Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen & Associates,
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 More information at www.njlaws.com/

Friday, April 20, 2018

Wills, Estate Planning & Probate Seminar Sayreville Senior Center May 1

 Wills, Estate Planning & Probate Seminar 
423 Main Street
Sayreville NJ 08872    
open to the public

Open to the public. You do not need to be a resident.

SPEAKER: Kenneth Vercammen, Esq. Edison, (Author- ABA’s “Wills and Estate Administration book”)

Main Topics:
 1. NJ Estate Tax eliminated on Estates as of January 1, 2018 & Veterans Tax credit
2. 2018 changes in Federal Estate and Gift Tax  
    3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys      
5.  Living Will            
6.  Administering the Estate/ Probate/Surrogate
      
        COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
 For information Call Sayreville Senior Center 732-390-7059Jen Krushinski  
jkrushinski@sayreville.com
You don’t have to be a Sayreville resident to attend. https://www.facebook.com/events/1812208865746499/
For materials if you can’t attend, email vercammenlaw@njlaws.com


Speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is Author of the American Bar Association book “Wills and Estate Administration”. He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program. 
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.comwhich includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
www.njlaws.com 

www.CentralJerseyElderLaw.com

Wednesday, April 04, 2018

nursing home medicaid payment denied where applicant did not provide documents W.S., Petitioner-Appellant, v. DIVISION OF MEDICAL ASSISTANCE

W.S.,

        Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES and
ATLANTIC COUNTY BOARD OF
SOCIAL SERVICES,

     Respondents-Respondents.
_______________________________

              Submitted February 28, 2018 – Decided March 20, 2018

              Before Judges Manahan and Suter.

              On appeal from the Department of Human
              Services, Division of Medical Assistance and
              Health Services.

 NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2815-16T4

PER CURIAM W.S. appeals from the January 17, 2017 final decision of the New Jersey Department of Human Services, Division of Medical Assistance and Health Services (DMAHS). A fair hearing was held before the Administrative Law Judge (ALJ), who, in his initial decision, reversed the Atlantic County Board of Social Services' (ACBSS) denial of W.S.'s Medicaid application. ACBSS filed exceptions to the ALJ's decision. The Director of the DMAHS, reversed the ALJ's decision and entered a final agency decision upholding the denial of W.S.'s Medicaid application. In essence, the Director held that despite given the opportunity to provide financial documents necessary for a determination of eligibility for Medicaid benefits, the documents were not provided. W.S. argues that ACBSS should have allowed more time to provide the information and should have provided assistance in obtaining the information. We conclude that controlling law compels us to affirm. We review an agency's decision for the limited purpose of determining whether its action was arbitrary, capricious or unreasonable. "An administrative agency's decision will be upheld 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" R.S. v. Div. of Med. Assistance and Health Servs., 434 N.J. Super. 250, 261 (App. Div. 2014) (quoting Russo v. Bd. of Trs., Police & 2 A-2815-16T4 Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). "The burden of demonstrating the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." E.S. v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340, 349 (App. Div. 2010) (alteration in original) (quoting In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006)). "Medicaid is a federally-created, state-implemented program that provides 'medical assistance to the poor at the expense of the public.'" Matter of Estate of Brown, 448 N.J. Super. 252, 256, (App. Div.) (quoting Estate of DeMartino v. Div. of Med. Assistance & Health Servs., 373 N.J. Super. 210, 217 (App. Div. 2004)), certif. denied, In re Estate of Brown, 230 N.J. 393 (2017); see also 42 U.S.C. § 1396-1. To receive federal funding, the State must comply with all federal statutes and regulations. Harris v. McRae, 448 U.S. 297, 301 (1980). In New Jersey, the Medicaid program is administered by DMAHS pursuant to the New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -19.5. The county welfare boards, such as ACBSS, evaluate eligibility. One of the objectives of Medicaid is to provide "medical assistance to needy persons who are institutionalized in nursing homes as a result of illness or other incapacity." R.S., 434 N.J. 3 A-2815-16T 4 Super. at 258 (quoting M.E.F. v. A.B.F., 393 N.J. Super. 543, 545 (App. Div. 2007)). "DMAHS provides institutional level Medicaid benefits to individuals residing in nursing homes pursuant to the Medicaid Only program, N.J.A.C. 10:71-1.1 to -9.5." Brown, 448 N.J. Super. at 257. "[A]n applicant seeking such benefits must have financial eligibility as determined by the regulations and procedures." Ibid.; see also N.J.A.C. 10:71-1.2(a). "[T]o be financially eligible, the applicant must meet both income and resource standards." Ibid.; N.J.A.C. 10:71-3.15. Through its regulations, DMAHS establishes "policy and procedures for the application process." N.J.A.C. 10:71-2.2(b). The county welfare boards exercise "direct responsibility in the application process to . . . [r]eceive applications." N.J.A.C. 10:71-2.2(c)(2). The regulations establish timeframes to process an application, with the "date of effective disposition" being the "effective date of the application" where the application has been approved. N.J.A.C. 10:71-2.3(b)(1). "The process of establishing eligibility involves a review of the application for completeness, consistency, and reasonableness." N.J.A.C. 10:71-2.9. "The maximum period of time normally essential to process an application for the aged is [forty-five] days." N.J.A.C. 10:71-2.3(a). New Jersey regulations recognize: 4 A-2815-16T4 there will be exceptional cases where the proper processing of an application cannot be completed within the [45-day] period. Where substantially reliable evidence of eligibility is still lacking at the end of the designated period, the application may be continued in pending status. In each such case, the CWA [(county welfare agency)] shall be prepared to demonstrate that the delay resulted from one of the following: . . . . (2) A determination to afford the applicant, whose proof of eligibility has been inconclusive, a further opportunity to develop additional evidence of eligibility before final action on his or her application; [N.J.A.C. 10:71-2.3(c).] This was the fourth application by W.S. for Medicaid. The applications were filed by Hammonton Center as his "Authorized Representative" (AR) of W.S. Prior applications were submitted in February, May and November, 2015. The instant application was received on February 1, 2016 and was denied for failure to provide information needed to make a determination on June 21, 2016. At the time of the denial, bank statements from an ING Direct account remained outstanding. Statements from this