Fully Developed VA Claims
The Department of Veterans Affairs (VA) has implemented a new process designed to expedite claims for VA benefits having all information required by the agency and all required supporting evidence. The new process, officially titled in 38 CFR §20.1509(a) as the “Expedited Claims Adjudication Initiative-Pilot Program,” is unofficially called the Fully Developed Claim (FDC) process. Using the FDC process, claims are often processed by the agency within 30-60 days of submission, whereas it often takes the VA as much as 10-18 months to process a claim and issue a decision using the regular process.
VA is currently requesting that all state departments of veterans affairs and veterans service organizations only use new fully developed claim forms, although the old application forms (bearing numbers 21-526 and 21-534) are still accepted. The new FDC forms bear the following numbers: 21-526EZ, 21-527EZ, and 21-534EZ. These new FDC forms give the claimant a chance to choose regular processing by checking an Item Box on the forms. However, whether the applicant checks the Item Box or not, the VA will use regular processing for any claim in which the applicant fails to provide all supporting evidence within 30 days of the date on which the VA sends a notice to the applicant requesting evidence. Further, the time limit for responding to subsequent requests by the VA for additional information or evidence, either by providing such evidence, or notifying VA that no such evidence exists, also is 30 days.
New Time Limits
There are also other time limits related to the VA’s decision on fully developed claims. For example:
- The time limit to file a notice of disagreement is 60 days; and,
- The time limit to file a substantive appeal is 30 days.
If either deadline is missed, the VA will presume revocation by the claimant. 38 CFR §20.1509 (c)(1). In that event, the claim will be routed into regular processing where the claimant has one year to respond to the VA’s request for evidence, but which severely delays processing the claim.
Effect on Informal Requests
At present, an applicant for VA benefits who does not have all required evidence but is otherwise eligible can preserve an early entitlement date by filing an Informal Request form. Once an Informal Request is filed, a claimant has one year from the date of its receipt by the VA (which sets the date of entitlement) to submit the application for benefits. 38 CFR §3.155
Unfortunately, the FDC process appears to be interfering with the Informal Request process. It appears that the agency is routing claims into regular processing when a FDC is submitted after an Informal Request has been filed. Obviously, this results in substantially delayed processing of the VA claim.
Applicants must understand the possibility that a claim will not be expedited if an Informal Request is submitted first. The best course may be to defer filing an Informal Request, and instead diligently collect the required evidence and file an FDC as quickly as possible after all evidence is provided even if some months of eligibility are lost.
(This blog post summarizes information provided by the Veterans Information Service, the creators of VisPro, a comprehensive veterans benefits software program. I use it, and it’s great. The VisPro website can be found here: http://www.info4vets.com/)
Tags: Medicaid Planning · VA Compensation Benefits · VA Pension Benefits · Veterans Benefits
After an individual’s death, litigation regarding the decedent’s estate can arise in a variety of contexts. A common claim asserted in a lawsuit challenging the validity of a decedent’s Last Will and Testament is that the will was the result of “Undue Influence.”
“Undue Influence” is defined by our courts as “’mental, moral or physical’ exertion which has destroyed the ‘free agency’” of an individual by preventing that individual “’from following the dictates of his own mind and will and accepting instead the domination and influence of another.’” Haynes v. First Nat. State Bank of New Jersey, 87 N.J. 163, 176 (1981) (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)).
If the will benefits a person who had a “confidential relationship” with the testator, and there are additional “suspicious” circumstances, the law in New Jersey presumes that undue influence was present, unless it is proven otherwise. Haynes v. First National State Bank of New Jersey.
Examples of a “confidential relationship” include when the testator lives with or depends upon one of his/her children for his/her needs. “Suspicious circumstances” may include a will favoring one family member over others; the beneficiary arranging for or attending the will drafting or execution; or denying family members access to the testator. R. Houghton and M. Wigod, The Will Contest; 5 New Jersey Practice, Wills and Administration §62.
The burden of proof rests with the person challenging the will “unless the will benefits one who stood in a confidential relationship to the testat[or] and there are additional circumstances of a suspicious character present;” in such a case, “the law raises a presumption of undue influence and the burden of proof is shifted to the proponent” of the will. Haynes, 87 N.J. at 176 (quoting In re Rittenhouse’s Will, 19 N.J. 376, 378-379 (1955)).
Notably, the same factors that may lead a person to favor, for example, one child in an estate plan (e.g., the fact that the client might live with that child and depend on him or her for daily needs) may also be used to support a claim of undue influence.
