N.J.A.C. 10:71-4.10 Transfer of assets and caregiver exemption

N.J.A.C.  10:71-4.10 Transfer of assets and caregiver exemption

 (a)  The provisions of this section shall apply, effective June 18, 2001, only to persons who are receiving an institutional level of services, including individuals who are receiving services under a42 U.S.C. § 1915(c) home and community care waiver under Medicaid, or who are seeking that level of service, and who have transferred assets on or after August 11, 1993. An individual shall be ineligible for institutional level services through the Medicaid program if he or she (or his or her spouse) has disposed of assets at less than fair market value at any time during or after the 60-month period immediately before:

1.  In the case of an individual who is already eligible for Medicaid benefits, the date the individual becomes an institutionalized individual; or

2.  In the case of an individual not already eligible for Medicaid benefits, the date the individual applies for Medicaid as an institutionalized individual.

(b)  The following definitions shall apply to the transfer of assets:

1.  Individual means:

i.  The individual him or herself who is applying for benefits;

ii.  The individual's spouse;

iii.  A person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse;

iv.  Any person including a court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

2.  An institutionalized individual, for the purposes of this chapter, is a person who is receiving care in a Medicaid certified nursing facility, intermediate care facility for the mentally retarded (ICFMR), or a licensed special hospital (Class C) or Title XIX psychiatric hospital (if under the age of 21 or age 65 and over). For purposes of this chapter, an institutionalized individual shall also include a person seeking benefits under a home or community care waiver program. An institutionalized individual shall not include a person who is receiving care in an acute care general hospital.

3.  Assets shall include all income and resources of the individual and of the individual's spouse. Assets shall also include income and resources which the individual or the individual's spouse is entitled to but does not receive because of action or inaction by the individual or the individual's spouse; or by any person, including a court or administrative body with the legal authority to act in place of or on behalf of the individual or the individual's spouse; or any person, including a court or administrative body, acting at the direction of or upon the request of the individual or the individual's spouse. Examples of actions that would cause income or resources not to be received shall include, but shall not be limited to:

i.  Irrevocably waiving pension income;

ii.  Waiving the right to receive an inheritance, including spousal elective share pursuant to N.J.S.A. 3B:8-10;

iii.  Not accepting or accessing injury settlements;

iv.  Tort settlements which are diverted by the defendant into a trust or similar device to be held for the benefit of an individual who is a plaintiff; and

v.  Refusal to take legal action to obtain a court ordered payment that is not being paid, such as child support or alimony.

4.  Resources, for the purpose of asset transfer, shall include all resources, both included and excluded, in accordance with the provisions of this chapter. For example, the transfer of a home, even if it is serving as the individual's principal place of residence, shall be subject to the transfer of assets provisions.

5.  Income, for the purposes of this section, shall have the same definition as found in N.J.A.C. 10:71-5. In determining whether a transfer of assets involves countable income, the income disregards in N.J.A.C. 10:71-5shall be applied.

6.  Fair-market value shall be an estimate of the value of an asset, based on generally available market information, if sold at the prevailing price at the time it was actually transferred. Value shall be based on the criteria for evaluating assets as found in N.J.A.C. 10:71-4.1(d).

i.  In determining whether or not an asset was transferred for fair-market value, only tangible compensation, with intrinsic value shall be considered. For example, a transfer for "love and affection" shall not be considered a transfer for fair market value.

ii.  In regard to transfers intended to compensate a friend or relative for care or services provided in the past, care and services provided for free at the time they were delivered shall be presumed to have been intended to be delivered without compensation. Thus, a transfer of assets to a friend or relative for the alleged purpose of compensating for care or services provided free in the past shall be presumed to have been transferred for no compensation. This presumption may be rebutted by the presentation of credible documentary evidence preexisting the delivery of the care or services indicating the type and terms of compensation. Further, the amount of compensation or the fair market value of the transferred asset shall not be greater than the prevailing rates for similar care or services in the community. That portion of compensation in excess of the prevailing rate shall be considered to be uncompensated value.

iii.  Under a life estate, an individual who owns property transfers the ownership of that property to another individual, while retaining for the rest of his or her life, or the life of another person, certain rights to that property. A life estate entitles the owner of the life estate to possess, use and obtain profits from the property, as long as he or she lives, although actual ownership of the property has passed to another individual. In a transaction involving a life estate, a transfer of assets is involved. In determining whether a penalty shall be assessed in the case of a transfer involving a life estate, the value of the asset transferred and the value of the life estate shall be computed. The value of the asset transferred is computed by determining the fair market value. The value of the life estate is calculated in accordance with the life estate table published by the Centers for Medicare and Medicaid Services (CMS) at 49 FR Vol. 49 No. 93, 5-11-84 and 26 CFR 20.2031-7. The value of the life estate is determined by multiplying the current market value of the property by the life estate factor that corresponds to the grantor's age. The value of the life estate is then subtracted from the value of the asset transferred to determine the portion of the asset that was transferred for less than fair market value. If only the value of the transferred portion is needed, the current market value of the asset is multiplied by the remainder factor. The transfer in which a life estate is retained shall be considered a transfer for less than fair market value whenever the value of the asset transferred is greater than the value of the rights conferred by the life estate. The purchase of a life estate interest shall be treated as a transfer of assets for less than fair market value unless the purchaser actually lives in the home for at least one full year after the date of purchase.

7.  Uncompensated value (UV) shall be the difference between the fair market value at the time of the transfer (less any outstanding loans, mortgages or other encumbrances on the asset) and the amount of consideration received for the asset. If the asset was jointly owned before disposal, the UV considered shall be only the individual's share of that value (see N.J.A.C. 10:71-4.1(d)). If the individual is seeking institutional services or applying for an institutional level of services and has a spouse residing in the community, the UV considered shall be either spouse's share of that value (see N.J.A.C. 10:71-4.8).

8.  In order for a transfer of assets to be considered to be for the sole benefit of a spouse, disabled child or disabled individual under the age of 65, for the purposes of this subchapter, the transfer shall have been arranged in such a way that no individual except the spouse, disabled child or disabled individual under age 65 can, in any way, benefit from the assets transferred either at the time of the transfer, or at any time in the future. For the purpose of this subchapter, the person administering the funds shall only be compensated for the reasonable costs that can be directly attributable to the administration of the funds and for compensation for that administration. In no event shall such compensation exceed the amounts allowed by law for the administration of trusts. The transfer of asset penalty exemption for transfers made for the sole benefit of the spouse, disabled child or disabled individual under the age of 65 does not impact the treatment of a trust pursuant to N.J.A.C. 10:71-4.11.

i.  If the transfer instrument provides that there are beneficiaries other than a blind or disabled child, or a disabled individual under the age of 65, the sole benefit requirement shall not have been met if the instrument fails to provide that the State shall be the first remaining beneficiary of residual funds prior to disbursement to any other beneficiary.

9.  The look-back period shall be 60 months.

i.  In the case of an individual who is already eligible for Medicaid benefits, the look-back period shall be the 60-month period prior to the date the individual becomes institutionalized.

ii.  In the case of an individual not already eligible for Medicaid benefits, the look-back period shall be the 60-month period prior to the date the individual applied for Medicaid as an institutionalized individual.

iii.  When a portion of a trust is treated as a transfer, the look-back period shall be 60 months from the date the individual applied for Medicaid as an institutionalized individual, or for a non-institutionalized individual, the date the individual applied for Medicaid, or, if the date the transfer was made is later, then the date the transfer was made (see N.J.A.C. 10:71-4.11(e)1iii).

iv.  Penalties of ineligibility shall be assessed for transfers which take place during or after the look-back period. Periods of ineligibility cannot be imposed for resource transfers which take place prior to the look-back period.

(c)  If an individual or his or her spouse described in (a) above (including any person acting with power of attorney or as a guardian for such individual) has sold, given away or otherwise transferred any assets (including any interest in an asset or future rights to an asset) within the look-back period, the following steps shall be taken and shall be fully documented in the case record:

1.  The fair market value (FMV) of the asset shall be ascertained;

2.  The amount of compensation received by the individual for the transfer shall be determined. The uncompensated value (UV) shall be the difference between the fair market value at the time of the transfer (less any outstanding loans, mortgages or other encumbrances on the asset) and the amount of consideration received for the asset. If the asset was jointly owned before disposal, the UV considered shall be only the individual's share of that value (see N.J.A.C. 10:71-4.1(d)). If the individual is seeking institutional services or applying for an institutional level of services and has a spouse residing in the community, the UV considered shall be either spouse's share of that value (see N.J.A.C. 10:71-4.8);

3.  The amount of the UV, if any, shall be added to the amount of the other countable resources;

4.  The period of ineligibility for institutional level services that would result from the asset transfer shall be determined (see N.J.A.C. 10:71-4.10(l));

5.  In all cases where the amount of uncompensated value would result in a period of ineligibility, the applicant shall be notified of the determination via Form PA-13. The Form PA-13 shall advise the applicant that he or she may rebut the presumption that an asset was transferred at less than fair market value in order to qualify for Medicaid coverage for institutional level care (see (i) below).

(d)  The provisions of this section shall apply whether or not the asset would have been considered excluded or exempt at the time of its disposal or transfer. However, an individual shall not be ineligible for an institutional level of care because of the transfer of his or her equity interest in a home which serves (or served immediately prior to entry into institutional care) as the individual's principal place of residence and the title to the home was transferred to:

1.  The legally married spouse of the individual;

2.  A child of the institutionalized individual who is under the age of 21 or a child of any age who is blind or totally and permanently disabled. In the event that the child does not have a determination from the Social Security Administration of blindness or disability, the blindness or disability shall be evaluated by the Disability Review Team of the Division of Medical Assistance and Health Services, in accordance with N.J.A.C. 10:71-3.13;

3.  A brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual; or

4.  A son or daughter of the institutionalized individual (other than described in (d)2 above) who was residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual and who has provided care to such individual which permitted the individual to reside at home rather than in an institution or facility.

i.  The care provided by the individual's son or daughter for the purposes of this subchapter shall have exceeded normal personal support activities (for example, routine transportation and shopping). The individual's physical or mental condition shall have been such as to require special attention and care. The care provided by the son or daughter shall have been essential to the health and safety of the individual and shall have consisted of activities such as, but not limited to, supervision of medication, monitoring of nutritional status, and insuring the safety of the individual.

(e)  The application of a transfer penalty as set forth in this section shall not apply when:

1.  The assets were transferred to a trust established for the sole benefit of an individual under 65 years of age who is disabled as defined by the Social Security Administration;

2.  The assets were transferred to the individual's spouse or to another for the sole benefit of the individual's spouse;

3.  The assets were transferred from the individual's spouse to another for the sole benefit of the individual's spouse (see N.J.A.C. 10:71-4.10(b)7);

4.  The assets were transferred to the community spouse subsequent to the application for Medicaid in accordance with N.J.A.C. 10:71-4.8(a)3;

5.  The assets were transferred from the individual or individual's spouse to the individual's child who is blind or permanently and totally disabled.

i.  In the event that the child does not have a determination from the Social Security Administration of blindness or disability, the blindness or disability will be evaluated by the Disability Review Unit of the Division of Medical Assistance and Health Services in accordance with the provisions of N.J.A.C. 10:71-3.13; or

6.  A satisfactory showing is made, to the State that:

i.  The individual intended to dispose of the assets at either fair market value or for other valuable consideration;

ii.  The assets were transferred exclusively for a purpose other than to qualify for medical assistance; or

iii.  All assets transferred for less than fair market value have been returned to the individual.

(f)  In determining whether an asset was transferred for the sole benefit of a spouse, child or disabled individual as defined in N.J.A.C. 10:71-4.10(b)8, the transfer shall be accomplished via a written instrument of transfer, such as a trust document, which legally binds the parties to a specific course of action and which clearly sets out the conditions under which the transfer was made, as well as who can benefit from the transfer. Moreover, the written instrument shall state that the State of New Jersey shall be the first remaining beneficiary. A transfer without such a document shall not be considered to have been made for the sole benefit of the spouse, child or disabled individual.

(g)  When the asset was transferred at fair market value, the application shall be processed as usual. No special procedure shall be required.

(h)  When the uncompensated value of transferred assets would result in no period of ineligibility for long-term care level services, the application shall be processed as usual.

(i)  When the uncompensated value of transferred assets results in a period of ineligibility for long-term care level services, eligibility for long-term care services shall be denied and the procedures below shall be followed:

1.  The applicant shall be notified via Form PA-13 that there has been a transfer of assets for less than fair market value, the amount of the uncompensated value and the length of the penalty period. The Form PA-13 shall state that the law presumes that a transfer of assets at less than fair market value is for the purpose of establishing Medicaid eligibility for long-term level care services.

2.  The applicant shall be advised that he or she may rebut the presumption that the transfer of assets was for the purpose of establishing Medicaid eligibility (see (j) below).

(j)  Any applicant or beneficiary may rebut the presumption that assets were transferred to establish Medicaid eligibility by presenting convincing evidence that the assets were transferred exclusively (that is, solely) for some other purpose. The applicant shall be assisted in obtaining information when necessary. However, the burden of proof shall rest with the applicant. When the applicant expresses the desire to rebut the presumption that he or she transferred assets to establish Medicaid eligibility, the procedures below shall be followed.

1.  The applicant's statement concerning the circumstances of the transfer shall be included in the case record. The statement shall include, but need not be limited to, the following:

i.  The applicant's stated purpose for transferring the asset;

ii.  The applicant's attempt to dispose of the asset at fair market value;

iii.  The applicant's reasons for accepting less than the fair market value for the asset;

iv.  The applicant's means of and plans for, supporting himself or herself after the transfer; and

v.  The applicant's relationship, if any, to the person(s) to whom the asset was transferred.

2.  The applicant shall be asked to submit any pertinent evidence (for example, legal documents, realtor agreements, and relevant correspondence) with regard to the transfer.

3.  Statements shall be taken from other individuals, if such statements are material to the decision. The statement shall indicate if such individual has or had a relationship with the applicant and the extent of the relationship (that is, related by blood or marriage, friendship).

(k)  The presence of one or more of the following factors, while not conclusive, may indicate that the assets were transferred exclusively for some purpose other than establishing Medicaid eligibility for long term care services:

1.  The occurrence after transfer of the asset of:

i.  Traumatic onset of disability;

ii.  Unexpected loss of other assets which would have precluded Medicaid eligibility; or

iii.  Unexpected loss of income which would have precluded Medicaid eligibility;

2.  Court-ordered transfer (when the court is not acting on behalf of, or at the direction of, the individual or the individual's spouse); or

3.  Evidence of good faith effort to transfer the asset at fair market value.

(l)  Agency determination pursuant to client rebuttal shall be as follows:

1.  The presumption that assets were transferred to establish Medicaid eligibility shall be considered successfully rebutted only if the applicant demonstrates that the asset was transferred exclusively for some other purpose.

2.  If the applicant had some other purpose for transferring the asset, but establishing Medicaid eligibility appears to have been a factor in his or her decision to transfer, the presumption shall not be considered successfully rebutted.

3.  The agency's determination shall not include an evaluation of the merits of the applicant's stated purpose of transferring assets. The determination shall only deal with whether or not the applicant has proven that the transfer was solely for some purpose other than establishing Medicaid eligibility.

4.  The final determination regarding the purpose of the transfer shall be made at a supervisory level at the county welfare agency and shall be documented in the case record.

5.  The applicant shall be sent a notice of the decision, which shall include information on his or her right to a fair hearing in accordance with N.J.A.C. 10:49-10.

(m)  For the purposes of this subchapter, the penalty period shall be the period of time during which payment for long-term care level services is denied. An institutionalized individual who is ineligible for payment of long-term care services as a result of an asset transfer shall be precluded from eligibility, but shall be entitled to ancillary services if otherwise eligible.

1.  In accordance with42 U.S.C. § 1396p(c)(1)(E), the penalty period for asset transfer shall be the number of months equal to the total, cumulative uncompensated value of all assets transferred by the individual, on or after the look-back date, divided by the average monthly cost of nursing home services in the State of New Jersey adjusted annually in accordance with the change in the Consumer Price Index-All Urban Consumers, rounded up to the nearest dollar. The annual adjustment to the average cost of nursing home services in New Jersey shall be published as a notice of administrative change in the New Jersey Register. As of November 2009, the average monthly cost is $ 7,282. The penalty period shall begin with the date of the resource transfer. As of November 2009, the current daily divisor is $ 239.41. A penalty shall be calculated for partial months of ineligibility. There shall be no limit on the length of the penalty period.

i.  For the purpose of determining a penalty period, the transfer of real property shall be considered to have occurred the date the title is recorded or registered with the appropriate office.

ii.  When calculating the penalty period, all of the whole months are calculated first, using the monthly average in (m)1 above; then remaining days are calculated using the daily divisor. The resulting figures will provide the length of the penalty period in months and days.

2.  In the case of an asset transfer which occurs during an existing asset transfer penalty period, the penalty for the subsequent transfer shall not begin until the expiration of the previous penalty period.

3.  When assets have been transferred in amounts and/or frequencies that would make the calculated penalty periods overlap or structured to run consecutively, the uncompensated value of all the asset transfers shall be added together and divided by the average cost of nursing home care. This will result in a single penalty period, beginning on the first day of the month in which the first transfer was made. For example: An individual transfers $ 15,000 in January, $ 15,000 in February, and $ 15,000 in March. Calculated individually, the penalty periods would overlap. Because the three penalty periods overlap, each of the asset transfers shall be added together and divided by the average cost of nursing home care creating a single penalty period beginning on January 1.

4.  When assets have been transferred in such a way that the penalty periods would not overlap, or are not structured to run consecutively, each asset transfer shall be treated as a separate event, each with its own penalty period. For example: An individual transfers $ 15,000 in January, $ 15,000 in November and $ 15,000 in March of the following year. The penalty period for the January transfer would be January and February. The penalty for the November transfer would be November and December. The penalty period for the March transfer would be March and April of the following year.

(n)  When an individual's income is given or assigned in some manner, such gift or assignment shall be considered an asset transfer. The following standards shall be used to determine the penalty period:

1.  Income, in order to be considered transferred, shall have been irrevocably assigned or otherwise unavailable to the individual. If income has been waived or deferred and that waiver or deferral can be reversed, the waived or deferred income shall be considered available to the individual, regardless of whether the income is actually received, and shall be counted in the determination of eligibility.

