your Community Medicaid application. 

Institutional Medicaid and the look back and penalty periods

Institutional Medicaid works differently.  If you transferred assets out of your name at any time during the five years preceding your Medicaid application, a penalty period will be imposed, during which time you will not be eligible to receive Medicaid benefits.  The period of ineligibility will begin when all of the following are true:

a) You are residing in the nursing home;

b) You have applied for Nursing Home Medicaid; and

c) You would be eligible for Medicaid (because you have only a small amount of money) except for the transfers you made during the five year look back period. 

How the Look Back and Penalty Period work

If you are in a nursing home and apply for Medicaid to pay the nursing home’s bills, Medicaid will first check to see whether you have made any gifts or transfers of your assets during the five years prior to your application date (the “look back period”).   To enable Medicaid to determine whether that is the case, your application will need to include five years of bank records from every single bank account, brokerage account, savings account, or any other institution where you keep or have kept your money during the past five years.  You will also need to include your records concerning real estate, co-ops, life insurance, annuities, and other assets owned during this period.

If you have made any gifts or asset transfers during the look back period, there will be a "penalty." Medicaid will not pay your nursing home costs for a period of time that depends on the amount of money you gave away. The number of months that you are not eligible for Medicaid benefits is called the “penalty period.”

How to Calculate the Penalty Period: An Example

Let’s say you live in New York City, and you gave your son or daughter a gift of $152,000 in January 2024. If you need nursing home care at any point up to January 2029, and you file a Medicaid application, your gift would fall within the look back period.

Medicaid would perform a calculation as follows. The amount or value of your gift would be divided by Medicaid’s monthly “regional rate.” The amount is set by Medicaid, and the current rate can be found here.  The result represents the period of time in months that you are not eligible for Medicaid nursing home benefits. The regional rate applicable to you depends on your county of residence within New York State.

In New York City, the Medicaid regional rate for 2026 is $15,282.  Thus, for our example, the calculation is:  $152,000 (the amount of the gift) divided by $15,282, resulting in a “penalty period” of about 10 months.

Remember, the penalty period does not begin until two conditions are met. First, you must be in the nursing home, and have submitted your Medicaid application. Second, you must be “otherwise eligible” for Medicaid, meaning you have almost no money in your name.  During the penalty period, someone other than you would have to pay for your care. This would probably end up being the person to whom you gave your money in the first place. The gift would come to nothing if you do not plan ahead.

Last-minute Planning Can Still Save You Money

Plan ahead, because steps you can take before you need care can make a huge difference in your financial situation later on, especially if you need to enter a nursing home. 

However, if you are “caught” in the look back period, or fear you will be, do not despair!  An Elder Law attorney will likely have a strategy that can save you a significant amount of money even if you have made a gift or transfer.  Don’t let the “look back” and “penalty period” deter you from seeking advice from an experienced eldercare attorney.  Call us today to gain valuable information, as well as invaluable peace of mind.

Plan-a-Palooza 2025 - Saturday, September 27

10:00 am - 12:30 pm (Doors open at 9:45)

Rye Presbyterian Church*, 882 Boston Post Road, Rye NY 10580

*The event is not affiliated with the church

Need to review the flyer with all the info? Click here

We're sorry, the event has been postponed. We are actively working on rescheduling it and will let everyone know once we have a new date. Thank you!

May is Older Americans Awareness Month:

The Revolution in Longevity Has Created Opportunities and Risks

You may be older than you used to be, but you’re still the person you always were.  That’s a message younger people need to learn.  A 70-, 75- or 80-year-old person, whether robust and fit, or even if compromised in some way, is often still active and fully involved in living – an individual, not a geriatric leftover. 

Getting older doesn’t have to be all aches and pains.  In fact, studies have shown that older people are happier than those in the middle period of their lives, even if they have health or other issues.

Years ago, people didn’t realize that they could lengthen their active years, sometimes by decades, by taking steps to maintain their mental and physical health.  In recent years, science has shown that diet, exercise, community connection, good sleep habits, and a sense of purpose can improve people’s health and mental faculties, and often dramatically lengthen their lives.

