Finally! A clear declaration on the snapshot date for NJ medicaid home care applications

When a married person applies for Medicaid benefits to pay for nursing home care (“institutional care”), the first day of the first month of continuous residence in the facility is often referred to as the “snapshot date.” On that date, a “picture is taken” of all of the non-excluded assets owned by the two spouses.  A calculation is then made to see if a “spend-down” is required. More often than not, some “spend-down” is indeed required. In other posts over the years, I’ve talked about different methods for the “spend-down,” which typically includes a wide variety of expenses, and sometimes even gifts and annuity purchases. The point of the spend-down is to reduce the non-excluded resources (assets) to the level that enables the applicant to apply for benefits.Half of the snapshot total, up to a specified limit, is called the CSRA — Community Spouse Resource Allowance –– which is the share of the resources that is protected for the spouse. Since asset values can vary, you can see that  it is extremely important to know just what date to use for the snapshot so that enough assets can be preserved in the CSRA and so that the application can be filed at the correct time.

New Jersey also provides home health care/custodial care benefits under its Medicaid/MLTSS Home and Community-Based Services program. For married people living at home and applying for this program, there have been problems for years with the snapshot date due to wide divergence among the County Boards of Social Services when they process these applications This means there have been problems with the consequences that flow from that date — how to calculate the  CSRA; how much needs to be spent down; when the assets have been reduced sufficiently to apply; and therefore, in some cases, whether a transfer penalty period will be triggered for prior gifts. There is no actual regulation which specifies what the snapshot date is for these cases. For years, this gap in the published rules has left applicants in jeopardy, as they try to “spend down” to achieve eligibility with no law to go by. They eventually learn months later  that  their applications are denied “due to excess resources,” and they have to start all over again.

In a Final Agency Decision just recently issued by the NJ Division of Medical Assistance and Health Services (DMAHS) in a case called S.W. vs Cumberland County Board of Social Services, the State has pronounced the rule. Keep in mind that a potential applicant has to meet the clinical level of care that is sufficient for the program, and the approval of clinically eligible is confirmed by a “P.A.S.” issued by a state representative based on a clinical assessment.SW v Cumb. CBOSS , HMA 00815-20

S.W.’s application was originally filed while she lived at home. The P.A.S. was issued on February 20th. So she used February 20th as the snapshot date, “spent down” and filed her application.  Later on, in April, she had to relocate to a nursing home. The County Board insisted on moving the snapshot date forward to April 1st. Of  course this then would mean her spouse had to spend down even more from their few remaining assets. She pursued her appeals. The Director of DMAHS agreed with her. At the end of the decision, the State  declared: ” Here, Petitioner’s PAS was completed on February 20, 2019 while Petitioner resided in the community. The PAS certified that as of February 20.2019, Petitioner was clinically eligible for “nursing facility level of care in a Nursing home or home and community-based waiver In accordance with N.J.A.C. 8:85-2.1.” Therefore, Petitioner’s snapshot occurred in February 2019 when she had been determined to be eligible for the level of care provided in a nursing home.”

Finally. A clear statement of the law.

Call for advice and representation on Medicaid eligibility planning, applications and appeals … 732-382-6070

Employing Family Caregivers at this time when Home Care is More Necessary than Ever

You may wonder, “can I employ my daughter if she is living with me?” According to the National Bureau of Labor Statistics, there were over 3 million personal care aides and home health aides in the labor force in 2018, the most recent year for which data are available. In the State of New Jersey, over 41,000 people were employed in this occupation. AARP’s 2016 national survey of community caregiving found, among other things, that out of pocket costs (financial strain) on family caregivers averaged 20% of their income, with costs to care for a person over 50 or with dementia about 40% higher. The AARP 2017 survey report of family caregiving in New Jersey showed that there were over 1 million people providing some level of hands-on care to a family member. Nationwide it’s been estimated that 40 million people are engaged in family careiving.

In these difficult times as COVID-19 spreads rapidly, people are losing their jobs and in some cases, moving home with parents. The Centers for Medicare and Medicaid Services (CMS) has issued guidelines on home care, but still it is becoming difficult to set up in-home care plans due to uncertainties about exposure. If a family member is providing hands-on care, this might be a good time to look into formalizing that employment arrangement. A well-structured care plan can enable a frail or disabled person to stay at home with the assistance and support of family members.  This is the care that assists them with the Activities of Daily Living (“ADLs”)– bathing, dressing, use of the bathroom, feeding, ambulation, and transferring from bed to chair – or which provides the on-site supervision to assure safety. Home care workers are generally classified as employees by the IRS, so there will be income tax ramifications.       2020 IRS Publication 523 regarding Sale of Residence and Capital Gains TaxBut there are benefits from formal employment along with the obligations.

If a family caregiver hasn’t been in the workforce, creating a formal employment arrangement could position them for eligibility for Social Security and Medicare, State unemployment, and state temporary disability, among other things, if the employment ends Additionally, should the elder (the patient/employer) have to apply for Medicaid/MLTSS to pay for long-term care, having a formal employment arrangement could prevent certain problems that arise such as transfer penalties with family caregivers.

