Sources of Information for Medicaid Rules

Unlike other areas of New Jersey law, which can be governed basically by cases or statute, the area of Medicaid eligibility is unique in this regard. For example, sources may include federal statutes, state statutes, state administrative regulations, Medicaid communications, verbal comments from state or local Medicaid workers or word-of-mouth.

The state has been remiss in both updating and implementing its Medicaid law. For example, the prior law known as OBRA ’93 was adopted by federal statute in 1993. Notwithstanding, it was not until May 16, 2001, that the state of New Jersey adopted administration regulations governing such law.

As required by state procedures, such law was proposed on June 5, 2000, requesting comments from the Bar and technical and substantive changes were issued on May 18, 2001. Notwithstanding, there were basically no substantial changes and the changes related to wording. This lack of attention to numerous comments provided by attorneys was ignored.

Many of the comments provided by attorneys were not only cogent, but were also correct.

Personally, Janice Chapin and I submitted seventeen comments, which we thought would be adopted and indicated obvious inconsistencies between the state law and the federal law. The two most salient discrepancies were and are New Jersey’s refusal to recognize the concept of spousal refusal and the insistence of New Jersey to treat disinheritance of a spouse in a nursing home as a transfer by the nursing home resident.

The Deficit Reduction Act, which was adopted in February, 2006, has not been implemented by regulations.

Since there are no governing regulations and minimal explanation by Medicaid communications, it is my opinion that the best sources for information are the Medicaid supervisors who attend periodic meetings during which the position on various issues are discussed. When the state will issue proposed regulations is unknown at this time. Therefore, in a way, we act at our peril in planning under the new law. I have attempted in my numerous posts to cut through this area of uncertainty and provide recommendations either based upon the prior law (which the new law has not changed) or my interpretation of the new law, based upon the federal statute and telephonic discussions with colleagues and knowledgeable Medicaid supervisors.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 91