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

Finally! A clear declaration on the snapshot date for NJ medicaid home care applications

When a married person applies for Medicaid benefits to pay for nursing home care (“institutional care”), the first day of the first month of continuous residence in the facility is often referred to as the “snapshot date.” On that date, a “picture is taken” of all of the non-excluded assets owned by the two spouses.  A calculation is then made to see if a “spend-down” is required. More often than not, some “spend-down” is indeed required. In other posts over the years, I’ve talked about different methods for the “spend-down,” which typically includes a wide variety of expenses, and sometimes even gifts and annuity purchases. The point of the spend-down is to reduce the non-excluded resources (assets) to the level that enables the applicant to apply for benefits.Half of the snapshot total, up to a specified limit, is called the CSRA — Community Spouse Resource Allowance –– which is the share of the resources that is protected for the spouse. Since asset values can vary, you can see that  it is extremely important to know just what date to use for the snapshot so that enough assets can be preserved in the CSRA and so that the application can be filed at the correct time.

New Jersey also provides home health care/custodial care benefits under its Medicaid/MLTSS Home and Community-Based Services program. For married people living at home and applying for this program, there have been problems for years with the snapshot date due to wide divergence among the County Boards of Social Services when they process these applications This means there have been problems with the consequences that flow from that date — how to calculate the  CSRA; how much needs to be spent down; when the assets have been reduced sufficiently to apply; and therefore, in some cases, whether a transfer penalty period will be triggered for prior gifts. There is no actual regulation which specifies what the snapshot date is for these cases. For years, this gap in the published rules has left applicants in jeopardy, as they try to “spend down” to achieve eligibility with no law to go by. They eventually learn months later  that  their applications are denied “due to excess resources,” and they have to start all over again.

In a Final Agency Decision just recently issued by the NJ Division of Medical Assistance and Health Services (DMAHS) in a case called S.W. vs Cumberland County Board of Social Services, the State has pronounced the rule. Keep in mind that a potential applicant has to meet the clinical level of care that is sufficient for the program, and the approval of clinically eligible is confirmed by a “P.A.S.” issued by a state representative based on a clinical assessment.SW v Cumb. CBOSS , HMA 00815-20

S.W.’s application was originally filed while she lived at home. The P.A.S. was issued on February 20th. So she used February 20th as the snapshot date, “spent down” and filed her application.  Later on, in April, she had to relocate to a nursing home. The County Board insisted on moving the snapshot date forward to April 1st. Of  course this then would mean her spouse had to spend down even more from their few remaining assets. She pursued her appeals. The Director of DMAHS agreed with her. At the end of the decision, the State  declared: ” Here, Petitioner’s PAS was completed on February 20, 2019 while Petitioner resided in the community. The PAS certified that as of February 20.2019, Petitioner was clinically eligible for “nursing facility level of care in a Nursing home or home and community-based waiver In accordance with N.J.A.C. 8:85-2.1.” Therefore, Petitioner’s snapshot occurred in February 2019 when she had been determined to be eligible for the level of care provided in a nursing home.”

Finally. A clear statement of the law.

Call for advice and representation on Medicaid eligibility planning, applications and appeals … 732-382-6070

Keep an eye on the assets as you spend-down in the NJ Veterans Homes

At the time of admission to one of the New Jersey Veterans Memorial Homes, a worksheet is prepared based on the current values of the “accountable assets” as well as the income that is available. A home owned by the veteran is a non-accountable asset. If the home was sold, and the proceeds are kept in a segregated account, those funds are considered “non-accountable.”  However, the income generated by the assets will be accounted. DMAVA-VHM-Application

After identifying the accountable assets, a calculation is made of the veteran’s monthly obligation. Here’s the formula: Actual Care Cost minus VA Stipend = monthly maintenance fee payment obligation, less 80% of the fixed monthly income, + 12% of remaining income or $20 whichever is more = anticipated monthly spend-down from the assets.

