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/

Wednesday, December 30, 2015

Rejection for Medicaid where family would not provide info on assets

Rejection for Medicaid where family would not provide info on assets
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-3341-13T3

A.T.,

            Petitioner,

v.

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

            Respondents-Respondents.
____________________________________
November 23, 2015
 
 


Argued October 26, 2015 – Decided

Before Judges Lihotz, Fasciale and Nugent.

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

Daniel Jurkovic argued the cause for appellant S.T. on behalf of A.T.

Jennifer L. Finkel, Deputy Attorney General, argued the cause for respondent Division of Medical Assistance and Health Services (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Finkel, on the brief).

Robert E. Barry, Union County Counsel, attorney for respondent Union County Board of Social Services, joins in the brief of respondent Division of Medical Assistance and Health Services.

PER CURIAM
            S.T., on behalf of his elderly mother A.T., appeals from a February 24, 2014 final agency decision by the Director of the Division of Medical Assistance and Health Services (DMAHS) denying A.T. Medicaid eligibility from June 1, 2007 to September 30, 2008.  We affirm.
            This case arose after a rehabilitation center filed a separate lawsuit seeking reimbursement for services it provided to A.T., which A.T. had sought to recoup from the Union County Board of Social Services (UCBSS) in a related third-party complaint.[1]  DMAHS adopted the findings of the administrative law judge (ALJ) concluding that A.T. failed to timely provide the requisite verifications (the verifications), thereby depriving the UCBSS of the opportunity to evaluate the merits of her application for Medicaid benefits.  A.T. re-applied for Medicaid a year later, eventually producing the missing information, and the UCBSS authorized Medicaid benefits effective October 1, 2008.  We discern the following facts from the record on appeal.                   
                                                                        I.
            On July 3, 2007, the South Mountain Healthcare and Rehabilitation Center (SMHRC) admitted A.T. as one of its residents.  On July 22, 2007, A.T. appointed her grandson, D.T., as her power of attorney (POA).  A.T. designated her son, S.T., as an alternate POA. 
On August 28, 2007, D.T. and S.T. applied to the UCBSS for Medicaid benefits to pay for A.T.'s stay at SMHRC.  S.T. signed the application, a statement of understanding for nursing home applicants, a statement of understanding addendum, and an affidavit of understanding.  These documents stated that Medicaid had no obligation to pay any medical expenses until the application was approved in writing, and failure to produce the verifications could result in denial of the application.  Only D.T.'s address was listed on the application.  S.T., despite signing the form, did not include his mailing address on the application.                   
The UCBSS determined that the application was incomplete.  As a result, the UCBSS attempted to verify A.T.'s eligibility for Medicaid benefits by requesting certain information.  The UCBSS requested the verifications on three separate occasions, repeating the warning that failure to provide the requested information would result in denial of the application.  Despite the repeated requests for the verifications, the UCBSS was unable to determine A.T.'s eligibility because the Medicaid application remained incomplete.         
On August 28, 2007, the UCBSS provided D.T. and S.T. with a "Verifications[-]Needed" form, which provided a list of items needed to verify A.T.'s eligibility.  The requested verifications included papers related to A.T.'s checking account statements; a copy of a pre-paid irrevocable funeral trust; a copy of a deed to land owned in Virginia; written proof that a life insurance policy had been liquidated; a copy of the Blue Cross Blue Shield quarterly bill; and a copy of the POA.  D.T. and S.T. did not provide the information.
On September 20 and October 19, 2007, the UCBSS made its second and third requests to D.T. for the same items requested on August 28, 2007.  The bank account statements, the deed for the Virginia property, and written proof the life insurance policy was liquidated were critical to the UCBSS's eligibility determination.  The second and third letters also requested that the information be provided within ten days to enable the UCBSS to determine A.T.'s eligibility for Medicaid benefits.     
