At a meeting of Medicaid supervisors last week, a major change in the Medicaid law was adopted:
Payments by applicant for care and services provided by a child were initially discussed in Post 17 under the theory that such payments by an applicant are reasonable. Medicaid allowed payments by a parent to a child in the amount of approximately $13,000 in a case that I submitted. Justification for payment for such services was provided.
Subsequently, the State took a restrictive position and limited the payments pursuant to a Caretaker Agreement to the amount received by a nurse’s aide, which generally approximates to $10 per hour.
The State now has reconsidered its position and will revert to its prior stance on Caretaker Agreements that the amount reimbursed to a child can exceed its prior limitation and allow payments by the applicant to the child that are “reasonable” with respect to such services.
This is a major change in position and allows significant savings if the payments to the child are justifiable.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2010, Post 80(2)
Monday, May 24, 2010
Thursday, May 20, 2010
Unique Solution to Transfer by Applicant Prior to Representation
Transfers by an applicant after the Deficit Reduction Act present unique problems. (See Post 15). Various posts have discussed partial or complete solutions to such problems such as use of the monies for the applicant or return of the monies. However, any monies returned become resources of the applicant.
I was recently presented with a problem which again brought to my attention the significance of a caregiver’s agreement.
Assume the following facts:
1. Transfers by an applicant without the advice of counsel.
2. Intent to qualify for Medicaid in the near future.
There was a pre-existing care agreement and the applicant had substantial liabilities. I resolved this problem in the following manner:
1. The child returns the money to the potential applicant to undo the penalty.
2. Parent, depending upon the situation, can use the monies to pay debts, make payments pursuant to a pre-existing care agreement or spenddown either prior to entrance to a nursing home or after admission.
Pre-existing transfers require creativity for solutions. For example, in another matter, a sibling of the donee loaned monies to the donee who reimbursed the applicant who, in this case, had substantial debts and the monies reimbursed were immediately used for the spenddown. The children arranged between themselves for repayment of the loan.
Another common situation would be prior transfers and the parent having a substantial liability due to a reverse mortgage. Similarly, return of the monies would undo the penalty and the monies could be spent down immediately to pay the debt.
This discussion again stresses the point of reviewing all the facts and see if there is a possible solution to resolve what initially appears to be an unresolveable problem (see also Post 18).
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 80
I was recently presented with a problem which again brought to my attention the significance of a caregiver’s agreement.
Assume the following facts:
1. Transfers by an applicant without the advice of counsel.
2. Intent to qualify for Medicaid in the near future.
There was a pre-existing care agreement and the applicant had substantial liabilities. I resolved this problem in the following manner:
1. The child returns the money to the potential applicant to undo the penalty.
2. Parent, depending upon the situation, can use the monies to pay debts, make payments pursuant to a pre-existing care agreement or spenddown either prior to entrance to a nursing home or after admission.
Pre-existing transfers require creativity for solutions. For example, in another matter, a sibling of the donee loaned monies to the donee who reimbursed the applicant who, in this case, had substantial debts and the monies reimbursed were immediately used for the spenddown. The children arranged between themselves for repayment of the loan.
Another common situation would be prior transfers and the parent having a substantial liability due to a reverse mortgage. Similarly, return of the monies would undo the penalty and the monies could be spent down immediately to pay the debt.
This discussion again stresses the point of reviewing all the facts and see if there is a possible solution to resolve what initially appears to be an unresolveable problem (see also Post 18).
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 80
Thursday, May 13, 2010
Dependent Child Revisited – Meaning of Dependency
Suppose a child is living in a potential applicant’s home because such child cannot live alone due to physical limitations. The child would clearly render the home an excludable resource as set forth in Program Instruction No. 85-8-9 (see Post 14).
If the parents were to go into a nursing home, the home would be protected under the aforementioned program instruction and the dependent relationship.
Since the child is also disabled, any assets transferred to such child would be free from transfer penalty (see Post 42).
The thought might occur that the transfer of funds to the child could hinder the dependent relationship and, therefore, render the house an includable resource. However, financial dependency is only one of the situations described in the program instruction. Other forms set forth as examples include medical, custodial or any other type of dependent relationship. Therefore, the broad definition of “dependent relationship” would allow immediate Medicaid as both the house and funds transferred are protected.
This post indicates the breadth and meaning of dependent relationship and points out that even financial independence would not ruin the excludable nature of the home.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 79
If the parents were to go into a nursing home, the home would be protected under the aforementioned program instruction and the dependent relationship.
Since the child is also disabled, any assets transferred to such child would be free from transfer penalty (see Post 42).
The thought might occur that the transfer of funds to the child could hinder the dependent relationship and, therefore, render the house an includable resource. However, financial dependency is only one of the situations described in the program instruction. Other forms set forth as examples include medical, custodial or any other type of dependent relationship. Therefore, the broad definition of “dependent relationship” would allow immediate Medicaid as both the house and funds transferred are protected.
