Real Estate Transactions in Elder Law : To Transfer or Not to Transfer Property
There are many reasons why a Medicaid applicant may find themselves in a fair hearing. A Fair Hearing is a proceeding before an administrative law judge. If you are not satisfied with the decision that was made by the Board of Social Services on your Medicaid application, you have the right to request a hearing as your first appeal.
For example, if you think that Medicaid should start as of January 2020, but the Board of Social Services says that it starts in April of 2020, then you may wish to ask for a fair hearing. If Medicaid says that the Medicaid applicant is ineligible because he or she gave away $50,000 in gifts but you don’t think the Medicaid applicant gave anything away, you can ask for a fair hearing. If Medicaid says that you will need to pay the nursing home $1000 of your income every month when you are on Medicaid, but you need that money for your spouse or for paying another medical expense, you may need to ask for a fair hearing. There are many reasons to ask for fair hearings.
But you have to be quick. You have to write to the State Medicaid Fair hearing Unit within 20 days of getting the decision to get a fair hearing. Here at Fink Rosner Ershow-Levenberg LLC, if we prepared and filed the application and we receive an adverse decision, we always file for fair hearing to protect our client’s opportunity for appeal, even if we think we can resolve the issue with the Board of Social Services, because if you don’t file and the 20 days elapses, you will be out of time.
Once you file, they assign you a date and a place to appear. If you have a very good reason why you cannot appear, call the caseworker on your file and ask them to consent to an “adjournment.” Then call the court (the number should be on the paper where the date of the hearing is listed) and tell them why you need a new date and that your adversary, the caseworker, agreed to get a new date.
Presently due to the pandemic, all hearings are being conducted remotely using phone or videoconferencing.
A Fair Hearing is a trial. You have to present all of the evidence you have to prove that the caseworker’s decision was wrong, and make legal arguments in support of your position on eligibility for benefits. Fink Rosner Ershow-Levenberg LLC represents clients on their Medicaid Fair Hearing issues. We do this on an hourly basis, similar to other litigation matters.
The difference between Medicaid Fair Hearings and regular litigation in Superior Court is that the Administrative Law Judge in a fair hearing isn’t the final decision-maker. The Director of the New Jersey Division of Medical Assistance and Health Services (DMAHS) reviews all initial decisions, and then either approves of the decision, reverses the decision, or sends the parties back to the judge for more fact finding. This is the “Final Agency Decision.” Only after this does the dissatisfied party go to the appellate division.
Fair hearings can take a long time. The initial decision can take up to six months to obtain, and then the agency has 45 days to approve or deny the decision. Most of the time, DMAHS asks the court for a 45 day extension, and they generally get that extension. The whole Fair Hearing process from filing for Fair Hearing, to the Final Agency Decision, is considered part of the Medicaid application, and the nursing facility cannot discharge a resident while a Medicaid application is pending. Final Agency Decisions can be appealed to the Superior Court-Appellate Division or possibly Federal court, depending on the legal issue in question.
Boards of Social Services can resolve Fair Hearings by changing their minds on eligibility decisions. If you agree with the change, or think it is a good settlement of the issue, you say you want to “withdraw” the Fair Hearing. We always try to resolve the issue as quickly as possible with the Board of Social Services, even if we are in a “Fair Hearing.”
The number one priority is always the client, and getting the most Medicaid coverage possible so as to secure the client with needed medical and nursing care services. To make an appointment or speak to an attorney, call 732-382-6070 or contact us online.