account were requested by ACBSS commencing with the first application. On April 27, 2016, an ACBSS caseworker acknowledged receipt of a fax from the AR's attorney, which informed the ACBSS that it had not obtained the requested documents. The caseworker advised 5 A-2815-16T4 the AR that the documentation was necessary to make an eligibility determination and suggested searching for the documents with the financial institution by using the wife's account number. On June 2, 2016, the caseworker sent the AR a letter stating that the application would be denied on June 20, 2016, if the account statements were not provided by that date. On June 20, 2016, the attorney for the AR sent an email to the caseworker requesting an extension because they still had not obtained the records. The request was denied and the application was denied on June 21, 2016. ACBSS had the discretion, pursuant to N.J.A.C. 10:71-2.3(c), to extend the deadline even further and could have placed W.S.'s application in pending status. ACBSS, however, did not use the forty-five day standard set out in N.J.A.C. 10:71-2.3(a) as a basis for denying eligibility. See 42 C.F.R. § 435.912(g)(2) (2013). Instead, ACBSS gave the AR one-hundred-eighty days to procure the requested verification documents. ACBSS has the obligation to address Medicaid applications timely. See N.J.A.C. 10:71-2.2(c)(5). During a Medicaid application process, the CWA, ACBSS here, is responsible for assisting an applicant "in exploring their eligibility for assistance," N.J.A.C. 10:71-2.2(c)(3), and making known to the applicant "the appropriate resources and services 6 A-2815-16T4 both within the agency and the community, and, if necessary, assist in their use." N.J.A.C. 10:71-2.2(c)(4). The applicant must "[c]omplete, with assistance from the CWA if needed, any forms required by the CWA as a part of the application process," N.J.A.C. 10:71-2.2(e)(1), and "[a]ssist the CWA in securing evidence that corroborates his or her statements." N.J.A.C. 10:71-2.2(e)(2). The applicant is "the primary source of information," but the CWA is responsible for making "the determination of eligibility and to use secondary sources when necessary, with the applicant's knowledge and consent." N.J.A.C. 10:71-1.6(a)(2). "The CWA shall verify the equity value of resources1 through appropriate and credible sources. . . . If the applicant's resource statements are questionable, or there is reason to believe the identification of resources is incomplete, the CWA shall verify the applicant's resource statements through one or more third parties." N.J.A.C. 10:71-4.1(d)(3). The applicant is responsible for cooperating fully with the verification process if the CWA has to contact the third party in reference to verifying resources. N.J.A.C. 10:71-4.1(d)(3)(i). "If necessary, the applicant shall 1 A resource is "any real or personal property which is owned by the applicant . . . and which could be converted to cash to be used for his or her support and maintenance." N.J.A.C. 10:71- 4.1(b). 7 A-2815-16T4 provide written authorization allowing the CWA to secure the appropriate information." Ibid. N.J.A.C. 10:71-2.10 discusses collateral investigation: (a) "Collateral investigation" shall refer to contacts with individuals other than members of applicant's immediate household, made with the knowledge and consent of the applicant(s). (b) The primary purpose of collateral contacts is to verify, supplement or clarify essential information. Here, ACBSS did not attempt to procure the missing documentation. However, nothing in N.J.A.C. 10:71-4.1(d)(3) places a burden on ACBSS to acquire the required documents, but rather states only that if an applicant's identification of resources is incomplete, ACBSS must verify the resource statements through a third party. Although ACBSS is responsible for assisting an applicant, the regulations did not create an affirmative duty upon ACBSS to procure all documents necessary to complete the application, especially when W.S. had a representative. "An administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." N.J. Div. of Child Prot. & Permanency v. V.E., 448 N.J. Super. 374, 390 (App. Div. 2017) (quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)). "Deference to an agency decision 8 A-2815-16T4 is particularly appropriate where interpretation of the Agency's own regulation is in issue." R.S., 434 N.J. Super. at 261 (quoting I.L. v. N.J. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 389 N.J. Super. 354, 364 (App. Div. 2006)). Here, the DMAHS rendered its final decision after interpreting its own regulations. We may reverse only upon a showing that the DMAHS acted arbitrarily, capriciously, or unreasonably. Denying an application that did not have the information necessary to verify eligibility after giving several adjournments is not arbitrary, capricious or unreasonable because Medicaid applications must be processed promptly and Medicaid is intended to be a resource of last resort, reserved for those who have a proven financial or medical need for assistance. See N.E. v. N.J. Div. of Med. Assistance & Health Servs., 399 N.J. Super. 566, 572 (App. Div. 2008). Affirmed.

