LITIGATION ACHIEVEMENTS

Duffy vs Velez, (U.S. District Court) - Case no. 3:09-cv-05539-AET-LHG. This was an  action filed under the Americans with Disabilities Act (the A.D.A.), (Westlaw citation is Duffy v. Velez, 2010 WL 503037, (D.N.J.,2010)) seeking an accommodation for the plaintiff, specifically,  waiver of the income cap in the Global Options Medicaid Program so that Mr. Duffy could reside in assisted living facility rather than a nursing home. State’s motion to Dismiss for failure to state a claim was Denied February 5, 2010, by the Honorable Anne E. Thompson, U.S. D.J. (Case later was withdrawn/dismissed due to death of the plaintiff).
Attorney: Linda S. Ershow-Levenberg, Esq. and Lauren S. Marinaro, Esq.

N.F. vs. Monmouth County Board of Social Services, OAL docket no:HMA-12006-09, DMAHS Final Agency Decision dated May 11, 2010. Community spouse resource allowance was increased by $69,411.50 per N.J.A.C. 10:71-4.8(a)(5) and 5.7(d), because the combined income of the spouses was insufficient to provide the community spouse  with the Minimum Monthly Maintenance Allowance.
Attorney: Linda S. Ershow-Levenberg, Esq.

E. R. vs DMAHS and Department of Health and Senior Services,  OAL docket no. HMARP 09910-09, Final Agency Decision dated April 12, 2010. The Agency affirmed the ALJ Initial decision, which reversed the County Board’s decision to deny this Medicaid recipient a Post-Eligibility Medical Expense Income Deduction (PEME) per 42 USC 1396a(r)(1)(A) to pay off pre-eligibility assisted living health care expenses.
Attorney: Lauren S. Marinaro, Esq.

P.K. vs Union County Board of Social Services and DMAHS, OAL docket no. HMA7069-09N, Final Agency Decision issued March 4, 2010, Immediate, nonassignable, irrevocable IRA annuity, purchased by the community spouse during the spend-down period, naming the State of New Jersey as the 1st remainder beneficiary to the extent of Medicaid benefits paid for the institutionalized spouse, is not an available resource because it cannot be sold on the secondary market.
Attorney: Linda S. Ershow-Levenberg, Esq.

Estate of M.M. vs Division of Medical Assistance & Health Services & Union County Board of Social Services, OAL docket no. HMA 13911-08, Final Agency Decision May 2009 adopting the ALJ Initial Decision, reverses County Board’s action that penalized pre-eligibility transfers of assets and that denied eligibility on the basis that the Medicaid applicant wasn’t a resident of New Jersey at the time she sought care. The Agency confirmed the ALJ findings that MM had not relinquished her residency when she left the state for a prolonged vacation, and further, that transfers made to her daughters a year before the application were made exclusively for a reason unrelated to medicaid eligibility.
Attorney: Linda S. Ershow-Levenberg, Esq.

38-4-3076 I/M/O Estate of Denner, Chancery Div.--Union Cy. (Lyons, P.J.Ch.) (8 pp.) (Unpublished decision dated Feb. 28, 2006, Released Mar. 1, 2006.) The plaintiff  submitted three unsigned alternative documents which she claimed should be probated as writings intended to be a Will under the revised probate code, instead of the earlier Will that was probated by the defendant: (1) an unexecuted, typed will, apparently a form document, that has handwritten assertions and a cross-out that plaintiff alleges was prepared by the decedent; (2) an unsigned and undated handwritten list that plaintiff alleges was prepared by the decedent; and (3) an unexecuted will prepared by an attorney. Defendant moved to dismiss because none of the documents were signed by the decedent. The court denied that motion, allowing the trial to proceed. The court rejected defendant's assertion of a per se bar to probating any document which has not been signed by a decedent, and viewed the more important issue as one of proof of the decedent's intent.
Attorney: Eugene Rosner, Esq.

J.P. v. Division of Medical Assistance and Health Services, 392 N.J.Super. 295, 920 A.2d 707 (N.J.Super.A.D.,2007). After a supplemental needs trust was created for a physically disabled wife and husband was ordered in divorce decree to pay $1550 per month in alimony to trust, county board of social services notified wife that the alimony would be considered income, for Medicaid purposes, to be paid over to the nursing facility where she resided. The Division of Medical Assistance and Health Services (DMAHS) determined that the alimony was income. Wife appealed.  The Superior Court, Appellate Division, S.L. Reisner, J.A.D., held that alimony received by a supplemental needs trust pursuant to divorce decree did not constitute income, for Medicaid purposes. 
Attorney: Eugene Rosner, Esq.

W.T. v. Division of Medical Assistance and Health Services, 391 N.J.Super. 25, 916 A.2d 1066 (N.J.Super.A.D.,2007). Appeal was taken from final agency decision of the Department of Human Services Division of Medical Assistance and Health Services (DMAHS) upholding the assessment of a transfer penalty delaying the effective date of institutionalized applicant's participation in Medicaid program, based on an unequal distribution of marital assets between applicant and his spouse under property settlement agreement (PSA) incorporated into judgment of divorce. The Superior Court, Appellate Division, Collester, J.A.D., held that: (1) any in-house rule or policy of DMAHS, pursuant to which matrimonial settlements or divorce judgments providing equitable distribution of less than 50 percent of marital assets to an incapacitated spouse required a transfer penalty when made within look-back period, violated the Administrative Procedure Act (APA) and state's matrimonial law, and (2) the unequal distribution of marital assets under the PSA had as its purpose something other than qualifying applicant for Medicaid, and thus no transfer penalty was warranted. Reversed.
  Attorney: Eugene Rosner, Esq.

P.C. v.  Division of Medical Assistance and Health Services and Union County Board of Social Services, Docket No.  A-1005-02T3 (N.J. App.  Div., March 17, 2004) (unpublished).  Medicaid applicant was issued a transfer penalty for failing to seek her “elective share” of her deceased spouse’s estate.  Applicant and spouse had been living separately for over 18 months due to applicant’s choice to reside in a nursing home.  Court ruled that where couple was living separate and apart and there were grounds for divorce (living separate and apart for over 18 months creates a presumption of “irreconcilable differences”) there was no right of elective share, and the agency was reversed. 
Attorney: Eugene Rosner, Esq.

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.