Estate Planning Ideas for Professionals and People who advise Seniors

Free Seminar- 2009 update Wills and Estate Planning

WHEN: Wednesday October 14, 2009 12:15-1:00 PM

WHERE: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, 2^nd floor, Edison, NJ

The cost for this program previously at Middlesex County College was $29.00. If you email back prior to October 10 you can attend for free.

COST: Free if you pre-register. This program is limited to 15 people

Complimentary Sandwiches to pre-registered persons at 12:10

SPEAKER: Kenneth Vercammen, Esq.

(Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills

2. 2009 increases in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Question and Answer

COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property as you wish and avoid many rigid provisions of state law.

Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email kenvnjlaws@verizon.net

Can’t attend? We can email you materials

Send email to kenvnjlaws@verizon.net

Our Summer 2009 NJ Probate Email Newsletter discussed increased duties of the Executor or Administrator. The email newsletter also discussed how the revised NJ Probate Law makes a number of substantial changes in Probate and the administration of estates and trusts in New Jersey. If you send us your e-mail address we can provide you with a Free report on the changes in the law which may affect you. We also recently established the NJ Elder Law blog at http://elder-law.blogspot.com.

Website www.njlaws.com now provides Legal Information on Probate and Elder Law.

Very truly yours,

KENNETH VERCAMMEN

Chair ABA Elder Law Committee, Solo & Small Firm Division

To receive the njlaws Free Legal newsletter via email with Estate Administration & Probate information, email us at kenvnjlaws@verizon.net or fax us your email address.

Fax 732-572-0030

We send the newsletter via email only.

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		§ 10:49-14.6 Contracts with county welfare agencies

		Payment shall be made by the Department of Human Services/Division of Medical Assistance and Health Services to the CWA for conducting investigations and for determining whether applicants qualify for benefits under the New Jersey Medicaid or NJ FamilyCare program.

		HISTORY:

		Amended by R.1997 d.354, effective September 2, 1997.

		See: 29 N.J.R. 2512(a), 29 N.J.R. 3856(a).

		Amended by R.1998 d.154, effective February 27, 1998 (operative March 1, 1998; to expire August 31, 1998).

		See: 30 N.J.R. 1060(a).

		Inserted a reference to NJ KidCare.

		Adopted concurrent proposal, R.1998 d.487, effective August 28, 1998.

		See: 30 N.J.R. 1060(a), 30 N.J.R. 3519(a).

		Readopted the provisions of R.1998 d.154 without change.

		Amended by R.2003 d.82, effective February 18, 2003.

		See: 34 N.J.R. 2650(a), 35 N.J.R. 1118(a).

		Amended by R.2008 d.230, effective August 4, 2008.

		See: 40 N.J.R. 984(a), 40 N.J.R. 4531(a).

		Section was "Contracts with county boards of social services". Substituted "CWA" for "county boards of social services (CBOSS)".

§ 10:49-14.5 Administrative charges/service fees


(a) A provider shall not pay nor require payment of an administrative charge or service fee for the privilege of doing business with another provider or for services for which reimbursement is included as part of the Medicaid or NJ FamilyCare fee.

1. An example of a prohibited practice is that a nursing facility may not require a pharmacy to pay an administrative charge or service fee to the facility for handling of the nursing facility resident's medications, drugs and/or related pharmaceutical records.


HISTORY:

Amended by R.1997 d.354, effective September 2, 1997.

See: 29 New Jersey Register 2512(a), 29 New Jersey Register 3856(a).

Deleted (a)2.

Amended by R.1998 d.154, effective February 27, 1998 (operative March 1, 1998; to expire August 31, 1998).

See: 30 New Jersey Register 1060(a).

In (a), inserted a reference to NJ KidCare.

Adopted concurrent proposal, R.1998 d.487, effective August 28, 1998.

See: 30 New Jersey Register 1060(a), 30 New Jersey Register 3519(a).

Readopted the provisions of R.1998 d.154 without change.

Amended by R.2003 d.82, effective February 18, 2003.

See: 34 New Jersey Register 2650(a), 35 New Jersey Register 1118(a).

