Burden to provide all verifications sits with Medicaid applicant

Posted on February 25, 2019 by Linda Ershow-Levenberg, Esq.

The Medicaid application process for MLTSS services in nursing homes, assisted living facilities or in the community requires a tremendous amount of documentation. Numerous documents pertaining to personal status, income, and finances must be produced. Filing an incomplete application increases the risk of a denial. Failing to produce the required documentation frequently leads to denials, as the courts in New Jersey have held again and again that the responsibility to produce proof of eligibility rests with the applicant and not with the agency which is processing the application. Of course, the notice of what’s missing actually needs to be delivered to the person who is filing the application, but upon receipt, one must “jump” since the time given to reply is typically really short.

Two recent cases illustrate the problems that can be encountered from failure to present required verifications for a Medicaid application These are not “published” decisions, so they are not considered to be binding precedent on any other court. But they do illustrate the problems that can arise. In both cases, there was a failure to produce certain documentation, and the court concluded that the individual had the authority to obtain the records had they wanted to do so. One case is RP vs DMAHS 2018 and the other is G.C. vs DMAHS (birth certificate case).

There may be circumstances in which the person filing the application has no authority to get documents. There may be a need to apply for guardianship or to get a court order directing the release of certain records. These are situations in which the person should quickly consult with an elder law attorney to take necessary protective action. The important thing is that the person filing the applicant needs to act — to seek whatever legal remedies might be necessary rather than just throwing up his hands and doing nothing. The pace of denials for “failure to provide verification” seems to be escalating and there may be numerous legal issues in any given application that need an attorney’s attention.

Don’t despair! Call us for help & legal advice with the preparation and filing of your MLTSS Medicaid application ……… 732-382-6070

New guide available for appeals of Medicaid Managed Care Decisions

Posted on July 22, 2018 by Linda Ershow-Levenberg, Esq.

Medicaid services are now provided through managed care organizations (MCO’s), which are required by federal law to provide a grievance and appeal process for the enrollees. An enrollee may be dissatisfied with the number of hours of service, or the services being provided, or a host of other issues. Three major nonprofits have collaborated on a new guide for advocates to help them in efforts to advocate for good regulations or to pursue these cases.

Justice in Aging , the Disability Rights Education and Defense Fund (DREDF), and National Health Law Program (NHeLP) have produced their ” Advocates Guide to Accessibility in Medicaid Managed Care Grievances, Appeals, and State Fair Hearing.” States are in the process of developing regulations and procedures on this issue, and the Guide is designed for those who are involved at any part of the process. You can download it through the website for Justice in Aging HERE.

The Guide provides useful general guidance on the typical procedures for these appeals. Of course, individual state laws will vary, and the guide doesn’t constitute legal advice that would apply to any particular case. If an adverse decision is received from an MCO, the individual must swiftly pursue the administrative remedies, as the appeal period is short, and it can be difficult to obtain waivers of that time limitation.

Contact us for representation on Medicaid eligibility or denials of services ……. 732-382-6070

Who’s doing that Medicaid application?

Posted on June 18, 2018 by Linda Ershow-Levenberg, Esq.

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

CMS confirms that transfer penalty for Medicaid home care applicants starts to run at time of application

Posted on April 18, 2018 by Linda Ershow-Levenberg, Esq.

Followers of this blog know that when a person applies for Medicaid under the New Jersey MLTSS program or other state programs that pay for nursing homes, assisted living or home health care services, there is a 5-year look-back that is done by the agency to determine if a transfer penalty should be imposed for gifts made during the 5 years preceding the application. The penalty is a period of time in which the State won’t pay for the care. The greater the amount that was gifted, the longer the penalty period.

