When a person applies for Medicaid to pay for long-term care services, his resources must be less than a specific amount, which is generally $2,000 if the gross monthly income is less than $2,130, and $4,000 if the income is higher than that. “Resources” and “income” are treated differently. If the applicant owns an annuity contract, it may be counted as an excess resource depending on its characteristics.
In M.W. v. Division of Medical Assistance and Health Services and Union County Board of Social Services, OAL DKT no. HMA 2998-2013, M.W. had purchased an irrevocable, immediate, single-premium annuity that could not be surrendered for cash value. The County agency treated it as a resource and denied eligibility. On appeal (Fair Hearing), the Administrative Law Judge determined that it could not be counted as a resource because it could not be liquidated under any circumstances. On January 28, 2014, the Director of NJ Medicaid (DMAHS) issued her Final Agency Decision and reversed the County’s decision.
The case was argued and briefed by Linda S. Ershow-Levenberg, and Lauren S. Marinaro Esq. & Beth L. Barnhard Esq. assisted with the brief.
There are many kinds of annuities. Call us to discuss your particular situation at (732) 382-6070.
Generally speaking, if a Medicaid applicant made gifts of assets during the 5-year look-back preceding her Medicaid application, eligibility will be denied for a period of time called a “transfer penalty.” There is a special exception to this rule for transfers that were made to disabled children.
In this case , M.C. v. Union County Div. Soc. Serv. And DMAHS, HMA- 8967-2013, the local Medicaid agency imposed a transfer penalty for an outright transfer of assets to a disabled child, despite copious federal and state law to the contrary. On appeal (“fair hearing”), the Administrative Law Judge recommended that the penalty be reversed, and on March 18, 2014, the NJ Division of Medical Assistance and Health Services (DMAHS) issued its Final Agency Decision adopting the ALJ decision, eliminating the penalty.
The case was argued and briefed by Linda S. Ershow-Levenberg.
Call us to discuss your particular situation, at (732) 382-6070.
Did you know that there is a way for low-income community spouses of Medicaid applicants to hold onto extra assets? We have had the opportunity in an array of cases over the years to obtain greater protection for such spouses. Ordinarily, the combined available marital assets must be “spent down” to a certain level before an application for Medicaid can be filed to pay for the nursing home care. N.J.A.C. 10:71-4.8. The community spouse’s share is the CSRA. Also, the community spouse is entitled to a minimal basic level of income, called MMMNA. N.J.A.C. 10:71-5.7. If her income is less than that, some of her spouse’s income will be deducted and allocated to her each month. If the combined incomes are insufficient for this, extra assets can be reserved through a Hearing at the Office of Administrative Law.
One of my cases was N.F. vs. Monmouth County Board of Social Services,
OAL docket no:HMA-12006-09, DMAHS Final Agency Decision dated May 11, 2010. The Community spouse resource allowance was increased by $69,411.50 per N.J.A.C. 10:71-4.8(a)(5) and 5.7(d), because the combined income of the spouses was insufficient to provide the community spouse with the Minimum Monthly Maintenance Allowance.
Attorney: Linda S. Ershow-Levenberg, Esq.
E. R. vs DMAHS and Department of Health and Senior Services
OAL docket no. HMARP 09910-09, Final Agency Decision dated April 12, 2010.
In this case, attorney Lauren S. Marinaro secured a Post-Eligibility Medical Expense Income Deduction (PEME) for her client per 42 USC 1396a(r)(1)(A) to pay off the Medicaid recipient’s outstanding pre-eligibility assisted living health care expenses.The Division of Medical Assistance and Health Services (DMAHS) adopted the Initial Decision of the Administrative Law Judge (ALJ), which reversed the County Board’s decision to deny this Medicaid recipient a Post-Eligibility Medical Expense Income Deduction (PEME).
The basic rule in N.J.A.C. 10:71-5.7 and 42 USC 1396a(q) is that all of the Medicaid recipient’s income must be turned over to the facility as a cost share, except for authorized deductions. The PEME deduction is contained in the federal statute 42 USC 1396a(r)(1)(A), but is missing from the state’s regulations. It enables some of the income to be allocated to pay off leftover medical bills. For the months during which this deduction is made, Medicaid’s share of the nursing home cost would be greater. After the deduction ends, the cost-shares wiill be recalculated. Of course, if the community spouse requires this income for their own support, great care should be used in deciding which strategy is most beneficial for the couple.
For legal advice on PEME deduction opportunities as well as Medicaid planning, applications and fair hearing appeals, call us at 732-382-6070
P.K. vs Union County Board of Social Services and DMAHS
OAL docket no. HMA7069-09N, Final Agency Decision issued March 4, 2010
Immediate, nonassignable, irrevocable IRA annuity, purchased by the community spouse during the spend-down period, naming the State of New Jersey as the 1st remainder beneficiary to the extent of Medicaid benefits paid for the institutionalized spouse, is not an available resource because it cannot be sold on the secondary market.
Attorney: Linda S. Ershow-Levenberg, Esq.