Tags: Elder Abuse · Elder Law · Estate Litigation · Undue Influence
New Jersey appeals court reversed a final restraining order entered in a domestic violence lawsuit, holding that “excessive texting” from one divorced parent to the other does not necessarily amount to harassment. L.M.F. v. J.A.F.,Jr., Superior Court of New Jersey, Appellate Division, Docket No. A-0121-10T3, approved for publication.
The parties married in 1989 and divorced in August 2006. The ex-spouses used texting as the primary means of communicating with each other concerning the welfare of their children, a 19-year-old son and 17-year-old daughter, over whom they shared custody. The children lived with their mother, L.M.F. Husband J.A.F. remarried and his current wife also communicated with J.A.F.’s ex-wife via text messages.
In March 2010, J.A.F.’s current wife complained that L.M.F. failed to notify them about a banquet for their daughter’s high school basketball team. The current wife also texted L.M.F. eight times between 7:32 a.m. and 8:19 a.m. on May 25, 2010 for not informing J.A.F. about a board of education meeting at which the basketball team was honored.
On June 25, 2010, J.A.F. sent L.M.F. 18 text messages between 6:50 a.m. and 11:34 a.m. about their daughter’s SAT score, asking for an update and then accusing her of withholding information. L.M.F. testified that she sent one response in which she said that she was not aware of the score and J.A.F. should contact their daughter.
On June 28, J.A.F. again texted about the SAT score, threatening to call his attorney.L.M.F. testified that when she called to ask him to stop, he became angry and called her “a fucking scorned woman.” J.A.F. sent two more texts that day.
L.M.F. petitioned for a restraining order and, at trial, testified about the incidents mentioned above and claimed that J.A.F. intermittently barraged her with texts whenever the children were unresponsive to him.
J.A.F., in turn, argued that L.M.F. withheld information about the children and provoked him with inflammatory e-mails. Defendant testified that texting worked well until he filed a motion to reduce his child support obligation in March 2010. He also stopped receiving text messages from his children during this same time. Defendant admitted to sending plaintiff the text messages she complained of, but he claimed that the texts were justified because plaintiff intentionally kept information from him concerning the children’s lives.
The trial court issued a final restraining order. The court cited J.A.F.’s use of offensive language in calling her a “fucking scorned woman,” his current wife’s use of profanity in her texts and the timing of his early-morning messages, which the judge said were likely to annoy her.
J.A.F. appealed. The Appellate Division reversed, saying the trial court did not find that J.A.F. sent the test messages for the purpose of harassing his ex-wife, thereby failing to establish the necessary predicate for harrassment. In fact, L.M.F. did not dispute that J.A.F.’s purpose in sending the text messages was to inquire about their children.
Further, the appeals court held that the trial court did not find — as the Domestic Violence Act requires — that injunctive relief was necessary to prevent further abuse.
The case is annexed here - L.M.F. v. J.A.F.
Tags: Domestic Violence · Family Law · Litigation · New Cases · Other Claims By And Between Divorcing Spouses · Technology · Texting · Web Sites and the Internet
After an individual’s death, litigation regarding the decedent’s estate can arise in a variety of contexts. A common claim asserted in an estate litigation is that the decedent lacked “testamentary capacity” (the capacity to make a will). An individual’s mental capacity is judged based upon the transaction or act that the person is undertaking. One commentator has explained that legal capacity exists on a spectrum, such that a person’s capacity may be insufficient to perform what is considered to be a more complex act (such as entering into a contract), but may be sufficient to perform what is considered to be a more simple act (such as making a will). Frolik, L. and Radford, S., “Sufficient” Capacity: The Contrasting Capacity Requirements for Different Documents, 2 NAELA Journal 303, 304 (2006). Adults are generally presumed competent to execute a Last Will and Testament. Haynes v. First Nat’l State Bank, 87 N.J. 163, 175-76 (1981).
Testamentary capacity is evaluated at the time of the execution of a will, and is summarized as follows:
The gauge of testamentary capacity is whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the will …. [a]s a general principle, the law requires only a very low degree of mental capacity for one executing a will …. A testator’s misconception of the exact nature or value of his assets will not invalidate a will where there is no evidence of incapacity …. [I]t is not ignorance of the kind or amount of property owned by the testatrix which invalidates [a] will, but ignorance resulting from a mental incapacity to comprehend the kind and amount of such property.
In re Liebl, 260 N.J. Super. 519, 524-25 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993) (citations omitted).
Tags: Elder Abuse · Elder Law · Estate Litigation · Lack of Testamentary Capacity · Litigation
For the first time in New Jersey, the appellate court has ruled that legal counsel for the ward must be appointed by a chancery court in a proceeding to confirm the appointment of a testamentary guardian under a decedent’s Last Will and Testament. Matter of C.F.C., An Incapacitated Person, Superior Court, Appellate Division, Docket No. A-3168-11T3, decided May 9, 2013.
