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

 

The QIT requirements in New Jersey are a minefield – tread carefully!

The Medicaid program that pays for long-term services and supports (MLTSS) for nursing home care, assisted living and home care services is available for applicants whose income is less than the cost of care, as long as their resources (assets) don’t exceed the prescribed limits. We still hear from clients that they’ve been told that “you can never apply for Medicaid because your income is too high,” even though the income is well below the cost of that nursing home. That false information has led people down the wrong path more times than I care to count. The fact is that since 2014, if the person’s monthly income exceeds a certain limit ($2,313 in 2019), s/he can still apply for NJ MLTSS-Medicaid, but the procedure for turning over the monthly income is different (and more complicated) than it is for the basic “categorically needy” Medicaid program. A specific kind of income trust has to be set up by the applicant. It’s called a QIT – Qualified Income Trust. The Trust has to be established before the Medicaid application is filed.

Each month, the entire amount of an income source that makes the income exceed the “income cap” must be deposited into the QIT. Often the applicant will decide to just transfer all income each month into the QIT. From there, the Trustee has to disburse it in a particular way: for the Personal Needs Allowance (PNA); health care premiums; support of spouse if applicable; certain other authorized deductions; and the cost-share payment. Home care participants must turn over the excess income to the State of NJ – they don’t get to use it to pay for their care. Nursing home residents must turn over the excess to the nursing home. QIT Template      QIT_FAQs

So why is this a minefield? Every week we learn of things that went wrong for our clients in the handling of these QITs, leading to denials of applications. Now, I have been told by certain Medicaid supervisors that the applicant should inform the caseworker if they encounter a problem with a QIT (such as “the income didn’t arrive this month”) or should amend the Trust to solve a problem, but there might be many weeks if not months before the applicant even knows who’s handling the application or knows that a problem with the QIT exists. If the repair occurs, there’s no assurance that it will apply retroactively to the time of the application, leaving the nursing home resident and their spouse exposed to staggering unpaid nursing home bills. The mechanism tor report a problem to a caseworker isn’t always known, and it’s frankly unclear that a caseworker even has authority to accept a post-facto revision to a QIT.Further, I have been advised by certain county representatives that there is no obligation on the County Board to alert the applicant that they have spotted a problem with the QIT funding that should be corrected; the applicant may not realize it until months down the road when a Denial of benefits is received.

So, forewarned is forearmed.   Here’s a list of things that regularly occur and regularly cause problems in the application process.  To try to avoid these problems, anyone handling the income of an MLTSS Medicaid applicant needs to be exquisitely familiar with the intricate requirements of the QIT policies, and needs to be extra-vigilant to make sure they are doing it all “by the book.”

#1 The QIT information published by the State never specified whether the net or the gross income amount should be written on the QIT trust document, but if the trust document lists the gross amount of the income rather than the net, the amount of income being deposited into the QIT (the net) won’t match the trust document, and the applicant may be told that the QIT was “incorrectly funded.”

#2 If the income arrived in the checking account late in the month and couldn’t be transferred into the QIT until the following month, the QIT could be “incorrectly funded.”

#3 If income doesn’t arrive at all in a certain month due to an administrative snafu with the payor, the QIT could be “incorrectly funded” or “underfunded.”

#4 If the trustee of the QIT fails to disburse all of the income in the month of receipt, there could be an excess balance sitting in the QIT on the first day of the next month, which could lead to a Denial for failure to handle the QIT properly.

#5 If the Trustee uses the QIT for impermissible expenditures, the QIT may be regarded as invalid.

#6 Some applicants think that they can keep up to $2,000 in the QIT because there is a $2,000 resource limit for MLTSS. This is not correct. The QIT has a specific purpose – handling the income. It isn’t the general discretionary resource which the applicant may retain and enjoy.

#7 The Power of Attorney document might not authorize the Agent to establish any kind of trust, no less a QIT. If the applicant is incapacitated, it may be impossible to establish the QIT without getting a court order, which could take months. This creates a problem in the application process and a request for a hardship waiver needs to be made.

#8 The Judgment appointing a Guardian may not include anything authorizing the Guardian to establish a trust. As with the Power of Attorney problem, it will be impossible to set up the QIT without filing an emergency court petition. Again, this creates a problem in the application process and a request for a hardship waiver needs to be made.

#9  As noted, the excess income above $2,313 has to be turned over to the State as a cost-share by a home care MLTSS recipient. While the application is pending, this money has to just accumulate. There is concern about whether this creates a risk of having excess-resources.

