Notice of Medicaid Ineligibility violates Due Process if it doesn’t specify the Reason

The Superior Court of Massachusetts recently addressed the question of whether a state Medicaid agency had given adequate notice to the Medicaid applicant of the reason for denial of eligibility. What’s useful for New Jersey purposes is the exended discussion of the federal regulations pertaining to Notices of denial, and the explanation given by the Court as to why the Notices in question were deficient.

The case concerned assets that were held in a Trust. An applicant cannot be eligible for Medicaid if his or her non-excluded “countable” resources exceed a certain limit. In this case, each Notice merely stated  that the applicant was ineligible due to having excess resources, but gave no explanation as to why the assets of the Trust were being counted as the applicant’s resources. The Court held that the Notice was deficient; stayed (enjoined) the denial of benefits pending the outcome of the lawsuit, and certified the case to move forward as a class action because the practice had adversely affected all the individuals in the lawsuit class in a similar manner.

Maas vs Sudders et al and Hirvi vs Sudders et al. (Mass Superior Court, 2018)

Federal regulations require that a Medicaid agency give explicit written notice of reasons for an adverse action and of the opportunities for appeal. The notice must be served on the affected individual. The law provides as follows:

§ 431.210 Content of notice.

A notice required under § 431.206 (c)(2), (c)(3), or (c)(4) of this subpart must contain –

(a) A statement of what action the agency, skilled nursing facility, or nursing facility intends to take and the effective date of such action;

(b) A clear statement of the specific reasons supporting the intended action;

(c) The specific regulations that support, or the change in Federal or State law that requires, the action;

(d) An explanation of –

(1) The individual‘s right to request a local evidentiary hearing if one is available, or a State agency hearing; or

(2) In cases of an action based on a change in law, the circumstances under which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is continued if a hearing is requested.”

We have seen situations over the years in which no reason was given for an adverse conclusion by the county Medicaid Agency. For example, the denial of benefits notice might just say “applicant has excess resources” without specifying which resources are allegedly in excess of the limits. There are times that there can be a bona fide legal and factual dispute over whether certain resources are countable or excludable. Or the denial notice might say that “there were transfers of assets in violation of N.J.A.C. 10:71-4.10″ without specifying what is being treated as a “transfer.” In some circumstances, a check that was payable to cash is treated as a gift to a third party (transfer of assets) for no reason other than it was a check payable to “cash.” An applicant needs to know just what the issue is, so that s/he can prepare for an appeal. This is a matter of Due Process, a principal established by the US Supreme Court in 1970 in the landmark case of Goldberg vs. Kelly.

Medicaid applications are a landmine of potential legal problems. Applicants can benefit by legal advice which protects their rights in this process.

For individual senior care advice on protecting your rights, interests and resources, call us at …. 732-382-6070

Guidebook available regarding common nursing home problems

Justice in Aging is a non-profit organization that is dedicated to fighting for the rights and interests of poor elderly people in the United States. The organization has just released a free guidebook called “25 Common Nursing Home Problems and How to Resolve them.” Click here to find out how to get this publication.

Readers of this blog are aware that skilled nursing facilities/ long-term care facilities are regulated by both federal law and state law. There are numerous protections for the residents of such facilities, but vigilance and vigorous advocacy are often required.

Senior care planning often involves looking at a variety of choices for long-term care and developing both a clinical care plan and a financial plan. The process can be distressing and difficult. Understanding the legal protections for residents and the obligations of the facilities will make you better equipped to help your loved one. Individualized legal advice coupled with publications like this one can be helpful as you navigate this process. Forewarned is forearmed.

For individualized legal advice on the elder care plan that’s right for you, call us at …. 732-382-6070

 

Estate Planning with Stand-by Trusts

Some Trusts are written into a Last Will and Testament, and are designed to receive the eventual inheritance by the beneficiary of the estate. These are called “testamentary trusts.” Other Trusts are set up during the lifetime of the creator of the Trust. This latter group is called inter vivos” which is a Latin term meaning “during the lifetime.” Some inter vivos trusts are funded — the creator of the Trust may give up his/her ownership of certain assets and transfer the assets to the Trust. Other Trusts are designed to be “stand-by Trusts” which will be there in case they are needed.

Here’s an example. From time to time, I have had a client who told me that they had older relatives out of state who wanted to be able to leave some money for my client’s children, but wanted it to be held in trust for some years and didn’t want to write that Trust into their own estate plan or Will. A stand-by trust created by the clients is sometimes a good solution solution. When we write the trust document, the client can be the trustee of the trust. We would get an EIN# and the client would provide all of the relatives with the proper name and EIN# for the Trust, so that in those other Wills, the bequest could be directed to this particular Trust. In this example, the stand-by Trust may be initially funded with just the bare minimum to set up the account. If those relatives decided to make gifts during their lifetimes, the gifts could be deposited right into the Trust.

Estate planning must be individually tailored. Your needs and worries are no doubt different from your neighbor’s. Planning isn’t a cookie-cutter process; merely downloading a form and filling in the blanks isn’t “planning.”  You want your plan to address the issues that are of particular concern to you. Some typical goals of an estate plan that includes inter vivos Trusts are:

(a)  setting assets aside for other family members to avoid the risk that those assets will be spent on health care or nursing home care, (b) having a supplemental needs stand-by Trust available for benefit of a disabled family member that can be the recipient of money from other relatives such as grandparents who may make gifts (during their lifetime) or may leave a bequest (under a Will) or leave assets via a beneficiary designation to the disabled person, or (c) streamlining the estate administration process when there is out-of-state property. Of course, leaving your child’s inheritance in Trust under your Will might also be important if you are concerned that they are too immature to handle the assets, of they have debtor-creditor problems, addiction problems, or problems within a marriage or other areas of life.

 

Call us about the estate planning that is right for you …. 732-382-6070

Tell your Grandparents ……. Uber & Lyft can take them to the polls

Election day is, of course, tomorrow and the polls open bright and early. Many older folks are no longer driving and need help getting to the polls. I hope that the younger generation will make the time to transport their friends or family members who can’t get to the polls.  If a person doesn’t have a family member to drive them they might stay home and not vote. Every vote counts and ideally, everyone who is eligible to vote will be able to get to the polls to have a say in our democracy and keep it moving in the democratic direction people want.

Uber and Lyft have announced that they will provide free or reduced-fare rides one-way to polling places — though not back home, so planning is required. Here are some links to take advantage of this.

  Lyft:    Buzzfeed:

Uber: 

For advice and assistance with elder care legal issues and senior legal care planning, call us at 732-382-6070