Lauren S. Marinaro

About Lauren S. Marinaro

Lauren S. Marinaro has been with Fink Rosner Ershow-Levenberg since 2006, and a partner of the firm starting in 2016. She holds a JD and LLM in Elder Law from the University of Kansas. Lauren has been a SuperLawyers Rising Star from 2010-present and is a past Chair of the Elder Law Section of the State Bar Association.

New Jersey COVID-19 MedComm Contains Big Announcements on Medicaid Terminations and Eligibility

An important new Medicaid Communication (MedComm) was recently issued by the New Jersey Division of Medical Assistance and Health Services (DMAHS). As we had previously discussed, due to the COVID-19 emergency, Medicaid has loosened certain eligibility and post-eligibility rules. The MedComm explains and reconfirms our understanding of the changes in these areas:

Terminations: If you were approved for or receiving Medicaid in March 2020, you cannot be terminated for the length of the emergency unless you wish to do so voluntarily.  Terminations occur for a variety of reasons, including changes in resources (like selling a house and getting cash), changes in income (like getting a new pension from a deceased spouse), change in insurance coverage (like getting Medicare for turning 65) or failure to provide information to a Medicaid agency (information is usually requested on an annual basis).  If you had been on Medicaid in March and have been terminated for any reason without your consent, you should be reinstated. Call us if you are experiencing problems with this.

Applications: Medicaid is allowing “self-attestation” of income and resources in certain situations where they may have previously insisted on bank statements or other proofs that cannot be gotten during the COVID emergency. “Self-attestation” is a sworn statement signed by an applicant or representative to declare what their income or resources are as of an application date. Because it is sworn, attestation is a process to be taken seriously in conjunction with legal advice.

Clinical Eligibility: MLTSS Medicaid eligibility will be processed in the emergency without completion of the usual face-to-face clinical assessments that were typically required, as long as the facilities or individuals follow the procedures outlined in this separate guidance from Division on Aging Services Call us with your questions about this change in process.

Stimulus Payments: No stimulus payment will be counted toward resource eligibility for Medicaid. No enhanced unemployment payment ($600) will count toward income eligibility for Medicaid. This reconfirms what we had discussed earlier this month.

Everyone’s individual situation right now is a little different, so this new policy guidance will affect each person differently when applied to the individual’s case. Contact us at 732-382-6070 to discuss how this will affect you or your family members.

CARES Act Cash Payments Raise Questions for SSI and Medicaid

As the CARES Act implementation gears up, one question that we elder law attorneys have had  was how the cash payments would affect ongoing eligibility for means-tested benefits like SSI and Medicaid. These are the “economic impact payments” being sent to taxpayers.  If you get benefits from a program with a resource limit of $2000 and you get another $1,200 automatically, will that end your resource eligibility until you have spent those funds down? Will the $1,200 be counted as “income in the month received” like other forms of unearned income?

I have been closely following the blogs and press releases by the heads of government agencies such as the NJ Department of Health, NJ Department of Human Services, and Social Security.Tucked into a blog post from the Commissioner of the Social Security Administration, was stated, “Please note that we will not consider economic impact payments as income for SSI recipients, and the payments are excluded from resources for 12 months.”  This is good news!

In New Jersey, Medicaid rules regarding what counts as income and resources cannot be more strict than SSI; this is called “comparability”.  Under 42 U.S.C. 1396a(f), a State can only use more restrictive eligibility criteria for the aged, blind, and disabled than are used by SSI if the more restrictive criteria are no more restrictive than those used in the States’ Medicaid State plan as of January 1, 1972. New Jersey
however, did not elect to use a more restrictive resource methodology for determining whether an asset is a resource or income, and its official State Medicaid Plan adopts the SSI standard.

So when we hear about a policy being applied to SSI, we know that we can expect those same rules to apply to Medicaid Long Term Services and Supports.  Keep in mind, though, that by the end of the protected period, you have to be “spent down” again to the resource limit. And the funds received will have to be reported when the re-determination paperwork is filed. It’s important to not let time slip away.  In the past, Medicaid recipients have received tax refunds that were deposited into their account, and then close to a year later, families scramble to spend down before the end of the month.