Saturday, March 31, 2018

Pending Bill” “Aid in Dying for the Terminally Ill Act,”

Pending Bill” “Aid in Dying for the Terminally Ill Act,”
   The Assembly Judiciary Committee reports favorably and with committee amendments Assembly Bill No. 1504.
      As amended by the committee, this bill establishes the “Aid in Dying for the Terminally Ill Act,” which will allow an adult New Jersey resident, who has the capacity to make health care decisions and who has been determined by that individual’s attending and consulting physicians to be terminally ill, to obtain medication that the patient may self-administer to terminate the patient’s life.  Under the bill, “terminally ill” is defined to mean the patient is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less.
      In order for a terminally ill patient to receive a prescription for medication under the bill, the patient is required to make two oral requests and one written request to the patient’s attending physician for the medication.  The bill requires at least 15 days to elapse between the initial oral request and the second oral request, and between the patient’s initial oral request and the writing of a prescription for the medication.  The patient may submit the written request for medication either when the patient makes the initial oral request, or at any time thereafter, but a minimum of 48 hours are to elapse between the attending physician’s receipt of the written request and the writing of a prescription for medication.
      When a patient makes an initial oral request for medication under the bill’s provisions, the attending physician is required to provide the patient with information about the risks, probable results, and alternatives to taking the medication; recommend that the patient participate in a consultation concerning concurrent or additional treatment opportunities, palliative care, comfort care, hospice care, and pain control options; and refer the patient to a health care professional who is qualified to discuss those alternative care and treatment options. The patient may choose, but is not required, to participate in such consultation.  The attending physician is also required to recommend that the patient notify the patient’s next of kin of the request, but medication may not be denied if a patient declines, or is unable to, provide this notification.
      The attending physician is required to refer the patient to a consulting physician for the purpose of obtaining confirmation of the attending physician’s diagnosis.  Both the attending physician and the consulting physician are required to verify that the patient has made an informed decision when requesting medication under the bill.  When the patient makes the second oral request, the attending physician is to offer the patient an opportunity to rescind the request.  In addition, the attending physician is required to notify the patient that a request may be rescinded at any time and in any manner, regardless of the patient’s mental state.
      A patient may make a written request for medication, in accordance with the bill’s provisions, so long as the patient:  is an adult resident of New Jersey, as demonstrated through documentation submitted to the attending physician; is capable; is terminally ill, as determined by the attending physician and confirmed by the consulting physician; and has voluntarily expressed a wish to receive a prescription for the medication.
      The bill requires a valid written request for medication to be in a form that is substantially similar to the form set forth in the bill.  The bill requires the written request to be signed and dated by the patient and witnessed by at least two individuals who attest, in the patient’s presence, that, to the best of their knowledge and belief, the patient is capable and is acting voluntarily.
      The bill requires at least one of the witnesses to be a person who is not:
      (1)  a relative of the qualified patient by blood, marriage, or adoption;
      (2)  at the time the request is signed, entitled to any portion of the patient’s estate upon the patient’s death; 
      (3)  an owner, operator, or employee of a health care facility, other than a long term care facility, where the patient is receiving medical treatment or is a resident.
      The patient's attending physician may not serve as a witness.
      A written request form will be required to include an indication as to whether the patient has informed the patient’s next-of-kin about the request for medication and an indication as to whether concurrent or additional treatment consultations have been recommended by the attending physician or undertaken by the patient.
      If the patient complies with the bill’s oral and written request requirements, establishes State residency, and is found by both the attending physician and a consulting physician to be capable, to have a terminal illness, and to be acting voluntarily, the patient will be considered to be a “qualified terminally ill patient” who is eligible to receive a prescription for medication.  The bill expressly provides that a person is not be considered to be a “qualified terminally ill patient” solely on the basis of the person’s age or disability or the diagnosis of a specific illness, disease, or condition.
      If either the attending physician or the consulting physician believes that the patient may lack capacity to make health care decisions, the physician will be required to refer the patient to a mental health care professional, which is defined in the amended bill to mean a licensed psychiatrist, psychologist, or clinical social worker, for a consultation to determine whether the patient is capable.  If such a referral is made, the attending physician is prohibited from issuing a prescription to the patient for medication under the bill unless the attending physician has received written notice, from the mental health care professional, affirming that the patient is capable.
      Prior to issuing a prescription for requested medication, the attending physician is required to ensure that all appropriate steps have been carried out, and requisite documentation submitted, in accordance with the bill’s provisions.  The patient's medical record is to include documentation of:  the patient’s oral and written requests and the attending physician’s offer to rescind the request; the attending physician’s recommendation for concurrent or alternative care and treatment consultations, and whether the patient participated in a consultation; the attending physician’s and consulting physician’s medical diagnosis and prognosis, and their determinations that the patient is terminally ill, is capable of making the request, is acting voluntarily, and is making an informed decision; the results of any counseling sessions with a mental health care professional ordered for the patient; and a statement that all the requirements under the bill have been satisfied.
