The 18th Annual Elder and Disability Law Symposium was held on September 29, 2015 at the New Jersey Law Center in New Brunswick, NJ. As in past years, I presented the case law update at the opening plenary session. This year I summarized 30 elder and disability law cases decided from September 2014 through August 2015. Out of those cases, I focused on the “Top 10” (actually 11) cases during my presentation. I’ve reproduced the presentation below for readers of this blog. Each hyper-linked case name takes the reader to an article on my blog about the case, where the reader may obtain a copy of each opinion.
Case Law Update
September 29, 2015
18th Annual Elder and Disability Law Symposium
The following is a summary of the “Top 10” New Jersey state and federal elder law cases of the past year:
2014 WL 8096146, Docket No. A-5768-12T2 (March 10, 2014) (Unpublished)
Holding: DIVORCE AND EQUITABLE DISTRIBUTION OF MARITAL ASSETS MAY BE ORDERED AFTER THE DEATH OF ONE SPOUSE TO PREVENT UNJUST ENRICHMENT AND FRAUD.
Plaintiff Milagros Beltra filed for divorce from her 34 year marriage to defendant Enrique Beltra. Plaintiff was terminally ill and passed away 6 months later, prior to the entry of a final judgment of divorce. Plaintiff’s executor, the parties’ oldest son, moved to be substituted in the divorce action. The family judge granted the motion and the Estate of Milagros Beltra was substituted in the divorce lawsuit.
A 5-day trial was held to determine the equitable distribution of the assets acquired during the marriage. At the conclusion of the trial, the judge entered a final judgment dividing the couple’s assets and liabilities equally.
On appeal, the appellate division vacated the final judgment, concluding that the entry of an equitable distribution order following plaintiff’s death was contrary to the general principle that death ends a divorce action. However, since the estate claimed that there was evidence of unjust enrichment and fraud because defendant allegedly secreted assets, and since equitable distribution can be ordered after death to prevent unjust enrichment and fraud under New Jersey law, the appellate court remanded the matter back to the trial court for further review.
On remand, the trial judge first found that secreting assets would be an exceptional circumstance requiring the imposition of equitable relief after death to prevent unjust enrichment. Thereafter, the trial judge issued an order “determin[ing] that exceptional circumstances exist that warrant the granting of the equitable relief to [p]laintiff’s estate.” The judge also imposed a constructive trust to protect the estate’s interest in the assets held by defendant.
Defendant appealed from that order, challenging the facts found by the judge allegedly supporting the court’s finding of exceptional circumstances justifying the imposition of equitable relief.
In the second appeal, the Appellate Division held that, under New Jersey law:
[I]f warranted by the evidence, a court may impose a constructive trust and apply principles of quasi-contract to prevent unjust enrichment where equitable distribution under the statute becomes unavailable due to the death of one spouse prior to entry of a judgment of divorce. … [E]quitable relief may be invoked to promote fair dealing between spouses by ensuring that marital property justly belonging to the decedent will be retained by the estate for the benefit of the deceased spouse’s rightful heirs and by preventing unjust enrichment of the surviving spouse. … [T]he Family [Court] must protect the right to claim marital assets in a matrimonial action [which] … should not be extinguished lightly or prematurely simply because a party passed away before the divorce was final.
The appeals court noted that a claim that defendant “secreted” marital assets was included in plaintiff’s divorce complaint. Plaintiff’s estate also asserted that the divorce was not finalized because defendant intentionally delayed the proceeding because he knew plaintiff would soon pass away. After reviewing the evidence presented to the trial judge, the appeals court held that the evidence adequately supported the trial judge’s findings that defendant diverted marital assets. and his conduct justified the conclusion exceptional circumstances required equitable remedies to prevent unjust enrichment.
2015 WL 2458182, Docket No. A-4291-13T4 (App. Div. May 29, 2015) (Unpublished)
Holding: NO REDUCTION IN MEDICAID’S TRANSFER PENALTY UNLESS ALL TRANSFERRED ASSETS ARE RETURNED TO THE APPLICANT.
