Finally! A clear declaration on the snapshot date for NJ medicaid home care applications

When a married person applies for Medicaid benefits to pay for nursing home care (“institutional care”), the first day of the first month of continuous residence in the facility is often referred to as the “snapshot date.” On that date, a “picture is taken” of all of the non-excluded assets owned by the two spouses.  A calculation is then made to see if a “spend-down” is required. More often than not, some “spend-down” is indeed required. In other posts over the years, I’ve talked about different methods for the “spend-down,” which typically includes a wide variety of expenses, and sometimes even gifts and annuity purchases. The point of the spend-down is to reduce the non-excluded resources (assets) to the level that enables the applicant to apply for benefits.Half of the snapshot total, up to a specified limit, is called the CSRA — Community Spouse Resource Allowance –– which is the share of the resources that is protected for the spouse. Since asset values can vary, you can see that  it is extremely important to know just what date to use for the snapshot so that enough assets can be preserved in the CSRA and so that the application can be filed at the correct time.

New Jersey also provides home health care/custodial care benefits under its Medicaid/MLTSS Home and Community-Based Services program. For married people living at home and applying for this program, there have been problems for years with the snapshot date due to wide divergence among the County Boards of Social Services when they process these applications This means there have been problems with the consequences that flow from that date — how to calculate the  CSRA; how much needs to be spent down; when the assets have been reduced sufficiently to apply; and therefore, in some cases, whether a transfer penalty period will be triggered for prior gifts. There is no actual regulation which specifies what the snapshot date is for these cases. For years, this gap in the published rules has left applicants in jeopardy, as they try to “spend down” to achieve eligibility with no law to go by. They eventually learn months later  that  their applications are denied “due to excess resources,” and they have to start all over again.

In a Final Agency Decision just recently issued by the NJ Division of Medical Assistance and Health Services (DMAHS) in a case called S.W. vs Cumberland County Board of Social Services, the State has pronounced the rule. Keep in mind that a potential applicant has to meet the clinical level of care that is sufficient for the program, and the approval of clinically eligible is confirmed by a “P.A.S.” issued by a state representative based on a clinical assessment.SW v Cumb. CBOSS , HMA 00815-20

S.W.’s application was originally filed while she lived at home. The P.A.S. was issued on February 20th. So she used February 20th as the snapshot date, “spent down” and filed her application.  Later on, in April, she had to relocate to a nursing home. The County Board insisted on moving the snapshot date forward to April 1st. Of  course this then would mean her spouse had to spend down even more from their few remaining assets. She pursued her appeals. The Director of DMAHS agreed with her. At the end of the decision, the State  declared: ” Here, Petitioner’s PAS was completed on February 20, 2019 while Petitioner resided in the community. The PAS certified that as of February 20.2019, Petitioner was clinically eligible for “nursing facility level of care in a Nursing home or home and community-based waiver In accordance with N.J.A.C. 8:85-2.1.” Therefore, Petitioner’s snapshot occurred in February 2019 when she had been determined to be eligible for the level of care provided in a nursing home.”

Finally. A clear statement of the law.

Call for advice and representation on Medicaid eligibility planning, applications and appeals … 732-382-6070

Good Reasons to have a Power of Attorney in Place After Age 18

Once a person turns 18, s/he is presumed competent in the eyes of the law and their parents are no longer actually authorized to sign documents for them. This can create a vacuum especially if the parents have generally been managing everything for this young adult.

At the other end of the spectrum, older adults may not have anybody who actually has any legal authority to handle things for them. This creates a vacuum if the older adult cannot conduct this business on their own anymore. What kind of things need to be handled? Bill paying. Sale of property. Taking out home equity Loans. Closing or opening bank accounts.  Setting up a reverse mortgage. Selling or buying stock.  Decisions about medical treatment. Changing an insurance policy. Collecting financial records to submit with benefits applications. Many people have informal arrangements in place in which a person who is aged or disabled has another person who handles their bills and accompanies them to appointments, doctors, etc. to help them get things done. But those arrangements can only go so far.

In a Power of Attorney document, you select a trusted person who will be authorized to act on your behalf if necessary, and you can name additional back-up people also. The document can be tailored to your personal situation.  The powers of attorney you need are designed to ensure that there is somebody with actual legal authority who can step in when necessary, and that there is a successor as well. We have streamlined the document signing process to minimize in-person contact, and we are doing our legal consultations by telephone.

 

Call for advice and to set up your power of attorney.We have streamlined the document signing process to minimize in-person contact, and we are doing our legal consultations by telephone. Mention FRE-L at Home … 732-382-6070

Age-Friendly Communities Conference Coming on March 11th

There’s a nationwide effort to encourage towns and cities to develop initiatives and programs that will make their communities more “age-friendly,” to encourage people to remain a part of the local community as they get on in years. Community initiatives have included outdoor upgrades such as better lighting, more benches, and better crosswalks, as well as expanded senior centers, broader library services, inter-generational local events and ventures, and expanded transportation options. The Grotta Fund for Senior Care and the Taub Foundation are co-sponsoring  the 2020 Age-Friendly Communities Conference for professionals and lay volunteers who are involved with — or want to get involved with — these efforts. The event will take place March 11th in Whippany, NJ. You can read more about it, and register, HERE.  Professional CLE credits will be available.