Medicines and medical equipment have also extended lives.  Heart disease is being fought on many fronts, as is cancer in all its forms.  Joint replacements and diabetes management have involved high tech medical equipment that has been miraculous for millions.

Physical changes do come with the passing of time, but again, people have learned to take preventive measures to limit or postpone the risks and negative effects.  Learning about fall prevention, balance and strength exercises, protecting skin against sun damage, and wearing sunglasses to prevent cataracts are all actions people have learned to take, to help them avoid problems and continue to enjoy their lives.

One of the challenges people face when they live far longer than they used to, is that they may need care and assistance in their homes or in a residential facility for a decade or more.  They can still live satisfying lives, but they need assistance with some of their activities.  With families far more spread out than was the case decades ago, this care is often provided by paid caregivers.

People who begin needing care often don’t realize until well into their assistance-needing period, that caregiving can be a disastrous drain on their finances.  Caregivers aren’t getting rich, but they need to be paid, and home health companies have both legwork and paperwork for which they need to be compensated.  

The combination of these factors means that costs can skyrocket, and the net result of paying for care is often that people’s entire life savings are wiped out.  People try to reduce the cost of care by paying their caregivers in cash.  Not only is this illegal, it exposes the employer to enormous liability, should the caregiver be injured on the job.

The attorneys at Lamson & Cutner feel it is crucial for older people, and the children or loved ones of those older people, to be informed.  Learning about the financial risks of long-term care costs, and about the opportunities that are available to protect them against these risks, will enable those who need long-term care to maintain their lifestyles to the greatest extent possible.

Our firm spends a lot of time and energy on educating people about issues surrounding long-term care.  We have worked to make our website informative, understandable and useful.  In addition, we have a very busy speaking schedule.  We are authorized to give CEU credits to health care professionals and social workers.  We also give general-interest presentations at senior centers, houses of worship, and other venues, to people who might face long-term care costs for themselves or others.

Becoming informed – and taking action – are your best defenses against both the physical and financial risks that come with age.  You’re never too old to start.  Learn, act, and live your best life!

Take Action

To Stay Mentally Sharp and Avoid Dementia

To Clients, Health Care Professionals, and Friends:


Recently, I became acquainted with a non-profit organization called Sharp Again, and I have since joined its Board of Directors. I became involved because their mission is so important and useful: the delay and prevention of Alzheimer’s disease and dementia.


In Elder Law practice, it’s a given that many of our clients or their family members will be affected by these terrible diseases. More than 6.7 million Americans currently live with Alzheimer’s disease or related dementias—a number projected to double by 2050.


The stories that we hear from clients are heartbreaking. I know from personal experience what it means when a family member suffers from Alzheimer’s or dementia – I helplessly watched my mother’s deterioration for years. Behind the statistics lies the real human cost: the emotional devastation of memory loss and the crushing economic burden on families and caregivers who shoulder the costs of care.


Sharp Again’s vision is clear: a world where dementia is not considered a foregone conclusion of aging but a condition that can be prevented—or at least significantly delayed—through lifestyle changes and early intervention.


Central to Sharp Again’s education and empowerment efforts is its free Roadmap to a Sharper Mind, a comprehensive guide that lays out the key steps individuals can take immediately to protect and enhance their cognitive health. It distills complex medical and scientific information into actionable strategies, covering sleep, nutrition, exercise, toxin exposure, and stress management. Click to download a copy of the Roadmap to a Sharper Mind. I highly recommend it.


In addition to the Roadmap, Sharp Again offers several programs that inform you about active steps you can take to preserve cognitive health. Its signature six-week, virtual coaching program, “Sharpen Your Mind, Enhance Your Life” is offered five times a year. There are also dynamic webinars, community education presentations and workshops - all led by expert health coaches - at libraries, community centers, senior centers and other local venues.


To learn more – or to attend the upcoming Annual Summer Gala on July 15th - here is a link to the website: https://sharpagain.org/ I hope to see you at the Gala!

