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

The Governor has a Medicaid system improvement bill on his desk

If you or any of your colleagues, friends, or family members are in support of improving the system for Medicaid eligibility determinations, you should call the Governor’s Office  of new jersey’s Governor Murphy at 609.292.6000 and request that the Governor sign A4569/S499 into law. pass on this information to people you know who are interested in this issue.

According to BillTrack50, in its Bill Summary, This bill “requires the Commissioner of Human Services to develop an information technology platform for the intake, processing, and tracking of applications for benefits under the Medicaid and NJ FamilyCare programs.” Among other things, “The goals of the system will be: to simplify the applications and eligibility determination processes for both applicants and eligibility determination staff; to standardize application of eligibility policy across the various agencies responsible for eligibility determination; to allow for real-time tracking of the status of applications.”

At our Firm, we prepare and file Medicaid applications for the MLTSS long-term care Medicaid programs in nursing homes, assisted living and community care settings. It’s an incredibly complex process, since five years of transaction records are required, substantial evidence can be required for certain things, it can be challenging to explain transactions that occurred several years prior, and there seem to be many unwritten procedures and policies which vary a bit county by county. There are many legal pitfalls that can occur for an individual client that need particularized attention. Applications are regularly turned down due to insufficient evidence or failure to submit everything that is required. Applicants with alzheimers and other cognitive deterioration may not be able to recall or retrieve the necessary information.

Simplifying the application process would be great. This bill is a step ahead for monitoring and uniformity.

  • Implementation of the bill would bring accountability and uniformity to the Medicaid application system, in-line with the Governor’s goal to create a Fairer NJ. You can’t drive improvement to this process, if you can’t monitor.
  • Federal Government will pay 90% of IT development work and 75% for operations.
  • Bill has unanimous support in both houses
  • Bill is based on the report by the NJHCQI (Health Care Quality Institute), “Medicaid 2.0: Blueprint for the Future” with additional input/amendments/improvements by NJ NAELA (the New Jersey chapter of the National Academy of Elder Law Attorneys)
  • If you have personal or professional experience which reinforces the need for the implementation of this bill, you should feel free to share it with the Governor’s office.

Call us for legal advice on how to achieve Medicaid eligibility for someone who needs long-term care ……….. 732-382-6070

Burden to provide all verifications sits with Medicaid applicant

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

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?

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