      A patient's request for, or the provision of, medication in compliance with the bill will not constitute abuse or neglect of an elderly person, and may not be used as the sole basis for the appointment of a guardian or conservator.  The bill specifies that a patient’s guardian, conservator, or representative is not authorized to take any action on behalf of the patient in association with the making or rescinding of requests for medication under the bill’s provisions, except to communicate the patient’s own health care decisions to a health care provider upon the patient’s request.  The bill prohibits any contract, will, insurance policy, annuity, or other agreement from including a provision that conditions or restricts a person’s ability to make or rescind a request for medication pursuant to the bill, and further specifies that the procurement or issuance of, or premiums or rates charged for, life, health, or accident insurance policies or annuities may not be conditioned upon the making or rescinding of a request for medication under the bill’s provisions.  An obligation owing under a contract, will, insurance policy, annuity, or other agreement executed before the bill’s effective date will not be affected by a patient’s request, or rescission of a request, for medication under the bill.
      Any person who, without the patient’s authorization, willfully alters or forges a request for medication pursuant to the bill, or conceals or destroys a rescission of that request, with the intent or effect of causing the patient's death, will be guilty of a crime of the second degree, which is punishable by imprisonment for a term of five to 10 years, a fine of up to $150,000, or both.  A person who coerces or exerts undue influence on a patient to request medication under the bill, or to destroy a rescission of a request, will be guilty of a crime of the third degree, which is punishable by imprisonment for a term of three to five years, a fine of up to $15,000, or both.  The bill does not impose any limit on liability for civil damages in association with the negligence or intentional misconduct of any person.
      The amended bill provides immunity from civil and criminal liability, from professional disciplinary action, and from censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action that is undertaken in compliance with the bill, including the act of being present when a qualified terminally ill patient takes the medication prescribed to the patient under the bill’s provisions.  As amended, the bill provides that this immunity also applies to any refusal to take actions in furtherance of, or to otherwise participate in, a request for medication made under the bill.  Any action undertaken in accordance with the bill will not be deemed to constitute patient abuse or neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide under any State law, and the bill expressly exempts actions taken pursuant to the bill from the provisions of N.J.S.2C:11-6, which makes it a crime to purposely aid a person in committing suicide.  These immunities will not apply to acts or omissions constituting gross negligence, recklessness, or willful misconduct.  Nothing in the bill is to be construed to authorize a physician or other person to end a patient's life by lethal injection, active euthanasia, or mercy killing.
      The bill amends section 1 of P.L.1991, c.270 (C.2A:62A-16), which establishes a “duty to warn” when a health care professional believes that a patient intends to carry out physical violence against the patient’s own self or against another person, in order to specify that that “duty to warn” provisions are not applicable when a qualified terminally ill patient requests medication under the bill.
      The bill requires a patient’s attending physician to notify the patient of the importance of taking the prescribed medication in the presence of another person and in a non-public place.  The bill specifies that, if any governmental entity incurs costs as a result of a patient’s self-administration of medication in a public place, the governmental entity will have a claim against the patient’s estate to recover those costs, along with reasonable attorney fees.
      The bill authorizes attending physicians, if registered with the federal Drug Enforcement Administration, to dispense requested medication, including ancillary medication designed to minimize discomfort, directly to the patient.  Otherwise, the attending physician may transmit the prescription to a pharmacist, who will dispense the medication directly to the patient, to the attending physician, or to an expressly identified agent of the patient.  Medication prescribed under the bill may not be dispensed by mail or other form of courier.   Not later than 30 days after the dispensation of medication under the bill, the health care professional who dispensed the medication will be required to file a copy of the dispensing record with the Division of Consumer Affairs (Division) in the Department of Law and Public Safety.
      Any medication prescribed under the bill, which the patient chooses not to self-administer, is required to be disposed of by lawful means.  Lawful means includes, but is not limited to, disposing of the medication consistent with State and federal guidelines concerning disposal of prescription medications or surrendering the medication to a prescription medication drop-off receptacle.  No later than 30 days after the patient’s death, the attending physician will be required to transmit documentation of the patient’s death to the Division.  The Division is required, to the extent practicable, to coordinate the reporting of dispensing records and records of patient death with the process used for the reporting of prescription monitoring information.  The Division will be required to annually prepare and make available on its Internet website a statistical report of information collected pursuant to the bill’s provisions; information made available to the public will not include personal or identifying information. 
      A health care facility’s existing policies and procedures will be required, to the maximum extent possible, to govern actions taken by health care providers pursuant to the bill.  Any action taken by a health care professional or facility to carry out the provisions of the bill is to be voluntary.  If a health care professional is unable or unwilling to participate in a request for medication under the bill, the professional will be required to refer the patient to another health care provider and provide the patient’s medical records to that provider.
      This bill was pre-filed for introduction in the 2018-2019 session pending technical review.  As reported, the bill includes the changes required by technical review, which has been performed.

