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In the 11 years that I have been writing this blog it has been a rare week that I have missed posting anything.  For 25 years I have focused my practice on the field of elder law - helping to guide families through life’s transitions – as our tag line says.  Aging and dying has for many Americans and their families become a long drawn out process.  During these years we have helped our clients navigate that process. In the last several weeks I navigated that process on a personal level as my father, who has had several years of declining physical and mental health finally passed away last week.  15+ years ago both my grandmothers died a few years apart.  I assisted my parents but more as an attorney would a client.  I wasn’t the decision maker but there to provide advice.  This time, with my dad, was different.  I was the health care representative and the agent under power of attorney, consulting with my mother and sister, but responsible to make, communicate and carry out those decisions. In today’s post I want to share some of my observations. Obviously, doing what I do for a living, the legal documents were in place and detailed enough to allow me to speak with medical personnel and make

In my 3rd and final post on a recent New Jersey Appellate Division case, I continue to discuss how Medicaid treats payments to aides when it comes time to file a Medicaid application.  In order to keep the costs down, D.Z. hired aides for several years but did not go thru a home health care agency.  As I have often advised clients and prospects, the way in which you hire and pay these aides can be problematic because of Medicaid’s 5 year look back period.  The Appellate Division upheld the State’s decision to impose a substantial penalty because of the more than $200,000 in payments made to various aides that lacked sufficient documentation.  As I wrote last week, the case can provide a roadmap of “dos” and “don’ts” for future Medicaid applicants. The Appellate court noted the lack of a written agreement memorializing the scope of the work or the rate of pay or whether the aides were licensed, although Medicaid regulations do not require written contracts or licensed aides.  It’s just that without a document, it was more difficult for the State to answer these questions.  The evidence just wasn’t there.  D.Z.’s son tried unsuccessfully to obtain the aide’s testimony.  This is not surprising.  As we always tell families, it is easier to get cooperation

In my post last week, I set out the facts of a recent Appellate Division case covering a situation I see frequently in my elder law practice – the payment of home health aides and how it affects Medicaid eligibility. The Medicaid applicant, D.Z. paid her aides almost exactly the way countless people I have spoken to over the years have paid their private aides.  She and her son as her POA paid the aides by check payable to cash with no written agreement as to the services to be provided.  The State assessed a penalty of 21 months on $210,000 of transfers for less than fair value, most of which went to pay the aides.  As I was reading the case, I was very interested to see how the court would view the State’s arguments.  How much deference would the State be given? The Administrative Law Judge issued a decision modifying the amount of the transfer penalty.  The judge found that D.Z. had provided sufficient evidence to establish that she paid the aides and received equal fair market value in services so that no penalty should be imposed. The administrative law judge’s decision, however, while binding on the applicant is not binding on the State which has 45 days to accept, modify or reject it.  The State rejected the judge’s conclusion

 Just last week the New Jersey Appellate Division issued a decision regarding Medicaid that provides a road map for anyone hiring aides at home who hopes to qualify for Medicaid benefits when private funds run out.  The case itself is unpublished which means it cannot be relied on as precedent in future cases.  Nevertheless, it gives us insight into how the State treats the hiring of private aides and it confirms what I have been telling clients and prospects for years about the dangers in hiring aides and paying them “off the books”. First let’s review an overview of the facts in the case.  D.Z., thru her son as power of attorney, filed an application for institutional Medicaid.  She was approved but with a 21 month penalty resulting from a transfer for less than fair value of $210,000.  She appealed and at a fair hearing- the first level of appeal – D.Z.’s son testified that he had hired several aides to assist D.Z. with her activities of daily living (ie. dressing, bathing, ambulating) as well cooking, cleaning and doing laundry.  The aides were paid between $13 and $15 per hour.  One aide lived with D.Z. for several months and was paid $700 to $750 per week.  It was the payments to these aides that comprised almost all of

In last week’s post, I started to tell you about what has been happening with increasing frequency to the Medicaid application process.  Denials have become almost routine and for reasons that range from flat out incorrect to the bizarre. For example, last week we received a Medicaid denial for failure to provide a deed or lease for a residence in a town that the caseworker believes my client lived.  This request was never raised before and we never provided these documents for the simple reason that my client never lived in that town.   Two of the client’s children happen to live in that town and I suspect that is where the caseworker somehow picked up this information. This type of request is actually not a first.  Last year, a Medicaid caseworker insisted my client owned a property she did not in fact own.  In that case, I was able to speak with the caseworker.  She had conducted a title search for property in the name of my client and her husband.  Their son had the same last name but was a “junior”.  She located a deed for property owned by the son and his wife, who had a different name than my client.  Nevertheless, she somehow considered that a potential asset of my client.  I was

Even before the current pandemic, getting a Medicaid application approved was increasingly challenging.  Now, with some government staff working remotely and many government offices short staffed because of social distancing requirements, it has not gotten better.  What we are finding in our office is that applications that should clearly be approved are being denied.  In some cases, Medicaid rules are misapplied and regulations are ignored.  In other instances, procedural requirements are not being followed.  It is difficult to get a caseworker on the phone to talk about a case.  One county does not have any one person assigned to a case.  Different employees work on different aspects of each case.  Letters from that county do not contain the name of any person that we can call.  Because filing a Medicaid application involves more than just the 16 page application, our filings typically include several hundred pages of documents or more.  That’s because the 5 year lookback requires that the applicant produce every statement for every account and investment owned within that time period.  Additionally, just about every Medicaid office is also requiring copies of every check written and deposited during that 60 month period.  This can easily result in 1000 pages of documents or more by the time the application process concludes.