Plaintiff applied for nursing home Medicaid benefits which was denied by the Ocean County Board of Social Services. The agency imposed a penalty period, concluding that plaintiff had sold her residence during the look-back period and gave half the proceeds, $99,233.75, to her nephews. The agency refused to reduce the penalty imposed even though plaintiff’s nephews returned $17,000 to her during the ineligibility period, which was used to pay for plaintiff’s care.
Plaintiff appealed. At the hearing, plaintiff conceded that the transfer penalty imposed by the agency was appropriate; but she argued that the penalty should have been reduced because a portion of the transferred proceeds of the home sale were returned to pay for her care. However, the ALJ determined that no reduction was possible and affirmed the denial. The Director adopted the decision in its entirety, ruling that a reduction of the penalty based on a partial return of transferred assets is in violation of federal and state Medicaid rules.
Plaintiff again appealed, this time to the Appellate Division, arguing that “even if New Jersey law does restrict the return of transferred funds . . . , federal law trumps New Jersey’s law” and thus the $17,000 returned to petitioner should reduce the penalty period.” The Appellate Division disagreed, stating:
Petitioner’s argument ignores that federal and State law are consistent in requiring the return of all assets transferred for less than fair market value in order to reduce the transfer penalty. … [B]oth 42 U.S.C.A. § 1396p(c)(2)(C) and N.J.A.C. 10:71-4.10(e)(6) provide that no transfer penalty shall be applied if “all assets transferred for less than fair market value have been returned”
Accordingly, the appeals court affirmed the decision of the Director of DMAHS, imposing the 387-day transfer penalty resulting from the gift of the proceeds of the home sale with no reduction for the return of $17,000 by plaintiff’s nephews.
2014 WL 7010763, Docket No. A-0384-13T4 (App. Div. Dec. 15, 2014) (Unpublished)
Holding: REDUCTION IN PCA SERVICES IS REVERSED BECAUSE DMAHS FAILED TO EXPLAIN HOW THE REDUCTION WAS WARRANTED
Plaintiff, D.W., is a 48 year-old woman with Down ’s syndrome and the mental capacity of a 4-year-old. She requires care 24 hours per day, 7 days per week. She resides with her sister, who works full-time.
D.W. participates in the Personal Preference Program (PPP) administered by DMAHS. In 2009, D.W. was approved for a monthly cash grant covering 40 hours per week of PCA services. D.W.’s participation in the PPP program was reassessed in September 2012, and then again in early 2013. As a result, the 40 hours per week in Personal Care Assistant services granted in 2009 was reduced to 25 hours per week. A notice of reduction was issued, and D.W. appealed, requesting a hearing in order to challenge the reduction.
After the hearing, the ALJ concluded that D.W.’s deteriorating medical condition militated against a reduction in benefits. DMAHS took exception to the ALJ’s decision and appealed to the Director of DMAHS, who ultimately issued a final agency decision concluding that 25 hours per week of Personal Care Assistant services was medically necessary and appropriate. D.W. appealed the final agency decision.
The Appellate Division found that the Director’s decision could not logically be sustained in the absence of an explanation of how a reduction of PCA services was warranted where it was undisputed that D.W.’s medical condition had deteriorated since 2009 when the DMAHS had determined that she needed 40-hours per week of support. Accordingly, the Director’s decision was vacated and the matter was remanded for reconsideration.
2015 WL 2458021, Docket No. A-3387-13T3 (App. Div. May 27, 2015) (Unpublished)
Holding: LAWSUIT MAY PROCEED AGAINST CCRC FOR MISLEADING MARKETGING MATERIALS.
The son of a deceased CCRC resident sued the owner/operator and CEO of five CCRCs in New Jersey. The suit, which was brought individually and as a class action, alleged violations of the CCRC Act and the Consumer Fraud Act (“CFA”), in addition to common law claims, based on misleading advertising information regarding the CCRCs’ refund policy.
Mrs. DeSimone had chosen the Monroe Village CCRC and was given the option of two available plans: the “traditional” plan, which was a non-refundable option offered at a lower entrance fee, and the “refundable” plan, which was a 90% refundable option offered at a higher entrance fee. The DeSimone family chose the “refundable” plan, and later sought a return of Mrs. DeSimone’s entrance fee when she was ultimately unable to move into her unit because of her health downturn and death.
