Continuous residence in USA not prerequisite for Medicaid eligibility for previously-qualified alien

One of the threshold eligibility requirements for Medicaid has to do with legal status. N.J.S.A. 30:4D-3(q)(1)(a).  If a person is an alien (non-citizen) with the status of a Legal Permanent Resident (LPR) (“green card holder”) who was present in the United States prior to August 22, 1996, s/he is eligible to apply for Medicaid (and receive “full Medicaid benefits” if all other criteria are met).  NJAC 10:71-3.11(c)1. On the other hand, if an alien enters the United States on or after that date, s/he can apply for Medicaid “after having been present in the United States for five years,” N.J.A.C. 10:71-3.11(d), unless s/he is in one of the protected categories that are further detailed in that regulation. So a person who meets the criteria is an “eligible alien” who could receive full Medicaid benefits. An alien who is not an “eligible alien” can receive emergency medical treatment only.

A recent case arose involving an 88 year old who had held LPR status since 1991. He had worked the necessary length of time and was insured under the Social Security system (40 calendar quarters). In 2007 he left the United States and gave up his LPR card. Seven years later he returned and again received an LPR card. In 2015 he applied for institutional Medicaid benefits but the application was denied under the section (d) five-year rule cited above. he requested a Hearing and the case was tried.

The pivotal part of the evidence at the hearing seems to be as follows, quoted from the Appellate decision: ” The supervisor of Adult Medicaid for the SCBSS testified that when K.K. applied for Medicaid, both his new LPR card and the agency computer system noted an entry date of July 2014, with no indication that he had previously resided in the country. His application stating his 1991 entry was not considered. K.K. was thus rejected because the computer records reviewed reflected he had not been an LPR for five years, as required of someone who entered the United States after August 22, 1996. At the hearing, K.K. proved he had entered the United States in 1991 and received an LPR card in 1996, which he surrendered upon leaving the country in 2007. His LPR card was at that time set to expire in 2015, after he applied for Medicaid. The card he obtained upon reentry in 2014 is valid until 2024. Both cards have the same identification number.”

Although the denial was affirmed by the administrative law judge and Director of the Division of Medical Assistance and Health Services, the appellate court reversed in a precedential published opinion called  K.K. v. Div. of Med. Assistance & Health Servs.

The Court agreed with Mr. K that since he had previously met the criteria of section (c) — presence in the United States before August 22, 1996 — the lapse in his residency did not terminate his eligible alien status..The Court reversed the decision and authorized the application to proceed. The Court also cited an earlier case from 2009, which was  A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 338 (App. Divi. 2009) in which the Court declared and held that “once an immigrant obtains qualified alien status, he or she does not have to remain continuously present in the United States in order to avoid application of the five-year bar.”

  The Medicaid program operates within a complex web of intertwining and often unclear regulations and statutes. For advice and representation concerning Medicaid eligibility, call us at ….. 732-382-6070

 

Watch out for the Rules of Evidence in Medicaid appeal hearings

The first level of appeal when the State Medicaid Agency issues an adverse decision is called a “Fair Hearing” and takes place at the NJ Office of Administrative law (OAL). The Judge is referred to as an Administrative Law Judge or “ALJ.” That Judge issues an initial decision that is subject to review and final decision by the NJ Division of Medical Assistance and Health Services (Medicaid). The burden of proof is on the applicant, and the hearing is conducted generally like a trial — witnesses can be questioned under oath; documents can be introduced in evidence. The formal rules of evidence that govern the New Jersey courts are relaxed somewhat, but there are still requirements to prove each point of the legal case by using some non-hearsay evidence. The following case illustrates what can go wrong when “the i’s aren’t dotted and the T’s aren’t crossed,” as they say.

 B.S. v. Div. of Med. Assistance & Health Servs., was an unsuccessful appeal after an unsuccessful Fair Hearing. The 92-year-old  Petitioner lived in a nursing home and had applied for Medicaid. When her 5 years’ of financial records were submitted for the required “look-back” scrutiny, the county division for social services noticed that there were two large bank withdrawals from her account. The funds had been transferred to her daughter’s account. The daughter was told to provide proof that either (a) all of the transferred money had been actually spent for benefit of the applicant or that (b) the transfer was some kind of purchase at fair market value for goods or services. The requested proof wasn’t supplied and a 224-day “transfer penalty” was imposed. The request for Fair Hearing was then filed.