On November 9, 2007, the UCBSS denied A.T.'s application for failure to provide the eligibility verifications.  The denial letter, sent to D.T., notified him that he could request a fair hearing on behalf of A.T.  It was not until November 15, 2011, that S.T., on behalf of A.T., requested a fair hearing. 
In the interim, D.T. and S.T. sporadically communicated with the UCBSS without fully providing the verifications.  On November 26, 2007, D.T. and S.T. wrote the UCBSS informing them that they found a certificate of deposit (CD) in the amount of $10,000, and from that amount, they paid SMHRC $8,000, but withheld $2,000 to pay bills and to clean A.T.'s apartment; they were waiting for A.T.'s insurance company to convert the policy to paid-up insurance so they could place the proceeds into a trust; and that they were attempting to obtain a survey and appraisal for the Virginia property before listing it for sale. 
On December 4, 2007, D.T. and S.T. wrote the UCBSS asking questions about their obligation to sell the Virginia property.  On December 6, 2007, the UCBSS responded in a letter addressed to D.T., indicating that D.T. should contact an attorney regarding his and S.T.'s legal questions as to the Virginia property and stating that he could re-apply for Medicaid benefits once DMAHS obtained the previously-requested information.  On December 11, 2007, S.T. informed the UCBSS that he had contacted an attorney to assist with the sale of A.T.'s Virginia property. 
On January 27, 2008, D.T. and S.T. wrote UCBSS again, rather than re-applying for benefits.  In their letter, they indicated that the insurance policy had not yet been transferred to an irrevocable trust, there was a buyer for the Virginia property, and $15,000 plus all balances exceeding $2,000 would be turned over to SMHRC once the property was sold.  On January 30, 2008, the UCBSS reminded D.T. and S.T. that they were required to file a new application for Medicaid benefits, and provided specific details as to the re-application procedure.
On August 13, 2008, approximately one year after the initial application, D.T. and S.T. re-applied for Medicaid benefits on behalf of A.T.  By this time, A.T. had purportedly sold her property in Virginia for $12,000.  The UCBSS requested written confirmation that A.T. had turned over the proceeds of the sale to SMHRC, and informed D.T. and S.T. that the burial trust, in the amount of $8,873, was revocable, and that unless it was converted to an irrevocable trust, the value of the trust would be counted as an asset.  On September 18, 2008, the UCBSS followed up by notifying D.T. and S.T. that it had not received proof that the life insurance policy had been converted to an irrevocable trust.  
On November 18, 2008, S.T. informed the UCBSS that an irrevocable trust had been obtained, and based on that information, requested retroactive eligibility to October 27, 2008.  On approximately November 28, 2008, S.T. sent a copy of the irrevocable trust to UCBSS.  On January 6, 2009, the UCBSS approved the re-application for Medicaid benefits, retroactive to October 1, 2008.
In November 2009, SMHRC filed a complaint against A.T. and S.T. in the Superior Court of New Jersey, Law Division, Union County, and in May 2010, SMHRC filed an amended complaint adding D.T.  A third-party complaint against UCBSS was filed in approximately June 2010.   
            In November 2011, S.T., for the first time, requested a fair hearing seeking to challenge the November 9, 2007 UCBSS determination denying A.T.'s August 28, 2007 application for Medicaid benefits.  In February 2012, DMAHS denied the fair hearing request as time-barred.  S.T. appealed that decision and, in July 2012, we remanded the matter to the OAL for further proceedings.    
The ALJ conducted hearings on November 27, 2012, and on June 10, 2013.  The ALJ issued a written decision on January 17, 2014.  The ALJ concluded that the UCBSS properly denied A.T.'s August 28, 2007 application because A.T. failed to provide the requested verification information as to her assets and resources.  Additionally, the ALJ explained as to the Virginia property that
[l]iquidation of the resource and distribution of the net proceeds were not the only issues.  A.T.'s failure to provide even a deed prior to November 9, 2007, in response to three separate requests, was one consideration in the denial of benefits as of that date.  The UCBSS had no proof of exactly what land was owned, nor any basis to evaluate the Virginia property and qualify [A.T.] for Medicaid for six months pending the sale of the property.  The UCBSS had no idea what the value of the asset was and, accordingly, it was not a matter of providing the applicant with time to liquidate, but rather whether or not the applicant would even qualify for benefits based upon the value of the land [A.T.] owned in Virginia. 