2.  In the event an individual gives up his or her rights to receive a lump sum payment or transfers a lump sum payment in the month it is received, the period of ineligibility shall be based on the amount of the lump sum payment to which he or she was otherwise entitled.

3.  In the event a stream of income (that is, income received on a regular basis), such as a pension, is transferred, the county welfare agency shall make a determination of the total projected amount of income that has been transferred, based on the individual's life expectancy. This determination shall be based on the most recent life expectancy tables published by the Centers for Medicare and Medicaid Services. In determining the projected amount, the county welfare agency shall strictly adhere to the life expectancy tables without adjustment for the individual's medical condition or other factors. The projection shall be based on the value of the income at the time of transfer and there shall be no attempt to account for future cost-of-living adjustments over the life expectancy of the individual.

4.  In determining if there has been a transfer of income, the county welfare agency need not ascertain the individual's spending habits over the appropriate look-back period. Unless there is a reason to believe otherwise, the county welfare agency shall assume that the individual's income was legitimately spent on the normal costs of living. The county welfare agency may ask questions of the applicant and/or the applicant's representative concerning past and present sources and levels of income and whether the individual has transferred income to others.

(o)  When an asset is held by an individual in common with another person or persons via joint tenancy, tenancy in common, joint ownership, or similar arrangements, the asset (or the affected share of the asset) shall be considered to be transferred by the individual when any action is taken, either by the individual or any other person, that reduces or eliminates the individual's ownership or control of the asset.

1.  If the addition of another name to the ownership of an asset does not change the individual's ownership interest, the action does not constitute a resource transfer. For instance, if another name is added to an individual's account with the term "or," the individual shall not be considered to have transferred assets since he or she continues to have unrestricted access to the funds. In the event the newly added owner subsequently withdraws the funds from the account, that action shall be considered to be a transfer by the individual. The transfer shall be considered to have occurred on the date that the funds are withdrawn from the account.

2.  If the addition of another name to the ownership of an asset restricts the individual's access, right to sell or otherwise dispose of the asset (for example, the addition of another name requires that the new co-owner(s) agree to the sale or disposal of the asset where no such agreement was necessary before), the addition of the name shall constitute a transfer of assets. The transfer shall be considered to have occurred on the date that the additional name was added to the account. In the case of real property for the purpose of this chapter, if another name is added to a deed, the transfer shall be considered to have occurred the date the new deed is recorded.

3.N.J.A.C. 10:71-4.1shall apply to determine what portion of a jointly owned resource is presumed to belong to the individual. Any portion belonging to the individual that is withdrawn by another owner shall be considered a transfer of assets. If the individual can satisfactorily establish that the withdrawn funds were, in fact, the sole property of, and were contributed to the account by the other owner, and thus never belonged to the individual, the withdrawal of those funds shall not result in the imposition of an asset transfer penalty.

(p)  Annuity provisions shall be as follows:

1.  Any annuity purchase in which the entity issuing the annuity is not a commercial financial institution shall be considered to be a transfer of an asset in order to qualify for Medicaid benefits, regardless of the terms of the annuity payout. The entire amount transferred into such an annuity shall be the amount considered in determining eligibility.

2.  Any commercial annuity purchased which is not actuarially sound, based on the life expectancy of the individual (as set forth in life expectancy tables published by the Centers for Medicare and Medicaid Services) or term certain (the length of payout is specified and payment does not terminate upon the death of the annuitant) shall be considered to be a transfer of an asset in order to qualify for Medicaid benefits. In the event that an annuity is not actuarially sound at the time of purchase, the amount that shall be considered to have been transferred at less than fair market value shall be that proportion of the annuity purchase price which is not actuarially sound. This shall be the same proportion as the amount by which the payout period exceeds the life expectancy of the individual at the time of the annuity purchase. (Life expectancy divided by the payout period of the annuity multiplied by the purchase amount of the annuity is subtracted from the total amount of the annuity to determine the uncompensated value.)

(q)  Upon imposition of a period of ineligibility for long-term care level services because of an asset transfer, the county welfare agency shall notify the applicant/beneficiary of his or her right to request an undue hardship exception. An applicant/beneficiary may apply for an exception to the transfer of asset penalty if he or she can show that the penalty will cause an undue hardship to him- or herself. The applicant/beneficiary shall provide sufficient documentation to support the request for an undue hardship waiver to the county welfare agency within 20 days of notification of the transfer penalty. Within 30 days of receipt of such documentation, the CWA shall issue notice to the applicant/beneficiary of its determination.

1.  For the purposes of this chapter, undue hardship shall be considered to exist when:

i.  The application of the transfer of assets provisions would deprive the applicant/beneficiary of medical care such that his or her health or his or her life would be endangered. Undue hardship may also exist when application of the transfer of assets provisions would deprive the individual of food, clothing, shelter, or other necessities of life; and

ii.  The applicant/beneficiary can irrefutably demonstrate the transferred assets are beyond his or her control and that the assets cannot be recovered. The applicant/beneficiary shall demonstrate that he or she made good faith efforts, including exhaustion of remedies available at law or in equity, to recover the assets transferred.

2.  Undue hardship shall not exist when the application of a transfer penalty merely causes the applicant/beneficiary an inconvenience or restricts his or her lifestyle.

3.  In the event that a waiver of undue hardship is denied, neither the Department of Human Services, the Department of Health and Senior Services, nor the county welfare agencies shall have any obligation to take any action to assure that payment of services is provided during the penalty period.

4.  If the request for undue hardship consideration is denied by the CWA, the CWA shall notify the applicant of the denial and that the applicant may request a fair hearing in accordance with the provisions of N.J.A.C. 10:49-10.

History

HISTORY: 

New Rule, R.2001 d.199, effective June 18, 2001.
SeeC~C32 N.J.R. 2021(a),33 N.J.R. 2195(a).
Petition for Rulemaking.
SeeC~C35 N.J.R. 1456(a),2532(b).
Amended by R.2004 d.401, effective November 1, 2004.
SeeC~C36 N.J.R. 922(b),36 N.J.R. 4982(a).
In (m), rewrote 1, and substituted "$ 15,000" for "$ 12,000" throughout 4.
Amended by R.2006 d.133, effective November 6, 2006.
SeeC~C37 N.J.R. 3774(a),37 N.J.R. 4505(a),38 N.J.R. 4712(a).
In (m)1, substituted "2005" for "2003" and substituted "$ 6,525" for "$ 6,050"; and deleted (p)2i.
Petition for Rulemaking.
SeeC~C39 N.J.R. 2157(a),2660(a),4453(a).
Petition for Rulemaking.
SeeC~C42 N.J.R. 1434(a),1918(a),2645(a).
Amended by R.2012 d.025, effective February 6, 2012.
SeeC~C43 N.J.R. 804(a),44 N.J.R. 230(a).
Rewrote the section.

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Case Notes

Medicaid applicants' challenge to state-payback requirement for community spouse annuity trusts (CSATs), whereby state was required to be named first beneficiary of trust assets upon death of spouse residing in community if it had paid benefits on behalf of institutionalized spouse, was moot, where, upon its decision to count CSAT assets in determining Medicaid eligibility, state no longer imposed state-payback condition. Johnson v. Guhl, 357 F.3d 403 (3d Cir. N.J. 2004).

Recipient of homecare assistance sold her home to her grandson, and kept a leasehold in an apartment in the house for the term of her life. As the nature of the recipient's leasehold interest was not explained by the lease or by extrinsic evidence, whether she received fair market value for her leasehold interest, and thus for the house itself, could not be determined from the record for purposes of determining her continued eligibility for homecare assistance benefits. B.D. v. Division of Med. Assistance & Health Servs., 397 N.J. Super. 384, 937 A.2d 980, 2007 N.J. Super. LEXIS 366 (App.Div. 2007).

In determining a claimant's eligibility for benefits, the Director of the New Jersey Department of Human Services has the expertise to determine the significance and sufficiency of various types of asset transfers, and when the Director's findings are supported by credible evidence and correct legal principles, they are entitled to deference by a reviewing court. B.D. v. Division of Med. Assistance & Health Servs., 397 N.J. Super. 384, 937 A.2d 980, 2007 N.J. Super. LEXIS 366 (App.Div. 2007).

Decision of the Director of Division of Medical Assistance and Health Services (DMAHS), which upheld the imposition of a Medicaid transfer penalty based on an unequal equitable distribution to a non-institutionalized spouse of a Medicaid applicant in a bed and board divorce action, was reversed as there existed no regulation that authorized such a decision; furthermore, the DMAHS's in-house rule imposing such a penalty for a transfer of assets as equitable distribution of more than 50 percent to the non-institutionalized spouse was contrary to both New Jersey public policy and the law of equitable distribution. W.T. v. DMAHS, 391 N.J. Super. 25, 916 A.2d 1066, 2007 N.J. Super. LEXIS 59 (App.Div. 2007).

Final agency decision properly affirmed the imposition of a transfer penalty upon a claimant's application for Medicaid benefits to pay for the cost of her nursing home care because a life care contract between herself and her daughter made as a lump sum advance payment to the daughter was not a transfer for fair market value. E.S. v. Division of Med. Assistance & Health Servs., 412 N.J. Super. 340, 990 A.2d 701, 2010 N.J. Super. LEXIS 47 (2010).

Alimony does not constitute income received by a Medicaid recipient where the alimony is paid to a special needs trust created under42 U.S.C.S. § 1396p(d)(4)(A) pursuant to a court order as part of divorce proceedings. Therefore, the New Jersey Medicaid program cannot reduce its contribution to a recipient's nursing home costs by the amount of alimony his or her ex-spouse pays to the special needs trust. J.P. v. DIVISION OF MED. ASSISTANCE & HEALTH SERVS., 392 N.J. Super. 295, 920 A.2d 707, 2007 N.J. Super. LEXIS 119 (2007).

Nursing home patient was eligible for Medicaid Only benefits because the patient's medical condition rendered those assets not accessible under N.J.A.C. 10:71-4.4(b)6, thereby the cash value of certain life insurance policies were excluded from the patient's countable resources. Since the patient was incapacitated due to dementia and Alzheimer's, the patient did not have access to the cash value of the life insurance policies and, ultimately, when a Public Guardian finally was appointed to oversee the patient's person and property, the resource was quickly spent down.I.L. v. NEW JERSEY DEP'T OF HUMAN SERVS., 389 N.J. Super. 354, 913 A.2d 122, 2006 N.J. Super. LEXIS 347 (2006).

Because a grantor's transfer of certain property to her children occurred on the date in which the deed to the property was executed, conveyed to her heirs, and accepted by them, said transfer for less than fair market value did not occur within the look-back period that pertained in respect of her subsequent application for Medicaid assistance; moreover, an agency head with the New Jersey Division of Medical Assistance and Health Services erred by importing the rebuttable presumption that applied within the look-back period to the period of time that preceded that look-back period, in violation ofN.J.A.C. 10:71-4.10(a)and (c)H.K. v. STATE, 184 N.J. 367, 877 A.2d 1218, 2005 N.J. LEXIS 927 (2005).

Court concluded thatN.J.A.C. 10:71-4.10(p)2i, which caps the amount of funds which may be used to acquire a commercial irrevocable and non-assignable annuity at the community spouse resource allowance limit, was invalid because it was inconsistent with federal law, and therefore violative of theSupremacy Clause. Estate of F.K. v. Div. of Med. Assistance & Health Servs., 374 N.J. Super. 126, 863 A.2d 1065, 2005 N.J. Super. LEXIS 7 (2005).

UnderN.J.A.C. 10:71-4.10(f), the State of New Jersey is to be named the first remainder beneficiary on an annuity.Estate of F.K. v. Div. of Med. Assistance & Health Servs., 374 N.J. Super. 126, 863 A.2d 1065, 2005 N.J. Super. LEXIS 7 (2005).

Denial of a judgment discharging a priority lien for reimbursement of Medicaid benefits against a decedent's estate was affirmed because despite having never exercising the elective share against the augmented estate of his wife during his lifetime, it was available to him and he was not excepted fromN.J.S.A. 3B:8-1since he was never divorced and the physical separation by residing in a nursing home was not by itself enough to prevent him from claiming an elective share.In re Estate of Brown, 2017 N.J. Super. LEXIS 8 (2017).

Board of Social Services erred in setting the date on which a penalty period based on asset transfers was to run as the date of an applicant's original Medicaid application because the proper date for the commencement of a penalty period was the date on which an applicant was otherwise eligible for benefits.E.G. v. DMAHS, OAL DKT. NO. HMA 16389-2018, 2019 N.J. AGEN LEXIS 116,Final Agency Determination (February 27, 2019).

Medicaid applicant who transferred all of her assets to a trust in 2005 was not properly subjected to a penalty on Medicaid eligibility based on those transfers because they occurred well before the commencement of the five-year look-back provision and thus could not be the basis of a penalty. That said, however, the language of the trust was such that the applicant was entitled to income from the trust with the result that a penalty based on the value of the income foreclosed to the applicant was properly imposed.A.M. v. DMAHS et al., OAL DKT. NO. HMA 9252-2017, 2018 N.J. AGEN LEXIS 1297,Final Agency Determination (May 31, 2018).

Medicaid recipient was not entitled to claim the "caregiver exemption" with respect to his transfer, to his son, of the recipient's residence because the recipient had been receiving an "institutional level of care" in his home since 2002 so there could not be any basis for finding that the son had provided that level of care to the recipient during the two years prior to the 2016 transfer of the residence.E.S. v. Camden Cnty. Bd. of Soc. Servs., OAL DKT. NO. HMA 16705-17, 2018 N.J. AGEN LEXIS 926,Final Agency Determination (May 3, 2018).

Because a case in which a Medicaid recipient had challenged a transfer penalty had been remanded for the specific purpose of allowing the recipient to create a record as to the recipient's medical condition and cognate need for nursing care, the recipient's failure to provide evidence on that specific issue afforded grounds for a ruling adopting the ALJ's initial decision imposing a transfer penalty arising out of the recipient's transfer of her residence to her son.O.T. v. DMAHS et al., OAL DKT. NO. HMA 14447-2016 (On REMAND FROM OAL DKT. NO. HMA 5459-2016), 2018 N.J. AGEN LEXIS 1006,Final Agency Determination (November 19, 2018).

Where a lien reflecting a debt of the grandson of a nursing home resident encumbered the resident's home and was required to be paid out of escrow upon the sale of the home to a different family member, the amount of that lien constituted a transfer for less than fair market value for which the resident's Medicaid eligibility was properly penalized. This and other transfers reduced the resident's countable assets so as to make her eligible for Medicaid and it could not be said that such transfers were done solely for a reason other than the resident's Medicaid eligibility.A.S. v. DMAHS et al., OAL DKT. NO. HMA 18548-2016, 2018 N.J. AGEN LEXIS 1189,Final Agency Determination (October 30, 2018).

Agency approved and adopted an ALJ's determination imposing a transfer penalty on Medicaid eligibility based on an applicant's transfer of $ 65,000 to her adult daughter. An agreement between the applicant and the daughter indicated that Medicaid eligibility appeared to have been a factor in the decision to transfer the funds with the result that the presumption that the transfer was made to establish Medicaid eligibility was not rebutted. Nor did the "caregiver child exception" apply because the transfer did not involve an equity interest in the applicant's residence.M.K. v. DMAHS et al., OAL DKT. NO. HMA 05700-18, 2018 N.J. AGEN LEXIS 731,Final Agency Determination (July 12, 2018).

Agency rejected an ALJ determination that a Medicaid applicant was properly denied benefits based on the language of a trust into which she had transferred her residence more than five years earlier. Since the residence was the sole asset transferred and that transfer had occurred more than five years earlier, it was not within the five year look-back period and was not properly relied upon as a basis for a denial of benefits.C.P. v. DMAHS et al., OAL DKT. NO. HMA 10565-2017, 2018 N.J. AGEN LEXIS 1270,Final Agency Determination (June 21, 2018).

A Medicaid applicant who claims to have received fair market value in a transfer of assets that occurred within the five-year look-back period bears the burden to establish the type of care or services that were provided in exchange therefor, the type and terms of compensation and the FMV of the compensation. The applicant also bears the burden to show that the compensation was not greater than the prevailing rates for similar care or services in the community.M.P. v. DMAHS et al., OAL DKT. NO. HMA 11246-2017, 2018 N.J. AGEN LEXIS 1004,Final Agency Determination (May 17, 2018).

Settlement resolving a contested divorce proceeding between two elderly spouses who had been married for 11 years was not a transfer that was done to establish Medicaid eligibility of the wife. While there was no doubt that the wife had contemplated issues relating to Medicaid eligibility during the divorce proceedings, contemplating Medicaid did not effect a transfer of assets such as that considered here because that transfer was made for fair market value and the settlement was consistent with provisions of applicable state law.L.M. v. DMAHS et al., OAL DKT. NO. HMA 14804-2017, 2018 N.J. AGEN LEXIS 1144,Final Agency Determination (May 11, 2018).

While a nursing home resident's transfer, to her daughter, of an interest in the resident's home may have implicated the so-called "caregiver exemption" and thus required further analysis to determine whether that exemption was appropriately invoked, that exemption could not be claimed based on care allegedly rendered by the spouse of a son or daughter because the caregiver exemption had no application to a son-in-law or daughter-in-law.V.W. v. DMAHS et al, OAL DKT. NO. HMA 8410-2017, 2018 N.J. AGEN LEXIS 1179,Final Agency Determination (May 3, 2018).

Adult son of an 84-year old Medicaid applicant with complex medical conditions met the criteria for the caretaker exemption with respect to the applicant's transfer, to the son, of her residence for less than FMV because the son had had taken family leave from his employment to care for the applicant, resided with the applicant and served as the applicant's PCA. That being so, no penalty was properly imposed on the applicant's Medicaid eligibility.E.S. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 16705-17, 2018 N.J. AGEN LEXIS 85,Initial Decision (February 14, 2018).

Medicaid applicant did not establish a right to have the "caregiver exemption" applied to reduce the transfer penalty imposed on her benefits eligibility. The tasks performed by the daughter to whom she transferred her residence during the look-back period did not rise to the level of care required to be shown to qualify for that exemption. This was particularly true as applicant was able to perform daily activities on her own including eating breakfast, locking up the house and riding a bus round-trip to a local senior center, not the activities of someone who would have to have been institutionalized but for her daughter's care.C.S. v. DMAHS et al., OAL DKT. NO. HMA 3190-2017, 2018 N.J. AGEN LEXIS 221,Final Agency Determination (January 10, 2018).