The OAL has a rule that requires a “residuum” of non-hearsay evidence for each fact to be proven. If the other party won’t stipulate to the fact, then it must be proven through what’s called “competent” evidence – i.e., non-hearsay. Here’s the rule:

1:1-15.5 Hearsay evidence; residuum rule

(a) Subject to the judge’s discretion to exclude evidence under  N.J.A.C. 1:1-15.1(c) or a valid claim of privilege, hearsay evidence shall be admissible in the trial of contested cases. Hearsay evidence which is admitted shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.

(b) Notwithstanding the admissibility of hearsay evidence, some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness.”

Apparently, at the hearing, her evidence was made up of  “unauthenticated bank records” and a power of attorney, ruling that petitioner had failed to submit any competent evidence. The case was scheduled for hearing three times, and neither the Petitioner (nor her attorney) presented any witnesses to testify about what had occurred or to explain any documents that were presented in evidence.  As a result, the ALJ ruled that there was insufficient evidence to show that the transfers were anything other than an outright gift — which causes a penalty under the Medicaid program. The Director affirmed (adopted the decision) and the Appellate Division affirmed.

The burden of proof rests with the applicant in Medicaid cases. Careful detailed preparation is needed to successfully prove a case at an administrative hearing.

Call us for representation on Medicaid applications and appeals of denials …. 732-382-6070

 

Burden to provide all verifications sits with Medicaid applicant

The Medicaid application process for MLTSS services in nursing homes, assisted living facilities or in the community requires a tremendous amount of documentation. Numerous documents pertaining to personal status, income, and finances must be produced. Filing an incomplete application increases the risk of a denial. Failing to produce the required documentation frequently leads to denials, as the courts in New Jersey have held again and again that the responsibility to produce proof of eligibility rests with the applicant and not with the agency which is processing the application. Of course, the notice of what’s missing actually needs to be delivered to the person who is filing the application, but upon receipt, one must “jump” since the time given to reply is typically really short.

Two recent cases illustrate the problems that can be encountered from failure to present required verifications for a Medicaid application These are not “published” decisions, so they are not considered to be binding precedent on any other court. But they do illustrate the problems that can arise. In both cases, there was a failure to produce certain documentation, and the court concluded that the individual had the authority to obtain the records had they wanted to do so. One case is RP vs DMAHS  2018    and the other is G.C. vs DMAHS (birth certificate case).

There may be circumstances in which the person filing the application has no authority to get documents. There may be a need to apply for guardianship or to get a court order directing the release of certain records. These are situations in which the person should quickly consult with an elder law attorney to take necessary protective action. The important thing is that the person filing the applicant needs to act — to seek whatever legal remedies might be necessary rather than just throwing up his hands and doing nothing. The pace of denials for “failure to provide verification” seems to be escalating and there may be numerous legal issues in any given application that need an attorney’s attention.

Don’t despair! Call us for help & legal advice with the preparation and filing of your MLTSS Medicaid application ……… 732-382-6070

Medicaid Applicant is Entitled to Actual Notice of Deficiencies of Application

As my readers know by now, a Medicaid application is comprised of five years’ of financial records for every single asset and transaction that occurred during the 5-year “look-back” period preceding the application, along with a host of “personal identifiers” and proofs pertaining to income, marital status, legal residency, birthdate and more. If an application is incomplete, the risk of rejection/denial is high. If the county board of social services asks for yet additional detailed proofs that are hard to come by, the risk of rejection/denial is also high. The person who takes responsibility for the application has a big job to do. Although a person can always reapply for benefits if they are still eligible, there is only a three month retroactive period, so the risk of denial can carry tremendous financial consequences.