As to the insurance policy, the ALJ found that it was not until August 2008 that it was converted to an irrevocable trust.  A.T. appealed to the DMAHS and on February 24, 2014, the Director of the DMAHS issued the final agency decision under review. 
On appeal, S.T. argues that the ALJ (1) failed to understand what documents are necessary for a Medicaid eligibility determination; (2) neglected to acknowledge when the UCBSS received "the necessary documents"; (3) imposed a UCBSS thirty-day rescission rule without recognizing that S.T. did not receive the November 9, 2007 denial notice; (4) subjected S.T. to the UCBSS's rescission period, which otherwise violated the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15; and (5) failed to treat A.T.'s life insurance policy as a non-liquid resource.   
We begin by addressing our standard of review and general governing legal principles.  This court's review of DMAHS's determination is limited.  Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (explaining that "we must give due deference to the views and regulations of an administrative agency charged with the responsibility of implementing legislative determinations"); see also Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (indicating that "[i]t is settled that [a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to . . . deference") (citations and internal quotation marks omitted) (second alteration in original). 
We have previously stated that "[w]here [an] action of an administrative agency is challenged, a presumption of reasonableness attaches to the action of [the] administrative agency[,] and the party who challenges the validity of that action has the burden of showing that it was arbitrary, unreasonable or capricious."  Barone, supra, 210 N.J. Super. at 285 (citations and internal quotation marks omitted).  "Delegation of authority to an administrative agency is construed liberally when the agency is concerned with the protection of the health and welfare of the public."  Ibid.  Thus, this court's task is limited to deciding
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its  [11] action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 339 (App. Div.), certif. denied, 200 N.J. 210 (2009).]

            The Medicaid program was created when Congress added Title XIX to the Social Security Act "for the purpose of providing federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons."  Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 2680, 65 L. Ed. 2d 784, 794 (1980).  Participation in the Medicaid program is optional for states; however, "once a State elects to participate, it must comply with the requirements of Title XIX." Ibid.  The New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -19.5,[2] authorizes New Jersey's participation in the Medicaid program.       
The Commissioner of the New Jersey Department of Human Services has the power to issue regulations dealing with eligibility for medical assistance.  N.J.S.A. 30:4D-7.  DMAHS is a division of the Department of Human Services that operates the Medicaid program in New Jersey.  N.J.S.A. 30:4D-4.  Applications for Medicaid benefits are either granted or denied by the local county welfare agencies (CWA).  N.J.A.C. 10:71-3.15.  Pursuant to this regulation, a CWA must determine "income and resource eligibility[.]"  Ibid.
            N.J.A.C. 10:71-4.1(b) defines resource to include
any real or personal property which is owned by the applicant (or by those persons whose resources are deemed available to him or her, as described in N.J.A.C. 10:71-4.6) and which could be converted to cash to be used for his or her support and maintenance.  Both liquid and non[-]liquid resources shall be considered in the determination of eligibility, unless such resources are specifically excluded under the provisions of N.J.A.C. 10:71-4.4(b).

The regulation explains that a resource must be "available" to be considered in determining eligibility.  N.J.A.C. 10:71-4.1(c).  A resource is "available" where the "person has the right, authority or power to liquidate real or personal property or his or her share of it[,]" resources that "have been deemed available" pursuant to N.J.A.C. 10:71-4.6, and resources arising from a third-party claim or action under certain circumstances.  Ibid.  The value of the resource is "defined as the price that the resource can reasonably be expected to sell for on the open market in the particular geographic area minus any encumbrances (that is, its equity value)."  N.J.A.C. 10:71-4.1(d).  The regulation explains that "[t]he CWA shall verify the equity value of resources through appropriate and credible sources."  N.J.A.C. 10:71-4.1(d)(3).  "Resource eligibility is determined as of the first moment of the first day of each month."  N.J.A.C. 10:71-4.1(e). 
            In delineating the responsibilities in the application process, the regulation states that the applicant is required to
"[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).  Moreover, the applicant is expected to "[a]ssist the CWA in securing evidence that corroborates his or her statements[.]"  N.J.A.C. 10:71-2.2(e)(2).  "The process of establishing eligibility involves a review of the application for completeness, consistency, and reasonableness."  N.J.A.C. 10:71-2.9.  Retroactive eligibility for Medicaid is governed by the regulation and allows "outstanding unpaid medical bills incurred within the three month period prior to the month of application" to be compensated upon approval by the agency.  N.J.A.C. 10:71-2.16(a).
            Finally, the regulation notes that "[e]ligibility must be established in relation to each legal requirement to provide a valid basis for granting or denying medical assistance" and that an applicant's statements regarding eligibility are "evidence."
N.J.A.C. 10:71-3.1(a), (b).  "Incomplete or questionable statements shall be supplemented and substantiated by corroborative evidence from other pertinent sources, either documentary or non[-]documentary."  N.J.A.C. 10:71-3.1(b).  Thus, these regulations establish that an applicant must provide sufficient documentation to the agency to allow it to determine eligibility and corroborate the claims of the applicant. 
            Here, the ALJ concluded that
A.T.'s application of August 28, 2007, was properly denied on November 9, 2007, because petitioner did not supply the requested information regarding her assets and resources in due time to approve the application.  I further [conclude] that the UCBSS did not act in an arbitrary, capricious and unreasonable manner in failing to rescind the denial, because petitioner did not supply the requested information regarding her assets and resources within thirty days after the denial letter to meet all eligibility requirements.