                David Cutner

New York’s Consumer Directed Personal Aid Program (“CDPAP”):

Huge Changes are Arriving NOW

New York's CDPAP program allows a person who is eligible for NY Medicaid home care, or their designated representative, to select, hire, train and schedule their own caregivers.  The caregiver can be a friend or family member other than a spouse.  An MLTC (Managed Long Term Care) plan determines how many hours of care will be granted.  The disabled person or their representative is the employer, and they are responsible for arranging their own back-up coverage.

Until the end of this month, about 600 Fiscal Intermediaries (“FIs”) handle payroll, time sheets and benefits under a contract with an MLTC plan or local Medicaid agency.

CDPAP allows more flexibility than traditional personal care:

Right now:

A Huge Change is Coming on March 28

New York selected one company located in Georgia, called PPL, to replace the over 600 current CDPAP Fiscal Intermediaries.  All MLTC plans, other managed care plans, and Medicaid agencies must sign a contract with PPL.  37 of the current NY Fiscal Intermediaries have been selected as “facilitators” with a limited role: customer service, transition assistance, and visitation verification support.

What does this mean?

Many changes will or may occur – wages may drop, overtime could be affected, documentation of care will change, and some CDPAP PAs may not successfully transition to become employees of PPL.  Any of these changes may negatively affect the care that people receive.  As the sole payer and administrator of CDPAP employees, PPL could be pressured to keep wages low or introduce other restrictions.

A CDPAP PA may switch to traditional personal care (if permitted by the family rules), but will need to be trained, will not be able to administer meds or perform many other “skilled tasks,” and will become an employee of the Licensed Home Care Service Agency – so they could be assigned to another consumer.  The consumer is no longer in control.

The rollout is already proving to be chaotic and messy.  There have been reports of unreturned phone calls to PPL and poor customer service.  The change will cause disruption to many thousands of people who receive care, and to their caregivers.

What Should You Do?

If you are using CDPAP services and have not yet begun the transition process: START NOW.  As of March 3, there were still 150,000 consumers and 400,000 workers who had not begun the transition process – and it takes weeks to complete!  Workers will not be paid for work done after April 1 if the consumer and the worker did not complete the registration – and (for the moment) there is NO backup plan for people still in the pipeline.  Don’t lose your services – act now.

The patient or family needs to initiate the transition to PPL:

Facilitators have been very helpful with helping people to set up accounts – do not hesitate to call them for assistance!

Helpful links:

Overview with link to register:  https://pplfirst.com/programs/new-york/ny-consumer-directed-personal-assistance-program-cdpap/

List of NY facilitators:  https://pplfirst.com/cdpap-facilitators/

To request an appointment for in-person support, email NYCDPAP@pplfirst.com

In-person and virtual registration sessions:  https://pplfirst.com/cdpap-resources-events/

A Shocking Surprise Regarding Urgent Care Facilities

A recent article in the New York Times, written by a doctor, revealed that different urgent care facilities sometimes charge wildly different prices, based on their status.  The doctor’s daughter needed an x-ray, and the urgent care billed them for hospital-based x-rays.  The doctor, who works in a hospital, was expecting a bill of around $200, but instead she received a bill for $1,168.

[Here is a link to the article.  It is a “gifted” article so there should be no paywall.]

The doctor discovered that some urgent care facilities are hospital-affiliated, and are deemed to be “hospital outpatient departments,” or HOPDs.  The article states, “there is no federal protection for patients who are unknowingly treated in higher-priced hospital affiliates that look like normal doctors’ offices or urgent care clinics.”  In other words, nobody at the urgent care is required to tell you that they may charge you far more than the non-hospital-affiliated urgent care facility down the street.

A study by the National Institute for Health Care Reform (NIHCR) found that “Average hospital outpatient department prices for common imaging, colonoscopy and laboratory services can be double the price or more for identical services provided in a physician’s office or other community-based setting.”  The study found that prices vary across and within local markets. 

