A.F. v. Burlington County Board of Social Services and DMAHS, OAL Docket No. HMA 13634-15 (May 23, 2018)
May 23, 2018OUTCOME: Successful reversal of Medicaid penalty period for transfer of a home to a caregiver child
Jane's client was an elderly parent in a nursing home due to Alzheimer's dementia as well as other chronic, medical conditions. The client's child moved into the parent's home and cared for the parent ... from 2007 to 2015. The client transferred the family home to the caregiver child, seeking to qualify for Medicaid without any penalty period under the caregiver child exemption. In order to qualify for the caregiver child exception, the caregiver child must reside in the parent’s home and must serve as the parent’s caregiver for a period of two years. In this particular case, the child had already assumed served this role for seven years. Medicaid is a public welfare benefit program with a countable resource threshold of less than $2,000. Unless an individual has less than $2,000 in countable assets (defined to include most annuities, bank and brokerage accounts, United States savings bonds, cash, the cash surrender value of whole life insurance, individual retirement accounts, and deferred compensation plans including 401(k) and 457(b) accounts) during the month of Medicaid eligibility sought. Since approximately 2015, the State of New Jersey very frequently denied caregiver child applications on the basis of a child’s ability to work while providing care for the parent. However, unless the child was wealthy or receiving disability benefits, he or she would have no funds to pay for the household expenses. Jane first became involved in this case after the Medicaid penalty period was already imposed. Jane managed to overcome prior policy through relentless litigation in both Federal Court and the State Administrative Fair Hearing System over a three-year period. In the State Administrative Fair Hearing, Jane won a favorable initial decision by strategically examining and presenting the medical records, utilizing a physiatrist as an expert witness, and building upon other arguments and facts in the case. Unfortunately, the vast majority of the 21 favorable Initial Decisions finding caregiver child status since 2015 on Medicaid Fair Hearings in New Jersey were reversed and ultimately denied at the Final Agency Decision level based on an alleged lack of credible medical evidence. Jane’s case was an exception, as it was eventually upheld in favor of her client by the Agency Director.
