Mon, 9 November 2009
How many times have you contacted a government office to inquire about some benefit or program and told you are not eligible? Have you then left the office or hung up the phone accepting that what you have been told is true? What if that is just flat out wrong? As an elder law attorney I see that happen all the time, especially when it comes to the Medicaid program. A recent court case last week corrected at least one of those untruths.
A federal court last week finally weighed in on a particular exception to the Medicaid transfer rules that the State of New Jersey has, for some time, misinterpreted. A transfer of assets from parent to child, if made within 5 years of the date of application for Medicaid benefits, carries a Medicaid penalty, but there are some exceptions to that general rule. If the transfer is made to a child, or to a trust for the benefit of the disabled child, then that transfer is not subject to a Medicaid penalty. The State has for as long as I can remember, insisted that this exception applies only if the transfer is to a trust for the sole benefit of the disabled child.
Now, if you are not familiar with the ins and outs of the Medicaid laws, and were told that your mother is ineligible for this reason, what would you do? Probably go home and wait till the Medicaid penalty expires, not knowing any better. My staff has reported back to me on some of our cases the same thing. I then have to go back to the federal law and state regulations interpreting that law to find the exact sections that support our claim. Sometimes that is enough to resolve the issue, but other times, such as in the case of Sorber v. Velez, the case decided last week, the State doesn’t budge and we, as elder law attorneys, have to resort to the court system to settle the dispute. In the Sorber case, the issue came down, in part, to the type of grammar lesson you might remember from elementary school about the proper placement of a comma. The State’s interpretation didn’t seem logical and the court agreed.
One of my staff asked me the other day why the State would take a position that seems so farfetched. The answer, I think, can be found by looking at the bigger picture of what is playing out in this country. The government doesn’t have enough money to fund the programs and services it currently has. Looking at what’s coming, the number of people facing a long term care crisis will continue to increase in the next 20 years as 77 million baby boomers reach senior status. So, you can expect the State to continue to interpret eligibility standards very strictly. And sometimes they’ll get it completely wrong. That’s why the “do it yourself” approach is dangerous. You could be losing valuable benefits and without the assistance of someone with knowledge of the laws you wouldn’t even know it. The government wants to push you to the back of the line. Make sure you protect yourself and fight to maintain your spot at the front .
Category:Medicaid -- posted at: 6:00am EDT