Penalty that was imposed upon an applicant for Medicaid benefits based on around $ 100,000 in transfers was approved on review despite the applicant's claim that the same was paid by the applicant, a member of the clergy, to rent a parsonage because the documentary evidence, which included an undated lease that did not impose any rental obligation on the applicant, did not support the claim that rent was paid.I.W. v. DMAHS, OAL DKT. NO. HMA 08372-17, 2018 N.J. AGEN LEXIS 159,Final Agency Determination (January 2, 2018).

Because the daughter of a Medicaid applicant wholly failed to substantiate that most of the expenditures that she made using the applicant's funds benefited the applicant and her husband, a transfer penalty was properly imposed.F.L. v. DMAHS, OAL DKT. NO. HMA 10177-17, 2017 N.J. AGEN LEXIS 1313,Final Agency Determination (December 18, 2017).

Action by a Medicaid applicant in causing household assets to be used to buy an annuity that provided for payments to his wife, the community spouse, over a five year period did not constitute an improper transfer of cash assets on the basis of which the applicant's eligibility was properly penalized. The annuity satisfied all of the safe harbor criteria in governing law and thus the agency's imposition of a transfer penalty by reason thereof was contrary to federal law and properly reversed.F.S. v. Mercer Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 09075-2017, 2017 N.J. AGEN LEXIS 832,Initial Decision (November 14, 2017).

Failure on the part of the son of a Medicaid applicant to produce anything other than handwritten notes that ostensibly indicated the use of the applicant's funds meant that the applicant did not carry her burden to show that the assets were transferred exclusively for a purpose other than to establish Medicaid eligibility. On that basis, the Director of DMAHS adopted the Initial Decision calculating the penalty based on the entire amount of transferred funds.A.P. v. DMAHS, OAL DKT. NO. HMA 11114-17, 2017 N.J. AGEN LEXIS 1070,Final Agency Determination (November 13, 2017).

Transfer penalty was properly imposed on the Medicaid eligibility of an applicant for benefits with respect to expenditures that her daughter, as her representative, claimed to have been spent on food for the applicant and her husband. The daughter's testimony was to the effect that the couple spent between $ 80 and $ 100 a day on food and that those expenditures, which exceeded $ 2000 per month, made up the majority of the expenses on which the penalty was imposed. Given the complete lack of any documentation tending to substantiate this claim, it was not shown that the transfers were not undertaken for the purpose of qualifying for benefits so the imposition of a transfer penalty was proper.F.L. v. Ocean Cnty. Bd. of Social Servs. OAL DKT. NO. HMA 10177-2017, 2017 N.J. AGEN LEXIS 833,Initial Decision (October 23, 2017).

For purposes of Medicaid, surviving spouses must avail themselves of assets even when the decedent has sought to exclude access. To that end, a surviving spouse's failure to request the elective share or to challenge a will that restricts access to a deceased spouse's assets is considered a transfer of assets for the purpose of imposing a transfer penalty.R.L. v. DMAHS et al, OAL DKT. NO. HMA 9762-2014, 2017 N.J. AGEN LEXIS 1298,Final Agency Determination (October 17, 2017).

Transfer penalty was properly imposed on the Medicaid eligibility of an applicant despite her claim that her transfer of her residence to her daughter was properly disregarded by reason of the "caregiver exemption." Though there was no doubt that the applicant's daughter provided care for the applicant and sacrificed a great deal for her comfort, care, and support, the level of care provided by the daughter did not rise to the level qualifying for the caregiver's exemption.C.S. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 03190-17, 2017 N.J. AGEN LEXIS 789,Initial Decision (October 17, 2017).

ALJ rejected the claim of the agency that a Medicaid applicant had transferred a closely held business ostensibly valued at $ 614,700 for less than FMV and instead adopted the expert opinion of a CPA who had handled the business's books to the effect that the business itself had no current value and that the FMV of the remaining assets was $ 24,000.D.T. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 02254-17, 2017 N.J. AGEN LEXIS 770,Initial Decision (October 4, 2017).

In the absence of any back-up documentation in the form of receipts, bills, invoices and/or cancelled checks, spreadsheets prepared by a son showing the claimed use, by the son, of funds belonging to an elderly parent who had applied for Medicaid, were insufficient to prove that the funds at issue in fact were used by the son to provide for the parent's care. That being so, a 231-day transfer penalty was properly imposed on the parent's Medicaid eligibility.A.P. v. Morris Cnty. Dep't of Human Servs., Office of Temporary Assistance, OAL DKT. NO. HMA 11114-17, 2017 N.J. AGEN LEXIS 738,Initial Decision (September 28, 2017).

Medicaid applicant failed to carry his burden to rebut the presumption that a transfer for less than FMV during the look-back period was presumed to have been made to establish Medicaid eligibility. Moreover, the care and services provided by the applicant's adult children for free in the past were presumed to have been intended to be delivered without compensation. Because the applicant did not prove the existence of a written agreement to pay for such services at their FMV, the assets that were transferred to the children was not compensation for services rendered.E.W. v. DMAHS, OAL DKT. NO. HMA 07779-17, 2017 N.J. AGEN LEXIS 1327,Final Agency Determination (September 26, 2017).

DMAHS director approved of an Initial Decision entered following a remand to develop the record on the issue of whether a Medicaid applicant needed a nursing home level of care during a stated period and thus was entitled to invoke the "caregiver exemption," thereby avoiding a penalty on eligibility based on an uncompensated transfer. As the applicant failed to prove, on remand, the existence of physical or mental deficiencies requiring that level of care during the critical two-year period, the Initial Decision rejecting the claim of a caretaker exemption was approved and adopted.F.G. v. DMAHS et al., OAL DKT. NO. HMA 3876-2017 (On remand HMA 15346-2016), 2017 N.J. AGEN LEXIS 1048,Final Agency Determination (September 25, 2017).

ALJ rejected an agency determination denying an applicant's request that the applicant's daughter be granted a caregiver's exemption because the undisputed evidence was that the applicant remained in her home and received care from her daughter for the relevant two year period and that the daughter assisted her in all ADLs; took care of all of the shopping, laundry, doctor's appointments and other domestic matters, and arranged for friends and family to care for her mother when she was absent. Because the daughter was providing "nursing home level care," the caregiver's exemption was properly granted. A.K. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 03433-17 (ON REMAND HMA 11760-16), 2017 N.J. AGEN LEXIS 704,Initial Decision (September 11, 2017).

In reviewing an application for Medicaid benefits filed by a 50-year old quadriplegic, a county social services board could not determine the propriety of distributions from a special needs trust account without the testimony of the trustee or some other person knowledgeable about the uses of the funds held therein. In the absence of such information, which could only be obtained from the applicant or his representative, the application was appropriately denied. E.M. v. DMAHS et al., OAL DKT. NO. HMA 14679-15, 2017 N.J. AGEN LEXIS 670,Initial Decision (September 6, 2017).

Institutionalized spouse who failed to cause her attorney-in-fact to elect against the estate of her deceased husband within the statutory 6-month period was properly found to have transferred those assets into the inter vivos trust of the deceased spouse for less than FMV and such amounts were properly considered in determining and imposing a transfer penalty on the Medicaid eligibility of the institutionalized spouse. R.L. v. DMAHS et al., OAL DKT. NO. HMA 09762-14, 2017 N.J. AGEN LEXIS 669,Initial Decision (August 30, 2017).

ALJ agreed with a county social services board that a transfer penalty was properly imposed on the Medicaid eligibility of an applicant who had resided with his adult children during the five years prior to the date on which he entered a nursing home. While the applicant insisted that the fund transfers on which the penalty was based were made to fund his living expenses such as medical care, personal care items and food, the applicant only provided general testimony about those expenses and did not submit receipts or other documentary proof other than photographs of the garden that the applicant claimed to have created using his own funds. The applicant therefore did not carry his burden to prove that the transfers were not made for the purpose of establishing Medicaid eligibility. E.W. v. Morris Cnty. Office of Temp. Assistance, OAL DKT. NO. HMA 07779-17, 2017 N.J. AGEN LEXIS 652,Initial Decision (August 25, 2017).

ALJ rejected the determination of a county social services board that imposed a transfer penalty on the Medicaid eligibility application of an elderly woman who resided with her daughter and her family for 31 years because it was shown by a preponderance of the credible evidence that the assets were transferred to pay for the woman's basic needs while living in her daughter's home. Since the woman's monthly income at no time exceeded $ 1416 and those funds were used to reimburse her daughter for her food, clothing, medical, personal needs and small household contributions, the challenged transfers were not properly considered to be transfers made in anticipation of the receipt of Medicaid and no eligibility penalty should have been imposed. G.B. v. Burlington Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05584-17, 2017 N.J. AGEN LEXIS 650,Initial Decision (August 24, 2017).

Daughter of an elderly woman who had Alzheimer’s Disease adequately proved that the level of care that she was providing to her mother during the two years prior to the date of her admission to a nursing home was such that the caregivers' exemption applied. The elderly woman's physician confirmed that if it were not for the daughter's consistent and constant care, the older woman would have needed to enter a facility years earlier. The level of care provided by the daughter was such that the caregivers' exemption clearly applied. P.S. v. Ocean Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 3318-17, 2017 N.J. AGEN LEXIS 605,Initial Decision (August 9, 2017).

Medicaid applicant who transferred $ 118,048 during the look-back period won partial relief from the transfer penalty. The DMAHS director concluded that because $ 52,415 of the transfers were shown to have been used to reimburse family members for expenses incurred and paid for by family members. That meant that the transfer penalty should have been calculated based on the uncompensated transfers, which were in the amount of $ 65,633.V.R. v. DMAHS et al., OAL DKT. NO. HMA 19150-2016, 2017 N.J. AGEN LEXIS 1189,Final Agency Determination (July 26, 2017).

Claim that a social services board should have used the 2017 tax assessment value of a residence instead of the 2016 value in determining the amount of the transfer penalty that was properly imposed on a Medicaid recipient's eligibility was rejected because the applicable formula took into account the FMV of the property if sold at the prevailing price at the time it was actually transferred. Because the residence was transferred in 2016, the 2017 tax assessment was properly disregarded. B.F. v. Cape May Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05752-17, 2017 N.J. AGEN LEXIS 573,Initial Decision (July 20, 2017).

Transfer penalty imposed upon an applicant for Medicaid-only benefits on account of the sale of his home was properly calculated based on tax-assessed value for the property of $ 220,500, adjusted by use of the 2015 Equalized Valuation Ratio to $ 217,305. No value could be assigned to the repairs that were alleged by the applicant to be required because the certificate of occupancy inspection report was unsigned and no estimates of the cost of the repairs that were allegedly needed were submitted. Moreover, the value of the property had to be adjusted upward to account for the additional benefit resulting from the presence, on the property, of a billboard that was subject to a 30-year lease. M.T. v. DMAHS et al., OAL DKT. NO. HMA 02698-17 (ON REMAND HMA 13332-16), 2017 N.J. AGEN LEXIS 557,Initial Decision (July 18, 2017).

Although an elderly woman's condition in the months preceding her admission to a nursing home was well documented and indicated that she had functional limitations with incontinence, ambulation, and forgetfulness at that time, there was insufficient non-anecdotal evidence detailing her condition over the two-year period that preceded her admission to establish both her condition and that the level of care provided by a daughter met the regulatory standards for the "caregiver exemption," so application thereof was not authorized. F.G. v. Mercer Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 03876-17 (ON REMAND HMA 15346-16), 2017 N.J. AGEN LEXIS 538,Initial Decision (July 12, 2017).

Director of DMAHS rejected the argument of a Medicaid applicant that transferred assets on which an eligibility penalty was imposed were incorrectly valued on findings that, for Medicaid purposes and absent a certified appraisal, the equity value of real property was the tax-assessed value of the property multiplied by the reciprocal of the assessment ratio as recorded in the most recently issued State Table of Equalized Valuations, less encumbrances, if any. However, a correction was necessary because the ratio of assessed value to true value was 105.82% not 107.68%, which affected the value of the transfer at issue. R.S. v. DMAHS, OAL DKT. NO. HMA 1885-2016 and OAL DKT. NO. HMA 1031-2017 (Consolidated), 2017 N.J. AGEN LEXIS 1340,Final Agency Determination (June 30, 2017).

ALJ correctly concluded that a Medicaid applicant failed to timely request or qualify for an undue hardship exception by showing that she made good faith efforts to recover assets that were found to have been transferred. Because the applicant did not request a waiver of the penalty nor demonstrate that the transferred assets were beyond her control and cannot be recovered, the ALJ correctly concluded the applicant was not entitled to relief under the undue hardship exception. A.B. v. DMAHS et al., OAL DKT. NO. HMA 17240-16, 2017 N.J. AGEN LEXIS 1110,Final Agency Determination (June 9, 2017).

ALJ properly concluded that a Medicaid applicant was not entitled to relief from a transfer penalty based on undue hardship because the applicant did not demonstrate that the transferred assets on which the penalty was premised were beyond her control and unrecoverable. Nor was any evidence offered to show that the applicant's health or life would be endangered if the undue hardship waiver was denied. That being so, the applicant did not show that she was entitled to an undue hardship waiver of the penalty. S.A. v. DMAHS et al., OAL DKT. NO. HMA 15903-16, 2017 N.J. AGEN LEXIS 1162,Final Agency Determination (June 1, 2017).

Assets held in a trust of which a Medicaid applicant was both a grantor and a co-trustee were not "countable assets" for the purpose of determining the applicant's eligibility because the trust expressly provided that the applicant could not receive any amounts from the trust under any circumstances. Also, the trust was created more than ten years prior to the date on which the applicant sought Medicaid benefits. M.K. v. Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05523-17, 2017 N.J. AGEN LEXIS 347,Initial Decision (May 25, 2017).

Agency director rejected the Initial Decision of an ALJ which found that a Medicaid applicant had established that payments to her son totaling $ 89,560 represented FMV rent paid to the son for housing. The claims that the transfers were rent were unsupported because neither the applicant nor her husband testified, because the terms of the agreement were mercurial, because there were no payments to the son of the agreed-upon amount of $ 1800 but payments ranging from $ 2060 to $ 5000 were made, and because the amount reported as rental income on the son's tax returns was less than the amounts of the transfers. Because the applicant did not demonstrate that the purpose of the transfers was for a reason other than Medicaid eligibility, a penalty was properly based on the entire amount that was transferred. L.M. v. DMAHS, OAL DKT. NO. HMA 16647-2016, 2017 N.J. AGEN LEXIS 1163,Final Agency Determination (May 17, 2017).

Because an applicant waived his elective share in his deceased wife's home more than 60 months prior to the date on which he applied for Medicaid benefits, that transfer was beyond the 60-month look-back period and no eligibility penalty was properly applied. W.W. v. Monmouth Cnty. Div. of Social Servs., OAL DKT. NO. HMA 17796-16, 2017 N.J. AGEN LEXIS 250,Final Administrative Determination (April 27, 2017).

Medicaid applicant who signed a contract agreeing to pay all expenses of residing in a nursing home for a guaranteed two year period was not entitled to have the asset transfer-related penalty period run while she was in private pay status. Her claim of financial eligibility was a sham designed to have a Medicaid bed waiting for her when her assets ran out. Further, the facility would not accept payments from Medicaid until the applicant had been a resident of the facility for two years. Because the application for Medicaid benefits was premature, the county social services board acted properly in denying it. B.K. v. Monmouth Cnty. Div. of Social Servs. et al, OAL DKT. NO. HMA 18569-16, 2017 N.J. AGEN LEXIS 224,Initial Decision (April 24, 2017).

Letter sent to applicant for Institutional Medicaid determining her eligibility and imposing a transfer penalty period adequately informed the applicant of her right to request an undue hardship exception. That said, the applicant did not meet the criteria for a hardship exemption in any event. A.B. v. Morris Cnty. Office of Temporary Assistance, OAL DKT. NO. HMA 17240-16, 2017 N.J. AGEN LEXIS 220,Initial Decision (April 24, 2017).

Social services board should not have imposed a transfer penalty on the Medicaid eligibility of an applicant who also was the parent of a disabled child who was the beneficiary of a special needs trust which was to be funded with the proceeds from the sale of the applicant's house. To the extent that the transfer benefited the special needs trust, by definition it was not a transfer for less than FMV within the meaning of governing regulations. Moreover, given the deplorable condition of the property, its equalized value of $ 146,000 should not have been considered equivalent to its FMV, which was shown to be $ 72,000, and the sale of the property for $ 71,000 was not for "less than FMV."D.H. v. DMAHS et al., OAL DKT. NO. HMA 18715-16, 2017 N.J. AGEN LEXIS 164,Initial Decision (March 16, 2017).

DMAHS reversed the determination of an ALJ that the caregiver exemption applied to protect a nursing home resident from a penalty based upon her transfer of her house to her daughter because the record did not contain any competent medical evidence of the resident's condition. The only documentation in the record was suspect for many reasons among which was the fact that the dates next to the physician's signature reflected the passage of four years but the documents appeared to have been drafted at the same time. V.V. v. DMAHS et al., OAL DKT. NO. HMA 3183-2016, 2017 N.J. AGEN LEXIS 991,Final Agency Determination (March 15, 2017).

Penalty was properly imposed on petitioner's Medicaid eligibility on account of $ 626,704 in transfers from an account that contained funds that had been contributed to the account by the petitioner and his deceased wife. Even though the names of his son and daughter-in-law had been added to the account, the presence of their names on the account did not entitle them to the funds and while the son claimed that a substantial number of the transfers were made to him on account of rent for periods during which the petitioner had lived in his home, there was no documentary evidence supporting the rent claim. T.E.B. v. Salem Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 12646-16, 2017 N.J. AGEN LEXIS 131,Initial Decision (March 1, 2017).

DMAHS rejected an ALJ's determination that a Medicaid applicant was entitled to invoke the "caregiver exemption" in connection with the applicant's transfer of his home to her daughter, thereby shielding the home's FMV from inclusion in the amount on which a transfer penalty was properly based. Because the record below did not specifically show that the applicant had resided in the community for the required two-year period, reversal and remand were required so as to assure that specific findings on that and the other criteria were made. A.K. v. DMAHS et al, OAL DKT. NO. HMA 11760-2016, 2017 N.J. AGEN LEXIS 521,Remand Order (February 17, 2017).

