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

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