Hospitals, and the American Hospital Association, have attempted to justify these costs by claiming that HOPDs treat patients who are sicker.  But often, regardless of the patient's health situation, the procedure is identical.  A broken ankle x-ray is the same no matter who gets it or where it is performed.  In addition, when someone needs urgent care, one clinic looks the same as the next.  Charging a different price appears to have far more to do with a profit motive than the health status of the patient.

In recent years, hospitals have been acquiring physicans’ practices.  In the case of urgent care clinics, this allows them to change the designation of what was formerly a community-based facility into an HOPD.  Insurers often cover the same amount for a procedure regardless of where it is performed.  The result is that a large bill for the amount over the covered cost often ends up falling on the patient who unwittingly used an HOPD.  If the bills from your local urgent care provider have skyrocketed recently, you may be a victim of this status change.

Even more surprising to me, is that the NIHCR study about higher costs in HOPDs was published in 2014.  I had never heard of this secret dichotomy before I read the NYT article.  I called the walk-in clinic associated with the medical practice I usually use, and was told that yes, they are an HOPD.  That would probably explain the egregious $300+ cost of a recent 10-minute visit to examine a large rash that surrounded a bug bite I received (Lyme test, extra cost, negative).

I checked several of the urgent care facilities in my area and their websites said nothing about their HOPD status.  If you are using an urgent care facility, or might need to, it would make sense to call several, and if you can get through to a human being (not often an easy task), ask them.  Finding an urgent care that is NOT billing as a Hospital Outpatient Department could save you thousands of dollars over time, or even in one visit.

For Medicaid Benefits – Residency Matters

Where you live can have a major influence on the long-term care benefits you might qualify to receive from Medicaid.  Since Medicaid is in large part funded by state and local dollars, and administered under state law, the state in which you reside will determine whether and how you can qualify for benefits, and the scope of the benefits that may be available to you. 

New York has a particularly generous Medicaid program, probably more than any other state.  If you are anticipating the need for long-term care, access to the Medicaid program and its benefits may be an important factor to consider if you are thinking about where to reside in your “golden years.”  

You do not want to find yourself in a situation where you are paying out-of-pocket for ruinously expensive long-term care services, and rapidly depleting your life’s savings.  Especially since, in New York, with proper planning you can protect your savings and still qualify for Medicaid benefits.

The lure of retiring to and residing in a state with a warmer climate, for example, needs to be balanced against your ability to afford care if you live there. You may want to investigate whether you could qualify for Medicaid, and the benefits and services available in the state where you think you would like to live.  

In the end, you may find that it’s to your best advantage to stay in New York, or to move back here if you’re now living elsewhere. You’ll then have access to the most well-funded Medicaid programs in the entire country, as well as a wide choice of high-quality long-term care facilities and providers, top doctors, and other health care resources.


Predictability + Track Record = Successful Elder Law Planning

Predictability is essential. The essence of successful planning is predictability. You know exactly what’s going to happen because you set it up that way, using the best possible information, advice and methods available.

That’s why it’s critical to retain competent professionals to handle your work. Elder Law attorneys have detailed knowledge of trusts, estates, elder financial planning, Medicaid, Medicare, guardianship considerations, as well as experience in drafting all the necessary documents properly. Errors can be very costly. How will you pay for your care if your benefits are denied or revoked?

There are differences among Elder Law attorneys.  Here are three specific elements to look for when retaining an attorney:

Tried and true techniques. The lawyers you choose should employ methods that have a proven track record of producing reliable outcomes. While aggressive, “cutting edge” strategies might sound appealing, they usually come with added risks that may be difficult to quantify.

Focus on Anticipated Results.  When you sit down with an Elder Law attorney for your initial consultation, you should ask for, and receive, a detailed analysis of your situation, and recommendations as to what should be done to get the best overall legal and financial results. If you don’t come away from the meeting with a clear idea of the benefits that can be obtained and specifically how to achieve them, that should give you cause for concern.

Personal attention. You want personalized service, attention to detail, and prompt, professional responses to your questions and concerns. That makes your life a lot easier. If you don’t have the sense that a firm’s attorneys and staff are service-oriented, think twice about hiring them.