DMAHS rejected an ALJ's determination that a Medicaid applicant was entitled to invoke the "caregiver exemption" in connection with the applicant's transfer of his home to his son, thereby to shield the FMV of the home from being included in the amount on which a transfer penalty was properly based. Inasmuch as petitioner received care from a caregiving service at a weekly cost of $ 900, the matter was properly remanded for further findings about the source of the funds used to pay for such services. T.W. v. DMAHS et al., OAL DKT. NO. HMA 6752-2016, 2017 N.J. AGEN LEXIS 509,Remand Order (February 17, 2017).

Medicaid applicant established that payments made to her son totaling $ 89,560 represented FMV rent paid to the son for housing and amount was properly deducted from total of expenditures that were classified as having been made for other than fair value. That being so, the transfer penalty had to be recalculated based on $ 51,304 in transfers. L.M. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 16647-16, 2017 N.J. AGEN LEXIS 101,Initial Decision (February 17, 2017).

Penalty imposed on the Medicaid eligibility of a 99-year-old woman was modified because her $ 1,000 "donation" to assist her sister (who died soon thereafter) in paying medical expenses represented a permitted exception. However, two other expenditures totaling $ 1500 representing two gifts to her niece for her birthday and graduation exceeded the amount of what would be customary gifts, so $ 200 of the $ 1500 expenditure would also be disregarded in determining the penalty period. M.G. v. DMAHS et al., OAL DKT. NO. HMA 16652-16, 2017 N.J. AGEN LEXIS 57,Initial Decision (January 31, 2017).

Adult daughter of mother who was disabled as a result of Alzheimer's disease was entitled to the benefit of the "caregiver child" exemption because she established that she cared for her mother on a continuous basis despite the fact that the daughter was employed full-time. The evidence established that the daughter's employer liberally accommodated the daughter's need to care for her mother and allowed her to telecommute for a substantial number of hours during each workweek, therefore making it possible for the daughter to remain in the residence when her mother's condition required it. That being so, the agency should not have denied benefits to the mother. E.C. v. Passaic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15633-16, 2017 N.J. AGEN LEXIS 30,Initial Decision (January 12, 2017).

Social services board erred when it terminated an applicant's Medicaid Long Term Social Services benefits. The applicant was entitled to invoke the caregiver child exception because the applicant, who suffered from dementia, lymphoma and ambulatory limitations, established that the care provided by her adult child exceeded the normal personal support activities typically provided in a household. The application of that exemption meant that the transfer of her home to her caregiver child did not result in the application of a transfer penalty. T.H. v. Essex Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 10908-16, 2016 N.J. AGEN LEXIS 1237,Initial Decision (December 13, 2016).

ALJ rejected a ruling denying a caregiver's exemption for the daughter of an elderly woman who suffered from various ailments including severe arthritis that impeded mobility and mental decline. In the two years prior to her transfer to a nursing home, she could not cook, shop for food, bathe independently, monitor her own medications, transfer to a commode without assistance or keep a doctor's appointment. Because the daughter's activities relative to caring for her mother met the requirements for specialized care, the caregiver exemption applied.F.G. v. Mercer Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15346-16, 2016 N.J. AGEN LEXIS 1239,Initial Decision (December 9, 2016).

Hardship waiver application made by a niece as power of attorney for a nursing home resident on whom a 43-day eligibility penalty had been imposed was denied. Because no evidence of a change in the resident's condition that would have made it more difficult for the resident to explain the circumstances surrounding a challenged transfer was produced, the fact that there had been a 17 month delay in the processing of the claim by the social services board, without more, was an insufficient basis for a waiver.F.T. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 09134-2016, 2016 N.J. AGEN LEXIS 1235,Amended Initial Decision (December 9, 2016).

Even though the 17-month delay in the processing of a nursing home resident's application for Medicaid was inexcusable, particularly in light of the fact that counsel for the resident's niece, who was her power of attorney, contacted the social services board on 15 different occasions in the 17 month period, the delay did not validate the $ 14,300 in transfers for which no explanation was offered. That being so, the resident's Medicaid eligibility was properly subjected to a 43-day penalty. F.T. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 03271-16 n1,2016 N.J. AGEN LEXIS 1234,Initial Decision (December 7, 2016).

After remand to allow for additional evidence to be submitted relative to the kinds of tasks undertaken by the son of a Medicaid recipient for whom a "caretaker exemption" was sought, an ALJ found that the son and his wife administered the daily medications needed by applicant, a diabetic, and tested her blood glucose levels several times a day; assisted her with ADLs including toileting; bathing; dressing; meal preparation; transportation to and from doctor appointments; shopping; and house cleaning; and that but for the performance of these tasks by the son and his wife, the applicant would have required institutional care from at least 2010 forward.L.K. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15127-16, 2016 N.J. AGEN LEXIS 997,Order on Remand (December 2, 2016).

Agency approved of a determination by an ALJ that a Medicaid applicant had properly invoked the "caregiver exemption" with reference to transfers to the adult son with whom she resided in proceedings to determine whether she was eligible for an institutional level of care because it was clearly shown that the care provided by the applicant's son prevented the applicant from needing earlier institutionalization. E.T. v. DMAHS, OAL DKT. NO. HMA 16072-2015, 2016 N.J. AGEN LEXIS 1385,Final Agency Determination (November 30, 2016).

Transfer penalty of 93 days imposed on the eligibility of a 92-year old Medicaid applicant in connection with his transfer of a "life estate" for inadequate value was rejected by an ALJ, who determined that the value of the "life estate" was minimal at most. As no proof was presented to show that it was substantially less than $ 1,000, that amount was accepted as the value of the estate and a transfer penalty of three days was properly imposed. Moreover, the facts were such that the applicant might properly seek an undue hardship waiver.S.P. v. DMAHS et al., OAL DKT. NO. HMA 911-16, 2016 N.J. AGEN LEXIS 1103,Initial Decision (November 22, 2016).

DMAHS erred when it imposed a transfer penalty on the Medicaid eligibility of a nursing home resident who sold her house, which had a "tax-assessed value" of more than $ 130,000, for $ 55,000. The resident rebutted the presumption that the proper formula for determining the value of the property was the tax-assessed value of the real estate, multiplied by the reciprocal of the assessment ratio in the most recent State Table of Equalized Valuation. At the time of the sale, the house needed substantial renovations and remediation to address its dilapidated condition which included mold throughout the premises.C.H. v. Atlantic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 07039-16, 2016 N.J. AGEN LEXIS 1095,Initial Decision (November 21, 2016).

County social services board erred in denying a Medicaid recipient's application for a caregiver's exemption for her daughter, which denial apparently was solely based on the fact that the daughter worked outside of the home and not on any analysis of whether the care that the daughter provided was "nursing home level care." The record showed that the daughter indeed was providing such care, including assisting her mother with all of the activities of daily living including bathing, grooming, toileting, helping her in and out of bed, providing all her meals, taking her to all her doctor's visits and taking care of the home in which both resided.A.K. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 11760-16, 2016 N.J. AGEN LEXIS 1090,Initial Decision (November 21, 2016).

Agency concurred with the ruling of an ALJ approving a transfer penalty on the Medicaid eligibility of an ex-wife on findings that the property settlement agreement signed by her and her husband incident to their divorce was entered into for the purpose of making her eligible for Medicaid, and that the establishment of Medicaid eligibility was the overriding factor in the decision to allocate a disproportionate share of the joint assets to the husband.N.W. v. DMAHS, OAL DKT. NO. HMA 13129-2015, 2016 N.J. AGEN LEXIS 1361,Final Administrative Determination (November 17, 2016).

Application for caregiver's exemption made by an elderly nursing home resident with respect to the care rendered to him by his son should have been granted. More than a preponderance of the credible evidence showed that the son epitomized the dutiful, caring son who gave up living with his girlfriend and resigned from his full-time job to care for his father on a full-time basis, and exemplified the proper application of the exemption.T.W. v. Passaic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 06752-2016, 2016 N.J. AGEN LEXIS 1105,Initial Decision (November 17, 2016).

Transfer penalty imposed by a social services board by reason of the transfer, by a Medicaid applicant, of her 40% interest in her daughter's house for $ 120,000 was sustained because the daughter never paid the $ 120,000 to her mother and the applicant later claimed that the $ 120,000 was the value of services provided by the daughter to the mother.A.M. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 03076-16, 2016 N.J. AGEN LEXIS 1104,Initial Decision (November 17, 2016).

Transfer penalty imposed upon the Medicaid eligibility of a nursing home resident on account of his claimed transfer of his home was rescinded because the evidence showed that the sale of the property was not for the home was not for the purpose of qualifying for Medicaid but rather for financing to help the resident and his wife was funds were needed to secure the resident's entry into assisted living. Moreover, the social services board erred in assigning an FMV of $ 120,000 given the deplorable condition of the property, which supported a market value equal to or less than the $ 65,000 sale price.J.W. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA00366-16, 2016 N.J. AGEN LEXIS 952,Initial Decision (November 4, 2016).

Transfer penalty imposed on an applicant's eligibility for Medicaid was sustained. While the applicant's son showed expenditures in excess of the funds for which an accounting was required, only those expenditures made in the "look-back period" were properly considered and those expenditures did not equal or exceed the amount for which an accounting was required.E.M. v. Camden Bd. of Social Servs., OAL DKT. NO. HMA4361-16, 2016 N.J. AGEN LEXIS 953,Initial Decision (November 3, 2016).

DMAHS directed a social services board to consider whether a 95-year old Medicaid applicant on whom a transfer penalty had been imposed was now eligible for Medicaid on findings that funds that were claimed by the agency to have been transferred without fair value had been returned in full.D.B. v. Essex Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 08561-16, 2016 N.J. AGEN LEXIS 1312,Final Administrative Determination (October 31, 2016).

Imposition of transfer penalty on an applicant's Medicaid eligibility based on allegedly uncompensated transfer of $ 78,015 was disapproved by DMAHS. While there was evidence suggesting that the funds had been transferred to applicant's disabled daughter, a determination of whether the daughter in fact was disabled and whether all of the transfers went to the daughter needed to be made before a ruling could be made on the Medicaid application.G.H. v. DMAHS et al., OAL DKT. NO. HMA 07348-16, 2016 N.J. AGEN LEXIS 1328,Final Agency Decision (October 18, 2016).

DMAHS director rejected an ALJ's determination that the services provided to a Medicaid recipient by her son met the criteria of "special attention and care" on which the "caregiver" exemption was based because there was no expert testimony or contemporaneous medical notes or bills, and a letter from the recipient's doctor was insufficient to support the ALJ's finding that the recipient needed a "nursing home level of care" during the years prior to her institutionalization.L.K. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05437-16, 2016 N.J. AGEN LEXIS 1162,Remand Order (September 20, 2016).

DMAHS director rejected an ALJ's determination that the services provided to a Medicaid recipient by her son met the criteria of "special attention and care" on which the "caregiver" exemption was based because there was no competent medical evidence that the recipient's medical diagnoses and condition during the two years prior to her institutionalization was at a level that she would have needed special care, without which the recipient would have been in a nursing home.O.T. v. Passaic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05459-2016, 2016 N.J. AGEN LEXIS 1164,Remand Order (September 8, 2016).

Medicaid applicant properly invoked the "caregiver exemption" with reference to transfers to the adult son with whom she resided in proceedings to determine whether she was eligible for an institutional level of care. Her son clearly took great care of the applicant for as long as he could, assisting her in all her daily living activities, including dressing, grooming, bathing, toileting and providing meals. He also took care of all the shopping, laundry, her doctor's appointments and everything relating to the home. Such a level of activity clearly exceeded "normal personal support activities" and the caregiver exemption clearly applied.E.T. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 16072-15, 2016 N.J. AGEN LEXIS 750,Initial Decision (September 1, 2016).

Director of DMAHS reversed a finding by an ALJ that a transfer penalty imposed upon the Medicaid eligibility of a nursing home resident was properly reduced because the only issue before the ALJ in fact was the nursing home's request for a hardship waiver. Moreover, the original determination imposing the transfer penalty, which had been properly calculated, was never appealed and thus could not be relitigated in the guise of a request for a hardship waiver.L.B., Petitioner, v. DMAHS et al., OAL DKT. NO. HMA 1203-2016, 2016 N.J. AGEN LEXIS 1144,Final Administrative Determination (August 29, 2016).

Medicaid applicant failed to show that property transfers pursuant to a property settlement agreement with his now-former wife was made for adequate consideration were made solely for a purpose other than qualifying for Medicaid. The applicant offered no corroborating evidence to establish that the challenged transfers were done for a purpose other than to qualify for Medicaid benefits. In fact, the evidence presented showed that Medicaid benefits were affirmatively contemplated as part of the property settlement agreement.R.W. v. Monmouth Cnty. Div. of Social Servs. and DMAHS, OAL DKT. NO. HMA 00703-16, 2016 N.J. AGEN LEXIS 1142,Final Administrative Determination (August 26, 2016).

ALJ approved of a transfer penalty imposed on the Medicaid eligibility of an ex-wife on findings that the circumstances surrounding the execution of a property settlement agreement (PSA) by the parties were such that the ex-wife did not rebut the presumption that the PSA was entered in for the purpose of making the ex-wife Medicaid eligible. Once the equity in the couple's house was included in the shared assets, the ex-wife in fact received only about 1/3 of the value of the couple's property. Though the ex-wife may have wished to provide for her former husband to remain in the community even after their divorce, establishing Medicaid eligibility for herself was the overriding factor in the determination to allocate more of the joint assets to the ex-husband so the transfer penalty imposed by DMAHS was properly approved.N.W. v. Monmouth Cnty. Div. of Social Servs., OAL DKT. NO. HMA 13129-15, 2016 N.J. AGEN LEXIS 725,Initial Decision (August 22, 2016).

County social services board erred in agreeing to reduce the transfer penalty imposed on the Medicaid eligibility of a 96 year old recipient based on her transfer, to her son, of assets totaling $ 81,100.13. Because the regulations governing a return of such assets as a prelude to establishing eligibility required that the applicant show that the entire amount had been returned, the amounts represented by checks written by the son, which totaled $ 17,803,84, were not properly applied to reduce the penalty, and the original penalty of $ 81,100.13 had to stand.A.K. v. DMAHS et al., OAL DKT. NO. HMA 475-2016, 2016 N.J. AGEN LEXIS 1140,Final Administrative Determination (August 5, 2016).

Transfer penalty imposed on the Medicaid eligibility of a 95 year old man was reversed by an ALJ. The applicant's family, though asserting an innocent payee defense to the claim that funds were transferred without fair value, returned the funds to the applicant's widow, but the agency representative apparently failed or refused to agree that the dispute was mooted by the return of the funds, conduct that the ALJ characterized as arbitrary and capricious.D.B. v. Essex Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 08561-16, 2016 N.J. AGEN LEXIS 695,Initial Decision (August 4, 2016).

County social services board erred when it classified a $ 653 payment received monthly by a special needs trust for a disabled Medicaid applicant as "available income" for purposes of an eligibility determination because the applicant did not personally receive the annuity income payments, which were payable only to the trustee of the trust and were subject to the trustee's disposition.N.U. v. Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 07715-16, 2016 N.J. AGEN LEXIS 710,Initial Decision (August 1, 2016).

Transfers by a Medicaid applicant of $ 13,000 to her niece and her great-niece were dispositions at less than fair market value during the sixty-month look back period and thus supported the decision of a county social services board that the applicant's eligibility was subject to a transfer penalty of two months and two days.T.O. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 13624-15, 2016 N.J. AGEN LEXIS 685,Initial Decision (August 1, 2016).

ALJ agreed with the transfer penalty imposed by a social services board on the eligibility of a Medicaid applicant reflecting its finding that the applicant had transferred $ 78,015.05 for less than fair value. Though the recipient of those funds, being the applicant's daughter, was disabled and received SSDI, the record suggested that the daughter was not permanently and totally disabled within the meaning of relevant federal regulations and that to the extent that such funds were spent by the daughter for expenditures benefiting her household, other household members including the daughter's husband derived a benefit therefrom with the result that the transfers were not exempt from penalty.G.H. v. Essex Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 07348-16, 2016 N.J. AGEN LEXIS 694,Initial Decision (July 28, 2016).

Application made by the Office of the Public Guardian (OPG) challenging a transfer penalty and seeking a hardship waiver was denied. The OPG was acting on behalf of an elderly man whose Alzheimer's was such that he was wholly unable to assist OPG in determining how certain funds had been used. Since the denial had occurred during a period of time when an attorney was acting as the man's temporary guardian and the attorney had not filed a timely appeal, any recourse was solely against the lawyer.L.B. v. Ocean Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 01203-16, 2016 N.J. AGEN LEXIS 693,Initial Decision (July 28, 2016).

ALJ corrected the amount of transfers for which transfer penalties were properly imposed on the Medicaid eligibility of an applicant, which transfers amounted to $ 62,500, not $ 83,000, with the result that the length of the penalty period properly was reduced.P.S. v. Ocean Cnty. Bd. of Social Servs. and DMAHS, OAL DKT. NO. HMA 9399-15, 2016 N.J. AGEN LEXIS 672,Initial Decision (July 28, 2016).

Denial, by a county social services board, of a Medicaid applicant's claim that transfers to her son came within the "caregivers exemption" was rejected by an ALJ who found that the care provided by the son and his fiancee, among others, exceeded normal personal support activities; that the applicant's condition was such that she required special attention and care; and that the care that was provided was essential to the applicant's health and safety and included supervision of medication, monitoring of nutritional status, and insuring the safety of the applicant and made it possible for the applicant to remain at home for an extended period of time.O.T. v. Passaic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05459-2016, 2016 N.J. AGEN LEXIS 660,Initial Decision (July 21, 2016).

Director rejected an ALJ's determination that certain amounts disbursed by a Medicaid recipient did not generate a transfer penalty and remanded for redetermination of the proper transfer penalty.P.N. v. DMAHS et al., OAL DKT. NO. HMA 02975-16, 2016 N.J. AGEN LEXIS 1150,Remand Order (July 18, 2016).

