Readers of this blog know that when a person applies for long-term care benefits under the MLTSS/medicaid program, they will generally be denied benefits for a period of time if they transferred (gifted) assets during the 5-year look-back period. There are certain express exceptions to that basic rule. Transfer of the home to a child who meets the criteria as a “caregiver child” is one of those exempt transfers. I recently had the privilege to represent a client in her successful quest for the caregiver exemption.A.H. Caregiver child FAD 8-10-20
New Jersey’s rule, N.J.A.C. 10:71-4.10(d)4, specifies that to qualify for the “caregiver child exemption,” the child had to have “provided care to such individual which permitted such 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 ensuring the safety of the individual.”
in the case of A.H. vs Bergen County Board of Social Services, A.H. transferred her home to her daughter J.H. who had lived with her for many years, and she then applied for Medicaid to pay for nursing home care. For more than two years, the home caregiving had been provided by and coordinated by the daughter, who also had some nonpaid assistance from family members under her detailed direction. The daughter oversaw a panoply of complicated medical matters for her mother throughout this time. The daughter was employed for part of the week but spent almost all of the remainder of each week attending to her mother’s needs. The mother went to a senior citizen center twice a week and she did spend some time alone during the week
The evidence included sworn statements/live testimony from the daughter and various family members, as well as medical records and opinions from multiple sources. The County denied the exemption because the daughter was employed and because the mother left the house to attend the senior program, and because she was alone in the house for part of the week. The county’s position was that she had to have 24/7 direct care in the house for two full years. The Administrative Law Judge agreed, and affirmed the denial.
The Director of the Division of Medical Assistance and Health Services rejected this decision and granted the exemption. The Director made the following unequivocal finding: ” .. J.H. assisted Petitioner with her ADL’s, specifically bathing, dressing, personal hygiene and toileting. … There is no requirement that an individual be bedridden, reliant on a wheelchair, or rewuire medical equipment such as IV drip, ventilator or Oxygen tank in order to meet the level of care requirements for nursing home level of care. The record shows that Petitioner needed hands-on assistance with at least three ADLs, which would have qualified her for comprehensive services designed to keep her out of the Facility pursuant to the MLTSS program requirements.”
Another case dealing with the same issue was approved at about the same time — VC vs. Cumberland County.
Call for advice and representation on saving the family home, Medicaid applications, asset preservation plans and appeals … 732-382-6070