§ 10:49-14.4 Recoveries involving a county welfare agency (CWA)

		(a) The purpose of this section is to define areas of responsibility and establish basic principles and procedures in those collection activities in which the Division of Medical Assistance and Health Services (DMAHS), the Division of Family Development (DFD) and/or a county welfare agency (CWA) may be involved. It is intended that maximum conservation of public funds be effected without duplication of effort. It is recognized that certain situations may fall into more than one of the following categories. Any such matter will be processed in accordance with the provisions of the first occurring applicable category.

		(b) The following pertain to incorrectly granted assistance (cash and/or medical assistance):

		1. In instances involving incorrect eligibility for medical assistance, whether or not in combination with cash assistance, the CWA shall determine the period(s) of ineligibility and ascertain from DMAHS the amount of medical assistance incorrectly granted. The CWA shall then attempt recovery of medical assistance incorrectly granted either by administrative collection, or by way of restitution in a criminal or disorderly persons proceeding.

		i. Recoveries or attempts at recoveries can be made from those persons specified in N.J.S.A. 30:4D-7i.

		2. When recovery cannot be obtained by these methods in a case generated by the Internal Revenue Service (IRS) unearned income component of the Income and Eligibility Verification System (IEVS), the case shall be referred by the CWA to DMAHS for possible initiation of recovery proceedings.

		3. When, in any other case not generated by IEVS, recovery cannot be obtained by these methods, the CWA is authorized, after securing DMAHS approval, to initiate recovery proceedings as DMAHS' agent. If the CWA does not initiate such recovery proceedings, it shall refer the case to DMAHS for possible initiation of recovery proceedings.

		4. When collection occurs in a case involving both cash assistance and medical assistance, the CWA shall, in the absence of court instruction to the contrary, apply the proceeds to the repayment of cash assistance and the reimbursement of DMAHS for medical assistance. The reimbursement shall be made payable to the Treasurer, State of New Jersey, which shall then reimburse the CWA in the amount of 25 percent of the gross recovery on a periodic basis to be determined by DMAHS.

		5. When a CWA recovers only for medical assistance improperly granted, the CWA shall remit the proceeds to DMAHS. The reimbursement shall be made payable to the Treasurer, State of New Jersey, who will then reimburse the CWA in the amount of 25 percent of the gross recovery on a periodic basis to be determined by DMAHS.

		6. When any CWA action, whether alone or in combination with DMAHS, results in a recovery of improperly granted medical assistance from a case generated by the Internal Revenue Service (IRS) unearned income component of the IEVS match, all funds recovered shall be remitted to DMAHS payable to the Treasurer, State of New Jersey, which shall then reimburse the CWA in the amount of 25 percent of the gross recovery on a periodic basis to be determined by DMAHS.

		(c) The following pertain to third-party liability claims in tort actions:

		1. Whenever either a CWA or DMAHS learns of a situation in any case in which the other may have a claim, it will notify the other.

		2. Unless the individual case circumstances intervene, the first claim after settlement or judgment is for any payments by New Jersey Medicaid or NJ FamilyCare program arising from the occurrence, notwithstanding any CWA claim for recovery of cash assistance. The next claim is that which the CWA may assert in accordance with an agreement to repay or similar document. The DMAHS and the CWA will, insofar as their controls allow, maintain priority of payment in the above order.

		(d) The following pertain to liquidation of potential resources:

		1. The CWA will participate in the liquidation of potential resources according to the Program requirements under which eligibility has been established, regardless of whether cash assistance is being granted. Notification of the potential resource to be liquidated shall be forwarded to DHSS, enabling it to seek a voluntary contribution. Sale of real property to which title is held by a CWA is subject to DFD approval in all instances regardless of the proposed distribution of the proceeds.

		2. All funds arising from the liquidation of resources and which, by action of law, regulation, or agreement with the owner, fall under the jurisdiction of either a CWA or DHSS for distribution will, insofar as possible, be allocated as follows:

		i. Proceeds will be first applied to the cash costs of liquidation, such as advertising costs and filing fees, but not including costs, such as CWA staff time, supplies, counsel fees or overhead.

		ii. Proceeds will be next applied to any claims superior to that of the CWA (for example, taxes).

		iii. Proceeds will be next applied to any funds owing to and collectible by the CWA.

		iv. Any residue remaining after the above payments are allocated would, in the absence of circumstances to the contrary, be the property of the client and thereby subject to (d)3 below.