Penalty was properly imposed on the Medicaid eligibility of a widow who did not satisfactorily account for her disposition of $ 168,000 of the proceeds of a reverse mortgage. The widow admitted that she had used large sums of cash for groceries, medical care, shopping, home repairs, cash gifts to family members, travel and lottery tickets. Because the widow failed to establish that she did not transfer assets for less than FMV, a penalty on eligibility was properly imposed.J.S. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 10758-15, 2016 N.J. AGEN LEXIS 557,Initial Decision (July 11, 2016).

Medicaid recipient prevailed on a claim that she was entitled to invoke the "caregiver's exemption" with respect to her son. Both her son and her daughter-in-law, with whom the recipient lived, provided substantial care to the recipient including overseeing her medication, preparing her meals in a manner that was mindful of her particular nutritional requirements, and otherwise assisting her in the activities of daily life. The fact that the son was employed full-time did not prevent the care provided by the couple from exceeding the threshold of "normal personal support activities."L.K. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05437-16, 2016 N.J. AGEN LEXIS 552,Initial Decision (June 29, 2016).

Transfer penalty properly was imposed on the Medicaid eligibility of an applicant on account of her having gifted a total of $ 10,000 to her two adult children. Although her son claimed that the transfer reflected a bequest under his deceased father's will, the applicant was the sole beneficiary of the will. Other irregularities in the applicant's financial dealings were also a factor.P.N. v. Union Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 02975-16, 2016 N.J. AGEN LEXIS 550,Initial Decision (June 28, 2016).

Two month penalty was properly imposed on an applicant's Medicaid eligibility on account of her having transferred her two-thirds interest in certain real estate for less than market value within the look-back period. Though other family members testified to their sincerely-held belief that the applicant did not own such an interest in the transferred property, such testimony was insufficient to overcome documentary evidence demonstrating otherwise. Moreover, even if the property had been placed in trust for the applicant, that would not change the result because the applicant had already transferred her interest for less than market value.L.S. v. Somerset Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15032-14, 2016 N.J. AGEN LEXIS 535,Initial Decision (June 27, 2016).

Decision by a county board of social services that an applicant for long-term care Medicaid benefits was properly subjected to a transfer penalty on account of her uncompensated transfer of $ 51,000 was approved in part by an ALJ who concluded that the applicant had unrestricted access to the joint bank account from which the funds were withdrawn. The fact that the board did not act as promptly as might have been desired in approving the applicant's use of a Qualified Income Trust provided no basis for any relief. However, the start date for the penalty period had been incorrectly designated by the board and should have been May 1, 2015.A.D. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 02068-16, 2016 N.J. AGEN LEXIS 523,Initial Decision (June 16, 2016).

County board properly imposed a 638 day transfer penalty period on the eligibility of an applicant for Medicaid Only based on her transfer of property for less than FMV and denied a subsequent request for an undue hardship exception. The property that was transferred in exchange for $ 50,000 and payment of a $ 37,000 tax lien was the applicant's house, which house was worth around $ 250,000. The transfer occurred on the day prior to the applicant's admission to a nursing home where she remained until her death. Not only did the applicant fail to rebut the presumption that Medicaid eligibility was the reason for the transfer of the house but she did not show that she was entitled to the waiver as sought.A.M. v. Union Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 07866-15, 2016 N.J. AGEN LEXIS 441,Initial Decision (June 8, 2016).

Ex-husband's Medicaid eligibility was properly penalized based on his having executed a property settlement agreement (PSA) which left him functionally destitute with only his own Social Security income. That said, the ex-wife was entitled to receive a larger share of the couple's assets because she had used separate assets to pay his expenses. Based on a review of the PSA provisions, the ex-husband most likely would have been entitled to receive around $ 100,000 so the penalty on his eligibility was properly based on that amount.G.K. v. Ocean Cnty. Bd. of Social Servs. and DMAHS, OAL DKT. NO. HMA 07759-15, 2016 N.J. AGEN LEXIS 456,Final Administrative Determination (June 7, 2016).

Medicaid applicant failed to show that a property settlement agreement between the applicant and his now-former wife was made for adequate consideration and represented a transfer that was made solely for a purpose other than qualifying for Medicaid. Among the factors considered was the fact that the settlement agreement specifically recognized that the applicant would need to seek Medicaid benefits at some time in the future, and that acknowledgement negated the applicant's ability to show that the transfer occurred solely for some other purpose.R.W. v. Monmouth Cnty. Div. of Social Servs. and DMAHS, OAL DKT. NO. HMA 00703-16, 2016 N.J. AGEN LEXIS 452,Initial Decision (June 3, 2016).

Denial of a Medicaid application made by a nursing home resident who planned to transfer her home to her daughter who was claimed to be eligible for the "caregiver exemption" was reversed to the extent that it held that the transfer had to have actually occurred prior to any consideration of the exemption. The resident was entitled to offer evidence in support of the exemption even though the home had not yet been transferred to the putative caregiver.E.C. v. DMAHS et al., OAL DKT. NO. HMA 16475-15, 2016 N.J. AGEN LEXIS 892,Order Reversing Initial Decision (May 26, 2016).

Eligibility penalty was properly imposed on an elderly man's application for skilled nursing home Medicaid benefits based on $ 247,104 in transfers during the look-back period. Though the applicant's representative claimed that the bulk of those payments were made to compensate a woman who provided care to the applicant, the record did not include a caregiver agreement or like contract for such services nor were there invoices proving that some of the funds were used to make repairs to the residence. It thus was properly presumed that they were transfers for less than fair market value for the purpose of establishing Medicaid eligibility.A.M. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 17835-2015, 2016 N.J. AGEN LEXIS 636,Final Administrative Determination (May 26, 2016).

Failure on the part of a Medicaid applicant to prove that an annuity that was purchased with the applicant's funds for the purpose of paying for the applicant's residence in a nursing home was an annuity that complied with42 U.S.C.S. § 1396p(c)(1) meant that the applicant did not rebut the presumption that the funds used for that purchase were properly excluded from the resources available to the applicant for purposes of determining the applicant's eligibility for benefits.J.T. v. Essex Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05026-16, 2016 N.J. AGEN LEXIS 354,Initial Decision (May 23, 2016).

Medicaid applicant on whom a penalty period was imposed on account of his transfer of over $ 92,000 for less than fair value during the look-back period was not entitled to have the penalty period commence on the date on which a prior Medicaid application had been filed. Because the applicant never appealed the denial of the earlier application, the ALJ lacked jurisdiction to consider that action and a retroactive penalty date was not properly utilized.C.R. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15192-15, 2016 N.J. AGEN LEXIS 251,Initial Decision (May 10, 2016).

Medicaid applicant did not rebut the presumption that transfers during the look-back period were made in contemplation of Medicaid. Since the applicant had been found to be totally and permanently disabled in 2003 and started receiving Social Security disability benefits at that time, it could not be said that he suffered a traumatic onset of a disability in 2012 that resulted in his needing to apply forMedicaid. M.W. v. DMAHS and Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 8394-2013, 2016 N.J. AGEN LEXIS 264,Final Administrative Determination (April 20, 2016).

Eligibility penalty was properly imposed on an elderly man's application for skilled nursing home Medicaid benefits based on $ 247,104 in transfers during the look-back period. Though the applicant's representative claimed that the bulk of those payments was made to compensate a woman who provided care to the applicant, there was no evidence whatever that the recipient of those payments actually rendered services to the applicant and it thus was properly presumed that they were transfers for less than fair market value for the purpose of establishing Medicaid eligibility.A.M. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 17835-2015, 2016 N.J. AGEN LEXIS 200,Initial Decision (April 15, 2016).

Use of funds belonging to an applicant for Medicaid to purchase an immediate, irrevocable, non-transferrable, actuarially sound annuity, which named the State of New Jersey as the first remainder beneficiary, did not provide a basis for the imposition of a transfer penalty by a county division of social services. Proceeds of the annuity were clearly intended to pay for the applicant's nursing home bills during the 536.25 day penalty period imposed on account of the applicant having made a gift to her children in the amount of $ 178,353.51. Because the annuity met the criteria in42 U.S.C.S. § 1396p(c)(1), the funds used to purchase it were not countable as a resource for eligibility purposes.M.N. v. Hunterdon Cnty. Div. of Social Servs., OAL DKT. NO. HMA 00688-16, 2016 N.J. AGEN LEXIS 198,Initial Decision (April 14, 2016).

Medicaid Only Institutional benefits were properly denied by a county board of social services to an elderly applicant on the ground that her countable resources exceeded the eligibility ceiling. Though the applicant's caregiver/daughter claimed that the execution by the applicant of a power of attorney giving the daughter total power over all of the applicant's affairs, including her financial affairs, combined with the purported existence of a signed deed to the applicant's house, was sufficient to render the property "inaccessible," the applicant remained the owner of the property and its value was such that she was ineligible for the program.E.C. v. Passaic Bd. of Social Servs., OAL DKT. NO. HMA 16475-15, 2016 N.J. AGEN LEXIS 121,Initial Decision (March 14, 2016).

Applicant was properly denied Medicaid eligibility based on his failure to comply with regulations requiring applicants to produce documentation reflecting his finances over the prior five years. Since it ultimately appeared that the applicant's attorney in fact possessed the information that was needed to complete the application and because the agency had already granted several extensions to the regulatory deadline for submission of such documents, there was merit to the agency's claim that the only available recourse was against the attorney, not the agency.P.S. v. Ocean Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 17263-15, 2016 N.J. AGEN LEXIS 50,Initial Decision (February 8, 2016).

Decision of County Board of Social Services imposing a 34 day transfer penalty on the Medicaid benefits to which an elderly nursing home resident was entitled was rejected by an ALJ because the fair market value of the rent, utilities, food and other expenses that the resident was receiving from her daughter, with whom she lived, completely accounted for the amounts that the resident had paid to her daughter. Because those amounts represented the FMV of what the resident was receiving, no transfer penalty should have been imposed.L.S. v. Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 09660-15, 2016 N.J. AGEN LEXIS 48,Initial Decision (February 5, 2016).

A 99-year old Medicaid applicant failed to rebut the presumption that transfers of her property with an FMV of $ 30,300 were made in an effort to qualify for Medicaid, and an order imposing a 97 day transfer penalty was approved by an administrative law judge. While the majority of the payments made to a son who claimed that the funds were used for his mother's benefit while she was living with him, there was no rebuttal relating to payments made to petitioner's other son, who was not providing any care to his mother.A.M. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 13679-2015, 2016 N.J. AGEN LEXIS 31,Initial Decision (January 26, 2016).

Where an elderly Medicaid applicant appointed his adult daughter as his power of attorney (POA) and the daughter thereafter failed and refused to account for nearly $ 30,000 of funds that were presumed to be the property of the applicant, the Office of the Public Guardian for Elderly Adults (OPG) had a legal and affirmative obligation to pursue an equitable action against the daughter because the funds taken by her would be imputed to the applicant under governing law given his appointment of her as his POA. Moreover, these funds were not an "inaccessible resource" that was subject to exclusion and in fact were properly included in the excess resource penalty calculation.R.R. v. Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA03644-15, 2015 N.J. AGEN LEXIS 816,Initial Decision (December 30, 2015).

County agency did not err in determining that the penalty period imposed in connection with an elderly Medicaid claimant's eligibility was not properly reduced due to the existence of a judgment won by the Office of the Public Guardian on behalf of the claimant against his claimant's daughter, who was believed to have wrongfully retained funds belonging to her father. Even if the entire amount of the judgment was collected, which was doubtful, that sum represented only a partial return of the claimant's assets and thus did not afford a basis for any reduction per42 U.S.C.S. § 1396p(2)(c).R.R. v. Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 03644-15, 2015 N.J. AGEN LEXIS 756,Initial Decision (December 30, 2015).

Son of an elderly Alzheimer's patient qualified as his mother's "caregiver" within the meaning of the "Caregiver's Exemption" in governing regulations because the evidence amply established that the son provided care to his mother that included medication supervision, monitoring of her meals and nutrition, and insuring her safety, which care exceeded "normal personal support activities;" that the mother's condition required special attention and care; and that the care provided by the son was essential to his mother's health and safety.S.E. v. Bergen Cnty., Bd. of Social Servs., OAL DKT. NO. HMA 15582-15 (On remand), 2015 N.J. AGEN LEXIS 723,Initial Decision (December 15, 2015).

Undue hardship exception to the application of a transfer penalty did not apply to a nursing home resident whose guardian was pursuing a claim against the resident's son for allegedly having taken nearly $ 300,000 of the resident's money and used it on himself and his sister. Although the resident demonstrated that the transferred assets were presently beyond her control and that she had undertaken good faith efforts to recover the assets, she did not irrefutably demonstrate that the assets cannot be recovered or that all remedies had been exhausted because the resident's guardian was currently pursuing legal proceedings against the son.J.K. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 09932-14, 2015 N.J. AGEN LEXIS 722,Initial Decision (October 26, 2015).

Medicaid applicant successfully rebutted presumption that she had transferred a total of $ 100,000 in November 2008 for the purpose of qualifying for Medicaid in 2013. The transfers were made as gifts to her other adult children so as to equalize amounts that had been loaned to the daughter with whom she resided. At the time of the gifts, the applicant was still living with her daughter and she intended to live out the remainder of her life in the daughter's home, and her transfer to a nursing home occurred only because she became acutely ill several years after the transfers were made and was no longer able to reside with her daughter.M.M. v. Union Cty. Bd. of Social Servs., OAL DKT. NO. HMA 00526-15, 2015 N.J. AGEN LEXIS 686,Initial Decision (October 20, 2015).

ALJ concluded that a board of social services should not have imposed a transfer penalty on the Medicaid eligibility of an applicant based on expenditures equaling $ 114,917 because the applicant's family established that all such funds actually went to pay caregivers who were providing around-the-clock care to the applicant in her home, thereby rebutting the presumption that such funds were transferred for less than fair value in order to qualify the applicant forMedicaid. M.G. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 07800-15 (on remand HMA 13067-14), 2015 N.J. AGEN LEXIS 691,Initial Decision (October 5, 2015).

Because title to a residence owned by an elderly nursing home residence never had been transferred to her son,N.J.A.C. 10:71-4.10(d)4 was inapplicable and there was no reason to consider whether care allegedly provided by the son to his mother exceeded normal personal support activities; whether her condition required special attention and care; or whether the care provided by the son was essential to the mother's health and safety and consisted of required activities.S.E. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 02656-15, 2015 N.J. AGEN LEXIS 721,Initial Decision (August 7, 2015).

Now-deceased resident of a nursing home could not be said to have had "access" to funds generated by the sale of her home, which funds were stolen by her two daughters and could not be recovered notwithstanding the valiant efforts of her grandson, with whom she had resided and who was the executor of the resident's estate. Because those funds were not "available" to the resident to apply to the cost of her care, the eligibility penalty imposed on her Medicaid benefits was properly removed. This was true even though the resident (or the grandson) did not file suit against the daughter who resided in South Carolina because both lacked resources with which to pursue litigation in a different state.K.V. v. Cape May Cnty. Bd. of Social Servs. and DMAHS, OAL DKT. NO. HMA 2005-14, 2015 N.J. AGEN LEXIS 392,Initial Decision (July 29, 2015).

Applicant for Medicaid institutional level services was properly denied benefits on findings that he had transferred his residence to a third person, presumably retaining a life estate therein, because such a transfer was made for less than itsFMV. A.M. v. Essex Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 08483-15, 2015 N.J. AGEN LEXIS 425,Initial Decision (July 16, 2015).

Determination by a county board of social services (CBSS) that a penalty of two months and 12 days was properly imposed on the eligibility of an applicant for Medicaid was correct because applicant had transferred $ 24,034 for less than fair value during the five year look back period. Those funds were principally spent on wedding reception expenses for a granddaughter, pharmacy school tuition and graduation gifts for a granddaughter, and some traditional gifting to family members for Christmas, birthdays and similar events. Though the applicant insisted that these expenditures were consistent with her past practices and were not properly included in an eligibility penalty, the Administrative Law Judge (ALJ) reasoned that once applicant's health took a turn for the worse and she required institutionalization, it no longer remained credible that applicant did not anticipate seeking public assistance at some point in the future. It was untenable for her to argue that she did not in part know that spending monies on her granddaughter's education or wedding or for family gifts that would in earlier times have been perfectly normal meant that she would not have funds to pay for her medical care and might thus qualify for public assistance. D.B. v. Warren Cty. Bd. of Social Servs., OAL DKT. NO. HMA 00529-15, AGENCY REF. NO.W-13781 (Slip Opinion), Initial Decision (May 18, 2015).

Medicaid eligibility of an applicant was properly penalized on account of the uncompensated transfer of $ 130,945 of the applicant's funds because the applicant failed to prove that the bulk of the funds were used for the applicant's care or that, as also alleged, the remaining funds were used to care for a disabled grandchild. The grandchild, a young adult who suffered from anxiety and related conditions, was never declared to be disabled for any purpose, including for the purposes of Social Security entitlement. Moreover, the grandchild's claim that a substantial part of the funds were spent on the applicant due to the sudden onset of a disability. The state of the evidence was such that the presumption that the transfer of the funds occurred for the purpose of qualifying the applicant for Medicaid was not rebutted. That being so, the applicant's eligibility was properly subjected to a transfer penalty.A.T. v. Camden Cty. Bd. of Social Servs., OAL DKT. NO. HMA 06961-2014, 2015 N.J. AGEN LEXIS 235,Initial Decision (May 4, 2015).