This post indicates the breadth and meaning of dependent relationship and points out that even financial independence would not ruin the excludable nature of the home.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 79
Wednesday, May 5, 2010
Spousal Refusal
The theme of many of these postings and programs that Janice Chapin, Esq. of Central Jersey Legal Services and I have conducted for the Institute of Continuing Legal Education (“ICLE”) has been the lack of attention by Medicaid to federal law (i.e. federal pre-emption). A major area for this contention relates to the concept of spousal refusal. That is, if a community spouse refuses to contribute his or her funds to the nursing home costs of an applicant, under what circumstances should Medicaid still be granted? The federal law basically states that Medicaid will not be denied if a community spouse refuses to contribute if the State has the right to sue the spouse for the costs that should be contributed.
The State of New Jersey again does not follow the federal law and has a list of onerous requirements for spousal refusal to be given effect (i.e. Medicaid granted despite the refusal). There are forms to be filled out and questions to be answered. The major requirements for spousal refusal (and the granting of Medicaid in New Jersey) are (1) a lengthy separation of at least 20 years, (2) non-cooperation of the community spouse, (3) at least three attempts to communicate with the community spouse.
The State then evaluates whether Medicaid should be granted.
It is a rare case in which the State will honor spousal refusal. Therefore, if spousal refusal is not granted, and the spouse has in excess of the resource requirement (currently $109,560), Medicaid will be denied.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 78
The State of New Jersey again does not follow the federal law and has a list of onerous requirements for spousal refusal to be given effect (i.e. Medicaid granted despite the refusal). There are forms to be filled out and questions to be answered. The major requirements for spousal refusal (and the granting of Medicaid in New Jersey) are (1) a lengthy separation of at least 20 years, (2) non-cooperation of the community spouse, (3) at least three attempts to communicate with the community spouse.
The State then evaluates whether Medicaid should be granted.
It is a rare case in which the State will honor spousal refusal. Therefore, if spousal refusal is not granted, and the spouse has in excess of the resource requirement (currently $109,560), Medicaid will be denied.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 78
Friday, April 30, 2010
Nursing Home Procedures
In addition to the Medicaid eligibility requirements, it is not unusual for the procedures of the nursing home to present problems or be a stumbling block to Medicaid eligibility.
For example, the nursing home application should be read carefully by the family members submitting the application. I have seen an application which gave the nursing home the unilateral right to terminate the agreement. Although this is extreme, the signer of the application (it’s not the person going into the nursing home) should sign under a power of attorney with the words “signing in a representative capacity and not individually.” Many nursing homes have a time period for which you must pay privately. As mentioned in prior posts, this is illegal both federally and for the state, but it is a policy which is enforced by the nursing home.
Also, each nursing home has its policy on the amount of deposit requested. The significance of the deposit is that while there is an unused deposit, the applicant cannot receive Medicaid. This point should be kept in mind in the eligibility process.
Nursing home bills should be reviewed monthly. A monthly bill generally invoices for the daily costs in advance of the month and for personal items for the prior month. Therefore, bills should be reviewed carefully in the spenddown process.
As I have discussed, an additional requirement to eligibility other than the financial requirement is an examination by a county nurse which must be undertaken (PAS).
On many occasions, the nursing home will submit the Medicaid application without the assistance of the family or counsel. I have seen situations for which the nursing home has submitted an application without informing the family. The application was cursory and the family was denied timely eligibility.
Finally, it is extremely important to communicate with the financial director of the nursing home so that you are not viewed as adversaries. Having a prior relationship with the nursing home is an asset since it will assist in the admission of a person if the funds available are not substantial.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 77
For example, the nursing home application should be read carefully by the family members submitting the application. I have seen an application which gave the nursing home the unilateral right to terminate the agreement. Although this is extreme, the signer of the application (it’s not the person going into the nursing home) should sign under a power of attorney with the words “signing in a representative capacity and not individually.” Many nursing homes have a time period for which you must pay privately. As mentioned in prior posts, this is illegal both federally and for the state, but it is a policy which is enforced by the nursing home.
Also, each nursing home has its policy on the amount of deposit requested. The significance of the deposit is that while there is an unused deposit, the applicant cannot receive Medicaid. This point should be kept in mind in the eligibility process.
Nursing home bills should be reviewed monthly. A monthly bill generally invoices for the daily costs in advance of the month and for personal items for the prior month. Therefore, bills should be reviewed carefully in the spenddown process.
As I have discussed, an additional requirement to eligibility other than the financial requirement is an examination by a county nurse which must be undertaken (PAS).
On many occasions, the nursing home will submit the Medicaid application without the assistance of the family or counsel. I have seen situations for which the nursing home has submitted an application without informing the family. The application was cursory and the family was denied timely eligibility.
Finally, it is extremely important to communicate with the financial director of the nursing home so that you are not viewed as adversaries. Having a prior relationship with the nursing home is an asset since it will assist in the admission of a person if the funds available are not substantial.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 77
Monday, April 26, 2010
Loss of Eligibility Due to Unnecessary Transfers
As mentioned in prior posts, there is a misconception that the transfer of an excludable resource results in an excludable transfer. This is not the case. For example, if a potential applicant transfers his residence to a dependent child residing in the home, such a transfer would give rise to a penalty. The proper approach would be to stand pat and not make the transfer as Post 14 indicates that such property is excludable.
