In the May 27, 2009 Initial Decision of Estate of M.M. v. DMAHS, a New Jersey administrative law judge (“ALJ”) made noteworthy decisions regarding two Medicaid topics: (1) increasing the Community Spouse Resource Allowance (“CSRA”); and (2) rebutting the presumption that a transfer of assets was made to establish Medicaid eligibility. In the Estate of.. read more →

As I had reported in my March 4, 2009 post, found here, a New Jersey administrative law judge (“ALJ”) in the E.F. v. DMAHS case had held that an annuity purchased by a community spouse with retirement assets from the community spouse’s IRA was exempt in determining the institutional spouse’s nursing home Medicaid eligibility. I.. read more →

A New Jersey appeals court held earlier this month that a Medicaid applicant’s transfer of assets occurred when the checks she wrote were cashed, not when they were written, so the Deficit Reduction Act of 2005 (DRA) applies to the transfer and the penalty period begins when the applicant would have been otherwise eligible for.. read more →

It is not uncommon for an elderly or disabled person to entrust his or her finances to a third party. For example, an elder may execute a power of attorney as a simple estate planning tool in order to ensure that his or her affairs are properly handled in the event that the elder is.. read more →

On February 14, 2009, I blogged about the decision of the administrative law judge in the E.C. vs. Division of Medical Assistance and Health Services case. In the E.C. case, the ALJ reversed a decision denying Medicaid benefits to a developmentally-disabled woman in a nursing home whose parents had established testamentary trusts in their wills.. read more →

In January 2009, the U.S. Court of Appeals for the Sixth Circuit disbarred an attorney who backdated a deed for Medicaid planning purposes and engaged in self-dealing. in-re-cook (U.S. Ct. App., 6th Cir., No. 08-3026, Jan. 6, 2008). In 2001, Ohio attorney Linda S. Cook assisted an elderly woman with estate and Medicaid planning. The woman.. read more →

In only the second administrative law case of its kind decided in New Jersey, an administrative law judge (ALJ) recently decided that an annuity purchased by a community spouse with retirement assets formerly held in the community spouse’s IRA was exempt in determining the eligibility of the institutional spouse for nursing home Medicaid benefits. I.. read more →

In a case of major importance in the Medicaid estate planning area, the Appellate Division of the New Jersey Superior Court held, in N.M. v. Division of Medical Assistance and Health Services, 405 N.J. Super. 353  (App. Div. 2009), certif. den., 199 N.J. 517 (2009), released yesterday, that the value of an annuity purchased for.. read more →

Recently, a Massachusetts trial court upheld a hearing officer’s decision holding that assets which a probate court authorized a Medicaid applicant’s guardian to set aside for legal and guardianship fees are a countable asset for Medicaid eligibility purposes. In Astukewicz v. Executive Office of Health & Human Servs. (Mass. Sup. Ct., Worcester Co., No. 0800395B,.. read more →

Recently, a number of significant decisions have been produced by New Jersey courts and administrative agencies in cases involving appeals from denials of Medicaid eligibility. These new decisions have rendered ineffective many Medicaid planning strategies which attorneys relied upon to help elderly and disabled clients qualify for Medicaid, and highlighted promising new strategies which may be used.. read more →

In the ec-v-division-of-medical-assistance-and-heath-services case, the petitioner E.C. was a 67 year old physically and developmentally disabled woman who resided in a nursing home. Both of her parents were deceased. The parents had established testamentary trusts in both of their wills for the benefit of E.C. and her two brothers. The trusts gave discretion to the trustees.. read more →

The Benefits of Immediate Annuities An immediate fixed annuity may be the answer for those seeking a steady stream of income in retirement. When you purchase an immediate fixed annuity, you give a lump sum to an insurance company. The insurance company then pays you a set amount each month for the rest of your life… read more →