COMMITTEE AMENDMENTS:
      The committee amendments clarify that patients are to be advised of both concurrent and additional treatment opportunities, as well as palliative care, comfort care, hospice care, and pain control, when making a request for aid in dying medication under the bill.
      The committee amendments provide that licensed clinical social workers will be permitted to make a determination as to whether a patient has the capacity to make health care decisions; as introduced, the bill provided that only licensed psychiatrists and psychologists could make this determination.  The committee amendments additionally add a new definition of “mental health care professional,” which includes licensed psychiatrists, psychologists, and clinical social workers, and add a provision requiring the State Board of Social Work Examiners to adopt rules and regulations to implement the provisions of the bill.  The committee amendments remove references concerning the referral of a patient to a mental health care professional if the attending or consulting physician thinks the patient may have a psychiatric or psychological disorder or depression that causes impaired judgment; as amended, the bill provides for such referrals when the attending or consulting physician thinks the patient may lack the capacity to make health care decisions.  The bill removes a definition of “counseling,” and various references to the term, that are obviated by these amendments.  
      The committee amendments revise the definition of “self-administer” to clarify that the term will not be limited to ingesting the aid in dying medication, but will instead apply to the physical administration of the medication to the patient’s own self.
      The committee amendments remove a provision that would have required that, if the patient is a resident in a long term care facility, a designated staff member of the facility is required to be one of the witnesses to the patient’s written request.  The committee amendments further provide an exception to the prohibition against an owner, operator, or employee of a health care facility from being a witness to the patient’s written request, to provide that this prohibition will not apply when the patient is a resident of a long term care facility.  The bill defines “long term care facility” to mean a licensed nursing home, assisted living residence, comprehensive personal care home, residential health care facility, or dementia care home.
      The committee amendments remove certain language concerning when a patient has provided written consent for the patient’s attending physician to contact a pharmacist regarding a prescription for aid in dying medication; the bill expressly provides elsewhere that the patient may provide such written consent when completing the written consent form, making the additional reference to the consent redundant. 
      The committee amendments clarify that the means of lawfully disposing of unused aid in dying medication may include disposal consistent with State and federal guidelines concerning the disposal of prescription medications or surrender to a prescription medication drop-off receptacle.
      The committee amendments provide that, in addition to immunity from civil and criminal liability and professional disciplinary action, a person may not be subject to censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action taken in compliance with the bill.  The committee amendments further provide that these protections also apply to the refusal to take any action in furtherance of, or to otherwise participate in, a request for medication under the bill.
      The committee amendments clarify that, in addition to not constituting patient abuse or neglect, suicide, assisted suicide, mercy killing, or homicide, actions taken in connection with a request for medication under the bill will not constitute euthanasia.  
      The committee amendments provide that, in addition to not providing the sole basis for the appointment of a guardian or conservator, a patient’s request for, or the provision of, medication under the bill will not constitute abuse or neglect of an elderly person.
      The committee amendments provide that the immunities and protections established under the bill do not apply to acts or omissions that constitute gross negligence, recklessness, or willful misconduct.


Monday, March 05, 2018

Medicaid denied where complete verification of assets not provided J.H., v IVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, Respondent-Respondent, and OCEAN COUNTY BOARD OF SOCIAL SERVICES,

Medicaid denied where complete verification of assets not provided J.H.,

        Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

        Respondent-Respondent,

and

OCEAN COUNTY BOARD OF SOCIAL SERVICES,

        Respondent.