Based on the financial evaluation, an estimate is made of how long the spend-down will last. A financial review occurs once each year.

For an unmarried veteran, $24,000 in otherwise accountable assets can be protected and retained. Once the veteran has spent down to this level, it’s important to meet with the business office to revise the calculations, because the formula changes at this point. Now, the formula is: Gross monthly fixed income x 80%, + presumed income from the excluded house account if any,  plus 12% of remaining income or $20 whichever is more (for special services fund) = gross obligation. There are then certain allowable deductions: $100 for personal needs; Medicare insurance premiums; and other health insurance premiums. The remainder is the resident’s monthly maintenance fee obligation.

Bear in mind that there are many things that the veteran is responsible to pay for on his own. The Admissions Packet contains Appendix C which is a long list of such items.Appendix C

The supplemental items and services that are listed in Appendix C will have to be paid for out of the personal needs allowance or the retained protected assets. By keeping a close watch on the spend-down and stopping at the right point, the veteran will preserve assets for the inevitable rainy day when these expenses arise.

Call for advice about nursing home admissions and applications and spend-downs … 732-382-6070

Retiree’s bump up in Social Security isn’t automatic at death of spouse

The surviving spouse of a Social Security recipient is entitled to a “bump up” in their benefits if the deceased spouse received a higher monthly benefit than the survivor was receiving. Typically, the funeral director notifies the Social Security Administration about the death.

Don’t assume that this notification suffices to preserve eligiblity for the widow’s benefit. It doesn’t.  The widow or widower still has to file an application for survivor’s benefits. It needs to be filed quickly — benefits aren’t retroactive more than 60 days prior to the date of application.  Here’s the form.

The application can only be done two ways —  in person (when Social Security offices re-open after the COVID-19 pandemic eases) or by telephone by calling 1-800-772-1213 or the local office. It cannot be done online, even though other applications are filed on line.

Social Security provide an array of benefits to surviving spouses. In addition to the potential bump up for the retiree, a surviving spouse can receive a lump-sum death benefit of $255.00 provided that the spouses were living together. A  spouse who wasn’t insured under his/her own earnings record can receive full benefits at full retirement age for survivors or reduced benefits as early as age 60. If the surviving spouse qualifies for retirement benefits on his/her own record, they can receive spousal benefits starting at age 60 and switch to their own retirement benefit without the early-receipt penalty as early as age 62. If the surviving spouse is disabled and the disability started before or within seven years of the worker’s death, s/he can receive benefits as early as age 50 based on the deceased spouse’s earnings record.

All of these potential family benefits are, of course, good reasons for workers to be “on the grid” and paying into the Social Security system.  And when there’s been a major family life incident,  contact the SSA to see what benefits are available to you and your dependents

Call us for advice on senior care planning including wills, trusts and estate administration … 732-382-6070

CARES Act gives 6 month moratorium on reverse mortgage foreclosures

Reverse mortgages have been an appealing option for many aged homeowners, because they provide access to the equity in the home when liquid assets are getting used up. These Home Equity Conversion mortgages (HECM for short) need not be repaid until the homeowner dies or vacates the premises. The borrower has to be able to pay the ongoing basic property maintenance charges — such as condo fees, real estate taxes and homeowner’s insurance — from their monthly income, and has to occupy the premises. Under the terms of the reverse mortgage loan documents, If the borrower fails to pay the maintenance obligations, the lender covers those expenses, but that’s considered a default, the loan can be called, and the property can be foreclosed. Similarly, if the borrower/homeowner vacates the premises and doesn’t list the property for sale after 6 months, the loan can be foreclosed.

This raises a few issues during the current crisis. A homeowner/borrower might temporarily vacate the premises to stay with family members, and this temporary stay might extend for months. Other homeowner/borrowers may have depended upon kin to help cover general monthly expenses to live in the house, and if those kin lose their jobs and can no longer help out, a low income homeowner/borrower may default on their basic property charge obligations. Upon request, lenders provided  a payment plan option if the homeowner had defaulted on up to $5,000, but not beyond that. Borrowers should be vigilant to maintain necessary proofs and arrange for payment of expenses if at all possible. There are some protections, though, that are provided by the federal CARES Act — Coronavirus Aid, Relief and Economic Security Act.. Here are some of them.

