Medicaid Improvement Act signed by Governor Murphy

On July 12th we reported that a bill to improve and streamline the Medicaid application process was on the Governor’s desk. The bill was signed recently. Here’s the NJ Bar Association’s press release. Lauren Marinaro worked along with other colleagues in NJ NAELA to help get this bill passed.

This new law (S-499/A4569) is a good start towards evaluating and implementing procedures that can improve the experience that the public has when they need to apply for Medicaid benefits for long-term care. As regular readers of this blog know, applying for MLTSS is often a harrowing experience and applicants encounter many frustrating proof requirements that can be difficult if not impossible to meet.  The bill appoints a Medicaid eligibility ombudsperson to receive complaints, as well as liberalizes requests for more time to retrieve documents in the application process.

Look for more updates here on the Murphy administration’s implementation of this new law!

For advice on MLTSS Medicaid applications and appeals, call us at … 732-382-6070

Marinaro secures Court reversal of Medicaid denial where the proof required by DMAHS just didn’t exist

The burden to prove eligibility for Medicaid rests with the applicant, but sometimes, the agency just refuses to accept the evidence they are given. This is demonstrated in a recent New Jersey case in which a denial of benefits was reversed by the Appellate court. The decision is “not approved for publication ,” which means it doesn’t establish a precedent that’s binding on other courts, but it does provide an interesting view of what can happen in a case. L.A. vs DMAHS decision

L.A and her husband established a revocable living trust for their own benefit, and transferred their house into it. Their Social Security numbers were associated with this trust. An attorney wrote the trust. The Asset Schedule  at the back of the Trust document wasn’t filled out, so nothing was shown as to the assets that were placed into the trust. Some years later, in 2012, the trustees transferred the property out of the trust into the names of L.A. and her husband. In 2017, the couple terminated the Trust — which held no assets and apparently no longer had any purpose —  and transferred the house into L.A.’s sole name. Later, a Medicaid application was filed for L.A. They didn’t disclose the Trust when they provided the 60-month look-back documents. For the look-back, one must submit records of all assets held within the prior 60 months. As noted, the Trust had not held any assets during the look-back period. The agency reviewed the Deed and asked for the Trust records. The applicant submitted the trust document, the trust termination document, and a letter from their attorney which stated that the only asset that was ever in the Trust was the house. As noted above, Schedule A to the trust was blank, so no assets were listed on the Trust. The application was denied for “failure to submit required verifications” of the assets in the trust. L.A. requested a fair hearing appeal before the Office of Administrative Law (OAL).

At the hearing before the Administrative Law Judge (ALJ), the attorney who wrote the trust testified in accordance with the letter he had written for the application, and explained that the annexed Schedule was left blank because it called for information not applicable to the situation. Both he and L.A.’s husband testified that the house was the only asset that was ever in the Trust. Tax return evidence was submitted which did not show income from any trust assets.  The ALJ concluded that they were credible, but that the explanation about the blank schedules was inadequate and that plaintiff had indeed failed to submit the “required verifications” to establish Medicaid eligibility, and upheld the denial of benefits. The DMAHS adopted that decision, and L.A. appealed, represented by our Firm. Essentially, the Final Agency Decision stood for the proposition that even when there is no proof of assets, the agency may presume that they exist, and may deny eligibility for failure to prove otherwise.

On appeal, the court reversed, ruling that the final agency decision was not supported by the record. An administrative agency must base its decision on the “substantial credible evidence” in the case record, and the appellate court can overrule an agency decision if it is based on “findings that are contrary to the record.”  The court noted that the agency “reviewed the application with skepticism” despite the explanations,  and despite that information, “speculated” that additional assets were in the trust, leading to a situation in which “L.A. was required to produce information that simply did not exist” The Court reversed the denial, and held that “L.A. supplied all the necessary information for review of her application, and that her benefits should not have been denied because of the omission” of evidence that simply does not exist.

The Medicaid application process is a minefield with many traps for the unwary. As individuals grow older they need to always be looking to the future when they set up their financial arrangements, maintain their paperwork and handle their accounts and trusts, because things can turn on a dime and it just might become necessary to prove one’s eligibility for Medicaid. We’re here to help at every step of the way.

 

Call for advice and representation concerning Medicaid planning, applications and appeals ……. 732-382-6070

Lauren S. Marinaro Presents on Variety of Elder Law Topics in 2019

At NJ NAELA’s Unprogram on April 10, 2019 in Morristown, New Jersey, Lauren S. Marinaro presented and facilitated a member discussion group on the Affordable Care Act, Expansion Medicaid eligibility and Medicare.  The discussion focused on the eligibility differences between being on Medicaid through the Affordable Care Act (ACA) and being on Aged, Blind, and Disabled Medicaid, as well as how to transition from one to the other when Medicare eligibility is achieved.  Also discussed was the use of the ACA Marketplace for certain individuals over the age of 65.  On June 5, 2019, Lauren S. Marinaro will present at the 81st Semi-Annual Tax and Estate Planning Forum in New Brunswick on the “Use of Restricted Credit Cards by Trustees and Trust Beneficiaries.”  Marinaro will also be presenting at NJ ICLE programs in November and December of 2019.

Remarriage terminates widow’s eligibility for disabled veterans property tax exemption

There are some circumstances in which a person’s eligibility for governmental benefits is affected by his or her marital status. This is certainly the case with Medicaid/MLTSS; Supplemental Security Income; and exemption from inheritance tax on receipt of an inheritance. The NJ Appellate Division had the opportunity recently to decide whether a veteran’s widow would retain her eligibility for his veterans’ property tax relief if she remarried. In  Pruent-Stevens v. Toms River Twp., the property owner’s first husband was an honorably-discharged Viet Nam veteran. He died before 1997 at a time that he had a pending claim for service-connected compensation benefits due to exposure to Agent Orange defoliant. She remarried , and her second husband died in 1997.  eventually, in 2014 (!) the Veterans Administration approved the claim and declared that the first husband had died of a service-connected disability. She then filed for disabled veterans property tax relief from Toms River.

The relevant statute allows a town to grant tax relief to the widow/widower of a disabled veteran  provided that s/he “has not remarried.”  The issue in the case was whether that status only pertained to the time that the application for the exemption was filed, or if it was a blanket cut-off for exemption eligibility for a widow who remarries at any time.  The New Jersey Tax Court  decided that the phrase “has not remarried” should be interpreted to mean that as long as the widow/er wasn’t married at the time of the application for exemption, the exemption would be available. In other words, it could turn on and off. She was unmarried in 2016 when her application was filed, so the Tax Court ruled in her favor. The Town appealed.

The Appellate Division reversed.  Finding that she had no “vested right” at the time of her 1997 remarriage, and that in other areas of New Jersey law, “widow” is defined as a person who has not remarried,  the court ruled that the potential entitlement to the exemption was lost as a result of having ever remarried.

Call us for advice on senior care planning and estate planning ….

732-382-6070