By Albert Goodwin, Esq., attorney admitted in New York. Last reviewed January 2026.
A caregiver agreement, also called a personal services contract or personal care agreement, is a written contract under which a New York Medicaid applicant pays someone, usually an adult child, to provide care. Paid correctly, those payments are compensation for services and not gifts. They do not count as uncompensated transfers under the Medicaid look-back, and they do not create a penalty period. Paid incorrectly, the same dollars are treated as a gift and can cost the family months of nursing home bills.
This page explains how New York treats these agreements, what the New York City Human Resources Administration (HRA) and the county Departments of Social Services (DSS) ask for, how the penalty math works using New York regional rates, and where the arrangement goes wrong.
Social Services Law § 366(5)(e) and 18 NYCRR 360-4.4(c) penalize transfers of assets for less than fair market value made during the look-back period before an application for nursing home Medicaid. A transfer for fair market value is not penalized. Paying a reasonable wage for care that is actually delivered is a transfer for fair market value.
The New York State Medicaid Reference Guide, the manual DSS caseworkers follow, adds a condition that matters for families. Services provided by a relative are presumed to have been provided for free. To overcome that presumption, the applicant must show a written agreement that was in place before the services were performed, and must show that the payments were for services rendered after the agreement was signed. Payment for care a child gave in the past, before any contract existed, is treated as a gift no matter how much work the child did. New York implemented the federal Deficit Reduction Act transfer rules through Administrative Directive 06 OMM/ADM-5, and local districts still apply it.
Three conditions follow from these rules. The agreement must be in writing and signed before paid care begins. The rate must be at or below what an unrelated aide would charge in that part of New York. The care must actually be delivered and recorded.
For nursing home (institutional) Medicaid, New York reviews 60 months of financial records before the application month. Each uncompensated transfer found in that window is divided by the regional rate for the applicant's region. The result is the number of months Medicaid will not pay for nursing home care. New York prorates partial months. The penalty does not begin on the date of the gift. It begins when the applicant is in a nursing home, has applied, and would otherwise be eligible, which is usually the worst possible time.
The Department of Health publishes the regional rates each January in a GIS message. New York has seven regions:
The rates increase each year. Confirm the current figure in the latest GIS before you rely on any calculation. A higher regional rate produces a shorter penalty for the same gift, so a $60,000 transfer hurts an applicant in Syracuse somewhat more than one in Garden City.
Assume a widowed mother in Queens has $60,000 in savings above the Medicaid resource limit. Her daughter has been helping with meals, medication, bathing and appointments.
Option one, a gift. Mother writes the daughter a $60,000 check. If mother enters a nursing home within five years, HRA divides $60,000 by the New York City regional rate. At the 2024 rate of $14,273, that is 4.2 months. For about four months and six days, Medicaid will not pay the nursing home, and the home bills the family privately at a rate that is often higher than the regional rate itself. The $60,000 is already gone.
Option two, a personal services contract. Mother and daughter sign a caregiver agreement at $28 per hour for 25 hours per week, a rate within what private-pay home health aides charge in Queens. That is $700 per week, about $3,033 per month. The $60,000 covers roughly 85 weeks, close to 20 months, of documented care. Each payment is compensation for services received. None of it is a transfer. When mother later applies for nursing home Medicaid, HRA sees the contract, the time logs, the matching bank transfers and the daughter's tax returns, and no penalty results.
The difference is not the amount of money that left the account. It is the paper trail showing that mother received something of equal value for it.
Attach a letter from the applicant's physician stating the diagnosis and the help the applicant needs with activities of daily living. The letter should be dated near the effective date of the agreement.
The rate must be defensible. Two reference points work in New York. The first is the home care worker minimum wage under Public Health Law § 3614-f, which is above $19 per hour in New York City, Long Island and Westchester and somewhat lower upstate. A family caregiver should not be paid below it for aide-level work. The second is what licensed home care agencies charge private-pay clients for a home health aide in the applicant's county, which downstate commonly runs from the high twenties into the thirties per hour. Keep two or three agency quotes in the file. A rate of $25 to $32 per hour for hands-on personal care downstate is routinely accepted. A rate of $60 per hour for a child with no training is not.
Skilled tasks priced at skilled rates need skilled credentials. If the caregiver is a registered nurse and performs nursing tasks, a nurse's rate can be justified. Otherwise price the work as aide work. Companionship alone, with no hands-on care, should be priced below aide rates.
In New York City, the HRA Medical Assistance Program reviews nursing home applications. Outside the city, the county DSS does. The caseworker will see the payments to the caregiver in the 60 months of bank statements and will send a documentation request. Expect to be asked for:
Caseworkers look for patterns. Payments that are the same amount every month regardless of hours look like an allowance. Logs written in one sitting, in one pen, after the request arrived look like what they are. Payments that began before the signature date are disallowed outright. If the caregiver was also working a full-time job during the hours logged, the caseworker will notice. Any portion the agency does not accept is added to the uncompensated transfer total and divided by the regional rate.
A lump-sum contract pays the caregiver a single large sum up front in exchange for a promise to provide care for life or for a fixed term. Some other states accept these if the payment is measured against the applicant's life expectancy. New York practice is less forgiving, and most New York elder law attorneys avoid them for three reasons.
