In Determining Eligibility, All Rules Must Be Considered

In Determining Eligibility, All Rules Must Be Considered

I recently had a fact situation which required an understanding of several similar rules, only one of which applied.

Facts: Medicaid applicant lived with his disabled sister through the time of application. Applicant had discussed Medicaid eligibility with several attorneys and was advised that the house had to be sold. The sections reviewed by the attorneys and determined to be non-applicable include:

1. The exemption for transfers to a disabled child (Post 42). Child clearly relates to a child of the applicant and would not apply to his sister.

2. Post 6 refers to property owned by applicant residing with caretaker child. Such a caretaker child for purposes of these articles has been referred to a “protected transferee.” Another category of protected transferee is a sibling who has an equity interest in the home and who is residing in the home for at least one year prior to institutionalization. This alternative was also reviewed, but is not applicable since the sibling did not have an interest in the home. Creating an interest in the home for purposes of compliance with the statute would not work since this would result in a transfer. Generally, a sibling has an interest in a home with an applicant either through inheritance or purchase rather than a transfer by the applicant to the sibling of a partial interest.

The client and family discussed the above with me and were of the opinion that within a reasonable time after institutionalization, the house would have to be sold and the individual would have to use the proceeds on nursing home costs. I discussed with them Post 14 which is designated “The Significance of Dependent Relative Residing in the Home with Applicant.” That is, the person in the home was neither a disabled child nor a sister with an equity interest, but the home was still exempt based upon Program Instruction No. 85-8-9, an old Medicaid communication, which requires dependents of a relative rather than the issues perused.

The importance of this situation is that all possibilities must be considered in advising a client regarding eligibility and that many occasions require authority not normally needed in the Medicaid eligibility process. Creativity is especially necessary when dealing with the home. With respect to the home and real property, see Posts 6, 11, 14, 32, 34, 35, 36, 37, 38, 41, 42, and 52.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.


© April 2009, Post #22

The Significance of a Dependent Relative Residing in the Home with Applicant

The Significance of a Dependent Relative
Residing in the Home with Applicant

On many occasions a child will be residing in the home with applicant, and such child might not have any disability or problem of any kind. I have spoken to several Medicaid supervisors and they assumed that the home would be an available resource.

See Program Instruction No. 85-8-9 detailed below which indicates that if the home is occupied by a dependent relative, the home is an exempt resource. The letter ruling lists numerous relatives that can qualify as dependent, and “dependency” is defined broadly. Pursuant to N.J.A.C. 10:49-14.1(g) if a “family member” of a deceased Medicaid beneficiary has, prior to the Medicaid beneficiary’s death, continuously resided in the home which was also beneficiary’s primary residence, the Division will not enforce the lien until the property is sold, or the resident family member either dies or vacates the property. The only issue with such a ruling is that the words “family member” is not defined.

Program Instruction No. 85-8-9

The Medicaid Only Manual (at N.J.A.C. 10:94-4.4(b)(i) provides for the exclusion of a home as a resource during temporary absences, including trips and hospitalizations. That policy is hereby expanded and appears below.

A home may be excluded as a principal place of residence during temporary absences so long as the individual intends, and may reasonably be expected to return home. With the exception appearing in the paragraph below, an absence of more than six months shall be assumed to indicate that the home no longer serves as the principal place of residence. That period may be extended only with approval from the Division of Public Welfare.

If the absence is not temporary and the home is occupied by a spouse or dependent relative, the home shall be considered to be the principal place of residence so long as the spouse or dependent relative continues to reside there, regardless of the length of the absence. In determining if the exclusion of a home applies, a dependent relative included only the following individuals: son, daughter, grandson, granddaughter, stepson, stepdaughter, mother, father, stepmother, stepfather, half-sister, half-brother, niece, nephew, grandmother, grandfather, aunt, uncle, sister, brother, stepsister, stepbrother, mother-in-law, father-in-law,
sister-in-law, brother-in-law, daughter-in-law, and son-in-law. The nature of the dependency (e.g., financial, medical, custodial or any other type of dependent relationship) of any such relative must be determined on a case-by-case basis and must be documented in the case record.

However, it would seem, that a dependent member of the immediate family would allow the home to be excludable as a resource for eligibility purposes and would be not be subject to the lien until such time as the property is sold, the family member dies or vacates the property.

I provided this ruling to a Medicaid supervisor and she re-instituted its significance at a recent meeting with the authorities in Trenton.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.


© March 2009, Post #14