Many third-party and self-settled special needs trusts (SNTs) contain “termination on ineligibility and distribute to family members” clauses. These clauses, called “early termination provisions”, are common trust provisions. When used in special needs trusts, the “early termination provisions” cause the trust to terminate before the death of the disabled beneficiary in order to prevent the.. read more →
As many readers know, Medicaid applicants are subject to the imposition of a penalty, or a period of ineligibility for Medicaid, when gifts, called “transfers for less than fair market value” in the regulations, are made at any time during the five year period prior to the date on which the Medicaid application is filed,.. read more →
The New Jersey Department of Military and Veterans Affairs owns and operates three nursing homes in New Jersey, referred to as the New Jersey Veterans Memorial Homes (“NJ Veterans Nursing Homes”). The three NJ Veterans Nursing Homes are located in Paramus, Edison and Vineland. These are state facilities, governed by the state regulations found in.. read more →
A North Carolina appeals court recently held that assets owned by an incompetent Medicaid recipient which were discovered by her family after she had been receiving Medicaid benefits for several years were countable and that the family must repay the benefits already paid on the Medicaid recipient’s behalf. Ella Mae Cloninger suffered from Alzheimer’s disease.. read more →
Soon after the passage of the Deficit Reduction Act of 2005 (DRA), New Jersey’s Division of Medical Assistance and Health Services, the State Medicaid agency, took the position that the penalty period, or period of ineligibility for Medicaid, resulting from transfers made during the look-back period by applicants for home or community – based services.. read more →
The Journal of the National Academy of Elder Law Attorneys (“NAELA Journal”) is a semiannual law journal containing substantive and scholarly articles by practicing members, professors, and other elder law professionals. The NAELA Journal covers elder law and special needs planning topics including: preservation of assets, Medicaid, Medicare, Social Security, disability, health insurance, tax planning,.. read more →
Named after its Congressional sponsor and enacted in 1977, the Pickle Amendment created a separate category of Medicaid eligibility. Under the Pickle Amendment, an individual who received both Social Security benefits (SSA) and Supplemental Security Income (SSI) benefits but became ineligible for SSI due to cost-of-living adjustments (COLA) in the SSA benefit will remain eligible.. read more →
A New Jersey appeals court recently held that a life care contract between a nursing home resident and her daughter, in which the resident paid her daughter a lump sum for the future provision of personal care services, is not a transfer for fair market value for the purposes of Medicaid eligibility. E.S. v. Division.. read more →
Heriberto Pumarejo transferred the ownership of his home to his son, Herbert Pumarejo, Jr., for one dollar. About two years later, Mr. Pumarejo became a patient at the Arnold Walter Nursing Home. Kathryn Pumarejo, Herbert’s wife and the resident’s representative, signed an agreement in which she agreed to pay all nursing home bills that were.. read more →
Conceding defeat in the courts, the National Association of State Medicaid Directors (NASMD) has sent a letter to the Center for Medicare and Medicaid Services (CMS) requesting that the agency revisit its treatment of community spouse annuities. In the Omnibus Budget Reconciliation Act of 1993, Congress delegated the treatment of annuities in the Medicaid program.. read more →
In what may be considered a victory of judicial deference over equity, this week our Appellate Division affirmed Medicaid’s denial of eligibility to an incapacitated applicant, based on the applicant’s ownership of assets that she was not aware she owned. In W.B. v. Division of Medical Assistance and Health Services (“DMAHS”), No. A-5658-07T1 (N.J. App… read more →
In Duffy v. Velez, Civ. No. 09 – 5539 (D.N.J. 2010), plaintiff was a disabled person who received needs-based government benefits, including Medicaid benefits while in the community. The availability of the benefits was based upon an applicant’s income. Individuals who earn up to $2,022 per month are eligible for benefits at the “categorically needy”.. read more →
The Top 10 (NOT; Actually, The Top 15) New Jersey Elder And Disability Law Cases in 2009
