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Medicaid Look Back Period

Medicaid Look Back Period 2022

Medicaid Look Back Period 2022

The majority of nursing home residents receive some Medicaid assistance. When considering nursing home care or other senior living decisions, knowing about the Medicaid look-back period helps reduce the possibility of penalties or disqualification from Medicaid for a period of time.

Learn about the Medicaid look-back period and how it potentially affects you or your loved one considering senior care or senior living options.

What Is The Medicaid Look Back Period?

The Medicaid look back period likely seems confusing for some individuals, particularly with changes made in recent years.

If you or your family member needs nursing home care, the individual must meet requirements for limited income and assets to qualify for Medicaid coverage for nursing home costs. Medicaid, a “last-resort” means of paying for nursing home costs, requires that a nursing home resident first use other means of paying for care before Medicaid begins providing coverage.

Medicaid helps make sure money and assets are not simply transferred to avoid paying out-of-pocket when a person has the means to pay at least some of the costs associated with nursing home senior care and senior living services. Medicaid does this in part by using the “Medicaid look-back period” to determine if there are violations of rules regarding transfer of assets.

The agency considers or “Looks back” over the previous five years to see if any assets were sold for less than true asset value, given away or otherwise transferred within the same time period when determining eligibility for Medicaid coverage and any violations that restrict or delay eligibility.

How Does The Medicaid Look Back Period Work?

The Centers for Medicare & Medicaid Services (CMS) explains that when applying for Medicaid to pay for nursing home care and other services associated with senior care while in a nursing home, the Medicaid eligibility worker asks if the individual recently gave away any assets such as vehicles or money. The representative also asks if the person sold property for less than its fair market value at the time of the sale within the past five years.

This transferring of assets usually results in a penalty, meaning that the person seeking senior living at a nursing home is ineligible for Medicaid, “For as long as the value of the asset should have been used” to pay for the nursing home care.

The site uses the example that if nursing home care costs $5,000 per month and the individual transferred $10,000, then the person is ineligible for Medicaid for two months. The penalty begins the month of the Medicaid application, not the month the individual transferred the property.

The individual then potentially qualifies for Medicaid benefits after the Medicaid look back penalty ends. That qualification is contingent upon the person not transferring any assets in any months while serving the initial look-back period penalty.

What Happened To The Three Year Medicaid Look Back Period?

It is true that the Medicaid look-back period was initially three years in most states. The CMS reported on the new regulations, effective February 2006, after the passing of the Deficit Reduction Act of 2005.

The DRA brought about several changes to the Medicaid look-back period. California, which still abides by its 30-month look-back period, became the only state not to extend the look-back period from three years to five years.

This potentially affects many people seeking nursing home senior care paid for by Medicaid, perhaps leaving some individuals to consider other means of paying for senior living options.

Another rule that changed is the fact that the Medicaid look-back period previously started with the day you transferred your assets. Now it begins 60 months prior to the date the person applies for Medicaid.

Are There Ways To Avoid Medicaid Look Back Period Penalties?

There are several exceptions to penalties for transferring assets during the Medicaid look-back period. If your transferred asset is a home and you transferred title to your spouse, there is no penalty. If your child lived with you for at least two years before you enter the nursing home and that child provided care to you during that period so you could continue living at home, you also avoid the penalty. If you have a child under age 21 who is blind or totally and permanently disabled under state-specific guidelines or if you transferred the home to your sibling who has an equity interest in that home and lived there for at least a year prior to your entering a nursing home there is no penalty.

NOLO points out that other exempt assets include household goods, personal effects, one automobile and some pre-paid funeral plans.

When considering nursing home senior care and senior living, make sure you avoid improper transfer of assets and know other guidelines of the Medicaid look-back period.

Read more related articles at:

Understanding the Medicaid Look-Back Period and Penalty Period

Understand Medicaid’s Look-Back Period; Penalties, Exceptions & State Variances

Also, read one of our previous Blogs at:

MEDICAID ALERT: New Medicaid Community Care Look Back Rules Start October 1, 2022

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

apply for medicaid

How to apply for Medicaid

Below is a general guide to the Medicaid application process. Be sure to contact your local Medicaid office for state-specific rules.

Note: Your Medicaid office may be called the Department of Health, the Department of Social Services, the Department of Insurance, or by another name.