Administrative Law Judge (ALJ) rejected a claim by DMAHS that an applicant for Medicaid was properly subjected to a four month, fourteen-day penalty on her benefits by reason of her transfer, during the look-back period, of $ 41,775.97. The largest expenditures that were included in that amount were two checks of $ 15,000 each which, it was undisputed, were gifts to assist two granddaughters in paying for their weddings. The ALJ concluded that the contributions to the weddings were the acts of a normal, affectionate grandparent and were not gifts representing a concerted effort by the applicant to pauperize herself. They were not gifts without a purpose made only for love and affection. Rather, they were made in the ordinary course of living a normal human life. The applicant was not properly penalized for making such contributions just because she was old. Similar logic applied to the two $ 1000 checks that were given to the same relatives as wedding presents. The regulations create a presumption that all transfers for less than fair market value were made to establish Medicaid eligibility, but that presumption can be rebutted, and the ALJ found that it had been rebutted in this case. Once the amounts as to which the presumption had been rebutted were subtracted from the total amount on which the penalty was based, the total amount of unexplained expenditures was $ 3600 and justified the imposition of an 11-day penalty.F.P. v. Atlantic Cty. Bd. of Social Servs. and DMAHS, OAL DKT. NO. HMA 17211-14, 2015 N.J. AGEN LEXIS 265,Initial Decision (April 30, 2015)

Administrative Law Judge (ALJ) agreed with DMAHS that an applicant for Medicaid was properly subjected to a ten month penalty on her benefits by reason of her transfer, during the look-back period, of $ 78,000. By the time of the hearing, the applicant was deceased, but her son, on behalf of the estate, claimed that the $ 78,000 reflected six gifts of $ 13,000 each that she had made to family members purportedly to pay for her granddaughter's wedding and her grandchildren's college expenses and that at the time such gifts were made, the applicant was living wholly independently and that Medicaid eligibility was not a consideration at the time the gifts were made. However, there was no supporting evidence because none of the payments was made directly for wedding expenses or to a college or university. Rather, each check was made out for $ 13,000 without any indication of how the applicant intended for it to be spent. Each check was simply a gift in accordance with the maximum allowed without penalty under the tax laws. Since the gifts were properly considered to be transfers for "love and affection," such transfers reflected funds that could have been used for the applicant's care and a penalty was properly imposed on account thereof.M.V. v. DMAHS and Camden Cty. Bd. of Social Servs., OAL DKT. NO. HMA 15653-14, 2015 N.J. AGEN LEXIS 263,Initial Decision (April 20, 2015).

A transfer penalty of 12 months and 21 days was properly imposed on the Medicaid eligibility of an applicant who was found to have transferred $ 119,580 for less than fair market value during the relevant look-back period. Though the applicant's representative, her daughter, insisted that the majority of the transfers should not have been included in the penalty amount, the daughter had no documentation establishing that the funds were used for the purposes that the daughter had identified and she thus failed to rebut the presumption that the funds were transferred exclusively for the purpose of qualifying forMedicaid. J.M. v. Bergen Cty. Bd. of Social Servs., OAL DKT. NO. HMA 07591-14, 2015 N.J. AGEN LEXIS 259,Initial Decision (April 8, 2015).

Decision of a county Board of Social Services (CBSS) imposing a $ 127,751.71 transfer penalty due to uncompensated transfers within the look-back period upon the Medicaid eligibility of a 91 year old woman was modified in part based on evidence relative to the use of a substantial portion of those funds for the applicant's care. The undisputed evidence established that $ 60,000 was returned to the applicant and $ 53,360.92 was used exclusively for her care. That meant that the transfer penalty was properly reduced by the amount shown to have been legitimate payments for the applicant's care.M.M. v. Camden Cty. Bd. of Social Servs., OAL DKT. NO. HMA 9251-14, 2015 N.J. AGEN LEXIS 155,Initial Decision (March 9, 2015).

Determination by a county board of social services (CBSS) that a 42-day transfer penalty was properly imposed on the eligibility of an applicant for Medicaid was incorrect because the preponderance of the credible evidence showed that the applicant's daughter, who was generally responsible for her care, made some of the challenged transfers for a reason other than to qualify for Medicaid eligibility. Because the daughter convincingly rebutted the presumption that the transfers were made to establish Medicaid eligibility, the transfers on which a penalty was properly imposed totaled $ 12,437.33.B.J.H. v. Union Cty. Bd. of Social Servs., OAL DKT. NO. HMA 13823-14, 2015 N.J. AGEN LEXIS 208,Initial Decision (February 13, 2015).

County Board of Social Services (CBSS) correctly imposed a penalty on an applicant's Medicaid eligibility based on her having transferred a large sum of money for less than fair market value within the five-year look back period. The source of the funds at issue was an amount that the applicant inherited from her sister. Though the applicant was the sole beneficiary of the sister's estate, the applicant believed that it was fair to share it with other relatives, and somewhat more than $ 20,000 was either distributed to other relatives or used for other non-exempt purposes. The amount of the funds that the applicant distributed to other relatives was the basis of the eligibility penalty. However, the amount transferred was reduced by several items that the administrative law judge found to have been adequately explained, with the result that the penalty that was originally imposed, which was two months and 29 days, was reduced to two months and 17 days.J.C. v. DMAHS and Atlantic Cty. Bd. of Social Servs., OAL DKT. NO. HMA 13872-14, 2015 N.J. AGEN LEXIS 209,Initial Decision (February 12, 2015).

Transfer penalty of two months and two days on a Medicaid applicant's benefits was properly imposed on account of transfers made from the applicant's accounts to various members of her family, which transfers were found to have been made for less than fair market value during the sixty-month look back period. Though some of the payments that originally were included in the gross amount of transfers on which a penalty was imposed, the applicant's daughter did not present clear and convincing evidence to rebut the presumption that the remaining payments, which totaled $ 16,200, were made for less than fair market value to qualify forMedicaid. C.M. v. Burlington Cty. Bd. of Social Servs., OAL DKT. NO. HMA 11783-14, 2015 N.J. AGEN LEXIS 113,Initial Decision (February 11, 2015).

Determination by a county board of social services (CBSS) that an applicant's Medicaid eligibility was properly penalized based on transfers totaling $ 114,917 was rejected by an administrative law judge (ALJ) who concluded that the applicant had rebutted the presumption that such transfers were made to establish Medicaid eligibility. The applicant, who was diagnosed with Alzheimer's disease in 2006, had lived at home with round-the-clock care for some seven years before she became a nursing home resident. Though the applicant's family had demonstrated that the applicant had paid $ 500 weekly for her in-home care over those years, the agency had rejected the applicant's claims that the payments had not been made to establish eligibility and had imposed a penalty of 14 months and 22 days. The ALJ found that while there was no written contract between the caregiver and the family, the weekly payments were regular and consistent and there was no question that the caregiver was employed by the family to care for the applicant. The documentation from the applicant's doctors regarding her need for live-in assistance was credible and undisputed. That being so, the assets at issue were not more than the fair market value of the services provided by the caregiver and the agency should not have based a penalty thereon.M.G. v. Camden Cty. Bd. of Social Servs., OAL DKT. NO. HMA 13067-14, 2015 N.J. AGEN LEXIS 207,Initial Decision (February 3, 2015).

County agency acted properly in imposing a transfer penalty period upon an applicant on a finding that he had transferred $ 17,266.24 in resources for the purpose of establishing Medicaid eligibility. The first challenged transfer occurred soon after the applicant's son, his caregiver, learned about Medicaid's financial eligibility requirements. The first transfer ostensibly represented amounts that were owed to the son on account of care that he had rendered in his home to his father and to his recently-deceased mother, and was made shortly after his mother's death. The son admitted that the second transfer was made for the purpose of establishing Medicaid eligibility for his father. Given the lack of any evidence that the transfers were made for any other purpose, the agency's determination that they were made to establish eligibility was amply supported by the record.J.B. v. Morris Cty. Office of Temp. Assistance, OAL DKT. NO. HMA 12835-14, 2015 N.J. AGEN LEXIS 122,Initial Decision (January 29, 2015).

Applicant failed to rebut the presumption that the transfer of assets for a home repair and renovation project was for the purpose of establishing Medicaid eligibility pursuant toN.J.A.C. 10:71-4.10(j). The credible evidence established that the applicant would not be returning home from the nursing home facility to live in the refurbished home. In fact, her disability was severe enough that her son lived with her and served as her caregiver for at least two years before her institutionalization.M.A.M. v. Morris County Bd. of Social Serv., OAL DKT. NO. HMA 13089-14, 2015 N.J. AGEN LEXIS 38,Initial Decision (January 20, 2015).

Medicaid applicant successfully rebutted the presumption that certain assets subject to a transfer penalty were transferred for the purpose of establishing Medicaid eligibility pursuant toN.J.A.C. 10:71-4.10(j). She employed a live-in for the benefit of her husband, who suffered from Alzheimer's disease, and paid for those services by writing checks payable to "cash." The applicant utilized the balance of the transferred funds to support herself and the household, and the administrative law judge found that this amount was both reasonable and credible. Thus, the transfer penalty was reversed and the applicant was deemed eligible for the Medicaid Only Program for institutional level care.N.K. v. Gergen County Bd. of Social Serv., OAL DKT. NO. HMA 11328-14, 2014 N.J. AGEN LEXIS 792,Initial Decision (December 30, 2014).

Use of the proceeds of an IRA owned by a Medicaid applicant to purchase a vehicle used by her son-in-law was a transfer of assets that was subject to penalty for eligibility purposes. Since the applicant was in a nursing home in Pennsylvania in July 2009, the purchase and registration of the vehicle in Florida during July 2009 cannot be said to have been for her sole benefit, and the presumption that the amount had been transferred to qualify for Medicaid benefits was not rebutted.C.S. v. DMAHS and Cape May Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 9764-2014, 2014 N.J. AGEN LEXIS 1310,Final Administrative Determination (December 23, 2014).

Transfer penalty was properly imposed on an applicant based on her transfer of $ 148,081 to her son and daughter-in-law, which funds were taken from the $ 250,000 proceeds received by the applicant from a reverse mortgage. Though the applicant, who was 93 years old, suffered from dementia, and was residing with her son and daughter-in-law, claimed that the funds were transferred to compensate her family members for care they had provided to her, there was no written agreement that established the services to be rendered and the costs to be incurred thereby nor was there any other credible documentary evidence supporting the applicant's claims. At best, the applicant had a loose arrangement to compensate her family members from the proceeds of the reverse mortgage for services and care that they provided. That being so, the applicant was not entitled to relief from the transfer penalty.E.D. v. Atlantic Cnty. Bd. of Social Servs. and DMAHS, SERVICES, OAL DKT. NO. HMA 13364-14, 2014 N.J. AGEN LEXIS 822,Initial Decision (December 17, 2014).

County board of social services acted improperly when it denied the application for an undue hardship exception made on behalf of a 96-year old woman who suffered from dementia and required 24-hour care. The record established that while the woman had inherited $ 246,371.62, it was more likely than not that the funds had been gambled away by her husband, who now was deceased. Neither the woman nor her adult children had any of the funds and the adult children were in no position to provide the care that the woman required due to her advanced age and her dementia. Denial of the waiver would deprive the woman of food, clothing, shelter and other necessities of life and the harm that would come to the woman if she was to be discharged from the facility in which she resided make it clear that an undue hardship waiver was appropriately granted.M.Y. v. Union Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 05391-14, 2014 N.J. AGEN LEXIS 821,Initial Decision (December 17, 2014).

Medicaid applicant failed to rebut the presumption that a substantial portion of the assets that she transferred during the "look-back" period were transferred for the purpose of qualifying for Medicaid. Moreover, the applicant continued to transfer large sums of money to her children and grandchildren as her health slowly deteriorated and as she could anticipate the need for long-term care services. Thus, she was entitled to a small reduction in the penalty period based on her showing that about $ 10,000 of those funds was spent on her own living expenses and care needs. However, she was not entitled to any reduction in the penalty period due to partial returns of improperly-transferred assets because the transfer penalty may only be adjusted if all assets transferred for less than FMV have been returned. Finally, the record supports a conclusion that the Board of Social Services had incorrectly calculated the penalty in the first place because it did not use the then-current year's divisor in the calculation, an error that should be corrected on recalculation of the penalty to be based on $ 130,028.64.M.D. v. Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 345-14, 2014 N.J. AGEN LEXIS 824,Initial Decision (December 15, 2014).

Even though the sale of a residence in which a Medicaid applicant had a life estate was made at arm's length and for fair market value, the applicant's life estate had a value for which she received no compensation. That, and not the proceeds of the sale of the house, was the amount that was properly used to determine the amount of any penalty on the applicant's eligibility.E.S. v. DMAHS et al., OAL DKT. NO. HMA 9477-2014, 2014 N.J. AGEN LEXIS 1308,Final Administrative Determination (December 11, 2014).

Administrative law judge ordered that the denial of Medicaid eligibility and application of a penalty by the Bergen County Board of Social Services be reversed. The applicant met her burden to establish by convincing evidence that assets were transferred exclusively for purposes other than Medicaid eligibility pursuant toN.J.A.C. 10:71-4.10(l)1. Her son's credible testimony, coupled with the documents in the record, established that the applicant was unable to manage her own finances and that her son had been spending her pension payments from August 2009 until August 2013 on her behalf. It was evident that her son was handling her finances for an extended period of time, including paying her rent and grocery bills. Given the duration of time, it was not unreasonable that her son did not have a receipt for every dollar that was spent on behalf of the applicant.E.W. v. Bergen County Bd. of Social Serv., OAL DKT. NO. HMA 05984-14, 2014 N.J. AGEN LEXIS 777,Initial Decision (December 5, 2014).

Transfer penalty was properly imposed on an applicant's Medicaid eligibility with respect to various amounts, including $ 30,707 spent to pay for her grandson's private school and $ 5,500 given to her daughter. However, funds paid to municipal courts on her son's behalf were not properly considered to be payments made to qualify for Medicaid, thus requiring the agency to recalculate the amount of the proper penalty.A.R. v. DMAHS and Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 04663-14, 2014 N.J. AGEN LEXIS 1316,Initial Decision (November 18, 2014).

Imposition of a transfer penalty by the Camden County Board of Social Services pursuant toN.J.A.C. 10:71-4.10(a)and -4.10(b)9iv was affirmed. There was no preponderance of credible evidence that the purpose of the subject $ 10,000 transfer was unrelated to Medicaid. It was logical, reasonable and probable that Medicaid was contemplated to some degree by the applicant who, at age 94, moved in with her daughter but returned to her own condominium and perhaps then had some stage of dementia. The applicant did not convincingly rebutted the presumption that the transfer was made to establish Medicaid eligibility underN.J.A.C. 10:71-4.10(l)2.V.B. v. Camden County Bd. of Social Serv., OAL DKT. NO. HMA 10897-14, 2014 N.J. AGEN LEXIS 563,Initial Decision (November 10, 2014).

Ocean County Board of Social Services and the Division of Medical Assistance and Health Services improperly denied an applicant Medicaid benefits on the grounds that she was over-resourced pursuant toN.J.A.C. 10:70-5.1(a). The resource value of the asset in question, a restaurant, less the encumbrances against it resulted in a negative value. However, her transfer of assets for less than fair market value triggered a Medicaid-eligibility penalty period pursuant toN.J.A.C. 10:71-4.10(c)4. The applicant essentially made a gift of the property at issue to her son by transferring it for one dollar consideration and then encumbering it with close to $ 3 million in liens to build a business that her son and his wife owned through their limited liability company (LLC). The transfer was a gift to her son for which his LLC was the sole beneficiary. The applicant did not meet her burden of rebutting the presumption that the purpose of this transfer was for reasons other than Medicaid planning. She presented no explanation as to why she would give away her valuable interest in the property to her son's LLC for profit, leaving her with nothing but millions of dollars in debt.C.S. v. Div. of Med. Assistance and Health Serv. and Ocean County Bd. of Social Serv., OAL DKT. NO. HMA 5957-14, 2014 N.J. AGEN LEXIS 584,Initial Decision (November 6, 2014).

Administrative law judge reversed a determination of the Cape May County Board of Social Services, Medicaid Unit, imposing a transfer penalty of three months and five days on an applicant. The payments to the applicant's daughter were not made in contemplation of Medicaid eligibility pursuant toN.J.A.C. 10:71-4.10(j). All of her resources were transferred to a trust in 2004. She had no need to spend down her income to make herself Medicaid eligible because she had a monthly assisted living facility debt that exceeded her nominal monthly income. C.S. v. Cape May County Bd. of Social Serv. and Div. of Medical Assistance and Health Serv., 3 OAL DKT. NO. HMA 9473-14,2014 N.J. AGEN LEXIS 541,Initial Decision (October 24, 2014).

Medicaid applicant who was given half a dozen opportunities during a hearing to present all available evidence regarding transfers totaling $ 61,602 but failed to do so was denied relief from a seven-month and 21-day penalty imposed on his Medicaid eligibility because he had the burden to rebut the presumption that the transfers were for fair value but failed to do so.R.B. v. DMAHS and Camden Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 6301-14, 2014 N.J. AGEN LEXIS 1294,Final Administrative Determination (October 23, 2014).

Transfer penalty that was imposed on the eligibility of a Medicaid applicant is properly assessed regardless of the ability or willingness to provide verifications concerning the transfer because the result is the same.F.F. v. DMAHS et al., OAL DKT. NO. HMA 16307-2013, 2014 N.J. AGEN LEXIS 1306,Final Administrative Determination (October 16, 2014).

Though funds expended by a Medicaid applicant for expenses of her daughter, who was also disabled and a benefit recipient, were not considered a transfer of assets under governing law, the applicant failed to account for $ 13,217 and that amount was properly used as the basis for a transfer penalty.J.S. v. DMAHS and Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 9106-2013, 2014 N.J. AGEN LEXIS 1298,Final Administrative Determination (September 25, 2014).

Medicaid applicant failed to establish that she received FMV for transfers made to her son and daughter-in-law for her life interest in her home or for renovations thereon.H.D. v. Burlington Cnty. Bd. of Social Serv. and the Division of Med. Assistance and Health Serv., OAL Dkt. No. HMA 3495-14, 2014 N.J. AGEN LEXIS 921,Final Decision (September 5, 2014).

Administrative law judge (ALJ) modified the penalty period imposed upon a Medicaid applicant. It was an unauthorized transfer of assets pursuant toN.J.A.C. 10:71-4.10(e)to spend the applicant's funds so that her grandson could attend private schools when those funds were needed for the applicant's own institutional care needs. However, the ALJ found that certain transfers were made to help the applicant's family with usual financial problems and were not made with the intent, even partially, to qualify for Medicaid and thus were exempt transfers.A.R. v. Morris Cnty. Bd. of Social Serv, OAL DKT. NO. HMA 04663-14, 2014 N.J. AGEN LEXIS 531,Initial Decision (August 29, 2014).

