An application for Medicaid to pay for nursing home care can be filed by the individual himself, his spouse, another relative by blood or marriage, a staff member of an agency of which the person is a client, the person’s physician, the person’s attorney, or a designated staff member at the nursing home. Of course, a court-appointed Guardian or Agent under Power of Attorney could also act on behalf of the applicant. Anyone other than the applicant him/herself is referred to as the “authorized agent.” Whoever takes on that task should also accept the responsibility to monitor the file, collect the necessary verifications, take any necessary action to compel a third party to release records, file the application on time, and file appeals in a timely way. Potential legal hazards are lurking around every corner. There have been a series of cases recently involving authorized representatives which had disastrous results.
Sometimes the individual or family member appointed the nursing home or its affiliated application preparers to assemble and file the application, expecting to be relieved of any obligation to collect records. Sometimes it was the Agent under Power of Attorney or family member who started the application, but didn’t follow through due to difficulties collecting records and their own busy life. Sometimes the family member was led to believe that the County Board of Social Services would “assist with the application” by reaching out to get verifications that the family member couldn’t produce. In other cases, there were communications breakdowns between the affiliated authorized representative and the nursing home, or the representative and the family member. Either way, Medicaid eligibility is denied again and again for “failure to produce required verifications” or “failure to cooperate” with the application process. The individual is left holding the bag — with a huge debt and no source of ongoing payment — and the nursing home discovers that it has provided services without compensation.
Several recent cases illustrate the problem. The decisions are “not approved for publication,” which means they are not precedential and not binding on lower courts, but they do provide a window into what can go wrong in these situations.
In P.B. vs DMAHS and Atlantic County, a daughter of the applicant took on the obligation to file the application. The documentation was incomplete and after multiple communications to the daughter, the application was denied for failure to provide required documents.
In A.D. vs DMAHS and Cape May County, Future Care Consultants was the designated representative. The caseworker was sending his/her requests for more documentation to the nursing home, and the decision does not say anything about the communications between those two. However, the representative failed to investigate the questions at hand and therefore, did not provide the available verifications.
In V.S. vs DMAHS, (Passaic County), the Agent under Power of Attorney designated the nursing home as the Authorized Representative. The necessary documents weren’t all provided, and the application was denied. The nursing home neglected to appeal within the 20 day window, and filed the request for hearing 7 months later. DMAHS refused to grant a waiver of the 20-day appeal deadline, and this denial was upheld.
In W.S. vs DMAHS and Atlantic County Board of Social Services, the individual’s authorized representative was the nursing home. It applied four times and each application was denied for failure to provide the necessary proofs. The Court held that the county agency had no affirmative duty to acquire the needed documents.
In J.H. vs. DMAHS and Ocean County Bd. of Social Services, the authorized representative was Future Care Associates. They failed to procure all of the necessary verifications, with the result that the application was denied.
An application for Medicaid in New Jersey requires copious financial records for every single asset owned by the individual or spouse during the 5 year look-back. Copies of cancelled checks, deposit slips, credit card statements, explanations for ATM withdrawals … everything is being scrutinized. Once the county board asks for more records, the turnaround time is pretty short. The applicant probably doesn’t have those records lying around, and it can take months for the Authorized Representative to get the records. The Authorized Representative may not even know where to start looking, and may need help from immediate family members. It could become necessary to file a court petition to compel third parties to produce documentation.
What’s the solution? Advance preparation is vital. We encourage our clients to come in three to six months before the date they plan to apply, so there is time to gather up the necessary proofs. Also, if a family member or POA is appointing somebody as the representative, s/he should make sure that it is crystal clear as to who is doing what, and that all necessary authorizations have been provided so that the representative can do their job. The family member should certainly insist that the representative keep them informed of the status, including any threatened denials. And the contract with the representative should spell out the representative’s responsibilities.
Call us for advice about Medicaid eligibility, asset preservation and the application process .. 732-382-6070