  • Contact your local Medicaid office to ask how you need to submit your application. Some states require you apply in person, while others may allow you to apply by mail, online, by telephone, or at locations in the community, such as health centers and community organizations.
  • Find out which documents and forms of identification you may need in order to apply. Your Medicaid office may ask you to show the following:
    • Proof of date of birth (e.g., birth certificate)
    • Proof U.S. citizenship or lawful residence (e.g., passport, drivers license, birth certificate, green card, employment authorization card)
    • Proof of all types of income, earned and unearned (e.g., paycheck stubs, retirement benefits, Supplemental Security Income)
    • Proof of resources (e.g., bank or stock statements, life insurance policies, property)
    • Proof of residence (e.g., rent receipt, landlord statement, deed)
    • Medicare card and any other insurance cards (you can also provide a copy of the insurance policy)

Note: Medicaid coverage is available, regardless of citizenship status, if you are pregnant or require treatment for an emergency medical condition. A doctor must certify that you are pregnant or had an emergency, and you must meet all other eligibility requirements.


  • If you have any problems applying at a Medicaid office, ask to speak with a supervisor.
  • If you do not receive a timely decision on your Medicaid application or are turned down for Medicaid, you can appeal by asking for a state fair hearing (not a city or local one). Check with your Medicaid office to learn more about requesting a fair hearing.
  • Once you have Medicaid, you must recertify (show that you remain eligible for Medicaid) to continue to get Medicaid coverage. When you submit your Medicaid application, be sure to ask when and how you will need to recertify. In many states, recertification is an annual process.

Read more related articles here:

Florida Medicaid

New to Medicaid? How It Works

Also, read one of our previous Blogs here:

What It Means to Need ‘Nursing Home Level of Care’ for Medicaid Eligibility

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

medicaid house

Is Prior Occupancy Required to Have Home Excluded, When Qualifying for Long-Term Medicaid?

Is Prior Occupancy Required to Have Home Excluded,When Qualifying for Long-Term Medicaid ?

When qualifying for long-term Medicaid, there are asset and income restrictions. In many states, the applicant cannot have more than $2,000 in assets and receive benefits. Luckily, the equity in the applicant’s home is an excluded asset, up to a certain amount. But in order to have the home’s equity excluded, must the applicant have occupied that home prior to applying for benefits? This issue was recently litigated in Texas.

Clyde and Dorothy owned a home and lived in it until late 2010 when they sold it to Linda and Robby. Clyde and Dorothy moved into a rental property that was owned by Linda and Robby. In 2017, both Clyde and Dorothy moved into a nursing home. A week or so later, they purchased a one-half interest in the home they sold. They filed a Commission form stating that the home was their place of residence and indicated an intent to return there. About a month later, Clyde and Dorothy applied for Medicaid benefits. Their respective applications were denied, due to being over-resourced because the state counted the equity in the home as a countable resource.

Clyde and Dorothy appealed the decision; the Commissioner agreed with the state. Clyde and Dorothy appealed again. The trial court agreed with Clyde and Dorothy. The state appealed and now we have this case out of The Texas Court of Appeals, Third District.

The state argued that a Medicaid applicant must live in the home prior to applying for Medicaid, in order for the equity of the home to be excluded for Medicaid-eligibility purposes. Since Clyde and Dorothy did not live in the home before they entered the nursing home, the home’s equity should not be an excluded asset. In turn, Clyde and Dorothy argued that the home should be an excluded asset because they had an ownership interest in it, they both considered it to be their principal place of residence, and they intended to return there.

The list of excluded assets for Medicaid eligibility is enumerated in 42 U.S.C. § 1382b. Therein, the “home (including the land that appertains thereto)” is listed as an excluded asset.

In turn, 20 C.F.R. § 416.1212(a) defines “home”:

“A home is any property in which an individual (and spouse, if any) has an ownership interest and which serves as the individual’s principal place of residence. This property includes the shelter in which an individual resides, the land on which the shelter is located and related outbuildings.”

The state of Texas has modified this definition a bit. In 1 Tex. Admin. Code § 358.103(38), (69), it states:

“Home–A structure in which a person lives (including a mobile home, a houseboat, and a motor home), other buildings on the home property, and all adjacent land (including land separated by a road, river, or stream), in which the person has an ownership interest and that serves as his or her principal place of residence.”

“Principal place of residence–The home where a person resides, occupies, and lives.”

Finally, in Texas’s Medicaid handbook, in Section F-3000, it states, in part:

“For property to be considered a home for Medicaid eligibility purposes, the person or spouse must consider the property to be their home and:

  • have ownership interest in the property; and
  • reside in the property while having ownership interest.”

The court here affirmed the decision and sided with Clyde and Dorothy. The court reasoned that whether a home was someone’s principal place of residence is subjective, pointing to POMS SI 01130.100.A.2 which states that someone’s principal place of residence is what that person “considers his or her established or principal home”. (emphasis added)  The court looked at other relevant case law as well. In the end, it was ruled that a Medicaid applicant doesn’t have to physically live in the home that is sought to be excluded before the applicant moved to a nursing home. Indeed, it is not a requirement under federal law that the individual had occupied the property for it to be an excluded asset. If federal legislators had intended on this being a requirement, they would have written such in federal law. The court stated that it wouldn’t make practical sense or further the objectives of the Medicaid program to interpret the federal statute as having such requirement.