Division of Medical Assistance and Health Services and Camden County Board of Social Services properly imposed a transfer penalty on a Medicaid applicant arising from transfers to her daughter during the sixty-month look back period. Although the daughter's testimony was quite earnest, the administrative law judge concluded that she did not rebut the presumption that these assets were transferred solely for some other purpose than to establish Medicaid eligibility. Although she provided copies of bills and pictures of her renovated home, the bills were all prior to 2006, and the transfers occurred during the sixty-month look back.S.B. v. Camden Cnty. Bd. of Social Serv. and Div. of Med. Assistance Health Serv., OAL DKT. NO. HMA 6303-14, 2014 N.J. AGEN LEXIS 516,Initial Decision (August 27, 2014).

Decision of an ALJ that a Medicaid applicant's transfer of her home to her daughter was for less than market value and supported imposition of a penalty was sustained because the facts did not support application of the "caregiver" exception to the fair market value transfer rule.M.K. v. DMAHS and Burlington Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 8099-13, 2014 N.J. AGEN LEXIS 913,Final Administrative Determination (August 25, 2014).

County board of social services (CBSS) acted improperly when, pursuant toN.J.A.C. 10:71-4.10(a), it imposed a one month, nine day penalty on the eligibility of a Medicaid applicant on account of what the CBSS claimed was an uncompensated transfer of assets. The assets at issue were funds belonging to the applicant which were used by the applicant's daughter to repair smoke damage caused by the applicant, a heavy smoker, to a condominium that the applicant had rented from the daughter. Because it was shown that the assets were not transferred to establish Medicaid eligibility but in fact were transferred exclusively to fund repairs for which the applicant was legally liable under a lease, the applicant's eligibility was not properly subjected to a penalty.R.M. v. Burlington Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 7521-14, AGENCY DKT. NO. 0315002712, 2014 N.J. AGEN LEXIS 492,Initial Decision (August 18, 2014).

County board of social services (CBSS) acted improperly when, pursuant toN.J.A.C. 10:71-4.10(a), it penalized the eligibility of a Medicaid applicant on account of what the CBSS claimed to be transfers of funds for which no accounting had been made. One transfer, for $ 5000, was shown to have been used to install a chairlift in the home of the applicant's son, where the applicant lived and received care from her son. Given that showing, the applicant's eligibility should not have been penalized on account thereof. However, there was no documentation submitted to establish the purpose for which the second transfer, a $ 2,500 check, was made, and a ten-day penalty against the applicant's eligibility was properly imposed.I.M. v. Atlantic Cnty. Bd. of Social Servs. & DMAHS, OAL DKT. NO. HMA 4710-14, AGENCY DKT. NO. 0110032695, 2014 N.J. AGEN LEXIS 491,Initial Decision (August 14, 2014).

Application for long term nursing care Medicaid eligibility was denied for the period August 2, 2013, through January 21, 2014, not through July 19, 2015 as calculated by the Hunterdon County Board of Social Services (HCBSS). Although the HCBSS completely discounted amounts paid under a caregiver agreement as arising from transfers for less than adequate consideration pursuant toN.J.A.C. 10:71-4.10(l), the administrative law judge found that the applicant's daughter transferred a value (the use of a residence to the applicant for a portion of the amount at issue. The caregiver agreement only served to memorialize the pre-existing actions of the parties for the applicant to contribute the fair market value rental obligation for her use of the separate apartment. There was no indication that the transfers occurred for the applicant to become Medicaid eligible.Div. of Med. Assistance and Health Serv. and Hunterdon Cnty. Bd. of Social Serv., OAL DKT. NO. HMA 4558-14, 2014 N.J. AGEN LEXIS 461,Initial Decision (August 12, 2014).

County board of social services (CBSS) acted properly when it imposed a transfer penalty of 104 days on the Medicaid eligibility of an applicant and determined that the penalty period was to begin on the date on which the applicant became eligible for Medicaid. While the parties agreed that the penalty was 104 days, the applicant challenged the determination based on her claim that the period of ineligibility described inN.J.A.C. 10:71-4.10(m)1i should begin on November 4, 2013, the date on which the applicant transferred a share of the interest in her home to her son for less than market value. However, becauseN.J.A.C. 10:71-4.10(m)and42 U.S.C.S. § 1396p(c) were in conflict, the federal statute governed and the penalty period for transferring assets at less than fair market value was properly calculated as beginning on the latter of: (1) the month of the transfer; (2) the month after the transfer; or (3) the date upon which the individual became Medicaid eligible and would be receiving institutional level of services if not for the penalty period. Since the applicant was not Medicaid-eligible due to her receipt of $ 65,000 on account of her share of proceeds from the sale of the house, the penalty period had not begun to run and would not run until she again becameMedicaid-eligible. I.L. v. Passaic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 01465-14, AGENCY DKT NO. 1620362403, 2014 N.J. AGEN LEXIS 476,Initial Decision (August 6, 2014).

Applicant for Global Options waiver program who voluntarily reduced the amount that she was entitled to receive from her ex-husband from $ 2,055 to $ 1,500 was ruled ineligible for benefit. The county agency was right to disregard the voluntary reduction and credit her with the entire amount of the monthly payment since it was clear that the applicant had sought to reduce her income so as to become Medicaid eligible.G.D. v. DMAHS and Burlington Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 2840-2014, 2014 N.J. AGEN LEXIS 934,Final Administrative Determination (August 1, 2014).

County board of social services (CBSS) and Division of Medical Assistance and Health Services (DMAHS) did not err in imposing a transfer penalty on the Medicaid eligibility of an applicant on the ground that the transfer, to the applicant's daughter, of $ 18,555.64 of the proceeds of a CD owned by the applicant was made for less than fair value. Though the daughter insisted that the entire amount actually represented rent paid by her mother to her over a five year period and though the daughter submitted uncashed checks that totaled $ 18,048, there was no evidence that they actually were written when they were purported to have been written and were no longer negotiable on the date on which funds were transferred from the applicant's CD to her daughter. Since the presumption was that the amount had been transferred to allow the applicant to qualify for Medicaid benefits within the meaning ofN.J.A.C. 10:71-4.1(d)2, was not rebutted, the applicant was properly rendered ineligible perN.J.A.C. 10:71-4.10and a transfer penalty imposed.C.D. v. Camden Cnty. Bd. of Social Servs. and Div. of Medical Assistance & Health Servs., OAL DKT. NO. HMA 4606-14, AGENCY DKT. NO. 0410052983, 2014 N.J. AGEN LEXIS 444,Initial Decision (August 1, 2014).

Questions as to the manner in which a county board of social services used to determine eligibility of a Medicaid applicant, which eligibility was denied on a finding that the applicant had transferred resources for less than fair market value afforded grounds for an order returning the matter to the county for further consideration.M.J. v. DMAHS and Essex Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 724-14, 2014 N.J. AGEN LEXIS 923,Final Administrative Determination (July 25, 2014).

Decision to deny Medicaid eligibility and to impose a transfer penalty was affirmed by an administrative law judge. The amount paid by the applicant to her son and daughter-in-law for her life interest in her home was a transfer for less than fair market value underN.J.A.C. 10:71-4.10(b)6iii and subject to the transfer penalty. The additional amount she paid to them for renovations also represented a transfer for less than fair market value. While some of the costs were directly related to modifying the property for the applicant to live there, insufficient information remained in the record as to whether the entire amount was for her benefit.H.D. v. Burlington Cnty. Bd. of Social Serv. and the Division of Med. Assistance and Health Serv., OAL Dkt. No. HMA 3495-14, 2014 N.J. AGEN LEXIS 421,Initial Decision (July 22, 2014).

Transfer penalty was authorized based on a Medicaid applicant's transfer, to her niece, of the applicant's interest in an LLC that owned her home and of the applicant's subsequent monthly transfers of $ 3,000 to the niece, which transfers allegedly were made on account of the applicant's "room and board" in the home. There was no evidence establishing the basis of the $ 3,000 monthly payment or what services, if any, were provided by the niece.E.B. v. Bergen Cnty. Bd. of Social Serv., OAL DKT. NO. HMA 667-14, 2014 N.J. AGEN LEXIS 922,Final Decision (July 14, 2014).

DMAHS adopted in their entirety the findings and conclusions of an ALJ imposing a 10-month, 13-day penalty against an applicant's Medicaid eligibility based on $ 81,898 in transfers made from her checking account to her grandson during the look-back period. No documentary evidence supported the grandson's claim that $ 75,000 represented repayment of a loan or that the grandson was being paid to provide care to his grandmother in accord with a preexisting written agreement.E.M. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15670-13, 2014 N.J. AGEN LEXIS 891,Final Agency Decision (July 8, 2014).

County board of social services (CBSS) acted properly in denying an application for Medically Needy Nursing Home Medicaid filed on behalf of an applicant based on its finding that she had transferred assets at an unfair market value within the meaning ofN.J.A.C. 10:71-4.10. The applicant and her now-deceased husband were joint owners of their residence. Though the couple, in 2006, had executed a quit claim deed conveying the property to their granddaughter, neither of them changed their wills, which purported to leave the property to a group of descendants rather than just the granddaughter named on the quit claim deed, to remove references to the residence therein. Moreover, the granddaughter, as the putative grantee, never assumed any responsibility for taxes or other expenses relating to upkeep of the property. Finally, the deed was not filed until March 26, 2013. All of these factors, taken together, supported CBSS's conclusion that the applicant was the sole owner of the property on the date on which she applied for Medicaid, and that it had been transferred for less than market value.M.H. v. Burlington Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15923-13, ON REMAND HMA 8129-13, AGENCY DKT. NO. Case No. 0315002570, 2014 N.J. AGEN LEXIS 405,Initial Decision (June 16, 2014).

County board of social services (CBSS) erred when it imposed a transfer penalty on the Medicaid eligibility of an applicant on the ground that the withdrawal, by the applicant's sister, of approximately $ 17,000 from a bank account that belonged to the applicant and his sister was a transfer to facilitate qualification for Medicaid. Though CBSS took the position that the amount was transferred to allow the applicant to qualify for Medicaid benefits within the meaning ofN.J.A.C. 10:71-4.1(d)2 and that the applicant was thus rendered ineligible perN.J.A.C. 10:71-4.10, the sister established that the funds that she withdrew in fact belonged to her as they were the proceeds from the settlement of a personal injury case. That showing provided adequate grounds perN.J.A.C. 10:71-4.10(e)6ii for a determination that the funds had been transferred for a purpose other than to facilitate the applicant's qualification for Medicaid benefits, thus eliminating the basis on which the CBSS had relied in imposing a transfer penalty on the applicant.L.B. v. Atlantic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 4147-14, AGENCY DKT. NO. 0120009439-01, 2014 N.J. AGEN LEXIS 399,Initial Decision (June 17, 2014).

Determination by the Atlantic County Board of Social Services assessing a penalty against a Medicaid applicant arising from the transfer of her half-interest in her home was reversed by an administrative law judge pursuantN.J.A.C. 10:71-4.10(j). The applicant offered convincing proofs that the transfer was in an effort to protect the home from bankruptcy proceedings and was thus for some other purpose than Medicaid eligibility. L.L. v. Division of Med. Assistance and healthServ. and Atlantic Cnty. Bd. of Social Serv., OAL Dkt. No. HMA 4146-14, 2014 N.J. AGEN LEXIS 383,Initial Decision (June 30, 2014).

Denial of an 82-year old woman's application for Global Options (GO) Medicaid was appropriate. The applicant previously was receiving $ 2,055 a month from her husband under a Limited Judgment of Divorce from Bed and Board, which payment was claimed to be the applicant's share of the ratable portion of a former marital asset, not alimony. Prior to making the GO Medicaid application, however, the applicant applied for and was awarded a consent order decreasing the $ 2,055 monthly payment to $ 1,500. Though an Administrative Law Judge (ALJ) agreed with the applicant that those payments did not constitute alimony, she also concluded that they were not excludable as income under any provision ofN.J.A.C. 10:71-5.3. Moreover, because the applicant's action to reduce the payments was admittedly taken to enable the applicant to remain in an assisted living setting, the facts triggered the application ofN.J.A.C. 10:71-4.10(b)3. That is, her monthly income would be deemed to include the entire $ 2,055 rather than the reduced amount because the reduction was a result of action on the part of the applicant to meet eligibility guidelines.G.D. v. Burlington Cnty. Bd. of Social Servs. & DMAHS, OAL DKT. NO. HMA 2840-14, AGENCY DKT. NO. 0310031084, 2014 N.J. AGEN LEXIS 361,Initial Decision (June 20, 2014).

A county board of social services (CBSS) acted properly in denying Medicaid eligibility to a husband who was already a resident of a care center because the husband, who bore the burden of proof perN.J.A.C. 10:71-4.10(j), did not establish that sufficient verification of spend-down had been provided to CBSS. Moreover, the couple's resource assessment as determined per the criteria inN.J.A.C. 10:71-4.8(a)indicated total resources of $ 414,458.15, far in excess of the maximum for the husband, which was $ 211,229.R.K. v. Burlington Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 16823-13, AGENCY DKT. NO. 0310030815, 2014 N.J. AGEN LEXIS 341,Initial Decision (June 18, 2014).

DMAHS properly denied an application for the Medicaid Only/Community Care Waiver program made on behalf of a disabled adult on the ground that the adult had excess resources and that significant assets had been transferred within 6 months of the application. Leaving aside other assets on which evidence was received, the adult had nearly $ 50,000 in a trust account on the date of the application and thus her resources exceeded the $ 2,000 ceiling inN.J.A.C. 10:71-4.5(c). Second, as for the transfers, which included a transfer of a condominium and transfers in the amounts of $ 52,863.39 and $ 46,108.86, perN.J.A.C. 10:71-4.10(l)1, the determination of whether the transfer was made to qualify for Medicaid does not include a consideration of the merits of the transfer, but whether the applicant has proven that the asset was transferred exclusively for some other purpose, the only circumstance in which presumption is successfully rebutted. In the absence of evidence rebutting that presumption, the existence of such transfers afforded grounds for denial of the application.S.M. v. DMAHS, OAL DKT. NO. HMA 11842-12, 2014 N.J. AGEN LEXIS 338,Initial Decision (June 20, 2014).

Board of Social Services' delay in processing a Medicaid application was not improper underN.J.A.C. 10:71-2.3(c). Throughout the 21 months between the filing of initial application and its amended disposition, the information, including duplicates, was supplied on several occasions in response to the verifications sought. A transfer penalty was properly assessed pursuant toN.J.A.C. 10:71-4.10(i)arising from the transfer to her niece of the applicant's interest in a limited liability company that owned her home in exchange for a promissory note. While it was undisputed that the niece took the applicant into her home, sound proof did not exist concerning that arrangement. The fair market value documents did not provide an adequate market analysis of the home because they primarily reflected later values, and they clearly stated that the figures are not guaranteed.E.B. v. Bergen Cnty. Bd. of Social Serv., OAL DKT. NO. HMA 667-14, 2014 N.J. AGEN LEXIS 327,Initial Decision (June 9, 2014).

ALJ properly imposed a 6 month, 12 day transfer penalty on the Medicaid eligibility of a 92-year-old man who was found to have transferred, for less than fair value, $ 50,000 to his daughter during the relevant look-back period. Though the daughter claimed that the applicant had directed her to purchase a home that would accommodate him in the event he went to live with her and that she had done so, there was no evidence that the applicant ever resided there, that he had ever held title thereto or that he received any equity interest in the property.T.O. v. DMAHS and Morris Cnty. Bd. of Social Servs., OAL DKT. NO. HMA17940-13, 2014 N.J. AGEN LEXIS 899,Final Administrative Determination (June 3, 2014).

An Administrative Law Judge (ALJ) concluded that the majority of expenditures made to a residence in the six or seven months before a Medicaid applicant actually entered a nursing home were not transfers of resources within the meaning ofN.J.A.C. 10:71-4.10(a)and thus could not form the basis of a determination that the applicant's Medicaid eligibility was properly delayed. The applicant owned a life estate in the residence at issue and while the county board of social services took the position that all of the expenditures were made to benefit the applicant's son, with whom the applicant shared a two-family house, the ALJ determined that only such funds as were used to improve and repair the third floor, which was where the son was now living, were expenditures for which a penalty was properly imposed. The ALJ reasoned that the applicant, as the owner of a life estate, had certain responsibilities, including the responsibility to keep the property in good repair and that expenses that benefited the entire residence were not properly made the basis of an eligibility penalty.T.B., v. DMAHS and Hudson Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 13009-13, 2014 N.J. AGEN LEXIS 299,Initial Decision (May 22, 2014).

Atlantic County Board of Social Services properly calculated the penalty for the transfer of assets during the look back period pursuant toN.J.A.C. 10:71-4.10in determining the date of Medicaid eligibility. Petitioner did not dispute any of the transfers made. She simply testified that her terminally ill husband required full-time care, which she provided. She quit her job and used a majority of the funds to pay for their living expenses. Additionally, she used funds to assist her son with saving his house. She was a co-mortgagee on the home until she executed a quit claim deed to her son in full. Unfortunately, petitioner could not account for any of the funds because as she simply executed checks to her son, who converted them and then paid the mortgage.R.P. v. Atlantic Cnty. Bd. of Social Serv., OAL Dkt. No. HMA 03151-14, 2014 N.J. AGEN LEXIS 282,Initial Decision (May 21, 2014).

Determination of the effective date of Medicaid eligibility and imposition of transfer penalty by the Camden County Board of Social Services (CCBSS) was affirmed. The CCBSS was correct in not including a re-gifting from the applicant to her grandson back to the applicant pursuant toN.J.A.C. 10:71-4.10(e)6iii, but the applicant was not entitled to a hardship waiver underN.J.A.C. 10:71-4.10(q)for the remainder of the transfer. She made no showing that she filed a request for an undue hardship exception, and while she provided a great deal of evidence of her current medical state and the care she needed, no evidence was provided that the recovery transferred assets were beyond her control.A.B. v. Camden Cnty. Bd. Social Serv. and Div. of Medical Assistance and Health Serv., OAL Dkt. No. HMA 965-14, 2014 N.J. AGEN LEXIS 277,Initial Decision (May 21, 2014).

An Administrative Law Judge (ALJ) concluded that a county board of social services acted properly when it denied an application for Medicaid eligibility made by an applicant on behalf of her deceased husband on a finding that a penalty period of one year and 12 day was properly imposed perN.J.A.C. 10:71-4.10on account of transfers in the amount of $ 96,420.38 that were made within the relevant look-back period. Though the applicant claimed that the resources were used to care for the decedent during his final, terminal illness, she was unable to account for the funds as most of them were reflected in checks made payable to her son.R.P. v. Atlantic Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 03151-14, State of New Jersey 2014 N.J. AGEN LEXIS 274,Initial Decision (May 21, 2014).

