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

 

Persistance paid off for Eligible Medicaid Applicant

Here is a recent case that is interesting because of its detailed description of the prolonged delay in the processing of an application for MLTSS Medicaid benefits, which was followed by the agency’s failure to really look at the information submitted and an abrupt denial of benefits that could have caused horrendous consequences. The Appellate Division reversed, in a decision that is not approved for publication so it is not binding on other courts, but is a good illustration of what can happen in the Medicaid application process.

In W.M. vs DMAHS, the  available resources of W.M. and his wife were below the $119,240 resource limit at the time he applied for Medicaid benefits on December 1, 2013 to pay for his nursing home costs. They had spent down large sums from his Pacific Life insurance policy, then surrendered it and deposited the proceeds into their bank account where some of it was used for further spend-down. The couple’s remaining assets included several policies of small value and money in the bank. A month later, the County Board of Social Services requested certain additional verifications, which were promptly supplied. The couple’s representative kept contacting the Board for a year, and heard nothing. Finally in February and in March, 2015, the caseworker sent additional information requests, which were supplied, and the case was then “abruptly” provisionally Denied on April 15, 2015 in a letter that invited them to submit more proof, which they did. A letter dated April 28 asked for further clarification which was supplied on the 30th. The Board reiterated its Denial and the request for Fair Hearing followed.

The issues at the Fair Hearing centered on whether the applicant had produced the necessary verifications in timely response to requests, and just what it was that the agency felt was inadequate about the verifications (proof) that were produced. The Administrative Law Judge found that “had they examined the document more closely,” the Board would have seen all the information they kept asking for, including the evidence that it had been surrendered before the application was filed. Further, “it is uncontroverted” that WM was eligible at the time the application was filed. The ALJ recommended reversal of the denial. The Director remanded the decision and focused on whether AM had “timely responded to requests.” On remand, the ALJ further found that everything necessary had been supplied in a timely way. Nonetheless, the DMAHS reversed, finding that proofs concerning certain small policies had not been timely produced.

The Appellate Division reversed, and found that it was “unrefuted” that W.M. was eligible; that the policies which the County kept asking about had “as the [Board] knew, only minimal value and were incapable of disqualifying him,” and the agency’s “persistence in denying this meritorious application” was ‘arbitrary, capricious and unreasonable.”

For advice and assistance in preparing and filing Medicaid applications for MLTSS, 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

New Jersey Court rejects denial of Medicaid benefits where spouse refused to cooperate

When a married person applies for MLTSS Medicaid benefits, the applicant must provide 5 years of records pertaining to all financial activity of the applicant and their spouse. The applicant also must supply proof of the spouse’s current income and assets. Sometimes, the spouse just refuses to cooperate with the process, creating a dilemna for the Medicaid applicant. In some circumstances, the couple is actually estranges and not living together. Sometimes the spouse actually resides out of state – the couple is still married, but they live separate and apart. In other circumstances, it’s a second marriage and the children of the community spouse don’t wish to cooperate with the process. And sometimes, they live together and the spouse just refuses to produce the evidence. Whether willful or otherwise, the situation is referred to as having a spouse who refuses to cooperate, sometimes called “spousal refusal.” Unlike some other states, New Jersey did not adopt a specific regulation concerning what to do if the spouse refuses to cooperate. However, there is an explicit provision in federal Medicaid law that says that benefits cannot be denied if the applicant has assigned to the State all of the rights he has under state law to support by his spouse, or if denial of benefits would work “an undue hardship.”  In fact on a Medicaid application, the applicant has to sign just such an assignment of rights. The federal law is at 42 U.S.C. § 1396r-5(c)(3)(A)  and (c)(3)(C).

The federal statute says:  “42 USC 1396r-5(c)(3). Assignment of support rights. The institutionalized spouse shall not be ineligible by reason of resources determined under paragraph (2) to be available for the cost of care where—

(A) the institutionalized spouse has assigned to the State any rights to support from the community spouse;
(B) the institutionalized spouse lacks the ability to execute an assignment due to physical or mental impairment but the State has the right to bring a support proceeding against a community spouse without such assignment; or
(C) the State determines that denial of eligibility would work an undue hardship.

A recent case illustrates what can happen in a case where the spouse of the Medicaid applicant simply refuses to cooperate with the process due to disability or emotional distress. N.S. v. Div. of Med. Assistance & Health Servs., N.J. Super. App. Div. (per curiam). NS was 87 and had moved to a nursing home. His 86 year old wife was the community spouse. His daughter was his legal guardian, and she did not have a close relationship with her stepmother. Six written demands for information were sent to NS’s wife, which she didn’t answer, and in 2 personal visits she told NS’ guardian to just stop asking about all of that because “it was causing her stress.” He asked for the hardship waiver based on his wife’s refusal to cooperate.

In this case, the county board of social services refused to approve Medicaid without the records from the spouse, and refused to apply this federal requirement. Evidently the state’s “policy” was that at a minimum, the spouses had to be estranged from one another. A fair hearing took place, and substantial evidence was placed in the record concerning the efforts made to get information and the refusal by the community spouse . Nonetheless, the Administrative Law Judge sustained the county board’s denial, and the state Division of Medical Assistance and Health Services (DMAHS) issued a Final Agency Decision adopting that recommendation. However, the appellate division reversed, holding that that decision was arbitrary and capricious and disregarded the evidence in the case record. The decision was “not approved for publication,” which means it is instructive but is not precedential or binding on other courts.

P.S. There is some interesting discussion at the end of the case (see page 18-19) regarding demands for information that didn’t exist and that had been reasonably explained by N.S.’s guardian in correspondence to the caseworker. For more on THAT type of problem, see our post here.

Call us for representation on Medicaid eligibility planning, asset preservation, fair hearings and appeals ……… 732-382-6070

Spousal Impoverishment Protections in Medicaid Home Care Program Help All Ages

NAELA has been at the forefront of keeping the Spousal Impoverishment Protections in the Medicaid Home Care Program (HCBS) that were included in the Affordable Care Act.  So far, with great effort, it’s working.

It’s important for disabled people who are under 65 and who meet the nursing facility level of care to recognize that these protections are out there. The “level of care” standard is generally thought of as needing assistance with three of six of the basic ADL’s, called activities of daily living. The disability community worries a lot about the “marriage penalty” in SSI, and this is a real and legitimate concern.  But in New Jersey, if it’s homecare that’s preeminent, marrying your significant other should not necessarily prevent you from keeping your Medicaid/MLTSS benefits.  Spouses are allowed to keep certain exempt assets, and all of their income from working and other sources, without affecting the Medicaid applicant’s eligibility.

Sometimes when a disabled person is used to being on one kind of Medicaid eligibility, they accept what their caseworker says about what they can and can’t do.  Never take what a Medicaid worker says at face value!  Speak with an elder law attorney and get that critical second opinion.  You may not even realize what creative planning options are out there!

Call for advice on Medicaid applications, asset protection and appeals ………. 732-382-6070