The statutorily-mandated disclosure statement provided to the DeSimones stated that the refundable plan allowed for “up to 90%” of the entrance fee to be refunded, and stated that the refundability of that fee was “described in detail” in the Residence and Care Agreement. That agreement, captioned “90% Refundable,” explained that the refund would be “equal to the lessor of the original entrance fee or the subsequent resident’s entrance fee.” The plaintiff claimed that the DeSimone family had relied on the CCRC disclosure statement (which did not contain the “lessor of” language) as well as advertising and sales personnel, and were not informed that the refund could be significantly lower than 90% of the entrance fee if the subsequent resident occupying the unit were given a discounted entrance fee (which occurred in the DeSimones’ case, after Monroe Village began offering discounted entrance fees because of a financial downturn).
The motion court had dismissed the complaint for failure to state a claim on which relief can be granted, after finding that the plaintiff failed to plead that the DeSimones had actually seen the allegedly misleading marketing material. The court also found that amending the complaint would be futile, because the DeSimones could not have seen the marketing material because it was not used until after Mrs. DeSimone’s death.
However, the Appellate Division reversed, finding that the CFA prohibits misleading advertising, whether or not the consumer has in fact been misled. It found that the proposed amended complaint claimed that the DeSimones had relied on a marketing pamphlet that failed to describe the “lesser of” term. The Appellate Division also found that the CCRC Act, which requires that CCRC disclosure statements be “written in plain English” and contain designated information “unless the information is contained in the contract,” could be read to prohibit a disclosure statement or staff statements that “mislead seniors by failing to reveal hidden costs only ascertainable by a lawyer reviewing the contract.”
Because it concluded that the CCRC staff or brochures may have misled the DeSimones regarding the “lesser of” term, it reasoned that the plaintiff may be able to prevail in its causes of action, including violation of the Consumer Fraud Act. Therefore, it reversed the motion judge, restored the complaint, and permitted the plaintiff to amend its complaint.
2015 WL 4390078, (App. Div. July 20, 2015) (Unpublished)
Holding: APPELLATE DIVISION AFFIRMS MEDICAID’S REJECTION OF ANOTHER CAREGIVER AGREEMENT
E.A. began residing in a home owned by her adult daughter, B.C., in September 2004. From September 2004 to June 2005, B.C. received no compensation for any caregiver services or lodging provided to her mother. From June 2005 to September 2006, B.C. received E.A.’s Social Security benefits of approximately $1500 per month to offset the cost of care.
Several years before she applied for Medicaid, E.A. executed a document whereby B.C. would receive $3,600 per month for room and board. About one year later, E.A. updated the care agreement to increase the monthly payment to $4,300. The following year, E.A. again updated the care agreement to increase B.C.’s monthly payment to $5,100.
Several years later, E.A. was hospitalized and then discharged to a nursing home. She paid all nursing home costs from her remaining funds. Soon thereafter, B.C. applied for Medicaid benefits on E.A.’s behalf. In support of the application, B.C. submitted the care agreement and E.A.’s bank account statements.
In 2013, the Hunterdon County Board of Social Services determined that E.A. was medically and financially eligible for Medicaid benefits. However, HCBSS also found that E.A. had transferred a total of $244,510 to B.C. during the 5 year Medicaid look-back period for less than fair market value, based on the payments made by E.A. to B.C. under the care agreement. As a result, HCBSS imposed a 936-day period of ineligibility, to begin in the month E.A. applied for Medicaid.
On appeal, the ALJ affirmed. First, the ALJ found that E.A. and B.C. did not abide by the care agreement. Over the years, B.C. had made many large withdrawals from E.A.’s bank accounts beyond the monthly payments she was due under the care agreement. The large withdrawals totaled almost $101,000 more than the payments B.C. was entitled to under the care agreement. Second, B.C. received payments under the care agreement for months in which E.A. was in the nursing home and did not require caregiver services in B.C.’s home. Third, B.C.’s monthly payments were never reduced, even though E.A. made many payments over the years for a home health aide to assist in providing care to E.A. Fourth, B.C. had no records of the services she or others provided to her mother, and she did not report any of the money she received under the care agreements as ordinary income on her tax returns. Fifth, the ALJ found that, although B.C. was paid at the same hourly rate charged by independent care providers, B.C. should have been paid less because she was not trained or licensed and had responsibilities other than caring for E.A. Sixth, the ALJ found that the care agreement did not specify the types of services and terms of compensation for each service provided.