Read more related articles at:

Florida Medicaid (SMMC-LTC) Income & Assets Limits for Nursing Homes & Long Term Care

Medicaid Eligibility: 2022 Income, Asset & Care Requirements for Nursing Homes & Long-Term Care

Also, read more related articles at:

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.


Medicaid POA

Importance of Having the Right Power of Attorney When Applying for Medicaid

Importance of Having the Right Power of Attorney When Applying for Medicaid

A Power of Attorney is one of the most important documents for an older person to have, especially when they plan on applying for Medicaid Long Term Care and receiving its benefits. Without it, the application process could stall or benefits might be denied.


Power of Attorney (POA) basics are fairly straightforward. It’s a document where a “principal” or “grantor” (usually an elder) legally names an “agent” or “attorney-in-fact” (typically an adult child) to act on their behalf in medical and/or financial dealings if they are not capable of doing so themselves. POAs can be canceled or changed at any time for any reason, as long as the principal is competent enough to make those types of decisions. In all POAs, the agent’s powers end upon death of the principal.

Without a POA, anyone who loses the capacity to make decisions for themselves will have their financial holdings and health care choices managed by the state. In order to reclaim those powers, a family member would have to go to court and establish legal guardianship, which can be a lengthy and expensive process. In the context of applying for Medicaid Long Term Care, the state could choose not to apply, instead they could choose to sell the individual’s home and pay for care with those proceeds or make other financial decisions family members would likely not make.

Creating a POA is critical for potential Medicaid Long Term Care applicants. If the applicant’s health happens to fail rapidly and they are not capable of completing the Medicaid application on their own, having a POA will allow the agent (usually an adult child) to collect the necessary financial and medical documentations and complete the application. A POA will also prove valuable after the application has been approved so the agent can make further financial and medical decisions for the principal/elder/Medicaid beneficiary while they are receiving long term care.


The most common type of POA for those considering Medicaid Long Term Care is a Durable Power of Attorney (DPOA). A DPOA is effective immediately and gives the agent (usually an adult child) decision-making power after the principal (typically an elder parent) has become mentally or physically incapacitated and is no longer able to make decisions on their own.

A springing POA can also be helpful for those seeking Medicaid Long Term Care benefits. Instead of being effective immediately, a springing POA is “sprung” into effect by a predetermined event like an incapacitating trauma such as a stroke or major accident, or a change in a preexisting illness or condition like Alzheimer’s disease or dementia.

A POA that will not be entirely helpful when it comes to Medicaid is a general or non-durable power of attorney. This type of POA is also effective immediately, but the powers of the agent/adult child end when the principal/elder is incapacitated, and therefore won’t allow the agent to perform the tasks needed for Medicaid application.


POAs do not give the agent (typically an adult child) full control of the life and possessions of the principal (usually an elder parent). Instead, the agent’s powers must be specifically detailed in the wording of the POA document. For Medicaid Long Term Care purposes, the principal should grant the agent control in two key areas – health care and finances.

With a DPOA for health care, the agent can decide if the principal needs to live in an assisted residential setting like a nursing home facility or Alzheimer’s care unit; the agent can make decisions regarding the principal’s health care options such as surgery, in-home health care and hospitalization; and the agent can choose the principal’s healthcare professionals and types of medications.

Even though the agent for the health care DPOA can make all of these choices, they can not use the principal’s funds to pay for the health care without approval from the agent for the financial DPOA. The health care and financial DPOA agent can be the same person, but they do not have to be.

The financial DPOA allows the agent to manage the principal’s finances – access bank and retirement accounts, write checks, pay bills, file taxes, manage real estate, file insurance claims, etc. The financial DPOA also allows the agent to apply for benefits like Medicaid for the principal, and just as importantly, access all the documentation needed in the Medicaid Long Term Care application process. Required documents for the application include year-end statements from all bank accounts, investments, IRAs, 401Ks and annuities for the last five years to satisfy Medicaid’s “look back” rules (except in California, where the look back period is 2.5 years instead of 5) as well as proof of all income streams (pensions, interest, royalties, wages) from the payer, and copies of all life insurance policies and trusts.

A Certified Medicaid Planner can help navigate all the DPOA permutations and options for your particular case. To schedule a free consultation with a Certified Medicaid Planner, start here.