The criteria discussed above are the cornerstones of Lamson & Cutner’s approach to representing all of its clients. It’s why the firm has a well-established history of offering a reliable, service-based approach, and a track record of consistently delivering excellent results.

6 Critical Issues upon Discharge from a Hospital or Rehab

If you or your loved one is being discharged from a hospital or rehab facility, either to a home or to assisted living, focusing on the following six issues can be critical:

  1. What temporary or ongoing assistance will be needed (home aide, meals, housekeeping)
  2. How to remain healthy (proper medication management)
  3. How to remain safe (a home safety plan)
  4. Where will you find the aides you need, and who will manage them
  5. How to manage care – family / friends or a professional Care Manager
  6. A key, but often neglected, aspect of care is: How will you pay for it? Medicare will not pay for long-term care, and unless you are very wealthy, the cost of care can wipe out your entire life’s savings.

(Note:  Discharge to a nursing home is not discussed in this article) 

This checklist will give you a good starting point to keep yourself or your loved one happy, safe, and healthy as long as possible.  We also want to emphasize that you CAN protect yourself from financial disaster when health care costs start to climb.

When You Are Discharged, What Issues are Most Pressing?

Issue #1:  Help in the home, assisted living, or help in an assisted living

People coming from a hospital or rehab may need ongoing short or long-term care.  The institution’s designated liaison (usually a social worker) will recommend the appropriate level of care, based on the patient’s needs.  The social worker will also give a list of providers, such as assisted living residences or medical resources, that may be necessary for the patient’s care.    

 If the patient can go home, but needs more care, they may need to find an aide and/or access additional services.  Depending on the patient, specialty care physicians, visiting nurses, or other medical care may be necessary. 

If the discharged person needs an aide, finding one who is compatible will be a focus.  In the case of assisted living, the person’s mental capacity, physical state, and proximity to friends or family will all affect which facility is best suited for them, and how well they adjust to a new living situation.  Most assisted livings permit personal aides in their facilities.  Medicaid may cover home health aide services in an assisted living.

Issue #2:  Medication Management            

This is a thorny issue.  Home health aides are not permitted to administer medication.  They can put pills in a cup, place the cup on a table, and tell the person that “it’s time to take your pills,” but they can’t administer the pills directly.  For a person with dementia, or who has dressings that need to be changed, or physical procedures they can’t manage themselves, a home aide may not be enough.

Hiring a nurse to show up and give medications, or help with another physical need, is expensive, but it may be necessary.  One way to provide families with assistance instead of hiring a nurse is through the Consumer Directed Personal Assistance Program (“CDPAP”).  With CDPAP, aides hired by the family can be trained by the family, and then have fewer limitations on the care they are permitted to provide.

Issue #3:  A Home Safety Plan

Throw rugs, sharp corners, the path to the bathroom, poorly placed furniture, poor lighting – all of these and more can be a minefield of dangerous conditions, if you’re physically or mentally compromised. Fortunately, there are many printed and online resources and services that can help you create a safe living environment.

Issue #4:   Finding the Right Assistance

There are many excellent home health agencies.  The one the hospital recommends to you may be great – or it may not.  You may be happy with the agency, but if you are not, you can change.

It may take some effort to find an aide you are happy with – but that may not be the fault of the agency.  If you are unhappy with how the agency operates or manages your situation, find another agency.  Our firm’s Director of Client Care and Advocacy can give you a referral if you wish.

You may also choose to hire your own caregiver through the CDPAP program.  This choice requires more of your time and involvement than if you hire an agency, but will also give you added flexibility.

  If you decide to hire and pay your aide privately, we strongly advise against paying aides “off the books.”  There are a variety of serious issues and liabilities that can arise for the employer who does that.

Issue #5:   Does it Make Sense to Hire a Care Manager

If it is difficult for you to oversee the care, or if you don’t live nearby, you may wish to hire a Geriatric Care Manager (“GCM,” also sometimes called an Aging Life Care Manager).  A GCM can oversee the aides, check in with the patient, and generally manage the process.  The added cost needs to be weighed against the great peace of mind such a service can provide.