Finally, although the ALJ acknowledged that B.C. provided substantial services to E.A. over many years, he emphasized that it was customary for children to provide many of the services to their parents out of love and affection for no compensation. The Director adopted the ALJ’s decision in its entirety.
The Appellate Division affirmed:
The mere existence of a pre-existing care agreement for services does not automatically establish that the services were rendered for fair market value. … Notwithstanding a care agreement, the applicant still bears the burden to establish the types of care or services provided, the type and terms of compensation, the fair market value of the compensation, and that the amount of compensation or the fair market value of the transferred asset is not greater than the prevailing rates for similar care or services in the community. … The care agreement in this case fell short of meeting that burden.
2015 WL 333300, Civ. No. 12-7304 (D.N.J. Jan. 23, 2015)
Holding: PARTY OBTAINING INJUNCTIVE RELIEF WITH NO JUDGMENT ON THE MERITS IS NOT ENTITLED TO “PREVAILING PARTY” ATTORNEY’S FEES
In 2013, a federal judge in New Jersey granted a preliminary injunction to Elizabeth Flamini, a Medicaid applicant who successfully sued for an injunction preventing the state from counting an annuity owned by Mrs. Flamini’s husband Angelo as an available resource in determining Medicaid eligibility. Flamini v. Velez, Civil No. 1:12-cv-07304 (D.N.J. July 19, 2013).
This year, the same federal judge issued an order denying Mrs. Flamini’s application for attorneys’ fees, ruling that, despite her success in obtaining injunctive relief against New Jersey, Mrs. Flamini was not the prevailing party in the lawsuit, and was therefore not entitled to a fee award.
Elizabeth Flamini entered a skilled nursing care facility in Cherry Hill. At that time, Mrs. Flamini and her husband owned assets which included two IRAs and a tax-qualified savings account. Mr. Flamini liquidated these accounts and used the proceeds to purchase an individual retirement annuity for $215,256.51. The annuity was issued in Mr. Flamini’s name and called for monthly income payments of $3,596.35 for a term of five years. Thereafter, Mrs. Flamini applied for Medicaid. The agency denied eligibility, stating that when the annuity owned by the applicant’s husband was counted as an available asset, she was ineligible for benefits due to excess resources. Mrs. Flamini filed a lawsuit in federal district court seeking a preliminary injunction, which was granted, thereby enjoining the state from considering the annuity in its calculation of countable resources.
After a preliminary injunction was granted, the Medicaid agency issued another denial, finding that Mrs. Flamini was still ineligible for Medicaid even when her husband’s annuity was not counted. Mrs. Flamini then reapplied for benefits. When Mr. Flamini spent down the couple’s assets, the agency approved the application for Medicaid. Once Mrs. Flamini was found eligible for Medicaid, the federal court dismissed the case as moot. Mrs. Flamini then filed a motion for attorneys’ fees, arguing that she was the prevailing party because of her success in obtaining the preliminary injunction.
The U.S. District Court for the District of New Jersey denied the application for attorneys’ fees. The court ruled that Mrs. Flamini failed to prove that she was the “prevailing party” in the lawsuit because there was no judgment on the merits of the case contained in the decision granting the preliminary injunction:
While this Court’s Opinion and Order granting the preliminary injunction with respect to the annuity may have resulted in a finding of Medicaid eligibility once [Mrs. Flamini] spent down her resources, the fact remains that this Court never made a determination on the merits of [Mrs. Flamini]’s claims. Because [she] did not obtain a judgment on the merits of her claim, [Mrs. Flamini] is not entitled to attorney’s fees.
2015 WL 1003393, Docket No. BER-C-96-14 (Ch. Div. Mar. 3, 2015) (Unpublished)
Holding: PARENT’S PROMISE TO LEAVE ASSETS TO AN ADULT CHILD DOES NOT GIVE RISE TO AN ENFORCEABLE CLAIM OF INTERFERENCE WITH ANTICIPATED INHERITANCE.