		3. All funds properly belonging to a beneficiary free of any agency claim are to be remitted to the beneficiary as promptly as possible or otherwise disbursed at the beneficiary's instruction. The CWA will promptly reevaluate eligibility following such distribution, taking into consideration any voluntary repayment to the New Jersey Medicaid or NJ FamilyCare program.

		(e) The following pertains to recovery from estates of deceased beneficiaries:

		1. The CWA shall normally undertake recovery activity as agent for DMAHS in any case in which the CWA is or will be undertaking activities on its own account. However, in those cases where the recovery of medical assistance is possible and where the entire CWA claim is for burial expenses only, DMAHS shall initiate recovery activity inclusive of CWA burial costs. DMAHS may, in certain cases, assume direct jurisdiction in recovery of its claim concurrent with CWA activity. DMAHS shall make the CWA aware of its activity in such cases.

		2. CWA recoveries and distribution shall be in accord with the following procedures:

		i. From the proceeds of liquidation, the CWA shall first recover the amount necessary to satisfy its own claim, including costs of liquidation and the claims of other New Jersey CWAs. The CWA shall recover funds from the clearing account in the order in which the funds were received in the clearing account. If any part of any remaining surplus has been received from the proceeds of assigned life insurance for which there was a named beneficiary other than the client's estate, that surplus or the policy benefit, whichever is less, is the property of the beneficiary and should be so directed.

		ii. All other surplus funds are part of (or the entire) the client's estate and are payable to the legally designated representative of the estate. If the representative of the estate is unknown or if no representative has been appointed and there are no known next of kin, the CWA shall forward to the DMAHS an amount not to exceed the amount of the proper medical assistance claim as determined by communication with the Administrator, Bureau of Administrative Control, DMAHS. Any remaining funds will escheat to the State of New Jersey.

		iii. When there are known next of kin, the CWA shall request the next of kin to take appropriate legal action to be appointed administrator if the amount to be disbursed is greater than the claim of the New Jersey Medicaid or NJ FamilyCare program. If the claim of the New Jersey Medicaid or NJ FamilyCare program will equal or exceed the estate, the CWA shall request the next of kin to sign a consent to transfer his or her rights to the New Jersey Medicaid or NJ FamilyCare program and, upon receipt of such signed consent, the CWA shall forward the funds to DMAHS.

		iv. When the next of kin will not sign a consent to transfer his or her right to the Medicaid Agent and DMAHS and will not file to become the administrator, the CWA may, at its option, arrange for someone to file to become administrator or the CWA may refer the information to DMAHS for action.

		v. In any questions or dispute among two or more claimants on surplus funds, the CWA shall withhold payment pending resolution by mutual consent of all claimants or by court order.

		3. The Medicaid Agent or DMAHS recoveries and distribution shall be in accordance with the following procedures:

		i. DMAHS shall undertake recovery activity in medical assistance payment cases in which no CWA shall be submitting a claim. However, should information from the CWA be necessary to such DMAHS activity, the CWA shall communicate with DMAHS, supplying such material as may be required.

		ii. In cases in which DMAHS is acting for a CWA in collection of burial expenses, DMAHS shall accord payment of the burial claim priority over its own recovery.

		(f) The CWA may at any time accept an offer of voluntary repayment, either on its own behalf or on behalf of the New Jersey Medicaid or NJ FamilyCare program, up to but not in excess of the amount of assistance granted. To any inquiry as to amount granted, the CWA shall supply the appropriate information, identifying the respective amounts granted by the CWA and the Medicaid Agent or DMAHS. In the absence of instruction from the payer, the CWA will reimburse cash assistance first and then remit any balance to DHSS.

		1. Compromise settlements of medical assistance are subject to DHSS approval.

		(g) Regarding compromise settlements:

		1. Compromise settlements of cash assistance are subject to DFD approval.

		2. Compromise settlements of medical assistance are subject to DMAHS approval.

		(h) This section shall apply to all pending and future recovery cases, except that:

		1. The 25 percent incentive payments provided for in (b)4 and 5 above shall apply to all non-IEVS incorrect payment recoveries received by the CWA on or after July 1, 1993.

		2. Paragraph (b)6 above applies to all IEVS-related recoveries received on or after July 1, 1989 by either DMAHS or the CWA, whichever agency is handling the recovery.

		HISTORY:

		Amended by R.1995, d.105, effective June 19, 1995.

		See: 26 N.J.R. 3348(a), 27 N.J.R. 2466(a).