We are here to help!  Contact us at 732-382-6070 

COVID Emergency Highlights Importance of POLST

One of the most heartbreaking things about this emergency is the prohibition of in person visitation of loved ones who were already declining in facilities.  Communication with facilities is less than ideal.  Now, more than ever, healthcare workers need to know where legal decision-makers stand on treatments and possible interventions, because one never knows when COVID-19 will take hold.

The Practitioner Order for Life Sustaining Treatment (POLST) is a universal doctor’s order that lays out what treatments and interventions are permitted for a person in the last years of his or her life. It is signed by the individual or his or her legal representative, and the physician, nurse practitioner or physician’s assistant.  It can be filled out and signed over the phone.  It can be updated.  The most recent POLST always controls.  POLST is designed to follow the resident to any subsequent setting, such as a hospital, or hospice.

Of course, the first step of all of this is to determine the resident’s competence to sign a POLST, and subsequently, if the resident is not competent, to determine who the legal medical decision-maker is. The social service department should conduct a telephone conference with the decision-maker to make, reconfirm or update the POLST.

These issues are upsetting and difficult but we’re here to help. Call 732-382-6070 and ask for a  telephone consult.

 

 

COVID-19 Emergency Means Making Tax and Insurance Decisions

As COVID-19 affects employment nationwide, more New Jerseyans will need to make strategic decisions about health insurance and tax filing this year.  Marketplace insurance and MAGI Medicaid are based on your 2020 Modified Adjusted Gross Income (MAGI).  There is special enrollment for a change in employment status. MAGI will include any unemployment you collect as well as any distributions from retirement plans (but not loans from those plans).  When you apply, you are essentially giving the government an “honest guess” of your income for the year, and if your guess is off, it will be reconciled on your 2020 return in the first quarter of 2021.

How you file your return is also a strategic decision.  If you’re under 26, it might not have mattered that your parent claimed you as a dependent, because you were on their insurance.  Now, there is the possibility of a cash payment under the CARES Act, and the parent may no longer have a health plan that can cover you.  So, filing your own return for 2020 and getting Marketplace or Medicaid insurance needs to be immediately considered.  Additionally, now that the filing deadline has been extended to July, you may want to review your dependent status on any 2019 return as well.

As if things weren’t complicated enough, you might be able to change your MAGI income with a strategic 401k distribution to put you in an income bracket outside of Medicaid eligibility but within income limits for Marketplace insurance subsidies.  This might be best if you’re over 55 because Medicaid would put a lien against assets at death for those amounts they laid out–private insurance doesn’t do this.

In short, it’s a lot to take in; and frankly, it might be time for a family meeting!  We’re here to help!  Call us at 732-382-6070.

County Surrogates Modify Hours and Practices in Response to COVID-19

Much of our work in the area of guardianships, probate and estate administration involves our County Surrogates.  As we continue to adjust to working with COVID-19, be aware that each Surrogate Office is adjusting their hours and policies to deal with the pandemic. The overview of changed hours and policies in each county can be found here.  In Union County, the new hours are Mon. & Thurs. 8:30 a.m. – 12:30 p.m. to reach staff by phone and schedule emergent matters.

Court proceedings for uncontested Guardianships are being handled on the papers. The court-appointed counsel files his or her report, the Judgment (Order) is exchanged between the parties and then the Court handles the case on its regularly-scheduled date. In some cases, the Court may hold that hearing by telephone. Our office handled a guardianship case in Essex County last week which involved some unusual issues and the Court decided to conduct a hearing with all the parties present. The Judge was on the bench with his clerk, and six people as well as the Judge called in to the conference from various locations. Witnesses were sworn, oral argument was made, testimony was taken, the Judge issued the ruling. All by telephone and it worked out very well for everyone concerned.

We continue to keep in touch with Union, Middlesex and other Surrogate’s Offices to facilitate mail in and email qualifications for guardians, executors, and administrators, as well as all related necessary filings with this office.  Thank you County Surrogates!

We’re here to help!  Contact us at ………732-382-6070