Linda Ershow-Levenberg, Esq.

About Linda Ershow-Levenberg, Esq.

Linda is the managing partner at Fink Rosner Ershow-Levenberg, LLC. She takes care of legal problems involving people who are aged or who have disabilities, by protecting access to government benefits and helping them make the necessary arrangements for life-long assistance or care. Linda has been certified in Elder Law (C.E.L.A.) by the National Elder Law Foundation since 1999. She strives to provide her clients with responsive representation delivered with personal attention, compassion, and commitment. Find out more about Linda Ershow-Levenberg

Federal Court issues injunction against State of NJ in Medicaid case involving irrevocable annuity

Judge William Martini of the Federal District Court for the District of New Jersey has issued a preliminary injunction barring the New Jersey Division of Medical Assistance and Health Services (DMAHS) from treating a certain type of annuity contract as a countable resource in connection with a Medicaid application. The case is JANE CUSHING, by her attorney-in-fact, Evelyn Fornale vs. Jennifer Langer Jacobs, Ass’t Commissioner of DMAHS of NJ and Carole Johnson as Commissioner of the Dep’t of Human Services, and it was decided in U.S. District Court for the District of New Jersey under docket #  Civil Action 2:20-130, last week.      Cushing, Jane–Opinion Cushing, Jane–Order granting Summary Judgment

The case centered around Jane Cushing’s application for MLTSS/medicaid benefits to pay for her nursing home care. As part of the “spend-down” of the excess marital assets,  Mr. Cushing purchased a single premium, immediate, non-transferrable, level term, irrevocable, noncashable, nontransferrable annuity contract which would pay him equal monthly payments during the term of the contract. The State of New Jersey was named as the first beneficiary in case he died before the term of the contract was up. When the MLTSS application was reviewed by the County Board of Social Services, the annuity should have been treated as a fixed source of income for Mr. Cushing, rather than a resource that could be liquidated and spent. However, the County Board of Social Services denied eligibility on the basis that Mr. and Mrs. Cushing have excess available resources.

“Resources” and “Income” are two different things in the realm of Medicaid. A long line of cases has evaluated this sort of annuity contract and has held them to “income,” but not “resources” because they cannot be liquidated. In Cushing, the County Board was relying on an informal directive from DMAHS, and the Court found that DMAHS was wrong to consider the contract to be an available resource when its salient terms specified that it was irrevocable.

Call for advice regarding Medicaid spend-down and applications for New Jersey MLTSS/Medicaid ……..Ask for an FRE-L  At Home Telephone Consult   732-382-6070

NJ Supreme Court issues Notice concerning Courts and Cases

The latest release by the NJ Supreme Court outlines the latest rules concerning trials, scheduling, closings, and so on which will affect cases, lawyers  and litigants throughout New Jersey. Cases can still be filed but numerous adjustments are being made to the deadlines and procedures. Emergencies can be addressed, and all matters are going to be handled by telephone or videoconferencing. Here is the entire Release.Supreme Court release 3-27-2020

For updated information about hearings at the Office of Administrative Law (such as appeals of Medicaid/MLTSS  denials), click HERE.  

For updated information about Medicare Hearings and Appeals, click HERE

For information about Social Security offices and hearings click HERE.


Stay safe, stay healthy. Call us for help with all your elder care, estate planning and special needs concerns ….. 732-382-6070

Resources to help you with COVID-19 related logistics

You are no doubt encountering questions and challenges right now related to everything from employment to health insurance to online bill-paying to gaining access to your loved ones in health care facilities.Here we compile some really useful sources and we hope you’ll take a few minutes to click through to find information you can use for your situation.

Resources from NJ Department of Health:

The latest on court closings and procedures:

Resources from the NJ Bar Association for lawyers and clients:

Resources from the IRS:

Resources from the Social Security Administration:

Resources from Medicare:

Easier path into rehab on Medicare Part A now:


Stay safe, stay healthy. We’re open for business and here to assist you.

Call for a Phone Appointment …… 732-382-6070

New Jersey Takes Action to Modify Medicaid Program for COVID-19


New Jersey’s Medicaid program normally has a lot of rules and red tape.  Some of the rules relate to who meets the level of care for Long Term Services and Supports (LTSS) and some relate to financial eligibility.  All of these rules require travel and manpower to implement that may not be available during this pandemic emergency.
Federal Medicaid law has a type of waiver of Medicaid rules for emergencies, like COVID-19, or before that, Superstorm Sandy.  These are called 1135 waivers, and they can be obtained much more quickly than other types of Medicaid waivers.Waivers were just granted making it easier for certain individuals to get the care they need through the Medicaid program. Two provisions particularly stand out.  First, if a person is approved for the MLTSS Home and Community-Based Services Program (formerly known as Global Options) and wants to hire her own privately-selected employee as her “Care Provider,” “Provisional provider enrollment” can be granted  if certain information for the employee is given, assuming there will be regular enrollment after the emergency is over.  This may be useful for family member providers or volunteers helping families ride out quarantine.