		Amended by R.1997 d.354, effective September 2, 1997.

		See: 29 N.J.R. 2512(a), 29 N.J.R. 3856(a).

		In (a), amended and deleted Division references and substituted "New Jersey Medicaid program" and "Medicaid Agent" for "DMAHS" throughout; and added (f)1.

		Amended by R.1998 d.154, effective February 27, 1998 (operative March 1, 1998; to expire August 31, 1998).

		See: 30 N.J.R. 1060(a).

		In (c), (d), (e) and (f), inserted references to NJ KidCare throughout; in (e)2iv, inserted a second reference to DMAHS; and in (e)3 and (f), inserted references to DMAHS.

		Adopted concurrent proposal, R.1998 d.487, effective August 28, 1998.

		See: 30 N.J.R. 1060(a), 30 N.J.R. 3519(a).

		Readopted the provisions of R.1998 d.154 with changes, effective September 21, 1998.

		Amended by R.2003 d.82, effective February 18, 2003.

		See: 34 N.J.R. 2650(a), 35 N.J.R. 1118(a).

		Rewrote the section.

		Amended by R.2008 d.230, effective August 4, 2008.

		See: 40 N.J.R. 984(a), 40 N.J.R. 4531(a).

		Section was "Recoveries involving county board of social services (CBOSS)". Substituted "CWA" for "county board of social services (CBOSS)" throughout; in (a), substituted "welfare agency (CWA)" for "board of social services (CBOSS)"; in (b)3, inserted a comma following "When", "authorized" and "approval"; in the introductory paragraph of (c), substituted "third-party" for "third party"; in (c)2, inserted a comma following "occurrence" and substituted "CWA" for "(CBOSS)"; in (d)2i, inserted a comma following the first occurrence of "fees" and the second occurrence of "costs"; in the introductory paragraph of (e)2, substituted "CWA" for "County board of social services (CBOSS)"; and in (e)2i, substituted "CWAs" for "county board of social services (CBOSS)s".

§ 10:49-14.3 Authority to adjust, compromise, settle or waive claims, liens, and certificates of debt

		(a) The Commissioner, Department of Human Services; Director, Division of Medical Assistance and Health Services; Assistant Director, Office of Program Integrity Administration; and the Commissioner or Deputy Commissioner, Department of Health and Senior Services, or anyone serving in an acting capacity in any of those positions shall have the authority to adjust, compromise, settle or waive any claim, lien or certificate of debt arising under this Act (N.J.S.A. 30:4D-1 et seq.), and to execute an appropriate release or document of discharge with respect to that claim, lien or certificate of debt.

		(b) Such authority may be exercised by other officials only in the following limited circumstances:

		1. The Administrator, Bureau of Administrative Control may compromise, settle or waive any claim or lien not arising under N.J.S.A. 30:4D-7(h) within the dollar limits specified by the Director, Division of Medical Assistance and Health Services; and

		2. The Fiscal Agent may compromise, settle or waive claims arising under N.J.S.A. 30:4D-7(h) within the dollar limits specified by the Director, Division of Medical Assistance and Health Services.

		HISTORY:

		Amended by R.1997 d.354, effective September 2, 1997.

		See: 29 New Jersey Register 2512(a), 29 New Jersey Register 3856(a).

		In (a), amended Office reference and added reference to Commissioner and Deputy Commissioner of Department of Health and Senior Services.

		Amended by R.1998 d.154, effective February 27, 1998 (operative March 1, 1998; to expire August 31, 1998).

		See: 30 New Jersey Register 1060(a).

		Substituted a reference to the Office of Program Integrity Administration for a reference to the Office of Quality Management and Program Integrity.

		Adopted concurrent proposal, R.1998 d.487, effective August 28, 1998.

		See: 30 New Jersey Register 1060(a), 30 New Jersey Register 3519(a).

		Readopted the provisions of R.1998 d.154 without change.

		§ 10:49-14.2 Sanctions--Special Status Program

		(a) The "Special Status Program" either restricts the Medicaid or NJ FamilyCare beneficiary(s) listed on the HBID Card to a single provider, except in a medical emergency, or warns providers that the beneficiary's card has been used by an unauthorized person or persons, or for an unauthorized purpose. If a warning letter is issued to a beneficiary, a message will be included in the eligibility message on the REVS/MEVS/eMEVS system alerting the provider to ask the Medicaid or NJ FamilyCare beneficiary for additional identification or to take other appropriate action.