The ward, C.F.C., also known as Carl, is a fifty-two year old man with Down’s syndrome. He was found by the court to be incapacitated in 1985 and his mother and father were appointed his co-guardians. His father died in 1986. Carl lived with his mother until she died in 2011 at the age of 93.
Carl has five siblings, Jane, Abigail, Ronald, William and Jennifer. In her will, Carl’s late mother designated her daughter Jane as Carl’s guardian after her death. However, less than a week after her mother’s passing, Abigail filed a motion to be appointed substituted guardian of the person of Carl. Jane cross-moved for confirmation of her appointment as Carl’s guardian under their late mother’s will. The court appointed an attorney to represent Carl, but subsequent proceedings reflected the court’s and counsels’ confusion regarding the attorney’s role. The court ultimately viewed the attorney as a guardian ad litem (GAL). In her report, the GAL concluded that Abigail’s appointment would serve Carl’s best interests. However, the report did not state whether Carl had expressed a preference regarding who should serve as his guardian or where he wished to live. Further, the attorney never interviewed Jane with her attorney present.
The court conducted a two-day trial. Carl was not present, nor was he represented. Before testimony began, the court secured Jane’s and Abigail’s agreement that Carl was incapacitated, and confirmed their agreement that expert medical evidence on the issue of capacity was unnecessary. During the trial, confusion about the GAL’s role was apparent.
In a oral decision, the court summarized the testimony of the various witnesses. The judge referred to the GAL’s report, identifying her as a guardian ad litem, and not Carl’s legal counsel. In addition, in deciding the issue of incapacity, the court relied upon the medical evaluation of Carl prepared over twenty-five years earlier in support of the original guardianship application. Finally, the court ruled that Carl’s mother expressed her wish in her will that Carl be involved in family activities, and that Jane would be best able to fulfill that intent.
Abigail appealed, and the appellate court reversed. The court concluded first, that there was insufficient medical or psychological evidence to determine Carl’s best interests. Since the record lacked a current evaluation of Carl’s mental or physical health, his capacities, or his vocational, psychological, or medical needs, the court should have exercised its discretion to reopen the record, appoint an expert, and resume the hearing once a report was filed and the expert was available to testify.
Second, the court found that Carl was denied appointed counsel with clear direction to represent his interests. In describing the role of court-appointed counsel, the appeals court ruled that the attorney for the incompetent must do more than “merely file a report,” but “should zealously advocate the client’s cause.” And, for the first time in New Jersey, the appellate court ruled that legal representation was required in a proceeding to confirm appointment of a testamentary guardian under a Last Will and Testament.
Third, the appeals court held that a trial judge “shall also consider the preferences of the incapacitated adult.” In this case, the court found that the trial judge did not consider Carl’s own preferences, or determine if he was incapable of expressing them. Moreover, appointed counsel was also obliged to ascertain Carl’s preferences and, unless they were “patently absurd or posed an undue risk of harm,” to advocate for them, which was not done in this case. The trial court was also obliged to abide by Carl’s wishes regarding where he was to live, unless it was proved by clear and convincing evidence that he lacked the capacity to make that decision
Fourth, the appeals court directed the trial judge to determination whether Carl would suffer harm by attending the hearing in the case. If not, then Carl would also be entitled to decide whether to attend the guardianship trial or not.
The case is annexed here – Matter of C.F.C., An Incapacitated Person
Tags: Elder Law · Guardianship · Litigation · New Cases
New Jersey appeals court ruled that a Chancery court’s order holding that certain trust expenditures “shall not” act to deprive the beneficiary of any Medicaid benefits should a Medicaid application be made, exceeded the court’s subject-matter jurisdiction because New Jersey’s Medicaid agency, the Division of Medical Assistance and Health Services (DMAHS), was the single state agency responsible for administering New Jersey’s Medicaid program. In the Matter of A.N., a Minor, Docket No, A-5657-10T3 (App. Div. 2013), approved for publication, April 16, 2013.
A.N., who was seventeen years old at the time the case was decided, suffers from quadriplegic cerebral palsy and is fully dependent on others. In 2000, A.N.’s parents created a self-settled special needs trust pursuant to 42 U.S.C. §1396p(d)(4)(A) to hold an award of money damages resulting from litigation filed on A.N.’s behalf. A.N. is the sole beneficiary of the trust. A.N.’s parents are co-trustees, along with the Bank of America, a corporate co-trustee.