              Submitted February 6, 2018 – Decided February 21, 2018

              Before Judges Carroll and Leone.

              On appeal from the Department of Human
              Services, Division of Medical Assistance and
              Health Services.

              SB2 Inc., attorneys for appellant (Ada Sachter
              Gallicchio, on the briefs).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Lauren S. Kirk,
              Deputy Attorney General, on the brief).NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2147-16T3

PER CURIAM J.H. appeals the November 23, 2016 final agency decision of the Division of Medical Assistance and Health Services (DMAHS) that denied her application for Medicaid benefits. We affirm. J.H. submitted an application for Medicaid benefits to the Ocean County Board of Social Services (OCBSS) on February 22, 2016. That same day, OCBSS provided a letter to J.H. requesting documentation and verification required to determine her eligibility. On February 26, 2016, OCBSS sent J.H. a notice requesting the following information: (1) verification of a $159.83 payment to Allstate and the policy's cash surrender value if it was a life insurance policy; (2) current statements for a Wells Fargo checking account, and verification for twenty-one designated payments and cash withdrawals totaling more than $14,000 during the period between February 8, 2012, and November 30, 2015; (3) the listing agreement for J.H.'s home; (4) information regarding the purpose of a separate $334.75 payment; and (5) "[a]ny and all pertinent verifications of all resources solely or jointly owned (bank accounts, C.D.'s, stocks, bonds, money markets, 401K's, IRA's, annuities, trusts, cash surrender value of life insurance policies, etc.) opened or closed in the last [five] years prior to application in addition to the accounts listed above." The 2 A-2147-16T3 notice advised J.H. of the name and phone number of the OCBSS representative J.H. could call "if [she] ha[d] any questions regarding this matter." Finally, the notice instructed J.H. her application could be denied if she failed to furnish the requested information by March 7, 2016. On March 7, 2016, OCBSS sent J.H. another notice advising that her application could be denied if she failed to supply the information by March 21, 2016. On March 21, 2016, OCBSS sent J.H. a "final notice," again requesting information concerning bank accounts and insurance policies. J.H. was instructed to supply the information by April 4, 2016, or OCBSS "may take action to deny" her application. As with the prior notices, OCBSS provided J.H. with the name and phone number of its representative to call if she had any questions. On April 13, 2016, J.H.'s application for Medicaid was denied for non-compliance with the February 26, March 7, and March 21, 2016 notices. At J.H.'s request, a hearing was conducted concerning the denial of her application. On September 30, 2016, an Administrative Law Judge (ALJ) issued an Initial Decision affirming the denial of Medicaid benefits to J.H. In his written opinion, the ALJ determined: The issue in this case is whether [OCBSS] appropriately denied [J.H.'s] application when she did not provide the requested 3 A-2147-16T3 information by April 4, 2016. 42 C.F.R. § 435.912(c)(3) and N.J.A.C. 10:71-2.3(a) provide that the agency has forty-five days to render a decision on eligibility for an applicant who is not applying on the basis of disability. In the present case, [OCBSS] advised [J.H.] a number of documents and explanations were requested. There is no dispute that those documents were not received on time and one [was received] after the application had been denied. In addition, some of the verifications were not provided at all because there were no records produced regarding the commingled bank account. The ALJ also rejected J.H.'s argument that OCBSS should have assisted her in securing the requested information. The ALJ found J.H. never requested assistance and that at all times OCBSS dealt only with J.H.'s authorized representative at Future Care Consultants. On administrative appeal to the DMAHS, the Director reviewed the record, including the ALJ's Initial Decision, and adopted the findings and conclusions of the ALJ in their entirety. The Director concluded "[t]he credible evidence in the record demonstrates that [J.H.] failed to provide the needed information prior to the April 13, 2016 denial of benefits. Without this information, OCBSS was unable to complete its eligibility determination and the denial was appropriate." On appeal, J.H. contends DMAHS's final decision was arbitrary and capricious. Specifically, she argues: (1) the ALJ was biased 4 A-2147-16T3 against her; (2) the ALJ failed to provide an analysis as part of his decision; (3) OCBSS violated her due process rights by failing to provide adequate notice of the denial; and (4) OCBSS failed to offer her the necessary assistance with her Medicaid application. We review an agency's decision for the limited purpose of determining whether its action was arbitrary, capricious or unreasonable. "An administrative agency's decision will be upheld 'unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.'" R.S. v. Div of Med. Assistance and Health Servs., 434 N.J. Super. 250, 261 (App. Div. 2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 25 (2011)). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." E.S. v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340, 349 (App. Div. 2010) (alteration in original) (quoting In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006)). "Medicaid is a federally-created, state-implemented program that provides 'medical assistance to the poor at the expense of the public.'" Matter of Estate of Brown, 448 N.J. Super. 252, 256 (App Div.) (quoting Estate of DeMartino v. Div. of Med. Assistance & Health Servs., 373 N.J. Super. 210, 217 (App. Div. 2004); 42 5 A-2147-16T3 U.S.C.A. § 1396-1), certif. denied, 230 N.J. 393 (2017). To receive federal funding, the State must comply with all the federal statutes and regulations. Harris v. McRae, 448 U.S. 297 (1980). In New Jersey, the Medicaid program is administered by DMAHS pursuant to the New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -19.5. "In order to be financially eligible, the applicant must meet both income and resource standards." Brown, 448 N.J. Super. at 257 (citing N.J.A.C. 10:71- 3.15). The county welfare boards evaluate eligibility. Through those county agencies, DMAHS serves as a "gatekeeper to prevent individuals from using Medicaid to avoid payment of their fair share for long-term care." W.T. v. Div. of Med. Assistance & Health Servs., 391 N.J. Super. 25, 37 (App. Div. 2007) (citing N.J.S.A. 30:4D-1 to -19.1). DMAHS's regulations establish "policy and procedures for the application process." N.J.A.C. 10:71-2.2(b). The county welfare boards exercise "direct responsibility in the application process to . . . [r]eceive applications." N.J.A.C. 10:71-2.2(c). They also "[a]ssure the prompt and accurate submission of eligibility data." N.J.A.C. 10:71-2.2(c)(5). The regulations establish time frames to process an application, with the "date of effective disposition" being the "effective date of the application" where the application has been approved. N.J.A.C. 10:71-2.3(b)(1). 6 A-2147-16T3 Under both federal and New Jersey law, except in unusual or exceptional circumstances, Medicaid eligibility determinations must be made within forty-five days. 42 C.F.R. § 435.912(c)(3)(ii); N.J.A.C. 10:71-2.3(a). Examples of exceptional cases where the forty-five day period can be enlarged include: 1. Circumstances wholly within the applicant's control; [or] 2. A determination to afford the applicant, whose proof of eligibility has been inconclusive, a further opportunity to develop additional evidence of eligibility before final action on his or her application[.] [N.J.A.C. 10:71-2.3(c)(1)-(2).] Here, DMAHS's final agency decision was not arbitrary, capricious or unreasonable. J.H. does not dispute that: her application for Medicaid was filed on February 22, 2016; she was given four opportunities to provide the information necessary to determine her eligibility for benefits; she did not timely submit all the required information; and she never requested additional time. When the verifying information was not timely provided, DMAHS properly denied the application. DMAHS was correct to deny an application that did not have the information necessary to verify eligibility because Medicaid is intended to be a resource of last resort and is reserved for those who have a financial or 7 A-2147-16T3 medical need for assistance. See N.E. v. Div. of Med. Assistance & Health Servs., 399 N.J. Super. 566, 572 (App. Div. 2008). J.H. has failed to demonstrate any unusual or exceptional circumstances that would warrant a continuation of her eligibility determination beyond the normal forty-five day deadline. Moreover, contrary to J.H.'s argument, the notice of denial was adequate because it stated it was for non-compliance, it identified the contact letters to which plaintiff failed to respond, and the letters detailed the information requested. While J.H. complains OCBSS failed to assist her in obtaining the information necessary to complete her Medicaid application, the record is devoid of any indication that either J.H. or her authorized representative ever sought such assistance. After carefully reviewing the record and the applicable legal principles, we conclude that J.H.'s further arguments are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and that the agency's decision is supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(D). Affirmed. 8 A-2147-16T3