		1. The restriction is issued to Medicaid or NJ FamilyCare beneficiaries determined to have misused, abused or overutilized their Medicaid or NJ FamilyCare benefits. Overutilization occurs when a beneficiary has utilized Medicaid or NJ FamilyCare services or items at a frequency or amount that is not medically necessary. Examples of misuse or abuse include, but are not limited to, medically harmful or inappropriate use of different drugs or provider services, obtaining or attempting to obtain early refills of prescriptions in violation of 10:51-1.19(a)5, at more than one pharmacy, and forgery or alteration of prescriptions. A determination that there has been misuse, abuse or overutilization of benefits obtained by use of an HBID Card shall create a presumption that the beneficiary listed on the HBID Card, or a person responsible for a minor listed on the HBID Card, was responsible for such actions. If this presumption is successfully rebutted by or on behalf of the Medicaid or NJ FamilyCare beneficiary, he or she shall not be enrolled in the Special Status Program.

		i. A beneficiary shall be permitted to change the designated provider upon demonstration of good cause and the Division may grant the request.

		ii. The Division may change the provider to which the beneficiary is restricted if a pattern of continued misuse, abuse or overutilization by the beneficiary is evident, or if it is determined that the provider has engaged in fraud or abuse, or if the Division determines that such a change is in the best interest of the beneficiary and/or the programs it administers in whole or part.

		iii. The beneficiary may request a contested case hearing in the following situations:

		(1) If the beneficiary objects to being included in the special status program;

		(2) If the beneficiary requests a change and the request is denied;

		(3) If the agency causes undue delay in responding to the beneficiary's request for change.

		2. The warning letter is issued to Medicaid or NJ FamilyCare beneficiaries determined to have had their HBID Card used by an unauthorized person or persons, or for an unauthorized purpose. The purpose of the warning is to notify providers that the beneficiary's HBID Card has been used by an unauthorized person or persons, or for an unauthorized purpose. A message will be available on the REVS/MEVS/eMEVS system alerting the provider to ask the Medicaid or NJ FamilyCare beneficiary for additional identification or to take other appropriate action. A determination that an HBID Card has been used by an unauthorized person or for an unauthorized purpose shall create a presumption that the beneficiary listed on the HBID Card, or a person responsible for a minor listed on the HBID Card, was responsible for such actions. If this presumption is successfully rebutted by the beneficiary, the beneficiary shall not be issued a warning letter.

		HISTORY:

		Amended by R.1997 d.354, effective September 2, 1997.

		See: 29 N.J.R. 2512(a), 29 N.J.R. 3856(a).

		Substituted reference to beneficiaries for references to recipients throughout.

		Amended by R.1998 d.154, effective February 27, 1998 (operative March 1, 1998; to expire August 31, 1998).

		See: 30 N.J.R. 1060(a).

		In (a), inserted references to NJ KidCare and substituted references to Eligibility Identification Cards for references to Medicaid Eligibility Identification Cards throughout.

		Adopted concurrent proposal, R.1998 d.487, effective August 28, 1998.

		See: 30 N.J.R. 1060(a), 30 N.J.R. 3519(a).

		Readopted the provisions of R.1998 d.154 without change.

		Amended by R.2003 d.82, effective February 18, 2003.

		See: 34 N.J.R. 2650(a), 35 N.J.R. 1118(a).

		Rewrote (a)1.

		Amended by R.2008 d.230, effective August 4, 2008.

		See: 40 N.J.R. 984(a), 40 N.J.R. 4531(a).

		In the introductory paragraph of (a), substituted "HBID" for "Eligibility Identification (EI)", "letter" for "card" and "included in the eligibility message on the REVS/MEVS/eMEVS system" for "printed on the card", and inserted "to a beneficiary"; in the introductory paragraph of (a)1, substituted "restriction" for "restrictive card", "HBID" for "(EI)" twice, the second occurrence of "beneficiary" for "beneficiaries", and ", or a person responsible for a minor listed on the HBID Card, was" for "were", and inserted "or on behalf of"; and in (a)2, substituted "letter" for "card" twice, "HBID" for "(EI)" four times, "available on the REVS/MEVS/eMEVS system" for "printed on the card", the second occurrence of "beneficiary" for "beneficiaries" and ", or a person responsible for a minor listed on the HBID Card, was" for "were".