A trial court in Bergen County held that a parent’s promise to leave assets to an adult child does not give rise to an enforceable claim of interference with anticipated inheritance since parents are not prohibited from disinheriting their children under New Jersey law notwithstanding promises to the contrary made during the parent’s life.
Chu Ja Kong (“Chu”) and her husband, Chi G. Kong (“Chi”), owned commercial property located on Main Street in Hackensack, New Jersey (the “the property”) as tenants by the entirety. In 2008, Chi and Chu executed their last wills and testament (the “wills”). Each will bequeathed the property to the surviving spouse. Upon the death of the surviving spouse, the wills devised one-half the property to a trust for the benefit their son, the plaintiff, Richard Gong, and the remaining half to their granddaughter, Jenny H. Gong (“Jenny”).
In September 2011, Chi sent a letter to his son advising plaintiff that he would be completing his new will (the “Chi Will”) the following week. In the Chi will, Chi said he would bequeath the property to plaintiff. Shortly thereafter, Chi fell down a flight of stairs and was severely injured. As a result, the Chi Will was never signed. Chi and Chu then began to live with their daughter and her husband.
In 2013, Chi and Chu executed a deed transferring ownership of the property to their daughter Haeyoung and her husband Peter in return for $350,000 (the “2013 deed”). At the time of the deed transfer, the property was worth significantly more than $350,000, perhaps as much as $650,000. It is undisputed that Chi was suffering from dementia and lacked the capacity to make a valid deed in 2013. Also, it is undisputed that Chi’s signature was forged on the 2013 deed.
Although Haeyoung was to pay $350,000 for the property transferred to her, Chi and Chu agreed with their daughter and her husband privately that the payment for the property would not be made directly to Chi and Chu. Rather, Haeyoung was to pay $250,000 directly to plaintiff in lieu of transferring the money to her parents. Haeyoung would also receive a $250,000-$300,000 gift from her parents, by way of value of the property that exceeded the purchase price. The remaining $100,000 of the purchase price would be kept by Haeyoung to care for her parents while they lived with her, which would presumably continue until their passing. The plan was set into motion, and Haeyoung transferred $180,000 to plaintiff in 2013. On or about October 1, 2013, Chu instructed Haeyoung to make no further payments to plaintiff.
Chi died in February 2014, and was survived by his wife, Chu. Thereafter, plaintiff demanded that Haeyoung pay him a total of $450,000 for the property or he would initiate a lawsuit. When no payments were forthcoming, plaintiff filed a complaint against his sister Haeyoung, her husband Peter and their daughter Jenny disputing the validity of the 2013 deed by asserting claims of fraud, unjust enrichment, conversion, and the like. After Chu learned plaintiff’s complaint disputed the validity of the 2013 deed, Chu executed a new deed in 2014. The 2014 deed transferred “any present or future rights” Chu had in the property to the defendants in order to “ratify and confirm the transfer of title made by” the 2013 deed.
Defendants filed an answer and cross-claim. The defendants posited the lawsuit was baseless, founded upon plaintiff’s desire that his parents adhere to the traditional Korean custom that the first born son inherits his parents’ entire estate. One year later, in January 2015, defendants filed a motion for summary judgment. After oral argument, the Court granted defendants’ motion, entered summary judgment in defendants’ favor and dismissed the case.
The Court held that, no matter how plaintiff articulated the claims in the complaint or the number of claims alleged, the basic assertion in plaintiff’s complaint, that the law recognizes an enforceable right in the expectancy of an inheritance, is erroneous. The Court stated that:
A person may freely transfer his/her property as he/she deems appropriate, as “the right to freely alienate property interests is one of the most basic rights guaranteed by law.” … The court has not found a New Jersey appellate or Supreme Court decision finding an aggrieved beneficiary of a contingent devise had a recognized cause of action for tortious interference with their anticipated inheritance when the testator/devisor sold the property during his life. [I]t has long been established that “New Jersey law does not prohibit the disinheriting of an adult child.” … [Further,] neither party has asserted Chu is the subject of pending incapacitation action. As such, she is free to alienate her property as she deems appropriate regardless of any testamentary provision.
