Federal and State Medicaid law allow the transfer of an applicant’s home to his/her “caregiver child” without imposing the usual penalty for that transfer. But what does it take to be a “caregiver child?” There is an alarming trend we are seeing. County Medicaid agencies are imposing penalties when houses are transferred to such children, citing factors which the State has never publicized by way of regulations.They are basing the decision on facts such as child wasn’t present 24/7 because s/he worked outside the home, child had another person or agency providing some of the 24/7 care, even that a child telecommuted from the parent’s home while being available as needed for care and supervision..
Examples of possible situations abound, as dedicated adult children restructure their lives to help their parents age in place. What if the child lives in the house, coordinates all of the care, is on duty throughout the night as needed, takes the parent for the medical appointments, prepares the meals, manages the medication… but also leaves the home for part of each day for employment? What if the person works out of a home office? What if the child leaves the house alone half a day a week to do all the household errands and engages a temporary substitute care provider? What if the child is simultaneously caring for the frail, aged parent and her infant or preschool-aged children?
The federal statute requires that such a person be (1) a child of the applicant who (2) resided with the applicant for two years immediately preceding the entry into institutional care (or application for home based Medicaid benefits) and (3) ” (as determined by the State) provided care to such individual which permitted such individual to reside at home rather than in such an institution or facility.” 42 USC 1396p(c)(2)(A)(4).
The State regulation is N.J.A.C. 10:71-4.10(d)4. It requires that the child has provided care to such individual which permitted the individual to reside in the home rather than in an institution or facility. “i. The care provided by the individual’s son or daughter for the purposes of this subchapter shall have exceeded normal personal support activities (for for example, routine transportation and shopping). The individual’s physical or mental condition shall have been such as to require special attention and care. The care provided by the son or daughter shall have been essential to the health and safety of the individual and shall have consisted of activities such as, but not limited to, supervision of medication, monitoring of nutritional status, and insuring the safety of the individual.”
The state regulation doesn’t say anything about minimum number of hours per week or that any outside employment is fatal to qualifying for this penalty-free transfer. There is no prohibition on outside employment and no prohibition on engaging another person to share the 24/7 duties.Examples of possible situations abound, as dedicated adult children restructure their lives to help their parents age in place. What if the child lives in the house, coordinates all of the care, is on duty throughout the night as needed, takes the parent for the medical appointments, prepares the meals, manages the medication… but also leaves the home for part of each day for employment? What if the person works out of a home office? What if the child leaves the house without the parent for half a day a week to do all the household errands, and engages a temporary substitute care provider? What if the child is simultaneously caring for the frail, aged parent and the child’s own infant or preschool-aged children?
What precipitated these actions? It’s a mystery right now. Despite the requirements of the NJ Administrative Procedure Act and the Supreme Court’s 1984 decision in Metromedia vs Director, Division of Taxation about the need for agencies to adopt rules on issues that have widespread effect, State hasn’t proposed any such regulations. Nothing has been issued by DMAHS to put the caregiving public and their parents on notice that even after providing such substantial caregiving for two years, they may have to pursue costly appeals against a State agency which arbitrarily imposed additional criteria which they had no way to know about. In one recent case, Nieves v. Connolly, the applicant had to sue the Mercer County Office of Temporary Assistance in federal court to bring about a rescission of its penalty notice, in a case involving a son who provided the substantial care but also was employed.
Call us for advice about Medicaid planning, applications and appeals … 732-382-6070