The truth is it’s never too early to get a DPOA because the creation of a DPOA does not mean the principal (usually an elder parent) is incompetent, nor does it take away the principal’s rights to make financial, health care or any other kind of decision on their own. It simply means that if the principal is incapacitated and can no longer make their own decisions, the agent (typically an adult child) will do so on their behalf.

An elder can also grant an adult child, or another family member, power of attorney in a living will, as long as the elder was mentally capable while creating that living will.

POAs for Persons with Dementia / Alzheimer’s

If an elder is the early stages of Alzheimer’s or some other form dementia and still has the capacity to understand what the power of attorney documents mean and what powers they transfer, they can still create a DPOA. In cases like this, consulting with a Certified Medicaid Planner is strongly recommended.

Understanding how state Medicaid offices evaluate Alzheimer’s / dementia cases is critical because Medicaid applications could be ruled invalid if POA documents were created by someone the state considers incapacitated by those conditions. If that happens, the elder could become a ward of the state and family members would have to go to court to gain guardianship (also known as conservatorship) of the elder.

Read more related articles at:

Importance of Durable Powers of Attorney for Finance and Health Care to Medicaid

FloridaMedicaid.com/Durable Power Of Attorney

Also, read one of our previous Blogs here:

How Medicaid And Medicare Fit Into Planning For Long-Term Care

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

medicaid hardship

What Elements Must be Met for a Hardship Waiver?

What Elements Must be Met for a Hardship Waiver?

Federal law, specifically 42 U.S. Code § 1396p(c)(2)(D), dictates that a state must establish procedures that allow a Medicaid applicant to receive needed care via a hardship waiver. In these cases, the applicant (or their spouse) had made a transfer during the look-back period that would otherwise incur a penalty whereas the applicant would not be eligible to receive Medicaid benefits for a certain period of time. If the applicant can show that the imposition of the penalty period would deprive the applicant of necessary medical care or the necessities of life, then the hardship waiver can be approved, allowing the applicant to get needed care immediately. Basically, the penalty period is waived if the hardship waiver is granted.

Each state has its own nuanced rules for a hardship waiver, using the federal rule as a guide. New York’s rule is housed in 18 NYCRR 360-4.4(c) and states:

“Denial of eligibility will result in an undue hardship if:

(i) the institutionalized person is otherwise eligible for MA;

(ii) the institutionalized person is unable to obtain appropriate medical care without the provision of MA; and

(iii) despite his/her best efforts, the institutionalized person or the person’s spouse is unable to have the transferred resource returned or to receive fair market value for the resource. Best efforts include cooperating, as deemed appropriate by the commissioner of the social services district, in the pursuit of the return of such resource.”

In a recent opinion issued by the Supreme Court of the State of New York, Fourth Appellate Division, the court found that the applicant was not entitled to a hardship waiver. The applicant’s husband had made a transfer for less than fair market value during the lookback period and thus the applicant was assessed a penalty period. The opinion was a short two pages and didn’t go into many details about the facts or reasoning behind the decision, but the court found that two prongs of the test were unmet – the applicant was unable to prove that she couldn’t have the assets returned and she didn’t prove that she was not able to obtain medical care without benefits. Accordingly, her undue hardship application was denied.

What could the applicant have done differently to get her hardship waiver application approved? What evidence would have bolstered her claim? While the case didn’t go into any details, and the state statute doesn’t address the issue, it could be helpful to look at other states and their instructions on hardship waivers. For example, the District of Columbia Department of Health Care Finance states the following:

“The applicant/beneficiary has the burden of proof and must provide written evidence to clearly substantiate: (1) the reason for the transfer; (2) the risk of loss of long term care institutional or home and community based services, and (3) that losing Medicaid long term care services will either. threaten the individual’s life or health or will result in deprivation of food, clothing, shelter or other necessities of life. If the applicant/beneficiary is asserting that the denial of long term care services will threaten his/her life or health, the applicant/beneficiary must submit a signed statement from a physician to that effect.

Written documentation should include any evidence that the applicant/beneficiary believes is probative of the idea that discontinuation of long term care services will result in undue hardship, as defined. Examples of acceptable documentation include:

  • A letter from a nursing facility or home health agency documenting that the applicant/beneficiary’s access to services will be discharged imminently.
  • A physician’s statement
  • Rent statements or payments
  • Grocery bills
  • Clothing bills”

Most practitioners would agree that obtaining a hardship waiver is an uphill battle; it is difficult to be successful in such a claim. However, an elder law attorney can best assist clients by knowing what situations may qualify for the waiver, what type of evidence is needed to prove the claim, how the claims process works, and backup planning strategies to get the client care in case of a denial.

Read more related articles here:

The Hardship Exception to the Medicaid Penalty Period: Rare But Possible

Undue Hardship Instructional Guide

Also, read one of our previous Blogs at:


Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

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