		§ 10:49-14.1 Recovery of payments correctly made	[ By Medicaid]

		(a) Correctly paid benefits shall only be recoverable from the estate of an individual who was 65 years of age or older when the individual received medical assistance if:

		1. The individual leaves no surviving spouse;

		2. For estates of individuals who died between February 1, 1984 and October 20, 1992, the individual left no surviving child;

		3. For estates of individuals who died on or after October 21, 1992, the individual leaves no surviving child who is under the age of 21 or any surviving blind or permanently and totally disabled children;

		4. The amount to be recovered is in excess of $ 500.00; and

		5. The gross estate is in excess of $ 3,000.

		(b) Paragraphs (a)4 and 5 above shall apply to recoveries from the estates of individuals who died on or after July 20, 1981, but prior to December 22, 1995.

		(c) For estates of individuals who died on or after April 1, 1995, in addition to the recoveries authorized under (a) and (b) above, any Medicaid payments correctly made on or after October 1, 1993, on behalf of individuals who received services on or after age 55 but prior to age 65, are recoverable from the estates of those individuals, subject to the conditions set forth in (a)1, 3, 4 and 5 and (b) above.

		(d) Effective for estates created on or after October 4, 1999, the Division shall file any claim or lien against an estate under this section within 90 days after receiving actual written notice from the personal representative of the estate or any other interested party of the death of the Medicaid beneficiary.

		(e) For estates of individuals who died on or after December 22, 1995, Medicaid claims under this section shall be deemed preferred claims, with a priority equivalent to that under subsection c. of N.J.S.A. 3B:22-2, that is, debts and taxes with preference under Federal or State law.

		(f) The personal representative of the estate of a deceased Medicaid beneficiary or any other interested party, upon request to the Division, may obtain a "payoff statement" on the amount due under the claim, if that information is available to the Division at the time the request is received.

		(g) Effective for estates pending on or created after October 4, 1999, if a family member of a deceased Medicaid beneficiary has, prior to the beneficiary's death, continuously resided in a home owned by the beneficiary at the time of the beneficiary's death, and that home was the beneficiary's primary residence, and was and remains the family member's primary residence, the Division may record a lien against the property, but will not enforce the lien until the property is voluntarily sold, or the resident family member either dies or vacates the property.

		(h) For estates of individuals who died on or after October 1, 1993, which are subject to a recovery claim under this section which was either pending on or initiated after March 1, 1995, the estate representative may apply to the Division for a waiver or compromise of the claim based upon grounds of undue hardship, subject to the following policies and procedures:

		1. Undue hardship can be demonstrated only if the estate subject to recovery is or would become the sole income-producing asset of the survivors, and pursuit of recovery is likely to result in one or more of those survivors becoming eligible for public assistance and/or Medicaid benefits.

		2. There shall be a rebuttable presumption that no undue hardship exists if the hardship resulted from estate planning methods under which assets were divested in order to avoid estate recovery.

		3. Upon receipt of written notice that the estate is subject to a recovery claim by the Division, the estate representative shall have 20 days from the date of receipt of the notice to file a request for a waiver or compromise of the Division's claim based upon undue hardship, together with evidence in support of the request. If that request is not received by the Division within the time limit specified, the Division shall not grant a waiver or compromise based upon undue hardship. Upon receipt of a timely request, the Division shall evaluate the request and the evidence submitted, and shall notify the applicant in writing of its decision within 45 days from the date that the request was received. If the estate representative wishes to contest the Division's decision, a written request for a hearing shall be submitted to the Division within 20 days from the date of receipt of that decision, in accordance with the provisions of 10:49-10. This request shall be forwarded by the Division to the Office of Administrative Law (OAL), which shall notify the parties of the hearing date and venue, and shall provide a description of the hearing process. Subsequent to the hearing, the formal decision of the OAL shall include a description of the process leading to the final agency decision and the appeal rights available to both parties.

		(i) The Division may elect not to pursue a claim under this section against the estate of an individual who died on or after December 22, 1995, if it determines, in its sole discretion, that to do so would not be cost-effective.

