13 Nov 2009
November 13, 2009

Federal Appeals Court Rules That Annuity Payments Made To The Spouse Of A Nursing Home Resident Are Not Countable By Medicaid

Annuities, Governmental or Public Benefit Programs, Medicaid, Medicaid Planning, New Cases 0 Comment

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 →

10 Nov 2009
November 10, 2009

Penalty Period Will Not Start Until Applicant’s Prepayment of Nursing Home Care Costs Is Spent Down

Medicaid Planning, New Cases 0 Comment

In Shelales v. Director of the Office of Medicaid (Mass.App.Ct., No. 08-P-2052, Oct. 30, 2009), the Massachusetts Appeals Court ruled that the transfer penalty period resulting when an applicant for nursing home Medicaid benefits transferred some of her assets to her children and then gave the remainder to a nursing home as prepayment for care would not begin.. read more →

10 Nov 2009
November 10, 2009

No Increase In Medicaid’s Community Spouse Resource Allowances For 2010

Medicaid Planning 0 Comment

The Center for Medicare and Medicaid Services has announced that with no increase in the consumer price index upon which the spousal impoverishment standards are based, there will be no increase in the community spouse resource allowances (CSRA) and the maximum monthly maintenance needs allowance for 2010. The 2009 spousal impoverishment standards, which are also.. read more →

30 Oct 2009
October 30, 2009

New York State Court Rejects Personal Care Contracts In Nursing Home Setting

Care Contracts, Elder Law, Medicaid Planning, New Cases 0 Comment

In a matter involving personal service agreements, five petitioners brought a court action challenging determinations by the Oneida County and Herkimer County Department of Social Services (DSS) which denied Medicaid benefits to applicants who had executed personal service agreements while residing in a nursing home.  In each case, DSS found there had been a transfer.. read more →

29 Oct 2009
October 29, 2009

Unusual Special Needs Trust Distribution Requests

Distribution Planning, Medicaid, Medicaid Planning, Special Needs Planning, Special Needs Trusts, Supplemental Security Income (SSI) Benefits, Trusts 0 Comment

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 →

28 Oct 2009
October 28, 2009

New Jersey Administrative Judge Finds That A Retirement Annuity Owned By A Medicaid Applicant’s Spouse Is Not Countable

Annuities, Elder Law, Governmental or Public Benefit Programs, Medicaid, Medicaid Planning, New Cases 0 Comment

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 →

27 Oct 2009
October 27, 2009

Federal Court Rules That Promissory Notes May Be Countable Resources

Elder Law, Medicaid Planning, New Cases, Promissory Notes 0 Comment

Sable v. Velez, Civ. No. 09-2813 (D.N.J., October 16, 2009), involved five applicants for nursing home Medicaid benefits. The applications filed by four of the five applicants were denied and one application was pending at the time of the court decision. Each denial was premised upon excess resources based upon the State’s decision to include certain.. read more →

26 Oct 2009
October 26, 2009

Federal Judge Enjoins New Jersey From Denying Medicaid Eligibility To Aged Parents Who Transferred Assets Outright To Their Blind Or Disabled Children

Elder Law, Gifts, Governmental or Public Benefit Programs, Medicaid, Medicaid Applications, Medicaid Planning, New Cases 0 Comment

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 →

20 Oct 2009
October 20, 2009

Appellate Court Reverses The Imposition Of A Period Of Medicaid Ineligibility Resulting From The Transfer Of Family Home To A Sibling

Elder Law, Medicaid, Medicaid Planning, New Cases 0 Comment

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 →

17 Oct 2009
October 17, 2009

Federal Judge In New Jersey Appears Poised To Enjoin The State From Denying Medicaid Eligibility To An Applicant With An Annuity

Annuities, Elder Law, Governmental or Public Benefit Programs, Medicaid, Medicaid Applications, Medicaid Planning, New Cases 0 Comment

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 →

02 Sep 2009
September 2, 2009

Gifts By Medicaid Applicant Are Not Countable When They Are "Made Exclusively For A Purpose Other Than Establishing Medicaid Eligibility"