Applying these governing standards of review and legal principles, we conclude there exists substantial credible evidence in the record to support the ALJ's findings, and that the ALJ's decision was not arbitrary, capricious, or unreasonable. 
                                                                        II.
We reject S.T.'s contention that the ALJ failed to distinguish between what documents were necessary to a Medicaid eligibility determination.      
On August 28, 2007, the UCBSS provided S.T. and D.T. with a "Verifications[-]Needed" form, which provided a checklist of required documentation or information.  The regulations require the applicant to assist in procuring necessary documents and to provide the agency with required materials.  N.J.A.C. 10:71-2.2(e)(1)-(2).  At the hearing, S.T.'s counsel argued that
[t]here's liquid resources and non-liquid resources. . . . their own regulations say that any asset that takes more than [twenty] days to liquidate, is non-liquid and may not be counted. . . . my contention is, basically, that both the life insurance -- life insurance policy and the real property -- . . . . [a]re inaccessible resources that shouldn’t have been counted. 
                       
The regulation defining "resource" clearly states that "[b]oth liquid and non[-]liquid resources shall be considered in the determination of eligibility, unless such resources are specifically excluded under the provisions of N.J.A.C. 10:71-4.4(b)."  N.J.A.C. 10:71-4.1(b) (emphasis added).  None of the potential resources at issue in this case are explicitly excluded by N.J.A.C. 10:71-4.4(b).
            As to the deed for the property in Virginia, the ALJ correctly found that the UCBSS was without necessary information to evaluate that resource.  Nancy Moharter, a supervisor in the Medicaid department at UCBSS, testified that obtaining a copy of the deed to the property was critical to the eligibility determination, and that the deed was not provided until after the initial application was denied.  Ms. Moharter made clear in her testimony that the decision as to whether real property is accessible or not is made after the Division receives the required verifications.
            As to the life insurance policy, the cash value of A.T.'s policy was $8,873.  Once UCBSS received the required verifications, it may have determined that the real property and life insurance should not have been counted as resources, pursuant to N.J.A.C. 10:71-4.4(b), but the resource determination was never reached because the verifications were never provided.  Ms. Moharter testified that "[l]ife insurance is not usually inaccessible.  You can cash it in."  However, to make that determination, the agency needs information as to the details of the policy to determine whether it should be considered a resource under the regulations and Medicaid Communication 87-26.
The ALJ properly found that "no credible evidence was submitted that A.T.'s life insurance policy was not accessible to her, or that [D.T. or S.T.] took steps to convert the life insurance policy to an irrevocable trust until after the November 9, 2007[] denial letter was issued."  D.T. did not request that the life insurance policy be converted to paid-up insurance until December 14, 2007, well after the denial letter had been issued.           
                          III.
S.T. argues that the ALJ erred by failing to recognize when the necessary documents were received by the UCBSS.  It is undisputed that the verifications were not submitted until after the UCBSS denied A.T.'s first application for Medicaid benefits.  S.T. argues that "it appears" there were certain attachments to a November 26, 2007 letter relating to A.T.'s financial affairs, but there is no indication what those documents were, and in any event, November 26, 2007 was after the denial of benefits on November 9, 2007.  Plaintiff contends that the deed to the Virginia property was enclosed in a letter dated December 11, 2007.  Although the deed was eventually supplied after the denial of eligibility, that document alone was insufficient to assure A.T. qualified for benefits because it was one of several assets whose values needed to be verified. 
S.T. argues that the ALJ failed to consider a November 26, 2007 letter from D.T. and A.T. to UCBSS indicating the life insurance policy was in the process of being converted to a paid-up policy to be placed into a trust.  This letter is dated after the initial denial of coverage on November 9, 2007.  And the paid-up policy was not used to purchase a burial trust until August 13, 2008.  It was not until after September 18, 2008 that an irrevocable trust was created, which prevented the assets from being counted as a resource.  Thus, there is no evidence S.T. or D.T. complied with the UCBSS verification request, which asked for a "copy of pre[-]paid funeral trust (irrevocable) when completed."
                          IV.
We reject S.T.'s argument that the ALJ failed to "account" for the fact that the UCBSS mailed the November 9, 2007 denial notice to D.T. 
S.T. asserts that he should not be held to the thirty-day rule because the UCBSS mailed the November 9, 2007 denial letter to D.T.  The UCBSS "shall promptly notify, in writing, the applicant for, or beneficiary of, Medicaid Only of any agency decision."  N.J.A.C. 10:71-8.3.  The "[a]pplicant" is defined as "the aged, disabled or blind individual or his/her authorized agent who executes the formal written application . . . ."  N.J.A.C. 10:71-2.1. 
The UCBSS sent the denial notice to the correct person.  A.T. identified D.T. as her POA.  D.T. listed his address on the August 28, 2007 application.  As a result, the UCBSS properly mailed the November 9, 2007 denial notice to D.T.  See Estate of V.M. v. Div. of Med. Assistance & Health Servs., 385 N.J. Super. 165, 169-70 (App. Div. 2006).  The UCBSS also mailed to D.T. the September 20, 2007 and October 19, 2007 letters requesting verifications.  S.T. testified that he and D.T. were in contact with each other.  It is undisputed that S.T. had knowledge that the first application was deficient because he received the August 28, 2007 verifications form itemizing the outstanding information that the UCBSS had requested.  The ALJ recited these facts, which fully support her conclusion D.T. was informed of the requirements for verifications and the notice of denial.