1.60-day moratorium on foreclosures that are already in process on federally-backed reverse mortgages, which is set to expire on May 17th.. This moratorium doesn’t apply of the property was abandoned (by an executor of the former borrower’s estate, for example) or vacant (such as,  if the homeowner vacated the premises and there’s no spouse on the premises). If the foreclosure process has already started, and the loan is now due and payable or a deferral has been granted, the lender has the discretion to extend the foreclosure process for six months or longer with HUD approval.

2. A borrower whose loan is in default or is at risk of foreclosure can request a six-month delay on calling the loan until October 1, 2020. The borrower must contact the loan servicer or lender to make this request, and later can seek HUD approval for an extra six month extension. Late charges, penalties and fees during this time must be waived. Payment obligations can be extended six months.

3. For borrowers in arrears, lenders can provide a repayment plan even if the amount owed exceeds $5,000. Borrowers have an extra six months to make this request.

4. Previously we wrote about protections for the non-borrower spouse to remain in the home if the borrower spouse dies. Even if the property is in foreclosure, the lender can offer the MOE process to the surviving spouse, who still must be eligible, bring any delinquencies up to date,  and meet the qualifying criteria.5. Proof of occupancy is typically certified on an annual basis to the Lender in writing. During the emergency, proof can be submitted via  an email or verbal certification  from the borrower. The borrower or surviving spouse should still hold onto all available proof of their occupancy in case it is needed.
5. An “at risk extension” of the foreclosure time frame is available upon request to a Borrower who is 80 years or older, if they meet certain necessary conditions. HUD must approve such an extension, and it is only good for one year — it must be requested again each year.  Examples include suffering from a long-term physical disability or terminal illness, or experiencing a unique occupancy need caused by circumstances beyond their control.  
Keep in mind that for modest problems — such as a single missed payment of the required property charges, or arrears of less than $2,000, the HUD lenders have the ability to negotiate a payment plan not to exceed 12 months and this may be useful to the borrower in the right set of circumstances. Also, if the property has increased in value, it might be viable to refinance the reverse mortgage if there’s sufficient equity to support a replacement loan.
Reverse mortgages are one tool in the elder care planner’s tool box. Call us for advice and assistance with your long term care planning … 732-382-6070 

 

Remembering Our Lonesome Elders

This is my tribute to the elders in our communities who have been so terribly affected by  the COVID-19 pandemic restrictions.

Untouchable; Alone (April 16, 2020 Central Jersey)
(c) Linda S. Ershow-Levenberg , all rights reserved

Untouchable. Alone. He wants his daughter. Every morning she brought coffee and some news.
She would tell him of the books that she was reading, trim his hair, or polish up his shoes.

The cherry blossoms burst in bloom without him.
He couldn’t leave his home to touch those petals with his hands.
The daffodils and hyacinths a memory.
He gazes out the window, but he just can’t understand.

Untouchable. Alone. He wants his daughter. Parcels just get left outside his door.
A step or two, he must sit down, so tired.
The empty streets are yawning; no one’s working any more.

The television’s off – it was relentless. He turns for comfort to his magazines.
Turning all these pages, he can travel –
to Calcutta, to the Tetons or to New Orleans
to Calcutta, to the Tetons or to New Orleans

Still, untouchable. Alone. He wants his daughter.
Every day he tries to find a way to make it new.
There’s solace in the sunshine in the morning.
And he’s breathing. He will find a way to see this through.
He’s breathing. He will find a way to see this through.

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Let’s hope that sooner rather than later our elders will again be able to enjoy in-person visits from their friends, grandchildren and children without fear and risk.

 

Call us about your elder care concerns …… 732-382-6070