An Administrative Law Judge (ALJ) concluded that an applicant for Nursing Home Medicaid was not entitled to a hardship waiver underN.J.A.C. 10:71-4.10(q)from the period of ineligibility based on an asset transfer. The asset transfer involved $ 222,909.28 in resources that the county board of social services determined had been transferred for less than fair market value, including substantial assets that had been transferred to the applicant's grandson. Though the applicant adequately established her current medical state and her need for care, she did not offer any evidence tending to show that the recovery of transferred assets was beyond her control and that she had made good faith efforts, including the exhaustion of remedies available at law or in equity, to recover the transferred assets.A.B. v. Camden Cnty. Bd. of Social Servs., and Div. of Medical Assistance and Health Servs., OAL DKT. NO. HMA 965-14, AGENCY DKT. NO. 0410052140, 2014 N.J. AGEN LEXIS 269,Initial Decision (May 21, 2014).

Agency erred in determining that an elderly woman's Global Option Medicaid eligibility was subject to a penalty period perN.J.A.C. 10:71-4.10due to $ 151,300 in transfers made between October 2006 and October 2011, which transfers were cash gifts. The agency had used a five-year look-back period beginning in 2011 when, in fact, the application at issue had been made on June 21, 2013 for an eligibility date of June 1, 2013. If the proper look-back period was used, the transfer amount that would properly apply was $ 21,378.00, or an approximately three month penalty period, not the nineteen month and fifteen day period that the agency originally had imposed.A.D. v. Union Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 2670-14, AGENCY REF. NO. 2010048756, 2014 N.J. AGEN LEXIS 259,Initial Decision (May 19, 2014).

No transfer penalty should have been applied by a county board of social services upon the Medicaid eligibility of an elderly woman (now deceased) because her daughter was properly compensated for services rendered to her mother under a personal services contract. The evidence established that the daughter provided services in excess of 20 hours a day because her mother, who had Alzheimer's disease, required constant supervision, and that those services were provided at fair market value. That being so, there was no basis for imposition of the transfer penalty described inN.J.A.C. 10:71-4.10.E.B. v. DMAHS and Cumberland Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 2809-14, ON REMAND HMA 12812-13, AGENCY DKT. NO. 0610096253, 2014 N.J. AGEN LEXIS 245,Initial Decision (May 28, 2014).

An Administrative Law Judge (ALJ) concluded that an elderly woman's January 2011 transfer, to her daughter, of the woman's home was a transfer for less than market value within the meaning ofN.J.A.C. 10:71-4.10and provided grounds for the imposition of a penalty of 25 months and 3 days against the elderly woman's Medicaid entitlement, meaning that her eligibility date would be February 3, 2014. Nor did the "caregiver" exception to the fair market rule apply. That was because the evidence showed that the elderly woman needed an institutional level of care as of March 2011, and that the elderly woman was not residing with the daughter for that entire period nor was the daughter her mother's caregiver for a full two years prior to March 2011.M.K. v. DMAHS and Burlington Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 8099-13 (On remand HMA 5791-12), 2014 N.J. AGEN LEXIS 243,Initial Decision (May 30, 2014).

An Administrative Law Judge (ALJ) concluded that a county board of social services had acted lawfully when it had imposed a penalty of ten months and 13 days against an elderly woman's Medicaid eligibility by reason of three transfers made from the woman's checking account to her grandson within the 60 month "look-back period" inN.J.A.C. 10:71-4.10. Though the grandson had claimed that the largest of the three transfers - which was for $ 75,000 - was repayment of a loan that he made to his grandmother, there was no documentary evidence whatsoever that such was the case and the surrounding facts and circumstances strongly suggested that the grandson's claim was untrue. As for the other payments, claimed by the grandson to represent compensation for care that he rendered to his grandmother, the presumption that such services would have been provided without compensation was not rebutted.E.M. v. Bergen Cnty. Bd. of Social Servs., OAL DKT. NO. HMA 15670-13, AGENCY DKT. NO. 021516716501, 2014 N.J. AGEN LEXIS 237,Initial Decision (May 30, 2014).

Transfer penalty incurred pursuantN.J.A.C. 10:71-4.10(a)was reduced when documented medical expenses and legal bills paid by the sister of a Medicaid were legitimate reimbursements of expenses paid for solely for the applicant's health and wellbeing and not in anticipation of Medicaid eligibility. Had the applicant paid the legal bills directly, even if for legal advice regarding Medicaid planning, they would not have been included transfer/penalty analysis.D.P. v. Atlantic Cnty. Bd. of Social Serv., OAL DKT. No. HMA 1080-14, 2014 N.J. AGEN LEXIS 209,Initial Decision (April 29, 2014).

An Administrative Law Judge concluded that a 15 day eligibility penalty provided byN.J.A.C. 10:71-4.10should not have been imposed upon an applicant for benefits under the Medically Needy Nursing Home Program. The penalty was based on the agency's finding that she had transferred resources valued at $ 4000 to a caretaker. The caretaker, who actually was a member of the applicant's church who was providing her with care through a church program, testified that the applicant had loaned her $ 4000 but that she in fact had repaid $ 2,000 of that amount. Since that amount had been repaid, it should not have been characterized as a transfer for less than fair market value and the agency was properly required to recalculate the penalty based on a transfer of $ 2,000.J.O. v. Morris Cnty. Bd. of Soc. Servs, OAL Dkt. No. HMA 16304-13, 2014 N.J. AGEN LEXIS 169,Initial Decision (April 4, 2014).

Spouse's transfers to her children and grandchildren of a portion of her Community Spouse Resource Allowance (CSRA) for less than fair market value did not result in a penalty period because she rebutted the presumption that the resource was transferred to establish Medicaid eligibility for her husband pursuant toN.J.A.C. 10:71-4.10(l)1. She mistakenly believed that the she was permitted to transfer her CSRA assets after that amount was calculated at the time of institutionalization but before eligibility was determined at the time of application.Poong Cha v. Morris County Bd. of Social Serv., OAL DKT. No. HMA 00267-14, 2014 N.J. AGEN LEXIS 141,Initial Decision (March 31, 2014).

An Administrative Law Judge (ALJ) concluded that a direct transfer of $ 430,183.52 made by a 95-year-old parent who was a Medicaid recipient to the parent's totally disabled adult child came within an exception to the rule in42 U.S.C.S. § 1396p(c)(1) andN.J.A.C. 10:71-4.10(a)generally requiring the imposition of a "transfer penalty" on the Medicaid recipient who made such a transfer. That was because the transfer met the criteria in § 1396p(c)(2)(B)(iii) and a determination that the challenged transfer did not trigger the penalty was also consistent with prior rulings of theDivision of Medical Assistance and Health Services. M.C. v. Div. of Med. Assistance and Health Servs. & Union Cnty. Div. of Soc. Servs., OAL Dkt. No. HMA 08967-13, AGENCY Dkt. No. 2010050139-01, 2014 N.J. AGEN LEXIS 95,Initial Decision (February 10, 2014).

An Administrative Law Judge (ALJ) concluded that the Bergen County Board of Social Services erred when, relying onN.J.A.C. 10:72-4.5(b)3, it denied a Medicaid application filed by an elderly husband (Husband) and imposed a transfer penalty of 17 months and 20 days, making Husband's eligibility date September 21, 2014, based on its finding that the assets represented by three certificate of deposit (CDs) accounts titled to his wife (Wife) and Wife's sister (Sister) constituted resources within the meaning ofN.J.A.C. 10:71-4.6that were "available" to Husband within the meaning ofN.J.A.C. 10:71-4.1(c)and could be converted to cash and used for the Husband's support and maintenance. Wife and Sister's submission on that issue, which included a statement from the financial institution where the accounts were held, established that the funds used to obtain the CDs were owned in toto by Sister, who was elderly, had no children, and lived alone; and that Sister's intention, in titling the accounts as she did, was to assure that Wife would have access to the funds in the event that Sister became incapacitated or to pay for her funeral expenses. Because the submission met the standards inN.J.A.C. 10:71-4.10(o)3 and established that the funds were not a resource of Husband, the ALJ concluded that there was no basis for the imposition of a transfer penalty.W.Z. v. Bergen Cnty. Bd. of Soc. Servs., OAL Dkt. No. HMA 16767-13, AGENCY Dkt. No. 021016511201, 2014 N.J. AGEN LEXIS 99,Initial Decision (February 7, 2014).

An Administrative Law Judge concluded that the determination of two agencies (the New Jersey Division of Medical Assistance and Health Services and the Union County Board of Social Services) in imposing aN.J.A.C. 10:71-4.10transfer penalty on an elderly Medicaid recipient on account of her transfer, to two relatives, of compensation for care that they rendered to her, which compensation was calculated based on an hourly rate of $ 25. Though both of the relatives had some relevant expertise, neither was a licensed home health care provider and thus should not have been paid at a rate exceeding the Department of Labor rate for unlicensed care, which was $ 10.10.E.H. v. Div. of Med. Assistance and Health Servs. & the Union Cnty. Bd. of Soc. Servs., OAL Dkt. No. HMA 09604-13, Case No. 2010049231-01, 2014 N.J. AGEN LEXIS 96,Initial Decision (January 28, 2014).

An Administrative Law Judge (ALJ) concluded that a direct transfer of $ 430,183.52 made by a 95 year old parent who was a Medicaid recipient to the parent's totally disabled adult child came within an exception to the rule in42 U.S.C.S. § 1396p(c)(1) andN.J.A.C. 10:71-4.10(a)generally requiring the imposition of a "transfer penalty" on the Medicaid recipient who made such a transfer. That was because the transfer met the criteria in § 1396p(c)(2)(B)(iii) and a determination that the challenged transfer did not trigger the penalty was also consistent with prior rulings of theDivision of Medical Assistance and Health Services. M.C. v. Div. of Med. Assistance and Health Servs. & Union Cnty. Div. of Soc. Servs., OAL Dkt. No. HMA 08967-13, AGENCY Dkt. No. 2010050139-01, 2014 N.J. AGEN LEXIS 95,Initial Decision (February 10, 2014).

Medicaid applicant was subject to a penalty due to an improper transfer of assets and that penalty could not be reduced pursuant to42 U.S.C.S. § 1396p(c)(2)(C) andN.J.A.C. 10:71-4.10(e)6. Only a portion of the proceeds from the sale of the marital home that the applicant gave to her nephews was returned.C.C. v. Div. of Medical Assistance and Health Serv. And Ocean Cnty. Bd. of Social Serv., OAL DKT. No. HMA 4752-13, 2014 N.J. AGEN LEXIS 93,Initial Decision (February 12, 2014).

Bergen County Board of Social Services did not err in imposing a penalty underN.J.A.C. 10:71-4.10(c)arising from unaccounted transfers after an application for Medicaid was filed on behalf of an elderly woman (applicant). The applicant did not sustain her burden in proving that transfers used to make reverse-mortgage payments were made not circumvent Medicaid eligibility. There was no sound proof that the payment of the mortgage would make the home salvageable for the family because the property was on the market, and it was evident that the applicant would not return to the residence due to her deteriorating health. The timing of the transfer of the home to her son in relation to one month later applying for institutional Medicaid questioned the soundness of the conveyance.L.M. v. Bergen Cnty. Bd. of Social Servs, OAL Dkt. No. HMA 18618-13, 2014 N.J. AGEN LEXIS 53,Initial Decision (March 10, 2014).

Administrative law judge recommended the affirmation of a penalty imposed on an applicant's Medicaid eligibility pursuant to N.J.A.C. 10-71-4.10(c). She transferred her share of the proceeds from the sale of her house to her son one year and three days prior to the date of her application., which was during the lookback period. Thus, those funds must be included when calculating her assets. The funds were expended to build an addition on her son's home, which created a gift from the applicant to her son that warranted a penalty.T.W. v. Atlantic Cnty. Bd. of Social Serv., OAL Dkt. No. HMA 13126-13, 2014 N.J. AGEN LEXIS 51,Initial Decision (March 6, 2014).

Camden County Board of Social Services and the Division of Medical Assistance and Health Services incorrectly denied Medicaid eligibility to applicants pursuant toN.J.A.C. 10:71-4.5and assessed a transfer penalty based upon the sale of their home within five years before applying for Medicaid pursuant toN.J.A.C. 10:71-4.10(a)and -4.10(b)9iv. The last tax assessment for the applicants' home was done before the decline of the housing market, and by the date of the transfer, the property was outdated, had termite and structural damage, and needed substantial renovation.W.S. v. Div. of Medical Assistance and Health Serv. and Camden Cnty. Bd. Of Social Serv., J.S. v. Div. of Medical Assistance and Health Serv. and Camden Cnty. Bd. Of Social Serv., OAL Dkt. Nos. HMA 10521-13, HMA 10523-13, 2014 N.J. AGEN LEXIS 50,Initial Decision (March 6, 2014).

Penalty for transfer of resources during the "look back" period should not have applied to petitioner because, although she transferred $ 50,000 in 2006, the gifts were not made for the purpose of establishing Medicaid eligibility; rather, the record revealed that petitioner sustained a traumatic onset of disability approximately two years after giving the gifts to her two daughters.M.M. v. DMAHS, OAL Dkt. No. HMA 13911-08, 2009 N.J. AGEN LEXIS 670,Final Decision (August 24, 2009).

Petitioner was subject to a transfer penalty since petitioner's nephew did not meet the transfer exception for a home conveyed to a son or daughter who staved off institutionalization by at least two years. Congress clearly only applied exceptions to the penalty when the transfer was to a son or daughter who resided in the home for at least two years and provided care to the applicant, and there was no room for an interpretation that would lend itself to expand the exemption to other relatives.V.D. v. DMAHS, OAL Dkt. No. HMA 4044-08, 2008 N.J. AGEN LEXIS 1111,Final Decision (December 9, 2008).

Initial Decision (2008 N.J. AGEN LEXIS 1405)adopted, which found that Medicaid applicants' prepayment of a large sum of money, pursuant to Life Care Contracts, to family members for personal-care services to be performed in the future constituted a transfer of assets for less than fair market value, subjecting the applicants to the imposition of a penalty period.C.S. v. DMAHS, OAL Dkt. No. HMA 1036-08, HMA 1122-08 and HMA 3499-08, 2008 N.J. AGEN LEXIS 1428,Final Decision (December 4, 2008).

Penalty period imposed by federal law(42 U.S.C.A. 1396p(c)(1)(D)), effective Feb. 8, 2006, and not that imposed by prior law, applied to institutionalized Medicaid applicant's gift transfers because sufficient funds to cover the gift checks, allegedly written before Feb. 8, 2006, were not in the account on which the checks were drawn until Feb. 13, 2006; thus, the penalty period expired Sept. 15, 2008, rather than Nov. 1, 2007, despite petitioner's contention that another bank's alleged delay in liquidating CDs to cover the checks rendered the funds outside her control.M.M. v. DMAHS, OAL Dkt. No. HMA 929-08, 2008 N.J. AGEN LEXIS 1017,Final Decision (July 18, 2008).

Transfer of petitioner's principal residence to her child, who resided with her for at least two years immediately prior to the date on which petitioner became institutionalized and who provided care to her during that time, was an exempt transfer pursuant to the caregiver child exception to the Medicaid penalty rules where the activities and the actions of petitioner's son were outside of the normal personal support activities, including preparing meals, bathing, helping her take her medication, and, most importantly, making sure she was safe by assisting her with walking and negotiating the stairs. The only evidence to the contrary was hearsay testimony from an adult protective services worker who testified as to what other workers reported; her hearsay testimony was without a residuum of competent legal evidence to support it.M.J. v. DMAHS, OAL Dkt. No. HMA 2512-07, 2008 N.J. AGEN LEXIS 1317,Final Decision (June 23, 2008).

Transfer of petitioner's principal residence to her child, who resided with her for at least two years immediately prior to the date on which petitioner became institutionalized and who provided care to her during that time, was an exempt transfer pursuant to the caregiver child exception to the Medicaid penalty rules where petitioner was continuously institutionalized from the time she was hospitalized and then transferred to Burlington Woods on September 20, 2005; her brief return home in December 2005 did not change the date of her designation as an institutionalized individual.M.J. v. DMAHS, OAL Dkt. No. HMA 2512-07, 2008 N.J. AGEN LEXIS 1317,Final Decision (June 23, 2008).

Applicant was not entitled to Medicaid assistance where she voluntarily reduced her pension income but remained able to rescind the reduction; thus, the original monthly pension benefit of $ 556.34 was available to the applicant and was properly counted in the determination of Medicaid eligibility.J.C. v. DMAHS, OAL Dkt. No. HMA 6950-07, 2008 N.J. AGEN LEXIS 39,Initial Decision (January 17, 2008).

There is a clear conflict between federal law(42 U.S.C.A. 1396p(c)) and the New Jersey regulation (N.J.A.C. 10:71-4.10(m)) because the regulation begins the penalty period for a transfer of assets for less than fair market value with the month of the transfer, whereas federal law imposes the penalty at either the month of the transfer, the month after the transfer, or the date upon which the individual becomes eligible, whichever is later. The Division correctly applied the current federal law to petitioner's Medicaid Only application because the courts have held that states participating in a federal entitlement program must conform to federal statutes and regulations.E.B. v. DMAHS, OAL Dkt. No. HMA 2289-07, 2007 N.J. AGEN LEXIS 605,Initial Decision (August 23, 2007).

Medicaid applicant's irrevocable trust arrangement was void because it violated New Jersey's public policy against shielding assets to become Medicaid eligible, pursuant toN.J.S.A. 30:4D-6(f), and therefore the trust res was considered an available resource. Because public policy considered the trust null and void, it was as if the trust assets were available to the applicant throughout the duration of the trust and at the time of the Medicaid application made on February 8, 2006; thus, the transfer of assets did not occur until February 8, 2006, pursuant toN.J.A.C. 10:71-4.10(m)1, and the penalty period for the transfer began on that date.J.S. v. DMAHS, OAL Dkt. No. HMA 4896-06, 2006 N.J. AGEN LEXIS 1054,Initial Decision (December 19, 2006).

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