                                                            V.
After reviewing the record and the briefs, we conclude that S.T.'s remaining contentions are without sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(1)(E).  We add the following brief remarks. 
S.T. contends that the UCBSS's thirty-day rescission policy violates the APA.  Ms. Moharter explained that this thirty-day rescission period is an informal policy within Union County that grants additional clemency to applicants that provide required documentation within fifteen days after the denial.  Thus, Union County has an informal policy, benefitting the applicant, which allows the caseworker to rescind a denial if the applicant comes forward with the required information within fifteen days.  Here, because S.T. and D.T. failed to provide the UCBSS with all verifications within the fifteen-day period, we need not resolve whether formal rule making is in order because such a determination would have no impact on A.T.'s status, rendering the issue moot.
            Affirmed.    

certify
 
 



[1]   The parties to that lawsuit settled the matter subject to a hearing in the Office of Administrative Law (OAL) regarding A.T.'s first application for Medicaid benefits. 
[2]   N.J.S.A. 30:4D-2 provides that

[i]t is the intent of the Legislature to make statutory provision which will enable the State of New Jersey to provide medical assistance, insofar as practicable, on behalf of persons whose resources are determined to be inadequate to enable them to secure quality medical care at their own expense, and to enable the State, within the limits of funds available for any fiscal year for such purposes, to obtain all benefits for medical assistance provided by the Federal Social Security Act as it now reads or as it may hereafter be amended, or by any other Federal act now in effect or which may hereafter be enacted. 

Thursday, November 26, 2015

Nursing Facility Services are provided by Medicaid certified nursing homes, which primarily provide three types of services: Skilled nursing or medical care and related services; Rehabilitation needed due to injury, disability, or illness; Long term care —health-related care and services (above the level of room and board) not available in the community, needed regularly due to a mental or physical condition.

Nursing Facilities (NF)

Nursing Facility Services are provided by Medicaid certified nursing homes, which primarily provide three types of services:
  • Skilled nursing or medical care and related services;
  • Rehabilitation needed due to injury, disability, or illness;
  • Long term care —health-related care and services (above the level of room and board) not available in the community, needed regularly due to a mental or physical condition.
A Nursing Facility is one of many settings for long term care, including or other services and supports outside of an institution, provided by Medicaid or other state agencies.

