P.C. v. Division of Medical Assistance and Health Services and Union County Board of Social Services

P.C. v.  Division of Medical Assistance and Health Services and Union County Board of Social Services, Docket No.  A-1005-02T3 (N.J. App.  Div., March 17, 2004) (unpublished).

Medicaid applicant was issued a transfer penalty for failing to seek her “elective share” of her deceased spouse’s estate.  Applicant and spouse had been living separately for over 18 months due to applicant’s choice to reside in a nursing home.  Court ruled that where couple was living separate and apart and there were grounds for divorce (living separate and apart for over 18 months creates a presumption of “irreconcilable differences”) there was no right of elective share, and the agency was reversed.

Attorney: Eugene Rosner, Esq.

Avery v. Union County Division of Social Services

Avery v. Union County Division of Social Services, Docket No. A-2408-01T2 (N.J. App. Div., May 15, 2003) (unpublished).

Medicaid applicant denied eligibility due to “available resource” of the working spouse consisting of her employer-based 401k plan.  This ERISA plan restricted early withdrawal to distinct emergency situations, including payment of “medical care” which is defined in the IRS code as not including “custodial” or nursing home care.  The plan would have required borrowing against it before any hardship to Mrs.  Avery was considered by an employer committee.  There were no regulations or directives from the agency at the time as to mandatory borrowing, so the matter was reversed and remanded to determine whether the borrowing would impoverish Mrs.  Avery or increase her hardship as a community spouse.

Attorney: Eugene Rosner, Esq.