Regarding the purported transfer of the property by way of the 2013 will, defendants conceded the 2013 deed was invalid. As a result, Chu became sole owner of the property by operation of law on the date of her husband’s death as the couple owned the property as tenants by the entirety. At the death of a tenant by the entirety, title passes to the surviving spouse outside of probate by operation of law. After becoming sole owner by operation of law, Chu executed the 2014 deed, thereby insuring the property was transferred to the defendants.
Docket No. A-1577-13T4, 2014 WL 8623329 (App. Div. Apr. 17, 2015) (Unpublished)
Holding: ESTATE ATTORNEYS MAY OWE A DUTY OF CARE TO NON-CLIENTS
Salvatore John Calcaterra died on April 11, 1996. At that time he was married to his second wife, Donna Calcaterra. He was also survived by five children. Decedent’s first wife was the mother of decedent’s first four children: Laura, Michael, Sally and Robyn. Donna was the mother of decedent’s fifth child, Jenna.
Prior to Sal’s death, Donna, who held a power of attorney from Sal, transferred to herself four of six seats Sal held on the New York Mercantile Exchange (NYMEX). Sal’s Will named his son Michael as executor of his estate. In 1996, Michael, as executor, filed a lawsuit against Donna alleging that Donna had improperly transferred the NYMEX seats and other assets. Following a bench trial, the trial judge ruled that the estate was entitled to four and Donna entitled to two of the NYMEX seats. This decision was affirmed on appeal.
Thereafter, several other lawsuits were filed by the parties against each other. In 2005, Jenna filed suit against Michael, Robyn and the attorneys for the estate and executor. She alleged, among other things, that the defendant-attorneys committed legal malpractice in representing the estate. The legal malpractice action was dismissed by way of summary judgment in 2006.
In 2007, Laura and Robyn filed another legal malpractice action against the defendant-attorneys, who moved to dismiss the complaint. Viewing the motion as seeking summary judgment, the judge dismissed the lawsuit, holding that the legal malpractice claim was barred by the entire controversy doctrine. On appeal, the dismissal was reversed and the case was remanded for a full trial. The Supreme Court affirmed.
On remand, and after extensive discovery proceedings, the defendant-attorneys again moved for summary judgment. The trial judge again dismissed the lawsuit, concluding that the defendants were the attorneys for the estate and executor only, not for the decedent’s beneficiaries; as such, an attorney representing an estate owes no duty to beneficiaries as a matter of law, since the beneficiaries are not clients. Plaintiffs appealed.
The Appellate Division again reversed and remanded. The appellate court held that an attorney for the estate may owe a duty of care to the estate beneficiaries, even though they are not clients of the estate attorney:
An attorney representing an estate [should] be aware that advice given to an executor may have an impact on the estate’s heirs, [and] the attorney should also be aware that laypersons may not fully grasp the significance of the limits on the scope of the attorney’s role in such matters. To be sure, whether a defendant owes a duty of care presents a question of law for the court, but whether an attorney owes a duty to a non-client will often turn on the surrounding circumstances, which may appear disputed or uncertain. … [A]ttorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the attorneys’ representations and the non-clients are not too remote from the attorneys to be entitled to protection.
Interestingly, the New Jersey lawyer sued by the beneficiaries in this case, Mary Thurber, was elevated to the bench in 2009 and now serves as a judge on the Superior Court in Bergen County.
217 N.J. 99 (2014)
Holding: “RESPONSIBLE PARTY” UNDER NURSING HOME ADMISSION AGREEMENT CAN BE SUED
A nursing home resident’s adult child who signs an admission agreement as the “Responsible Party” can be sued in his/her individual capacity for services rendered to the resident, if the adult child fails to use the resident’s financial resources to pay for care provided by the facility.
