Residence in Nursing Home not sufficient to defeat claim for Elective Share

The Medicaid program determines eligibility for a married applicant based on the amount of resources owned by the applicant and his spouse. If the community spouse dies first, the program will count as a resource the amount of assets that the surviving spouse is entitled to receive from the Estate to satisfy his claim for the “elective share.” If the individual fails to pursue his claim for the “elective share,” he may receive a transfer penalty for “giving away” the assets he should have received from the Estate. Alternatively, he may be deemed to have owned the amount of resources that he failed to seek. Also, the State imposes a lien against the estate of a deceased Medicaid beneficiary, and the lien attaches to all resources in which the individual had an interest at the time of death. One of the exceptions to having the right to claim an elective share is if the couple were living separate and apart at the time of the death under circumstances giving the deceased grounds for divorce.

The New Jersey Appellate Division has issued an opinion that examines many aspects of the claim for an elective share. Here is a pdf: Estate of Brown elective share case 2017.  Arthur Brown was married to Mary Brown. Arthur developed Alzheimers Disease and moved into Assisted Living. later he needed to move into a nursing home. He transferred his interest in the marital residence and other assets to his wife Mary and successfully applied for Medicaid benefits, which began in 2008. In 2010, Mary died, but Arthur did not claim the elective share and received no distribution from his wife’s Estate. The County Board of Social Services notified Arthur that it would impose a “transfer of assets penalty” on him and would discontinue benefits. One of Arthur’s positions was that at the time Mary died, they were living separate and apart and she would have had grounds for divorce due to his Alzheimers Disease. He pursued his appeals, and elected to have his Medicaid benefits continue during the appeal process. Arthur died in 2013 before the appeals were concluded. The State then imposed its lien, asserting that the amount of resources which would have comprised the elective share was subject to lien. That led to this case decision.

The case provides a detailed review of both the Medicaid lien statute as well as the issues involved with determining when the elective share applies. In particular, the Court held that there was no evidence that the marital relationship was disrupted or that either party had intended to seek divorce or initiated a complaint for divorce. Although the two of them had different residences, the presence of advanced Alzheimers Disease was not seen by the Court as proof in and of itself that grounds for divorce existed, so the Court agreed with the trial court Judge that allowing the exception to apply would create a broad risk that certain surviving spouses would be left with no support.

Every case is specific to its facts. Call us for advice on elective share claims and other Medicaid eligibility issues …….. 732-382-6070

County Medicaid Agency Backs Off – Small Business Saved

Recently, a senior client who had a very small business that he ran by himself came to see me in a panic.  He was just making ends meet. His spouse had been on Medicaid in a nursing home for several years, but the county board of social services was now questioning the nature of the business and whether it was a countable resource that should have been spent down.  They were going to  terminate the wife’s eligibility.  “How can I appeal this?” was one of his worries.

The client was distraught, but we helped him to keep a level head.  Our first step was to file for a Medicaid Fair Hearing and make sure that benefits were continued while that administrative appeal was going on. Next was getting more information about this business–did it have any other employees other than the spouse?  What equipment or real estate was owned by the business?  How were taxes handled–could we see the returns?  Did the applicant spouse have an ownership interest in the business?

Once we had this information, it looked like these business activities and the equipment associated with them would fall firmly in the category of excluded resources under the New Jersey Medicaid regulations (N.J.A.C. 10:71-4.4):

“Excludable resources (b) The following resources shall be classified as excludable:  5. Nonhome property that is used in a business or nonbusiness self-support activity that is essential to the means of self-support of an individual and/or spouse, is excluded from resources.   i. Tools, equipment or other items that are used for trade or business and required for employment, including, but not limited to, the machinery and livestock of a farmer, are assumed to be of a reasonable value and producing a reasonable rate of return and are, therefore, excluded from resources.”

Further, under the Social Security Administration interpretive publication (called the POMS), there is no value limit to property that is essential to a trade or business.  It would all be excludable as long as it is in current use. The income the business generates to a community spouse is exempt, regardless of how much.  This is true of all income of a community spouse.

Once we fully disclosed the nature of the business and how it was essential to the spouse’s self-support, the county backed off and reinstated benefits. We could then withdraw the fair hearing.  The client was relieved and thrilled.  He could get back to caring for his wife without this cloud hanging over his head!

The Medicaid regulations are a thorny thicket, but sometimes protection is available if you can just find where it is hidden in there.

If you or a spouse needs Medicaid, but you are unsure about how an active business affects this, give us a call…. 732-382-6070

 

HIPAA forms that help your helpers to help you with your health care

To make sure that your personal health care advocates can have access to your Protected Health Information (“PHI”)  and your treating health care personnel, it’s particularly important that you sign HIPAA authorization forms and put them into the chart at the hospital, clinic, rehab center, nursing home or doctor’s office. Our practice is to provide these forms when our clients sign their Wills, Powers of Attorney or Health Care Directives. Here’s a form you can use. HIPAA. This form tells them just WHO they CAN share information with. If your father is in the hospital and he has signed a HIPAA form with your name listed, you will be able to call up the doctor or nurse and get your questions answered. Without this form, you may be chasing after administrators to get the forms needed. Senior citizens who are planning for their health care services should take care to identify who will have access to their information and to sign and deliver all necessary forms.

HIPAA does not prevent you or your authorized representative from looking at your chart.

HIPAA does not prevent the doctor from sharing information “that is directly relevant to” the individuals assisting with the patient’s care who have been identified by the patient, or if the provider reasonably believes that the patient would not object. So generally, a spouse should be able to converse with the treatment team at the hospital. Similarly, HIPAA does not prevent a patient from bringing someone into the examination with room with them.

Navigating the complexities of access to health care information can be a challenge nowadays. The HHS website provides useful guidance for you.

Call us for legal advice concerning discharge planning, elder care health planning and related issues … 732-382-6070