#10 The income is deposited into the applicant’s bank account before it is transferred into the QIT, and auto-debits for insurance premiums are automatically taken out of that account because the applicant hasn’t yet switched them over to the QIT. The person handling the income for the applicant therefore transfers less than the full amount of the income into the QIT, since the insurance premium was already taken out it “those funds” from the other account. The deposit to the QIT therefore doesn’t match what’s written on the trust document. This situation has to be carefully explained in the application,  because if the wrong amount of dollars is transferred into the QIT for dispersal, the QIT may be deemed “incorrectly funded,” leading to the problems discussed above.

Forewarned is forearmed! Preparation of a Medicaid Eligibility Plan is complicated, with many moving parts, and is not just a matter of collecting and submitting a pile of records. Take care to get advice  so as to avoid the minefields when entering the battlefield of MLTSS applications.

Call us for asset preservation strategies and Medicaid applications & appeals …. 732-382-6070

Estate Recovery Bill Limits Medicaid Services That Can Be Recovered

New Jersey expanded Medicaid under the Affordable Care Act, (ACA, also called Obamacare) causing terrific health coverage gains for its residents.  One unfortunate byproduct of Medicaid expansion is Estate Recovery, which can be assessed against any Medicaid recipient over the age of 55.  The purpose of estate recovery is to reimburse the State for Medicaid benefits provided, and typically the recovery is against assets that were excluded from consideration during the beneficiary’s lifetime (such as a residence)

For MLTSS recipients, the recovery is limited to nursing home or home and community-based services (HCBS) and ancillary services, but for ACA Medicaid recipients, all services, including hospital and doctor coverage, could be recoverable. The lien is placed against the assets in the estate of the deceased Medicaid recipient. The Executor of the Estate would need to pay back the lien from estate assets before distributing the remainder to the heirs of the deceased person. This can create an encumbrance against real property, for example.

Sen. Cryan has proposed a bill to conform ACA Medicaid Estate Recovery to MLTSS Estate Recovery.  This is a welcome revision.  People age 55 or older looking for coverage won’t have to think twice about being Medicaid eligible and using Medicaid for their basic healthcare needs.  The New Jersey Chapter of the National Academy of Elder Law a Attorneys (NAELA) wrote in support of this bill and we look forward to its passage.

If this legislation is of interest to you, contact your legislators.

For legal advice concerning estate administration and problems with Medicaid liens, call us at 732-382-6070

The Governor has a Medicaid system improvement bill on his desk

If you or any of your colleagues, friends, or family members are in support of improving the system for Medicaid eligibility determinations, you should call the Governor’s Office  of new jersey’s Governor Murphy at 609.292.6000 and request that the Governor sign A4569/S499 into law. pass on this information to people you know who are interested in this issue.

According to BillTrack50, in its Bill Summary, This bill “requires the Commissioner of Human Services to develop an information technology platform for the intake, processing, and tracking of applications for benefits under the Medicaid and NJ FamilyCare programs.” Among other things, “The goals of the system will be: to simplify the applications and eligibility determination processes for both applicants and eligibility determination staff; to standardize application of eligibility policy across the various agencies responsible for eligibility determination; to allow for real-time tracking of the status of applications.”

At our Firm, we prepare and file Medicaid applications for the MLTSS long-term care Medicaid programs in nursing homes, assisted living and community care settings. It’s an incredibly complex process, since five years of transaction records are required, substantial evidence can be required for certain things, it can be challenging to explain transactions that occurred several years prior, and there seem to be many unwritten procedures and policies which vary a bit county by county. There are many legal pitfalls that can occur for an individual client that need particularized attention. Applications are regularly turned down due to insufficient evidence or failure to submit everything that is required. Applicants with alzheimers and other cognitive deterioration may not be able to recall or retrieve the necessary information.

Simplifying the application process would be great. This bill is a step ahead for monitoring and uniformity.

  • Implementation of the bill would bring accountability and uniformity to the Medicaid application system, in-line with the Governor’s goal to create a Fairer NJ. You can’t drive improvement to this process, if you can’t monitor.
  • Federal Government will pay 90% of IT development work and 75% for operations.
  • Bill has unanimous support in both houses
  • Bill is based on the report by the NJHCQI (Health Care Quality Institute), “Medicaid 2.0: Blueprint for the Future” with additional input/amendments/improvements by NJ NAELA (the New Jersey chapter of the National Academy of Elder Law Attorneys)
  • If you have personal or professional experience which reinforces the need for the implementation of this bill, you should feel free to share it with the Governor’s office.

Call us for legal advice on how to achieve Medicaid eligibility for someone who needs long-term care ……….. 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