		(j) For all estate recoveries pending on or initiated after October 4, 1999, no lien of any kind, inchoate or otherwise, and no right of recovery can either exist or be pursued until all of the conditions set forth in N.J.S.A. 30:4D-7.2a are met, including the absence of any surviving spouse or of any minor, blind, or permanently and totally disabled children.

		(k) For all estate recoveries pending on or initiated on or after October 4, 1999, even when the statutory conditions for lien filing and recovery are met, recovery shall not be pursued against property held by any bona fide purchaser who has paid fair market value for the property, but shall be sought from the estate.

		(l) For purposes of this section, the term "estate" with respect to a deceased Medicaid beneficiary shall include:

		1. All real and personal property and other assets included within the individual's estate, as defined in N.J.S.A. 3B:1-1; and

		2. For individuals who died on or after April 1, 1995, the term "estate" shall also include any other real and personal property and other assets in which the Medicaid beneficiary had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the beneficiary through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement, as well as any proceeds from the sale of any such property which remain in the estate of the survivor, heir or assign of the beneficiary, to the extent of the beneficiary's interest;

		i. Effective for future estates or estate recoveries pending on or after October 4, 1999, for purposes of this subsection, the term "life estate" shall mean a life estate created upon the death of a beneficiary;

		ii. Effective for future estates or estate recoveries pending on or after October 4, 1999, for purposes of this subsection, the term "other arrangement" shall include, but not be limited to, any trust or annuity in which the beneficiary had an interest at the time of death, including a trust or annuity established by a third party, subject to the exclusions discussed in (n) below.

		(m) Any lien filed on or after October 4, 1999 against an estate as described in (l)2 above shall describe the extent of the deceased Medicaid beneficiary's interest covered by the lien, if known to the Division at the time the lien is filed. For example, if a deceased Medicaid beneficiary at the time of his death owned real property as a tenant-in-common with another individual, the lien should state that it encumbers only 50 percent of the equity in the real property. If the deceased Medicaid beneficiary held a tenancy-by-the-entirety or joint tenancy with a right of survivorship, then the lien shall state that it encumbers all of the property. If the Division is not aware of the extent of the beneficiary's interest at the time that the lien is filed, the full amount of the Division's claim shall be listed on the lien.

		(n) For purposes of this section, for future estates or estates pending on or after October 4, 1999, the term "estate" shall not include:

		1. A life estate in which the beneficiary held an interest during his or her lifetime, but which expired upon the Medicaid beneficiary's death;

		2. An inter vivos trust established by a third party for the benefit of the now-deceased Medicaid beneficiary, provided that:

		i. The trust is a discretionary trust, constructed in such a way that the Medicaid beneficiary could not compel distributions from the trust; and

		ii. The trust contains no assets in which the Medicaid beneficiary held any interest within either five years prior to applying for Medicaid benefits, or five years prior to the Medicaid beneficiary's death; or

		3. A testamentary trust established by a third party (including the spouse of the now-deceased Medicaid beneficiary) for the benefit of the now-deceased Medicaid beneficiary, provided that:

		i. The trust is a discretionary trust, constructed in such a way that the Medicaid beneficiary could not compel distributions from the trust; and

		ii. The trust contains no assets in which the Medicaid beneficiary held any interest within either five years prior to applying for Medicaid benefits, or five years prior to the beneficiary's death. Assets of the community spouse which formed a part of the community spouse resource allowance shall not be considered assets of the Medicaid beneficiary. Any assets of the community spouse other than those that formed part of the community spouse resource allowance shall be considered assets of the Medicaid beneficiary if acquired from the Medicaid beneficiary within five years prior to the date of application for Medicaid benefits or five years prior to the date of death of the Medicaid beneficiary.

		HISTORY:

		Amended by R.1994 d.524, effective October 17, 1994.

		See: 26 New Jersey Register 2757(a), 26 New Jersey Register 4184(b).

		Amended by R.1999 d.332, effective October 4, 1999.

		See: 31 New Jersey Register 242(a), 31 New Jersey Register 2883(a).

		In (a), in the introductory text, substituted "the individual" for "he or she", in (a)2, substituted "of individuals who died" for "coming into being", inserted "1," following "February", and substituted "left" for "leaving", in (a)3, substituted "of individuals who died" for "coming into being", in (b), substituted "but prior to December 22, 1995" for "the effective date of P.L. 1981, c.217 (N.J.S.A. 30:4D-7.2a)", and added (c) to (n).