As a matter of due process, an applicant for government benefits is entitled to actual notice of deficiencies in the application before the agency takes the severe step of denying the application. New Jersey’s regulations provide that the county welfare agency has the “responsibility” to “inform the applicants about the purpose and eligibility requirements under its provisions,” and the applicant must “assist the CWA in securing evidence that corroborates his or her statements. ” Normally, an application should be processed within 45 days, but the agency can take longer if it can be shown that the delay resulted from “a determination to afford the applicant, whose proof of eligibility has been inconclusive, a further opportunity to develop additional evidence of eligibility before final action on his or her application.” N.J.A.C. 10:71-2.3.  Also, :the eligibility worker is initially responsible for the recommendation for approval or denial.” N.J.A.C. 10:71-2.12. Taken as a whole, it can be seen that first, an application is submitted with supporting verifications, then the eligibility worker goes through it and determines what else is needed, and then the worker must communicate those needs to the applicant, because otherwise, the applicant cannot “assist” the caseworker to determine eligibility.

A recent decision illustrates that an application cannot be denied for failure to provide verifications without proof that Notice was actually provided. In R.P. v. Div. of Med. Assistance and Health Servs., [non-published, non-precedential; holding is limited to its facts].  the application was being handled by the applicant’s step-daughter. After the application was filed, the eligibility worker made oral request for certain additional documents. At a certain point, a letter was allegedly sent stating that the application was pending and would be denied for Failure to provide Necessary verifications if the documents weren’t submitted by a certain deadline. After that, the Denial was issued.  The appeal was filed within the 20-day time limit. At the hearing before an Administrative Judge (ALJ) of the Office of Administrative Law, the applicant argued that they had never received any written notice of the documents that were still needed. The ALJ found that a notice had been mailed, albeit to the wrong zipcode, and upheld the denial. The Director of Medicaid adopted that initial decision, and this appeal followed. 

The Court remanded the case for further proceedings because the record had no proof that the applicant had actually been served with Notice that the application was at risk of denial due to missing verifications.  The applicant also argued that the agency had a duty to gather up missing documents; this contention was rejected by the Court, as was done in other recent cases,  finding that the burden to produce proof of eligibility is on the applicant, not the agency.

 

Call us for representation on Medicaid Applications, eligibility plans, fair hearings and appeals ……. 732-382-6070

 

 

 

 

Medicaid applicant must prove that funds in Joint account were contributed by other co-owner

An applicant for Medicaid to pay for nursing home care is not eligible if the available resources exceed a certain level. The regulations for New Jersey Medicaid specify how joint accounts are treated: “All funds in the account are resources to the individual, so long as he or she has unrestricted access to the funds (that is, an “or” account) regardless of their source. When the individual’s access to the account is restricted (that is, an “and” account), the CWA [caseworker] shall consider a pro rata share of the account toward the appropriate resource maximum, unless the client [applicant] and the other owner demonstrate that actual ownership of the funds is in a different proportion.” N.J..A.C 10:71-4.1(d)2.

The burden of proof is on the applicant, and since this is an administrative proceeding, the burden is the mere preponderance of the evidence. However, applicants should always be prepared to provide specific, orderly, non-hearsay evidence which has extra corroboration if possible.  Live testimony is often important. If an application is denied, the applicant can seek a Fair Hearing before the Office of Administrative Law. The Director of the NJ Division of Medical Assistance and Health Services makes the final determination and then either party can appeal to the Appellate Division.

In a recent non-precedential decision called S.M. v. Div. of Med. Assistance and Health Serv., N.J. Super. App. Div. (per curiam), the Agency had rejected an application for Medicaid benefits because of a joint bank account she owned with her son. The amount in the account was $70,000, but her resource limit for eligibility was $2,000. She claimed that $60,000 of the funds was contributed by her son when he sold his house. The Administrative Law Judge apparently found the son to lack credibility, and apparently there were gaps in the evidence. The denial was confirmed by both the Judge and the Agency director, but the Court found that this decision didn’t rest on “substantial evidence in the record” and a remand was necessary to address the unresolved gaps in the evidence. The case was remanded for further proceedings.

Moral of the story: gather ye evidence while ye may. It’s necessary to put together an orderly, strong legal case for that first administrative proceeding. This is no guarantee of success with DMAHS, which often reverses favorable ALJ decisions, but it can make for a sturdier record as the case moves through the appellate process.

Call us for advice on Medicaid eligibility and for representation in Medicaid  Fair Hearings and Appeals ……. 732-382-6070