In our recent newsletter we reported on two end of year developments in the area of disability planning. https://margolisbloom.com/planning-for-life/good-news-and-bad-news-bakers-last-act/ The first is the expansion of eligibility for ABLE accounts from only for people who became disabled before age 26 to anyone who became disabled before age 46. Unfortunately, this change will not go into effect until 2026. We don’t know why the wait or, for that matter, why there’s any age restriction at all.
In the other development, one of the last acts of Governor Charlie Baker’s administration was the issuance of a new regulation imposing a penalty on transfers to pooled disability trusts for individuals over age 65 in nursing homes and creating a new definition of a “pooled trust.”
The purpose of this article is to explain that the start date for implementation of the new regulation is uncertain, but it is not immediate. The new regulations at 130 CMR 515.001, 130 CMR 520.008(I) and 130 CMR 520.019(D) state the changes are “[e]ffective sixty days after the end of the maintenance of effort and continuous eligibility provisions of Section 6008 of the Families First Coronavirus Response Act (Public Law No. 116-127).” This is not a very clear implementation date.
Upon further review, based on the Public Law No. 116-127, the Consolidated Appropriations Act, 2023 and a recent CMS Bulletin, it appears the implementation date will be June 1, 2023, at the earliest, and March 1, 2024, at the latest.
Section 6008 of the Public Law No. 116-117 provided states with an increase in federal funding for Medicaid. [1] One of the conditions for receiving the increase in funding was that the state could not implement more restrictive eligibility regulations than those in effect on January 1, 2020. [2]
In 2016, MassHealth proposed regulations similar to the one implemented by Governor Baker, creating a penalty for transfers to a pooled trust by nursing facility residents. The agency pulled back on implementing these regulations in March of 2020. It now appears the reason the agency pulled back was so the Commonwealth could be eligible for the increase in funding under Public Law No. 116-117.
The protections in Public Law No. 116-117 that require the state to maintain no more restrictive eligibility regulations were tied to the Public Health emergency. [3] So, as the Public Health Emergency has continued to be extended, the Commonwealth was prohibited from implementing these new more restrictive regulations. The Consolidated Appropriations Act of 2023, executed on December 29, 2023, (the “Act”) stated that these protections would no longer be linked to the Public Health Emergency. [4] Instead, the Act created an end date for the funding and the protections. The Act allows states to terminate the increase in federal funding starting on April 1, 2023, and provides the increase will no longer be available after December 31, 2023.[5] This has led us to the potential start date of either June 1, 2023 (60 days after April 1st) and at the latest, March 1, 2024 (60 days after December 31st). That said, we will update you if this implementation date becomes more certain.
It appears Governor Baker was determined to terminate the right of nursing facility residents to create and fund a pooled trust. The Governor implemented the new regulations on his way out the door to make sure they went into effect as soon as the Commonwealth stops taking the increase in federal funding.
In the meantime, the Massachusetts National Academy of Elder Law Attorneys (“MA NAELA”) has filed legislation to change the regulation to maintain the right of our seniors to create and fund pooled trusts. We are hopeful that the new administration will appreciate the benefit of protecting our elders’ rights to create and fund pooled trust so they have funds to pay for what MassHealth does not cover. Please continue to read our e-letter because we will be reaching out to ask for your help to support MA NAELA in its efforts to protect the rights of the elders in the Commonwealth.
The Massachusetts Chapter of the National Academy of Elder Law Attorneys has provided this fact sheet. See Pooled Trust Fact Sheet
[1] Families First Coronavirus Response Act, Public Law 116-127, Sec. 6008.
[2] Id. Sec. 6008(b)(1).
[3] CMS Informational Bulletin, January 5, 2023, Key Dates Related to the Medicaid Continuous Enrollment Condition Provisions in the Consolidated Appropriations Act, 2023.
[4] Id.
[5] Id.
