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.

Petitions for Guardianship can still be Filed despite current difficulties

Advance planning with powers of attorney and health care powers of attorney is a good way to ensure that there is an authorized person to handle things and make decisions should a person become incapacitated due to stroke, accident or dementia. Of course there are plenty of situations in which no such documents were ever signed. When a person without such planning documents becomes incapacitated and cannot function, the remedy might be to file a petition for Guardianship. 

The NJ Supreme Court has just issued an order to relax some of the requirements of the guardianship court rules, to facilitate the mental capacity evaluations and enable the whole process to proceed despite there being no in-person hearings. You can read the Order here.Notice and Order – Relaxation of Rule 4-86 re Guardianship of Incapacitated Adults During COVID-19 – As Signed – 04-08-20

An action for Guardianship is a court petition that is filed in the Chancery Division of State Court through the County Surrogate. Two physicians or a physician and a psychiatrist must certify in writing that the individual lacks capacity to govern himself and manage his affairs. Once the action is filed, it normally takes about 2 months before the actual court hearing when a decision will be made by the Judge on whether or not to appoint a Guardian. In the meantime, sometimes there are emergency tasks that need to be taken care of while the case is pending. The Court Order I mentioned above addresses this. Perhaps we need an immediate decision-maker to give consent to major surgery or to discharge a patient to a nursing home. Perhaps a house is under contract for sale, the sale date is scheduled and ready to go, and the seller has had a stroke and cannot participate in his sale. Perhaps the spouse has no access to funds because all the assets are in the name of her husband who is in a coma. Under certain limited circumstances, a court might appoint a Temporary Guardian of the Person or a Temporary Guardian of the Property (Estate) to grant some limited authority to deal with an emergency situation that is going on while the case is pending. Each case is unique of course and these are just examples of situations that might come up.

The Courts are presently operating in more limited ways than usual, but emergencies can still be addressed. Coordinating a guardianship action takes more time than it did before the current crisis, but the process is still important if there is an incapacitated family member and things cannot be handled due to lack of authority.

Call us for representation on guardianship and emergency protective arrangements …. 732-382-6070


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-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.

LifeTown: a special downtown for individuals with special needs

An innovative community service for people with special needs was recently opened in Essex County called “LifeTown: The Jerry Gottesman Center” in Livingston. It’s like a mini-mall filled with shops such as a pet store, a book store, a bank, a movie theater and a food market, as well as  recreational venues including  a music studio, basketball court and more. Evidently it’s 53,000 square feet and is staffed by both professionals and volunteers through the Friendship Circle of New Jersey. Some of the businesses are independent businesses with their own employees. Friendship Circle participants have the opportunity to learn job skills as well as skills with handling money and shopping. There will be social activities, work activities and recreational activities, all designed for skill-building, socialization. One of the goals of the mission of Friendship Circle and LifeTown is “to fully integrate people with special needs into the community and society at large ” and to “simulate life in a safe and accessible environment.”

For information about participation in Friendship Circle, click here

Life care planning for family members with special needs requires forward-thinking, innovative strategies, Call us for help with your estate planning needs … 732-382-6070