Medicaid Planning, New Cases 0 Comment

In a recent administrative law case, Estate of M.M. v. Division of Medical Assistance and Health Services, OAL Docket No. HMA 13911-08N (Union County, May 27, 2009), M.M. was married to Mr. M. and had two daughters. In 2006, M.M. and Mr. M. sold their home in Elizabeth, New Jersey.  With the proceeds from the.. read more →

01 Sep 2009
September 1, 2009

New York Court Rules Lump-Sum Payments for Future Personal Services Are Improper Transfers

Care Contracts, Medicaid Planning 0 Comment

Combining a series of related cases, a New York appeals court determined that five Medicaid applicants’ personal service agreements that provide lump sum payments for future services are transfers of assets for less than fair market value. Matter of Barbato v. New York State (N.Y. Sup. Ct., App. Div., 4th Dept., No. 711 TP 08-02216, Aug… read more →

11 Aug 2009
August 11, 2009

Courts in Ohio and Massachusetts Rule, Contrary To New Jersey, That A Community Spouse's Post-DRA Annuity Purchase Is Not an Improper Transfer

Annuities, Medicaid Planning 0 Comment

As I blogged here, the New Jersey appellate court, 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), held that an annuity purchased for the sole benefit of the community spouse after the effective date of the Deficit Reduction Act of.. read more →

17 Jun 2009
June 17, 2009

NY Court Rules That Guardian May Conduct Medicaid Planning on Behalf of His Great Aunt

Gifts, Guardianship, Medicaid Planning 0 Comment

A New York trial court allows a guardian to conduct Medicaid planning on behalf of his ward, his great aunt, but requires that gifted money be put into a trust for the aunt’s personal needs. in-matter-of-ml (N.Y. Sup. Ct., No. 924XX/08, June 2, 2009). Matthew S. was appointed guardian of his great aunt, M.L., who.. read more →

08 Jun 2009
June 8, 2009

Medicaid Eligibility Established Although Gifts Were Made During The Look-Back Period

Gifts, Medicaid Planning 0 Comment

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 →

04 Jun 2009
June 4, 2009

Recent Decision By Director Of Medicaid Shows Continuing Hostility Toward Annuities As A Medicaid Planning Tool

Annuities, Medicaid Planning 0 Comment

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 →

26 May 2009
May 26, 2009

NJ Appeals Court Rules That A Transfer of Assets Was Post-DRA Because It Occured When Checks Were Cashed, Not Written

Gifts, Medicaid, New Cases 0 Comment

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 →

14 May 2009
May 14, 2009

My Paper, Discussing the Impact of Financial Exploitation on Medicaid Eligibility, Chosen as Lead Article in The ElderLaw Report

Elder Law, Financial Exploitation of the Elderly, Governmental or Public Benefit Programs, Medicaid, Medicaid Applications, Medicaid Planning 0 Comment

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 →

08 Apr 2009
April 8, 2009

Director of Medicaid Affirms ALJ's Decision Awarding Medicaid to Beneficiary of Trust Reformed by the Court to Comply with Special Needs Trust Rules

Medicaid Planning, Special Needs Planning, Trust Reformation 0 Comment

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 →

15 Mar 2009
March 15, 2009

State and Federal Courts Disbar Attorney for Backdating Deed for Medicaid Planning Purposes

Medicaid Planning 0 Comment

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 →

04 Mar 2009
March 4, 2009

NJ Administrative Judge Finds That A Retirement Annuity Owned By A Community Spouse Is Exempt Under Medicaid

Annuities, Medicaid Planning 0 Comment

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 →

27 Feb 2009
February 27, 2009

NJ Appeals Court Rules That Annuities Are Countable Under Medicaid

Annuities, Medicaid Planning 0 Comment

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 →

23 Feb 2009
February 23, 2009

Funds Set Aside for Legal Fees Pursuant to a Court Order are Countable Assets

Medicaid Planning 0 Comment

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 →

22 Feb 2009
February 22, 2009

My Article on "Emerging Medicaid Eligibility Strategies" Published in the New Jersey Law Journal

Medicaid Planning 0 Comment

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 →

14 Feb 2009
February 14, 2009

Denial of Medicaid Eligibility After Court Reforms Testamentary Trusts in Parents' Wills to Special Needs Trusts Reversed on Appeal

Medicaid Planning, Special Needs Trusts, Trust Reformation 0 Comment

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 →

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