Court here rejects undue influence where no expert Estate of Mary Patricia Molinsk

IN THE MATTER OF THE
ESTATE OF MARY PATRICIA
MOLINSKI.
______________________________
Submitted January 16, 2018 Decided February 6, 2018
          Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Essex County, Docket No. CP-0120-2016. 
unreported SUPERIOR COURT OF NEW JERSEY
                              APPELLATE DIVISION
                              DOCKET NO. A-4722-15T2

          Diana Marsh, appellant pro se.
Cammarata, Nulty & Garrigan, LLC, attorneys for respondent Edward Molinski, Executor of the Estate of Mary Patricia Molinski (John P. Nulty, Jr., on the brief).
PER CURIAM
Diana Marsh contests the 2012 will of her mother, Mary

Patricia Molinski, who died on October 22, 2015, at the age of seventy-six. Molinski had a son, Edward M. Molinski, and three daughters, Marsh, Janice Palmeri, and Donna McWilliams. The testator left her entire estate, net of expenses, to her son, and Palmeri; and nothing to Marsh and McWilliams.
Marsh contends Palmeri unduly influenced their mother; or, alternatively, their mother lacked testamentary capacity. After a summary hearing, see R. 4:83-1 and R. 4:67-1, the Probate Part dismissed Marsh's verified complaint with prejudice. Having carefully reviewed the record and the applicable legal principles, we affirm, substantially for the reasons set forth in Judge Walter Koprowski's thorough oral opinion.
We add the following brief comments. Marsh focuses her appellate argument on the omission of any mention of her or McWilliams in their mother's will. The will did not include a provision expressly disinheriting them. Rather, it included a bequest "to my beloved daughter, JANICE PALMERI, and my beloved son, EDWARD M. MOLINSKI, in equal shares, share and share alike, provided they survive me."1 Marsh contends the law requires that a will expressly name disinherited children, in order to be effective.
We have found no support for that assertion, and Marsh provides none. Rather, the omission of disinherited children's names in a will is at best, circumstantial evidence that the testator did not actually or freely intend to disinherit them.
1 The will also stated that if Palmeri or Molinski predeceased her which they did not then that child's share would pass per stirpes to their children, whom the testator named after describing them as "[m]y beloved grandchildren."
page2image12264 page2image12424 page2image12584 page2image12744
2
A-4722-15T2
However, that evidence and the other evidence Marsh presented as Judge Koprowski ably reviewed was insufficient to vault Marsh's high burden to establish undue influence or lack of capacity. See In re Estate of Stockdale, 196 N.J. 275, 303 (2008) (stating that the will's opponent generally bears the burden to prove undue influence); In re Niles Trust, 176 N.J. 282, 300 (2003) (stating that "undue influence, as a form of fraud, must be proven by clear and convincing evidence"); see also Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981) (stating that it is presumed a testator was competent and of sound mind when he or she executed the will); In re Livingston's Will, 5 N.J. 65, 71 (1950) (same).
The attorney who drafted the will certified he met the testator for the first time when she sought his services in 2012. She found his name in a church bulletin. He had no relationship with the will's beneficiaries. He stated the testator simply did not disclose she had children other than Palmeri and Molinski. Had she done so, he would have counseled her to include a provision expressly addressing the disinherited children.
Nonetheless, the attorney stated he did not believe the testator's omissions resulted from incapacity or undue influence. He noted the testator appeared at his office alone; she responded cogently and appropriately to questions put to her; articulated
page3image12752 page3image12912 page3image13072 page3image13232 page3image13392 page3image13552 page3image13712
3
A-4722-15T2
her desires clearly; and did not appear to lack mental capacity or to be under another's influence.
Marsh provided no expert medical evidence, or the certification of anyone who actually observed her mother, to establish that her mother was suffering from a mental defect or an incapacity of the mind. By contrast, Palmeri, Molinski, and the will's drafter all certified that she was of sound mind when or around the time she made her will.
As for Marsh's claim of undue influence, she relies primarily on allegations that she maintained a loving relationship with her mother (a fact disputed by her siblings, but one the court presumed in her favor); her sister was strong-willed and opinionated; and there is no other explanation for her disinheritance. That is not enough.
"Not all influence is 'undue' influence." Livingston's Will, 5 N.J. at 73. Even if Palmeri urged her mother to favor her and her brother which Palmeri denied "[p]ersuasion or suggestions . . . will not suffice." Ibid. A will opponent must establish influence "such as to destroy the testator's free agency and to constrain him [or her] to what he [or she] would not otherwise have done in the disposition of his [or her] worldly assets." Ibid.
page4image11648 page4image11808 page4image11968
4
A-4722-15T2
We recognize the burden may shift to a will's proponent to prove the absence of undue influence, if the opponent first establishes that "the will benefits one who stood in a confidential relationship to the testatrix"; and "there are additional circumstances of a suspicious character present which require explanation." In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955). However, Marsh did not meet that threshold showing.
"[T]he mere existence of family ties does not create . . . a confidential relationship," Vezzetti v. Shields, 22 N.J. Super. 397, 405 (App. Div. 1952), notwithstanding that "[a]mong the most natural of confidential relationships is that of parent and child." Pascale v. Pascale, 113 N.J. 20, 34 (1988). Marsh was required to show there was dominance of one party over the other, or inequality of dealing. See Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 402 (App. Div. 2007). She failed to do so. Cf. Haynes, 87 N.J. at 176 (finding a confidential relationship between a mother and child where the mother was "afflicted by the debilitations of advanced years, was dependent upon her sole surviving child with whom she lived and upon whom she relied for companionship, care and support").
No doubt, the unanticipated disinheritance of a child must sting. In search of an explanation, it is understandable that the child may contend the act was a product of undue influence.
page5image12552 page5image12712 page5image12872 page5image13032 page5image13192 page5image13352 page5image13512
5
A-4722-15T2

However, to set aside the solemn directions of a testator, who cannot speak in defense of her wishes, a greater showing is required than Marsh has presented here.
Affirmed.