Docket No. A-0514-13T2, 2014 WL 5285527 (App. Div. Oct. 17, 2014) (Unpublished)
Holding: MEDICAID’S FILING DEADLINE FOR AN APPEAL CAN BE EXTENDED BASED ON “EXTRAORDINARY AND EXTENUATING CIRCUMSTANCES”
In Reuter, the Appellate Division held that an appeal of a claim for Medicaid benefits that was filed late may be considered when the applicant shows that the filing deadline should be extended due to “extraordinary and extenuating circumstances.”
Plaintiff, Greta Reuter, a nursing home resident, applied for Medicaid with the Burlington County Board of Social Services. On March 28, 2013, the Medicaid agency notified the applicant by letter that it approved Medicaid benefits retroactively for the period of June 1, 2012 through September 30, 2012 and also for the month of May 2012, but denied future benefits because of the alleged failure to provide additional information requested by the agency. The letter also notified the applicant that she had twenty days to request a Fair Hearing to challenge the decision.
The Medicaid agency had no proof that the March 28, 2013 letter was either mailed by the agency or received by the plaintiff at her nursing home. In fact, plaintiff claimed that she did not learn of the letter and its contents, including the notice advising her of appeal rights, until months later on July 25, 2013 when the letter was faxed to her counsel by the agency at his request. According to plaintiff, her attorney initiated contact with the agency because neither he nor plaintiff had heard anything from the Medicaid agency for some time.
On August 2, 2013, eight days after he received a faxed copy of the agency’s letter, plaintiff’s attorney faxed and mailed a letter to the Medicaid agency requesting a fair hearing. In that letter, counsel represented that his office had not been notified before July 25, 2013 of the agency’s termination of future benefits. He also represented that plaintiff’s nursing home likewise had not received notice.
Medicaid denied the plaintiff’s request for a fair hearing, claiming that the request was untimely, having been made 127 days after the date of the March 28 letter. Plaintiff appealed, contending that the agency’s denial of her fair hearing request, and its refusal to extend the twenty-day deadline, was arbitrary and capricious.
The appeals court reversed, permitting plaintiff to appeal the denial of Medicaid benefits. The court held that the Medicaid agency acted arbitrarily and capriciously by summarily rejecting appellant’s contention that she did not receive the March 28, 2013 letter from the agency, despite the absence of any proof that the letter was either mailed by the agency or received by the plaintiff.
219 N.J. 369 (September 11, 2014)
Holding: SUPREME COURT PERMITS DISABLED CHILD OF RETIRED FIREMAN TO DESIGNATE SPECIAL NEEDS TRUST AS BENEFICIARY OF STATE PENSION
The New Jersey Supreme Court ruled that the disabled child of a retired fireman may have his survivors’ benefits paid into a special needs trust rather than directly to the child, thereby allowing the child to maintain eligibility for Medicaid and other public benefits based on financial need.
Thomas Saccone is a retired Newark firefighter with a severely disabled adult child named Anthony. Anthony lives with his parents, is unable to work, has been found to be totally disabled by the SSA, and for many years has received SSI and Medicaid, which are critical in providing for Anthony’s care.
After he retired, Tom was approved for benefits from the PFRS. In order to structure his estate plan to provide for Anthony after his death without jeopardizing Anthony’s eligibility for needs-based public benefits, Tom executed a will containing a testamentary SNT. Tom asked the PFRS to pay the survivor benefits to which Anthony would be entitled upon Tom’s death to the testamentary SNT. Those death benefits included the payment of pension benefits to the retired member’s widow/er and children (the “pension death benefit”). The PFRS denied the request based on a pension statute which prohibits a retiree from designating a primary or a contingent beneficiary for the receipt of the retiree’s pension death benefits in the event of the retiree’s death.
The decision was affirmed administratively, affirmed by the Appellate Division, but summarily reversed and remanded by the Supreme Court.
On remand, the agency again denied Tom’s request, concluding that Tom could not designate a SNT as a beneficiary of his pension death benefits. The Appellate Division again affirmed the administrative decision.
The Supreme Court reversed the decisions by the lower courts and administrative agencies, holding that “the disabled son of a retired [PFRS] member … may have his survivors’ benefits paid into a first-party … SNT created for him under 42 U.S.C.A. §1396p(d)(4)(A).”\
For additional information concerning NJ elder law and special needs planning visit: https://vanarellilaw.com/legal-services/
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