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 →

Don Vanarelli’s Unofficial List of the TOP TEN REASONS TO ATTEND THIS YEAR’S ELDER LAW RETREAT 10.     You’ll be able to hobnob with the attorneys who put the “Elder” in Elder Law. 9.     If you’re in Cape May, you’re not in your office. 8.     Congress Hall hotel has 2 bars and 1.. read more →

In J.C. v. Division of Medical Assistance and Health Services and the Ocean County Board of Social Services, ____ N.J. Super. ____ (App. Div. 2010), petitioner was determined to be totally disabled due to a work place injury by a workers’ compensation (WC) court in New Jersey, and awarded $308 per week in WC benefits… read more →

In Matter of Jennings v. Commissioner, N.Y.S. Dept. of Social Services, a New York appellate court case, the petitioner, Mattie Lou Hammond established a third-party Special Needs Trust for the benefit of her disabled adult son.  She deposited all of her income into the Special Needs Trust. Mrs. Hammond’s income consisted of social security and.. read more →

Cases involving a variety of Medicaid planning strategies in New Jersey are now pending in the Office of Administrative Law (OAL), state and federal courts. A recent decision in response to a motion for summary judgment which I filed in an OAL case entitled M.S. v. Division of Medical Assistance and Health Services and the.. read more →

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 →

As I had reported in a March 4, 2009 blog post, New Jersey Administrative Law Judge (“ALJ”) Walter M. Braswell, in E.F. v. Division of Medical Assistance and Health Services and the Union County Board of Social Services, OAL DKT. No. HMA-7536-08 (Union County, February 26, 2009), held that an annuity purchased by a community.. read more →

In A.G. v. Division of Medical Assistance and Health Services and the Ocean County Board of Social Services, OAL Docket No. HMA-2405-09 (October 13, 2009), Hon. Edward J. Delanoy, Jr., Administrative Law Judge (ALJ), ruled that payments made for care services provided to A.G., a nursing home resident and Medicaid applicant, by E.G., her adult.. read more →

I previously blogged about an Order entered in July 2009 by Hon. Patricia Del Bueno Cleary, J.S.C., a Superior Court Judge in Monmouth County, who granted my motion authorizing my client, the Administrator of his mother’s intestate estate, to (1) establish two Supplemental Benefits Trusts to protect the intestate shares of the estate which passed.. read more →

Elder law attorneys who attended the National Academy of Elder Law Attorneys’ program in Jersey City, New Jersey, on Nov. 5-8, 2009, offered some tips on the use of promissory notes / loans as an estate planning strategy to accelerate eligibility for Medicaid benefits. The promissory note / loan strategy involves the client making an.. 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 →

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 →

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 →

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 →

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 →

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 →

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 →

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 →

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 →

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 →

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 →