If Medicaid benefits will be useful and appropriate, the elder parent may want to apply for home care services through the NJ Medicaid Long Term Services and Supports program (MLTSS). Although the application process can be grueling, once approved, you can consider using the Medicaid benefits to pay your family caregiver through the Personal Care Assistant option of MLTSS.

Careful planning may also include a new power of attorney, health care power of attorney/advance directive or Last Will and Testament. There’s no time like the present to put together a new plan.

Call us to discuss family caregivers, employment contracts, estate plans and Medicaid. We have special procedures in place to conduct legal consults by phone and to help you sign your documents in a way that minimizes exposure …. 732-382-6070.

Marinaro Joins NAELA Board, Continues as Co-Chair of Federal Policy Group

Lauren Marinaro has been selected for a two year term as National Board Member for the National Academy of Elder Law Attorneys (NAELA) for 2020-2022.  NAELA  is a national membership organization for attorneys that keeps its members informed and up-to-date on fast-breaking changes in the law — legislation, agency rules and court decisions — that would affect seniors and people with disabilities.  Lauren’s  excited to work with the board on the issues that affect the practice of elder law and our clients.  She will continue her work as NAELA Federal Policy co-Chair.  So much has happened and continues to happen on the policy front as the two political parties bring their contrasting ideas to the world of public benefits–block grants, 1115 waivers, changes to Social Security rules, and ABLE accounts just to name a few.  By taking what we learn from our clients back to our national organization, she will have the opportunity to help bring about meaningful and helpful changes in the programs our clients rely upon.

Federal and state programs that .particularly impact people who are aged or disabled include Social Security, SSI, Medicaid, Medicare, public housing, HUD, food stamps (SNAP). Then there are the programs that govern insurance products, reverse mortgages, predatory lending, state and local tax exemptions, and landlord-tenant issues. The list goes on and on. The NAELA public policy committee looks at all of these issues on an ongoing basis, and Lauren is playing an active role with that process.

for advice and representation on elder law issues, call us at ……….. 732-382-6070

FRE-L Attorneys have been busy teaching Continuing Legal Education

This has been a busy year for the elder law attorneys at our Firm in the realm of community education. We’ve been teaching at programs run by the NJ Institute for Continuing Legal Education almost every month. Among the topics of Linda and Lauren’s lectures were Representing Clients in Medicaid Fair Hearings at the Office of Administrative Law; Getting the Most out of Medicaid/MLTSS Home Care Benefits; Medicare’s Individualized Care Plan Requirements for persons residing in nursing homes; Limited Guardianship and its applications to individuals with intellectual disabilities; preparing and filing Medicaid/MLTSS applications; Ethics in SSI practice before the SSA, and Medicaid from A to Z;     We also spoke at the annual NJ Elder Law Retreat in April. At the November Symposium of the National Academy of Elder Law Attorneys in Washington, DC., Gene Rosner spoke on elder law issues in divorce and Lauren Marinaro spoke about developments in Federal Policy. Our public speaking engagements included Jewish Family Services of Central New Jersey; the Senior Monthly gathering in Cranford; and our frequent seminars at the Clark Holiday Inn.

We enjoy doing in-service training for health care staffs, financial firms and family services organizations. We can develop a talk on whatever elder law subject is of importance to the group.

Call to arrange a speaking engagement or in-service training ……. 732-382-6070

What happens next if the Power of Attorney Resigns?

The resignation of the named agent under a signed Power of Attorney document can create mischief and delay in the management of the daily life and financial affairs of the person who has depended on that agent. Of course, ideally the document names a successor who is still available, and ideally, the agent won’t just drop the ball and leave the principal in the lurch. Ideally, they will turn over the records, the keys, the passwords, and everything that’s necessary. There needs to be an orderly transition.

The next-named agent in the document will want to get a signed Letter of Resignation to show to the various entities s/he has to deal with. It will probably be necessary for this successor agent to sign an Affidavit of Full Force and Effect to provide assurances to the bank, brokerage, etc. that the principal is still alive and the Power of Attorney has not been revoked and is “still in full force” and still has “legal effect.” The bank may not simply allow the successor agent to sign the signature cards on the accounts without signing this kind of document first, but instead of saying what is needed, they may say “this is outdated” or “she has to come in here herself and sign a new power of attorney” or confusing things like that.

Here’s the actual statute, which can be quoted to the financial institution if the successor agent runs into a problem like this:

Section: 46:2B-8.6: Good faith reliance.

6. Good Faith Reliance.

a. Any third party may rely upon the authority granted in a durable power of attorney until the third party has received actual notice of the revocation of the power of attorney, the termination or suspension of the authority of the attorney-in-fact, or the death of the principal.

b. A third party who has not received such actual notice under paragraph a. of this section may, but need not, require that the attorney-in-fact execute an affidavit stating that the attorney-in-fact did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation, the termination or suspension of the authority of the attorney-in-fact, or the principal’s death, disability, or incapacity. Such affidavit is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal’s capacity.”

There is also a specific provision in the statute that specifies that the mere passage of time does not negate the validity of a power of attorney. Again, the Affidavit can be signed, and that should take care of this problem.

Call us for advice about fulfilling the fiduciary role under a power of attorney or other estate planning arrangements …….. 732-382-6070