Issue #6:  How Will You Pay for the Care

Private pay aides currently cost $35-$40 an hour or more.   A hypothetical example for someone “who doesn’t need much care”:   6 hours a day, 5 days a week at $35 per hour (meaning all weekend care is left to family or friends) adds up to over $1,000 per week, almost $55,000 per year.  Double or triple that amount for people who need more help, or who need nursing care, or both.

No wonder people have anxiety attacks when they start paying for care.  They realize that even more expenses are on the horizon, and they see their life’s savings being depleted.  In the case of a married couple, they may have enough money to care for one spouse, but the surviving spouse may be left in serious financial peril.  If they don’t plan, most people literally face financial ruin. 

People are often told, “You have to use up all your money before you can qualify for Medicaid.  It’s called the spend down.”  This is not true, particularly in New York. 

Long-term care planning can allow you to remain in your home and maintain your lifestyle without using up almost every dollar of your savings, and the equity in your home, on your health care.  Proven legal strategies can allow you to protect yourself, your family, and your assets, and still access high quality health care.

The Bottom Line:

Our firm seeks to educate people about the possibilities available to them in New York.  If you own a home, have some savings, or have income from a pension or retirement plan in addition to Social Security, Elder Law planning can very likely result in huge benefits for your lifestyle, your savings, and your peace of mind.

Accessing care is complicated and stressful.  Lamson & Cutner created the position of Director of Client Care and Advocacy to enable us to assist our Elder Law and Estate Planning clients who need care services.  Our Director works with our clients to help them maximize the assistance they receive through Medicare and Medicaid.

If you or a loved one is in the hospital or a rehab facility, and have not yet done long-term care planning, discharge planning should kick-start your focus on this crucial aspect of your, or their, future.

We encourage you to read more on our website about Elder Law planning and Estate Planning, and to take action now.  Your relief and peace of mind from knowing you are protected will be well worth the effort.

Three Vital Benefits Estate Planning Trusts Provide For Your Family And Other Heirs

Federal estate and gift taxes are no longer a concern for all but the wealthiest people. The Federal exclusion (non-taxable) amounts currently (in 2026) are $15,000,000 for individuals and $30,000,000 for married couples.  The New York State exclusion amount has increased as well, and is currently (in 2026) $7,350,000 per person. While the focus of estate planning for about 99% of our population is no longer on taxes, estate planning remains important for many people. The main issues are (1) how do you make sure that your estate is distributed in the manner you wish, (2) how do you reduce costs and inconvenience for your heirs and beneficiaries, and (3) how can you provide for immediate liquidity so that necessary obligations can be met without undue delay.

The absence of a carefully considered estate plan can lead to unintended consequences, or to painful bickering or lawsuits among your family members. While it is important to have a Will, for many a Trust will become the main vehicle for distribution of their estate. Here's why...

  1. First, a trust can avoid probate of your estate. Probate can be a complicated legal process of identifying and acquiring the deceased’s assets, and then paying their bills and finally making distributions to beneficiaries. It can take months and even years before your spouse, children, family members and friends get anything. The court process can be slow, costly, and frustrating. When your money and property are placed in a trust that has been properly drafted, distributions can be made quickly and efficiently. Liquidity is usually immediately available for the payment of obligations.
  2. Second, your beneficiaries get protection against the possibility of lawsuits that might be filed by unhappy relatives who disagree with the way you want your assets distributed. Trusts are a far better shield against litigation, and that means your wishes will be carried out as you intended with a much smaller risk of dispute.
  3. Third, your family gets privacy. Unlike Wills, with rare exceptions, trust documents are not required to be filed with the courts. Your intentions are kept secret from prying eyes, and that affords greater peace and protection for your beneficiaries.

For a detailed discussion of trusts, click here. Lamson & Cutner advises clients regarding efficient, cost-effective estate plans, whether they live in New York City, Bronx, Brooklyn, Queens, Westchester, Nassau, Suffolk, or other counties in New York State.