2009 was an exciting year of litigation in the elder and disability law arena, producing a bumper crop of significant decisions from the administrative forum, as well as state and federal courts. In stark contrast with years past, New Jersey lawyers are now in the forefront of the effort to expand legal protections to greater.. read more →
(The A.N. case, described below, was decided on administrative appeal in 2007 and affirmed the denial of Medicaid benefits. I represented the Medicaid applicant, A.N. You may ask why I would resurrect an administrative decision more than 2 year old which I lost. It’s a legitimate question. The answer is that I believe the case will.. read more →
Supplemental Security Income (SSI) is a federal program that helps aged, blind and disabled people with very low income and resources pay for food, clothing and shelter. In other words, SSI is a government program based upon financial need. SSI is often confused with Social Security Disability benefits (SSD). Although both programs are administered through.. read more →
In Weatherbee v. Richman, 595 F. Supp. 2d 607 (W.D. Pa. 2009), the U.S. District Court for the Western District of Pennsylvania reversed the denial of Medicaid benefits to a nursing home resident (“institutionalized spouse”), holding that the income from an irrevocable, non-transferable, non-assignable, single premium, immediate annuity payable to the spouse of the nursing.. read more →
Special needs trusts (also known as “supplemental needs” trusts) allow a disabled beneficiary to receive gifts, lawsuit settlements, or other funds and yet not lose his or her eligibility for certain government programs. Such trusts are drafted so that the funds will not be considered to belong to the beneficiary in determining eligibility for public.. read more →
An Opinion and Order was entered on October 20, 2009 by Administrative Law Judge Joseph A. Paone, in the consolidated matter of the Estate of F.L. v. Division of Medical Assistance and Health Services and the Union County Board of Social Services, OAL Docket No. HMA 13756-08. The ruling in the Estate of F.L. case.. read more →
In order to qualify for Medicaid benefits, applicants cannot possess assets which exceed the financial limits established in the program. In order to prevent applicants from wrongly achieving Medicaid eligibility by transferring their excess resources to others, Congress has established rules which impose a “transfer penalty”, or period of ineligibility for Medicaid benefits, whenever an.. read more →
In A.P. v. Division of Medical Assistance and Health Services, the Appellate Division of the New Jersey Superior Court reversed a decision by the Bergen County Board of Social Services (BCBSS) that was affirmed by the Director of the state Medicaid agency, holding that the transfer of a family home to the sibling of two.. read more →
In June 2009, plaintiff, Daisy Jeanne Prall, applied for nursing home Medicaid benefits with the Ocean County Board of Social Services. To be eligible for Medicaid, plaintiff and her spouse, Christopher Prall, cannot own resources which exceed $111,560; $109,560 is the community spouse resource allowance and $2,000 is the institutionalized spouse resource allowance. Although the.. read more →
On June 22, 2009, the United States Court of Appeals for the Second Circuit affirmed a federal district court’s ruling in Wong v. Daines, 582 F.Supp. 2d 475 (2008), holding that income received by an institutionalized person and then placed into a special needs trust is countable in determining the extent of Medicaid benefits to.. read more →
Like most other states, New Jersey’s system of regulating assisted living facilities provides little meaningful protection to residents facing involuntary discharge. Federal and state laws give powerful protections to nursing home residents, but not to residents of assisted living facilities, even though New Jersey’s Medicaid program pays for care in assisted-living facilities. As a result,.. read more →
On September 10, 2009, a federal district court in Northern California issued a preliminary injunction blocking significant cuts in California’s Adult Day Health Care program. Due to budget restrictions, up to 8,000 low income elderly and adults with disabilities were alleged to be at risk of institutionalization, hospitalization, injury or death because their daytime health.. read more →
The September 21, 2009 edition of amednews.com, the internet version of American Medical News, published by the American Medical Association, reported that the number of uninsured Americans increased by about 600,000 in 2008, despite government health programs such as Medicare and Medicaid enrolling about 1 million more people than they did the year before. Although.. read more →
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