Several posts have discussed the concept of a child providing care for a parent two years prior to institutionalization when such care allows the applicant to remain at home. The transfer of property to such child is treated as exempt if deemed so by the County Board. (See Posts 6, 23, 34, 37 and 40). The posts stress that the transfer should not be made until application before the Board as the issue of whether one qualifies as a protected transferee is subjective.
Another type of excludable property is joint property held with another (say a sibling). Such property is treated as “inaccessible,” and, therefore, excludable. However, transfer of such property would give rise to a penalty.
With respect to the above issues, reference is made to Post 58 which deals with the transfer of an excludable resource.
If presented with such a problem (transfer of exempt property giving rise to a penalty), communication should be made with the County Board with a request that the property be re-transferred. Technically, once such transfer is made, it would appear that the penalty could not be cured. However, I have been successful on several occasions by requesting that the property be transferred back into its original state without a penalty imposed. The County Boards have been sympathetic to such an approach.
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 76
Several posts have discussed the concept of a child providing care for a parent two years prior to institutionalization when such care allows the applicant to remain at home. The transfer of property to such child is treated as exempt if deemed so by the County Board. (See Posts 6, 23, 34, 37 and 40). The posts stress that the transfer should not be made until application before the Board as the issue of whether one qualifies as a protected transferee is subjective.
Another type of excludable property is joint property held with another (say a sibling). Such property is treated as “inaccessible,” and, therefore, excludable. However, transfer of such property would give rise to a penalty.
With respect to the above issues, reference is made to Post 58 which deals with the transfer of an excludable resource.
If presented with such a problem (transfer of exempt property giving rise to a penalty), communication should be made with the County Board with a request that the property be re-transferred. Technically, once such transfer is made, it would appear that the penalty could not be cured. However, I have been successful on several occasions by requesting that the property be transferred back into its original state without a penalty imposed. The County Boards have been sympathetic to such an approach.
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 76
Wednesday, April 21, 2010
Admission to Nursing Homes
Generally, admission to a nursing home is preceded by a hospital stay. A family member should immediately request a PAS at the hospital (examination by county nurse) which is a prerequisite to Medicaid eligibility in addition to the financial requirements.
If the potential applicant is in the hospital for more than three days, the person may qualify for Medicare to pay the nursing home stay for a limited period of time. If the individual requires physical rehab or skilled nursing home care, Medicare will pay for the first 20 days in full and for the following 80 days except for a co-pay, which should be covered by the Medigap insurance. Keep in mind that Medicare will pay only if there is the required progress for the individual at the nursing home.
One of the issues for long-term admission to a nursing home is that many nursing homes require a private pay guarantee for a certain number of months. This is illegal for both state and federal purposes, but these rules are not enforced.
After Medicaid coverage ceases, if the individual seeks admission to the nursing home a method of payment must be shown. Therefore, if the person has minimal funds, the Medicaid process should have already commenced.
At such time as long-term care is sought, the family will be presented with an application and other documents. It is recommended that these be reviewed by an attorney.
If the nursing home is of the opinion that there may not be a method of payment (i.e. Medicaid hasn’t been granted or insufficient resources), admission to the nursing home may not be granted.
Of course, family members may be willing to private pay until such time as Medicaid is granted.
If an attorney is assisting the family in the application process, the attorney should feel confident that the family is willing to cooperate and has the sufficient documents required by the County Board.
The application is made at the county where the nursing home is located. However, if application is made from the individual’s residence, the application is to be submitted to the county of residence.
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 75
If the potential applicant is in the hospital for more than three days, the person may qualify for Medicare to pay the nursing home stay for a limited period of time. If the individual requires physical rehab or skilled nursing home care, Medicare will pay for the first 20 days in full and for the following 80 days except for a co-pay, which should be covered by the Medigap insurance. Keep in mind that Medicare will pay only if there is the required progress for the individual at the nursing home.
One of the issues for long-term admission to a nursing home is that many nursing homes require a private pay guarantee for a certain number of months. This is illegal for both state and federal purposes, but these rules are not enforced.
After Medicaid coverage ceases, if the individual seeks admission to the nursing home a method of payment must be shown. Therefore, if the person has minimal funds, the Medicaid process should have already commenced.
At such time as long-term care is sought, the family will be presented with an application and other documents. It is recommended that these be reviewed by an attorney.
If the nursing home is of the opinion that there may not be a method of payment (i.e. Medicaid hasn’t been granted or insufficient resources), admission to the nursing home may not be granted.
Of course, family members may be willing to private pay until such time as Medicaid is granted.
If an attorney is assisting the family in the application process, the attorney should feel confident that the family is willing to cooperate and has the sufficient documents required by the County Board.
The application is made at the county where the nursing home is located. However, if application is made from the individual’s residence, the application is to be submitted to the county of residence.
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 75
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