Avery v. Union County Division of Social Services, Docket No. A-2408-01T2 (N.J. App. Div., May 15, 2003) (unpublished).
Medicaid applicant denied eligibility due to “available resource” of the working spouse consisting of her employer-based 401k plan. This ERISA plan restricted early withdrawal to distinct emergency situations, including payment of “medical care” which is defined in the IRS code as not including “custodial” or nursing home care. The plan would have required borrowing against it before any hardship to Mrs. Avery was considered by an employer committee. There were no regulations or directives from the agency at the time as to mandatory borrowing, so the matter was reversed and remanded to determine whether the borrowing would impoverish Mrs. Avery or increase her hardship as a community spouse.
Attorney: Eugene Rosner, Esq.