There has been a problem for years that was inadvertently created when the Medicaid law was amended by the Deficit Reduction Act of 2005 (“the DRA”). The problem was caused by an interpretive guidance memo called State Medicaid Director Letter (SMDL #06-018) published on July 27, 2006 by CMS. The DRA itself specified that the start date of the penalty was to be “the later of (1) the month during or after which a transfer is made or (2) the date on which the individual is eligible for medical assistance under the State plan and would otherwise be receiving institutional level care services.” See Secn. 1917(c)(1)(D) of the Act. However, the 2006 explanatory SMDL stated that the start date was “…the date on which the individual is eligible for Medicaid and is receiving institutional level of care services.” (emphasis added). The problem was obvious — it created a catch-22 in which the penalty wouldn’t start to run until the individual was receiving services, yet no services could be provided until a penalty period had ended! Also, the memo was at odds with prior positions that applied resource rules and transfer penalty rules uniformly to people applying for Medicaid in different settings.

Well it only took 12 years, but the good news is that CMS has just published SMD # 18-004 which clarifies the point once and for all: the start date for applicants for home and community services is the date on which they’d be receiving services were it not for the penalty period. Here it is: CMS SMD # 18-004

Asset protection is feasible even when a person is right on the verge of applying for Medicaid. Houses and other assets can be protected with proper senior care planning. Call us first, to advise you and prepare your Medicaid application…. 732-382-6070

State efforts to impose work requirements for Medicaid benefits is subject of lawsuit

Posted on March 23, 2018 by Linda Ershow-Levenberg, Esq.

Under the federal Medicaid statute 42 USC 1396__ there is a provision called “Section 1115 waiver” which is designed to enable States to try out variations on their Medicaid programs to reach broader segments of the population. The pertinent section of the Waiver is: QUOTE HERE

In mid-January this year, CMS announced a policy in which it authorized States to develop programs that would require certain Medicaid-eligible persons (non-elderly, non-disabled, non-pregnant adults) to be employed or to participate in ‘community engagement activities” such as skills training, education, volunteering, job-searching or caregiving, as a condition for ongoing receipt of Medicaid insurance benefits. Ten states have responded to date. The first such waiver request that was approved is Kentucky’s. Poor adults must be work or person community engagement activity 20 hours a week to retain their health insurance under Medicaid. Kentucky is also imposing cash premium obligations on these Medicaid recipients, copayments for non-emergency use of an emergency room, and elimination of payment for non-emergency medical transportation. No doubt a significant increase in the State’s Medicaid bureaucracy will be required to create or implement all of these community engagement programs and to monitor the participation and prevent erroneous terminations of benefits. I wonder if the cost of all that has been compared to the cost of the lost Medicaid benefits.

The Kentucky waiver has been challenged in federal district court. There are 15 individual plaintiffs who are adversely affected by the new requirements. Click HERE for discussion and details. A major basis for the challenge is that the CMS invited and approved waiver requests that violate the purpose and objectives of the Medicaid Act that were articulated by Congress. The critical requirements for Medicaid eligibility have been resources, income limits, settings for delivery of services, and in many cases, transfer penalties. Under the existing statute, which is part of the Social Security Act, the Secretary of CMS can waive a state’s compliance with certain Medicaid requirements when a State proposes an “experimental, pilot, or demonstration project which, in the judgment of the Secretary is likely to assist in promoting the objectives of” the medicaid program. Stated another way, a Waiver needs to further the objectives of the Act, not reduce the availability of services to otherwise-eligible individuals. NAME OF SUPREME COURT CASE?? So, for example, States have implemented Home and Community-based Services or Assisted Living services under the Medicaid waiver, or have enabled people whose income exceeded three times the federal poverty limit (the “income cap”) to receive Medicaid services.

The new process appears to be encouraging States to come up with ways to restrict the number of needy people who can receive Medicaid health care benefits. The obligations will be onerous or impossible for some people. A person may have no control over his/her ability to secure 21+ hours of employment. A person with a poor employment history and limited skills may find it impossible to find community volunteer work.

There’s no indication that New Jersey is pursuing any of these onerous obligations. We shall see what emerges on the national front.