Second, the necessity to have a PAS completed before a Medicaid-eligible person is admitted to a nursing home. Pre-Admission Screenings are now waived for 30 days for new admits, and are not required for facility to facility transfers.

Our state Medicaid director, in a letter dated March 19th, asked for such waiver authority to modify or suspend certain normal Medicaid rules retroactive to March 1st, such as:

  • Suspending Prior Authorization requirements
  • Waiving Pre-Admission Screenings as a requirement for nursing home placement (these are done by state nurses physically visiting applicants at their facilities)
  • Letting a nursing home get Medicaid payment even if they are providing services in an alternate facility due to an evacuation.
  • Making it easier for family members to serve as Medicaid-paid personal care assistants
  • Relaxing rules for filing deadlines for fair hearings
  • Allowing more Telehealth and telephonic reimbursement by Medicaid

Monday, CMS replied to Director Jacobs, clarifying that the nationwide 1135 will allow for most of these requests but that some require state plan amendments:

  • Prior authorization is a function of the state plan and will require an amendment but previous prior authorizations can be extended due to the emergency
  • Pre-Admission Screenings are waived for 30 days for new admits, and are not required for facility to facility transfers
  • MCO decision fair hearing appeals will get 120 days to be filed if it happens within the emergency period
  • Expanding eligible providers to include Medicare providers who may not have been Medicaid enrolled for the duration of the emergency
  • Provisional provider enrollment if certain information for an employee (like a family member) is given, assuming there will be regular enrollment after the emergency is over
  • Medicaid will be able to pay facilities even if they have to move residents to alternative settings during the emergency.

We strive to stay as informed as possible on Medicaid Eligibility and Medicaid benefits so that we can best guide our clients who need senior care urgently.  We will continue to ask questions and monitor the day-by-day and hour-by-hour developments during this health care crisis.

Call us for advice about Medicaid eligibility, spend-down plans, applications and appeals ……………………732-382-6070

3-night stay requirement waived for Medicare Part A subacute benefits

Medicare Part A covers post-hospitalization, subacute skilled care and rehabilitation benefits for individuals who were admitted to the hospital and remained as inpatients for at least three overnights. Upon discharge to a subacute facility with a need for ongoing skilled nursing or rehabilitative services, Medicare would cover up to 100 days of treatment including the room & board costs, subject to co-payments and deductibles. In other posts, we have written about some of the issues that would come up for patients receiving such benefits.

In light of the exigencies caused by COVID-19 and the urgent need to transfer patients from hospitals to subacute rehabilitation facilities, Medicare has waived the three-overnight requirement for people in the hospital to get to subacute rehab. There have been demonstration projects around the country for several years involving waivers of the 3-day stay requirement. Medicare 3 day waiver. The March 13th announcement by the CMS Administrator specifies that ” Therefore, SNF care without a 3-day inpatient hospital stay will be covered for beneficiaries who experience dislocations or are otherwise affected by the emergency, such as those who are (1) evacuated from a nursing home in the emergency area, (2) discharged from a hospital (in the emergency or receiving locations) in order to provide care to more seriously ill patients, or (3) need SNF care as a result of the emergency, regardless of whether that individual was in a hospital or nursing home prior to the emergency. In addition, we will recognize special circumstances for certain beneficiaries who, prior to the current emergency, had either begun or were ready to begin the process of ending their spell of illness after utilizing all of their available SNF benefit days.” CMS’ 2020 SNF secn 1812f waiver

The patient and their advocate will need to be proactive as always in working with the physician and the SNF assessing staff to develop a treatment plan that provides the fullest possible range of services to meet the needs of the patients. Keep in mind that “failure to progress” is not the sole criteria for continued Medicare coverage for subacute care. However there is an increasing trend by Medicare insurance intermediaries to pressure the facilities to terminate coverage after just a few weeks. What do advocates need to do? Be vigilant, be vocal, be aware. Make sure that the patient you are assisting has signed HIPPA releases to enable you to access their protected health information and talk with the personnel on the team. Be vigilant, be vocal, be there.