First, at the moment the money leaves the account, the applicant has received nothing. Local districts often treat the prepayment itself as a transfer for less than fair market value, or at best measure it against actuarial life expectancy tables and treat any excess as a transfer. Second, if the applicant dies or enters a nursing home before the term runs, the unearned balance is a transfer unless it is refunded, and a refund to the applicant or the estate becomes subject to Medicaid estate recovery under Social Services Law § 369. Third, the caregiver pays income tax on the entire sum in the year received.
For New York applicants, use an hourly, pay-as-you-go structure. It moves less money per month, but every dollar it moves is defensible.
Compensation under a caregiver agreement is taxable income to the caregiver. In most family arrangements the care recipient controls when and how the work is done, which makes the caregiver a household employee rather than an independent contractor. That triggers several obligations.
Many families prefer to pay a household payroll service a modest monthly fee rather than handle this themselves. The fee is a legitimate expense of the care recipient. Do not skip the tax filings. A caregiver who cannot produce a tax return showing the income gives the caseworker an easy reason to reject the contract.
Often the child providing care is also the agent under the parent's power of attorney. If the parent still has capacity, the parent should sign the agreement personally. If the parent does not, the agent is signing a contract that pays the agent, which is a self-dealing transaction. Under General Obligations Law § 5-1505, an agent must act in the principal's best interest and avoid conflicts of interest. A caseworker, a sibling, or a later Surrogate's Court proceeding may question it. Reduce the risk by having the power of attorney expressly authorize a compensated caregiving arrangement with the agent, and by having the physician and, where possible, a second family member document the need for care and the reasonableness of the terms. If you suspect an agent is using a caregiver agreement to drain a parent's account, see our page on abuse of a power of attorney.
If HRA or the county DSS treats some or all of the payments as a transfer, the notice of decision states the penalty period and your right to a fair hearing. You must request the hearing within 60 days of the notice date under 18 NYCRR Part 358. The hearing is held before an administrative law judge from the Office of Temporary and Disability Assistance. The agency presents its evidence packet. The applicant bears the burden of proving that the payments were for fair market value, so the applicant's side must present the agreement, the time logs, the bank records, the caregiver's tax returns, the medical evidence and, where possible, testimony from the caregiver and from someone who observed the care. Decisions after fair hearing on personal services contracts turn on whether the records were contemporaneous and whether the rate was reasonable. They go badly when the paperwork was assembled after the fact. An adverse decision can be challenged in Supreme Court through an Article 78 proceeding within four months.
Community Medicaid, which pays for home care through Managed Long Term Care, CDPAP and personal care services, has historically had no look-back and no transfer penalty in New York. The state budget enacted in April 2020 amended Social Services Law § 366(5) to add a 30-month look-back for community-based long-term care. Implementation has been postponed repeatedly. As of our last review it has not taken effect, and the Department of Health has not announced an implementation date. Transfers made to qualify for home care are not currently penalized.
Two cautions. The law is on the books and could be implemented with notice, so anyone planning should assume the look-back may apply to applications filed after it starts. And a home care recipient who later needs a nursing home faces the 60-month institutional look-back, so transfers made for Community Medicaid still matter if the care need escalates. A caregiver agreement protects against both outcomes because compensated payments are never transfers.
A personal services contract is usually one piece of a plan. It works well for spending down a moderate amount over time while the applicant is still at home. It does not protect a large estate, and it stops producing value the day the applicant enters a facility, since the in-home services end. Other tools used in New York include:
For how the five-year window is counted and when the penalty clock starts, see our page on the New York Medicaid look-back period.
Yes, if a written agreement was signed before the paid care began, the hourly rate is in line with what an agency aide would charge in your area, the care is actually provided and logged, and your child reports the income. Payments to a relative without those four things are presumed to be gifts.
No. New York does not require a license to provide personal care to a family member privately. The rate must match the caregiver's qualifications and the tasks performed. An unlicensed family member is paid aide rates for aide tasks, not nurse rates.
You can sign one now, but it only covers care going forward. Payments already made without an agreement will be treated as transfers by HRA or DSS and counted toward a penalty period if a nursing home application is filed within five years. Past payments cannot be papered over with a backdated contract, and backdating is fraud.
Yes. Free room and board does not itself cause a problem, but the agreement should say so and should state whether housing is part of the compensation. If it is, the hourly rate should be lower to reflect it. If the child has lived in the home for two years providing care, the caregiver child exemption for transferring the house may also be available, and the two arrangements should be coordinated.
Payments made for care actually provided before admission remain compensation. Payments stop at admission unless the agreement provides for specific services at the facility, such as advocacy, visits, laundry or managing finances, at a rate appropriate to those tasks. Any payment after admission for in-home care that no longer occurs is a transfer.
The agency issues a notice computing a penalty period. You have 60 days to request a fair hearing, where you must prove with contemporaneous records that the payments were for fair market value. If the records exist, these cases can be won. If they do not, the family generally has to pay privately through the penalty period or apply for an undue hardship waiver.
We draft personal services contracts for clients in New York City, Long Island and the Hudson Valley, set the rate against local agency pricing, prepare the time log and payment procedures the family will follow, coordinate the tax filings, and assemble the file that HRA or the county DSS will eventually ask for. If an application has already been denied or a penalty assessed, we represent applicants at fair hearings.
To discuss a caregiver agreement or a nursing home Medicaid application, call the Law Offices of Albert Goodwin at 212-233-1233 or email email@nyestateslawyer.com. Read more about Albert Goodwin.