As I reported here and here, federal district and appellate courts in Pennsylvania have ruled that an annuity purchased with a couple’s excess resources and payable to the community spouse is not countable in determining the institutionalized spouse’s eligibility for nursing home Medicaid benefits. Recently,  an administrative court, for the first time, reached the same.. read more →

A New Jersey appeals court recently determined that a Medicaid applicant is not entitled to a fair hearing to appeal the state’s assessment of a one-month penalty period because her representative waited more than three months after the decision to request the hearing. Talarico v. Department of Human Services, Division of Medical Assistance and Health.. read more →

The U.S. District Court for the Western District of Pennsylvania, in a case entitled Weatherbee v. Richman, ____ F. Supp. _____ (C.A. No. 07-134, January 22, 2009), has issued an opinion essentially following the reasoning of the United States Court of Appeals of the Third Judicial Circuit in James v. Richman in a case involving an.. read more →

In a recent study, “Three Phases of Retirement and Planning for the Unexpected,” the Society Of Actuaries (SOA) identified three stages of retirement and offered advice on how to prepare for each stage of retirement. The SOA said that retirement is often depicted as life on the golf course, holidays with the grandchildren, and traveling.. read more →

As I reported in a blog post in October at, ALJ Paone ruled, in a case entitled C.S. v. Division of Medical Assistance and Health Services and Union County Board of Social Services, that Medicaid applicants who prepaid for personal care services to be provided in the future by family members under Life Care Contracts were ineligible for.. read more →

An annuity is a type of insurance product in which an insurer, in exchange for charges (akin to premiums), makes a series of income payments at regular intervals over a set period. Senior citizens and other consumers often obtain annuity coverage for use as future retirement income. Because nearly $15 trillion dollars is invested by.. read more →

The The Times Leader newspaper, a daily newspaper located in Wilkes-Barre, Pennsylvania, recently posted a report on its internet homepage on the James vs. Richman lawsuit. The James case was originally filed in federal district court in Pennsylvania, and concerned an application for Medicaid benefits submitted by Pennsylvania residents. The James case substantially changed the.. read more →

The pace of decisions in Medicaid appeals has picked up recently, with several significant decisions being rendered in courts and administrative agencies in New Jersey. As a result, there has been a spike in interest by attorneys who seek to identify and understand the estate planning strategies that can successfully accelerate eligibility for Medicaid benefits.. read more →

What emerging case law is demonstrating about Medicaid planning techniques: SITUATION PLANNING TECHNIQUE Applicant does not have a community spouse Use a promissory note with a “gift and loan” strategy. G.L. v. DMAHS, Docket No. HMARP 05080-2008N (Middlesex County), Final Agency Decision Oct. 23, 2008. Applicant has a community spouse Use funds above the resource.. read more →

In James v. Richman, 465 F.Supp.2d 395 (M.D.Pa. 2006), aff’d, 547 F.3d 214 (3rd Cir. 2008), an institutionalized spouse who was a nursing home resident brought a lawsuit against the Pennsylvania Department of Public Welfare (DPW) alleging that the DPW’s decision to deny his eligibility for Medicaid benefits violated the federal regulations governing annuities under.. read more →

In E.S. vs. Division of Medical Assistance and Health Services, petitioner, a 91 year old nursing home resident, transferred $42,053 to her son after paying the nursing home privately from her savings for two years. The nursing home payments and the gift combined to leave petitioner with no assets, so she applied for Medicaid. The.. read more →

This year, the National Academy of Elder Law Attorneys held its Advanced Institute in Kansas City, Missouri from October 23 – 26. The program-of-events-10-31-08 shows that the presentations at the Institute covered a wide array of subjects. I attended two terrific sessions on the eligibility criteria for Veterans Administration (VA) service-related compensation benefits and non-service.. read more →

As I reported in a May 22, 2008 blog posting several months ago, I received a denial notice from the Middlesex County welfare agency in a case in which the applicant’s Medicaid eligibility plan involved making a loan to a relative. The borrowing relative signed a promissory note agreeing to repay the note in monthly installments, including.. read more →