Where Nursing Facility Services are provided

Medicaid coverage of Nursing Facility Services is available only for services provided in a nursing home licensed and certified by the state survey agency as a Medicaid Nursing Facility (NF). See NF survey and certification requirements. Medicaid Nursing Facility Services are available only when other payment options are unavailable and the individual is eligible for the Medicaid program.
In many cases it is not necessary to transfer to another nursing home when payment source changes to Medicaid NF. Many nursing homes are also certified as a Medicare skilled nursing facility (SNF), and most accept long term care insurance and private payment. For example, commonly an individual will enter a Medicare Skilled Nursing Facility (SNF) following a hospitalization that qualifies him or her for a limited period of SNF services. If nursing home services are still required after the period of SNF coverage, the individual may pay privately, and use any long term care insurance they may have. If the individual exhausts assets and is eligible for Medicaid, and the nursing home is also a Medicaid certified nursing facility, the individual may continue to reside in the nursing home under the Medicaid NF benefit. If the nursing home is not Medicaid certified, he or she would have to transfer to a NF in order to be covered by the Medicaid Nursing Facility benefit.

Who may receive Nursing Facility Services

Nursing facility services for are required to be provided by state Medicaid programs for individuals age 21 or older who need them. States may not limit access to the service, or make it subject to waiting lists, as they may for HCBS. Therefore in some cases NF services may be more immediately available than other long term care options. NF residents and their families should investigate other long-term care options in order to transition back to the community as quickly as possible.
Need for nursing facility services is defined by states, all of whom have established NF level of care criteria. State level of care requirements must provide access to individuals who meet the coverage criteria defined in Federal law and regulation. Individuals with serious mental illness or intellectual disability must also be evaluated by the state's PASRR program to determine if NF admission is needed and appropriate.
Nursing Facility Services for individuals under age 21 is a separate Medicaid service, optional for states to provide. However all states provide the service, and in practice there is no distinction between the services.
In some states individuals applying for NF residence may be eligible for Medicaid under higher eligibility limits used for residents of an institution. See your state Medicaid agency for more information.

Services included in the NF Benefit

A NF participating in Medicaid must provide, or arrange for, nursing or related services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental, and psychosocial well being of each resident.
There is no exhaustive list of services a NF must provide, in that unique resident needs may require particular care or services in order to reach the highest practicable level of well being. The services needed to attain this level of well-being are established in the individual's plan of care.
Specific to each state, the general or usual responsibilities of the NF are shaped by the definition of NF service in the state's Medicaid State plan, which may also specify certain types of limitations to each service. States may also devise levels of service or payment methodologies by acuity or specialization of the nursing facilities.
Federal requirements specify that each NF must provide, (and residents may not be charged for), at least:
  • Nursing and related services
  • Specialized rehabilitative services (treatment and services required by residents with mental illness or intellectual disability, not provided or arranged for by the state)
  • Medically-related social services
  • Pharmaceutical services (with assurance of accurate acquiring, receiving, dispensing, and administering of drugs and biologicals)
  • Dietary services individualized to the needs of each resident
  • Professionally directed program of activities to meet the interests and needs for well being of each resident
  • Emergency dental services (and routine dental services to the extent covered under the state plan)
  • Room and bed maintenance services
  • Routine personal hygiene items and services
Residents may be charged for:
  • Private room, unless medically needed
  • Specially prepared food, beyond that generally prepared by the facility
  • Telephone, television, radio
  • Personal comfort items including tobacco products and confections
  • Cosmetic and grooming items and services in excess of those included in the basic service
  • Personal clothing
  • Personal reading materials
  • Gifts purchased on behalf of a resident
  • Flowers and plants
  • Social events and activities beyond the activity program
  • Special care services not included in the facility's Medicaid payment
Additional information
This summary is for general information. Specific requirements for Medicaid nursing facilities may be found primarily in law at section 1919 of the Social Security Act, in regulation primarily at 42 CFR 483 subpart B, and in formal CMS guidance documents. Also see:

Sunday, November 15, 2015

ABA’s new book “Wills and Estate Administration”

   By Kenneth Vercammen, Esq.
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     Making this an essential resource for solo and small firm practitioners, the author includes numerous forms for each topic, and they are also available for download online. The book is basic and written to help new and transitional attorneys. In addition, tips on practice management will help seasoned attorneys.