Click here to learn more about age-friendly initiatives. In fact, it isn’t just going on in the USA — the World health Organization has identified “age friendly” as a major important goal for communities around the world. Take a look.

Aging in place involves a partnership between people and local government, and people and their families or trusted support network. There are a variety of sources people can turn to, for help in assembling the team and making sure that structures are in place to enable them to age in place — geriatric care managers (aging & life care specialists), interior designers and contractors who can make a home more age-friendly, elder law attorneys, financial advisors, and visiting nurse services, to name just a few.

For advice about elder care and senior planning, call us at …… 732-382-6070

Medicaid Stakeholders Attend the Big MAAC

New Jersey FamilyCare’s Medicaid program has many components that serve different population groups of people who are aged, disabled or poor. Did you know that there is a Medical Assistance Advisory Committee (MACC) which meets regularly and is required to hold quarterly public forums? On February 5th, along with other members of New Jersey NAELA, I attended the first MAAC (Medical Assistance Advisory Committee) meeting of the year.  MAAC meets quarterly outside of Trenton to discuss issues related to Medicaid and to take stakeholder input. It was quite a lively meeting.

In the audience there were attorneys, non-profit advocates, members of County Boards of Social Services, representatives of the Medicaid Managed Care Organizations and several Medicaid enrollees.  Here are some of the issues discussed  at the meeting:

— implementation of S499 and how that relates to denials of Medicaid applications for failure to provide certain information;

— Transitioning Medicaid/ MLTSS  recipients from a nursing home to a home in the community and how to assure continuity of care when the person switches from one program to the other;

— reductions in Private Duty Nursing and Personal Care Assistant (home health aide) hours for certain enrollees;

— how enrollees transition from one way of having Medicaid eligibility to another.

— an update on the Coronavirus, and many other topics.

I asked questions and expressed concern about how the State was implementing S499’s provision about giving extensions to applicants to obtain documentation.  I also commented on the importance of planning ahead for Medicare eligibility when a Medicaid recipient is eligible under the ACA.

Stakeholders at the meeting have a chance to ask questions of the state officials who are responsible for the Medicaid program, and they also have a chance to make recommendations for future MAAC meeting presentations.  If you have a concern about the Medicaid program in New Jersey, consider attending these meetings, or bringing them to the attention of your elder law attorney or another organization who can bring the concern to the MAAC.

Call us for advice on medicaid eligibility planning, applications and appeals ……… 732-382-6070

After the Wedding Bells Have Rung Again, Update your Estate Plan

It is surprising how often we hear of situations in which a person passed away unexpectedly or had a catastrophic accident or stroke, and various family members or good friends start trying to find out information or even start trying to gain access to assets without any authority to do so. Oftentimes, energy is fruitlessly spent before legal advice is obtained. Sometimes, tremendous fights ensue. These issues are bad enough when the individual has no spouse or no children  — there may be a certain group of nieces, nephews or cousins who believe they are the rightful heirs or the rightful decision-makers — but the issues can be magnified where there are  children from a prior relationship as well as a current spouse.

Once a person is divorced, any prior designation of their now ex-spouse as a fiduciary in a Will or Power of Attorney or Health Care proxy is deemed to be voided. In some circumstances, that can leave the individual without any fiduciary. Remarriage by itself doesn’t grant actual fiduciary authority to one spouse over the other. Signing a new set of estate planning documents is very important. The individual can specify who has the decision-making authority in the event of incapacity, and who will be the Executor of the Estate.  A carefully written set of documents will address any necessary interplay between the second spouse and the individual’s children. Are adult children entitled to continue to live in the marital home if their parent is now incapacitated or deceased? Are they required to pay expenses or rent? If the incapacitated parent was supporting adult children, is the Agent under Power of Attorney obligated to continue this pattern?  Many issues can be addressed through careful planning and signed legal documents.

If an individual becomes incapacitated and never signed any power of attorney, there may be a need for someone to pursue Guardianship to attain authority to make decisions and handle real property and other assets. At times, we have to dash into court with a petition for some emergency authority. In situations where there is a second spouse and children from a prior relationship, a guardianship action may become contested, leading to extensive and expensive litigation over who is entitled and best suited to be appointed as Guardian.

A spoken statement doesn’t create a Will. A spoken promise doesn’t create a power of attorney. A person’s belief that they were authorized to handle someone’s financial matters doesn’t translate into authority without a writing.

Thoughtful estate planning can go a long way to prevent crises and litigation, and thoughtful updating of estate plans on a regular basis — especially after a major life event such as marriage — can help ensure that your wishes will be carried out.

Call us to create the first time or updated estate plan that you need .. 732-382-6070