Author: Kenneth A Vercammen Edison, NJ
   List Price: $79.95

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ISBN: 978-1-63425-380-2
Product Code: 5150484
2015, 290 pages, 7 x 10, Paperback
    
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About the Author: Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  The is the author of the ABA book “Wills and Estate Administration, available at http://shop.americanbar.org/.”
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 Wills, litigation, estates, probate law 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.com which includes many articles on Estate Planning, Probate and Wills.
KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
www.njlaws.com
http://www.njwillsprobatelaw.com

Table of Contents ABA’s new book “Wills and Estate Administration”

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
PART 1
Preparation for Wills/Estate Planning Interviews . . . . . . . . . . 1
Handling Telephone Calls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Initial Responses to Calls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Calls from New Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Subject Matter of Calls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Reminder Calls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Telephone Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rejected Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Estate Planning Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exhibit 1-1: Will Appointment Cover Letter . . . . . . . . . . 7
Exhibit 1-2: Estate Planning Appointment Cover
Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exhibit 1-3: New Client Cover Letter . . . . . . . . . . . . . . 11
Exhibit 1-4: New Client Questionnaire . . . . . . . . . . . . . 12
Exhibit 1-5: Confidential Will Questionnaire . . . . . . . . 14
Exhibit 1-6: Estate Planning Questionnaire . . . . . . . . . . 21
Exhibit 1-7: Power of Attorney Questionnaire . . . . . . . 26
Exhibit 1-8: Will Estate Planning Consult Bill . . . . . . . 29
Exhibit 1-9: Agreement to Provide Estate Planning
Legal Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
PART 2
Interviewing Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Initial Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Importance of Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Will Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Will Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
IV Wills and Estate Administration
Preparing Drafts of Estate Planning Documents . . . . . . . . . 40
Guardianship of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Need for Periodic Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Cost Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Revisions in Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Children from Prior Marriages . . . . . . . . . . . . . . . . . . . . . . . 43
Separated or Divorced Persons . . . . . . . . . . . . . . . . . . . . . . . 44
Gay and Lesbian Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Referring Cases Out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Explaining Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Will Preparation Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Importance of Power of Attorney . . . . . . . . . . . . . . . . . . . . . 50
Gift-Giving Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Going into Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Living Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Statute Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Health Care Representative . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Advance Directives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Organ Donor Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Estate Planning for Alzheimer’s Patients . . . . . . . . . . . . . . . 62
The Missing Client—Be Wary . . . . . . . . . . . . . . . . . . . . . . . . 63
Tax Matters and Credit Shelter Trust Preparations . . . . . . . . . . . 64
What Is a Credit Shelter Trust? . . . . . . . . . . . . . . . . . . . . . . . 65
State Estate Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Document Signings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Wills Signings Outside Office . . . . . . . . . . . . . . . . . . . . . . . . 73
Follow-up after Signing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Newsletter to Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Uniform Probate Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Exhibit 2-1: Will—Husband to Wife with Trust for
Minor Children and Guardians Selection . . . . . . . . 83
Exhibit 2-2: Will—Widow/Widower Spouse with
Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Exhibit 2-3: Will—Unmarried Couple with No
Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Exhibit 2-4: Will—Basic to Spouse and Children
with No Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Contents v
Exhibit 2-5: Will—Unified Credit Trust to Reduce
Estate Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Exhibit 2-6: Will Revision Services Bill . . . . . . . . . . . . 99
Exhibit 2-7: Codicil to Will . . . . . . . . . . . . . . . . . . . . . . 101
Exhibit 2-8: Will Services Bill . . . . . . . . . . . . . . . . . . . . 105
Exhibit 2-9: General Durable Power of Attorney
Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Exhibit 2-10: Revocation of Previous Wills and
Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . 113
Exhibit 2-11: Living Will and Durable Power of
Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Exhibit 2-12: Power of Attorney Taking Effect . . . . . 119
Exhibit 2-13: Will Draft Letter . . . . . . . . . . . . . . . . . . . 121
Exhibit 2-14: Will Signings Outside Office . . . . . . . . . 123
Exhibit 2-15: Post-Will Signing Letter to Clients . . . . 125
Exhibit 2-16: Client End-of-Case Questionnaire . . . . 128
Exhibit 2-17: Brochure Request Letter . . . . . . . . . . . . 131
Exhibit 2-18: Referral Thank You . . . . . . . . . . . . . . . . 133
PART 3
Additional Estate Planning Issues . . . . . . . . . . . . . . . . . . . . . . 135
Preparation of Letters of Instruction . . . . . . . . . . . . . . . . . . . . . 135
Content of Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Confidentiality of Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Practitioner Orders for Life-Sustaining Treatment . . . . . . . 138
Patient Information Disclosure . . . . . . . . . . . . . . . . . . . . . . 138
Prenuptial Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Problems of Probate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Revocable Living Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Transferring Property into the Trust . . . . . . . . . . . . . . . . . . 145
Irrevocable Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Marital Tax Deductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Special Needs Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Qualified Terminable Interest Property Trust . . . . . . . . . . . 148
Medicaid Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Impact of Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Medicaid Spend-Down and the Mentally Incompetent . . 151
Long-Term Care Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 151
Questions to Ask about Long-Term Coverage . . . . . . . . . 152
VI Wills and Estate Administration
Signing House Over to Children . . . . . . . . . . . . . . . . . . . . . 153
Providing for Pets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Unexpected Illness/Disability . . . . . . . . . . . . . . . . . . . . . . . 154
Exhibit 3-1: Letter of Last Instructions . . . . . . . . . . . . 156
Exhibit 3-2: Confidentiality of Files/Requests for
Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Exhibit 3-3: Acknowledgment of Receipt of
Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Exhibit 3-4: HIPAA Authorization to Disclose
Patient Information . . . . . . . . . . . . . . . . . . . . . . . . . 165
Exhibit 3-5: Irrevocable Trust [Wife to Husband] . . . 167
PART 4
Estate Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Filing a Probate Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Qualifying the Executor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Probate Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Inheritance Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Assets That Do Not Pass under a Will . . . . . . . . . . . . . . . . . . . . 185
Tax Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Finalizing the Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Testamentary Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Consulting Fees for Probate Issues . . . . . . . . . . . . . . . . . . . . . . 189
Intestacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Elective Share of Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Undue Influence Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Caveat to Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Removing an Executor of an Estate . . . . . . . . . . . . . . . . . . 199
Complaint for Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Executor’s Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
Unsold Real Estate and Other Property . . . . . . . . . . . . . . . 200
Exhibit 4-1: Condolence/Will Revision Letter . . . . . . 202
Exhibit 4-2: Probate/Inheritance/Estate
Administration Questionnaire . . . . . . . . . . . . . . . . 203
Exhibit 4-3: Retainer Cover Letter . . . . . . . . . . . . . . . . 209
Exhibit 4-4: Agreement to Provide Probate Legal
Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Exhibit 4-5: Executor Duties . . . . . . . . . . . . . . . . . . . . 214
Contents vii
Exhibit 4-6: Notice of Probate . . . . . . . . . . . . . . . . . . . 218
Exhibit 4-7: Certificate of Mailing . . . . . . . . . . . . . . . . 221
Exhibit 4-8: Transfer Inheritance Tax Bureau
Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Exhibit 4-9: Release and Refunding Bond
Letter/Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Exhibit 4-10: Real Estate Waiver Filing . . . . . . . . . . . . 228
Exhibit 4-11: Agreement to Provide Legal
Services—Probate . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Exhibit 4-12: Will/Estate Consultation Bill . . . . . . . . . 231
Exhibit 4-13: Renunciation for Administration . . . . . . 232
Exhibit 4-14: Complaint to Remove Executor,
Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Exhibit 4-15: Complaint to Replace Executor . . . . . . 245
PART 5
Guardianship of Disabled or Incompetent Parents . . . . . . . 249
Exhibit 5-1: Guardianship Interview Form . . . . . . . . . 252
Exhibit 5-2: Guardianship Legal Services Fees . . . . . 257
Exhibit 5-3: Complaint for Guardianship . . . . . . . . . . 260
Exhibit 5-4: Affidavit of Next of Kin . . . . . . . . . . . . . . 261
Exhibit 5-5: Letters to Doctors to Be Delivered
by Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Exhibit 5-6: Affidavit of Doctor 1 . . . . . . . . . . . . . . . . 263
PART 6
Marketing Your Wills and Estate Administration
Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Seminars Sponsored by Community Organizations . . . . . . . . 265
Hosting Seminars in Your Office . . . . . . . . . . . . . . . . . . . . . . . . 265
Seminar Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Seminar Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
American Association of Retired Persons Membership . . . . . 267
Happy Hour Networking with Professionals . . . . . . . . . . . . . . 267
Marketing via Websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Setting up a Blog on Wills and Probate for Free . . . . . . . . 268
Gift Certificates for Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Maintaining Client Contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
viii Wills and Estate Administration
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
Exhibit 6-1: Sample Letter to Senior Groups . . . . . . . 271
Exhibit 6-2: Confirm Will Seminar . . . . . . . . . . . . . . . . 273
Exhibit 6-3: Sample Flyer for Will Seminar . . . . . . . . 275
Exhibit 6-4: Items to Bring to Wills and Elder Law
Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
Exhibit 6-5: Law Office Seminar Promotional
Flyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Exhibit 6-6: Wills and Estate Administration
Seminar Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . 278

About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279