A.N. lived in the family home in Elmwood Park, NJ. The home was renovated to accommodate A.N.’s special needs. Because of family financial difficulties, the home was threatened with foreclosure. As a result, the special needs trust began assuming the mortgage payments and carrying costs. A.N.’s parents wanted the trust to purchase the home for their A.N.’s benefit. They also sought to receive compensation from the trust for the care they provided.
In January 2010, in accordance with the wishes of A.N.’s parents, the corporate co-trustee filed a verified complaint in the Chancery Division, Probate Part, seeking instructions pertaining to the trust’s proposed purchase of the home and approval of prior and future payments related to the maintenance of the home and for A.N.’s care. The complaint also sought instructions regarding rent by occupants of the property and as to the scope of parental support provided to A.N. by her parents. As to each of these items, the complaint also sought instructions regarding the “impact on the Trust beneficiary’s Medicaid eligibility.”
An order to show cause was issued. DMAHS was served with the pleadings as an interested party. The agency promptly notified the court and counsel for all parties that it took no position regarding the relief requested. However, it also expressed its position that, although the court could provide guidance on the effect of the plaintiffs’ proposed transactions on the beneficiary’s possible future Medicaid eligibility, the court lacked jurisdiction to “make administrative determinations with regard to a person’s future Medicaid eligibility or make determinations about the evaluation of transactions under Medicaid rules.” Therefore, DMAHS stated that if the beneficiary should ever apply for Medicaid benefits, it did not waive any right to review at that time all transactions and resources, and only it could make a Medicaid eligibility determination.
On the return date of the order to show cause, the court conducted a plenary hearing. At the conclusion of the hearing, the court approved acquisition of the property, ratified past expenditures, and approved anticipated future expenditures. The court determined that the acquisition and expenditures were for the “sole benefit” of the beneficiary and that they “shall not act to deprive [the beneficiary] of any government funds or benefits, including, but not limited to, Medicaid. An appropriate order was entered. The State of New Jersey then filed a motion for reconsideration, objecting to the language in the court order which might “preclude the Medicaid agency from reviewing the trust under Federal and State rules, which cannot be done in the Chancery Division.” As a result, the State’s motion for reconsideration was denied.
DMAHS appealed. The Superior Court, Appellate Division, reversed. The appeals court held as follows:
[I]n cases … in which potential Medicaid impact is an appropriate consideration, the court can, based upon all of the information presented and a review of current Medicaid statutes and regulations, provide advice that the proposed transaction is consistent with those statutes and regulations and is unlikely to adversely affect Medicaid eligibility. [But the ruling] can have no binding effect in the future on DMAHS in rendering a Medicaid eligibility determination.
Therefore, based on a ruling that “only the designated Medicaid agency is authorized to determine Medicaid eligibility,” the court concluded that the Chancery Division’s order stating that various transactions “shall not deprive [A.N.] of any government funds or benefits, including, but not limited to, Medicaid,” exceeded the court’s jurisdiction and must be deleted.
The case is annexed here – In the Matter of A.N., a Minor
Updated on 5/9/13: One litigation strategy which was not tried by the trustees in the A.N. case but may work is to ask the Court to review the Medicaid statutes and regulations as well as the statutes and regulations governing special needs trusts and make findings on whether the actions contemplated by the trustees were authorized by the statutes and regulations, without making an ultimate determination on Medicaid eligibility.
Tags: Governmental or Public Benefit Programs · Medicaid · Medicaid Planning · New Cases
In a case of first impression, a state judge in New Jersey has ruled that “a pregnant domestic violence victim [may] obtain pre-birth, advance protection for her unborn child against a violent abuser.” B.C. v. T.G., Superior Court, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1033-13, approved for publication on May 3.
B.C.. aged 17, and T.G., aged 18, had a dating relationship, which ended shortly after B.C. informed T.G. that she was pregnant with his child.
T.G. did not want B.C. to have the baby. He arranged to meet with B.C. under the guise of wanting to discuss pre-natal medical appointments for the unborn child. When B.C. arrived for the meeting, four female acquaintances of T.G.’s dragged B.C. from her car, threw her to the ground and, at his direction, proceeded to assault her. T.G. joined in. B.C. incurred multiple injuries in the attack, and it is unknown whether the fetus suffered damage in the assault.
After the trial, the court found that T.G. ambushed B.C. and committed egregious domestic violence against her in a group attack which T.G. arranged. As a result, the court entered a final restraining order, prohibiting T.G. from having any contact with B.C. At B.C.’s request, the court added her parents and three siblings as additional protected persons under her restraining order so that T.G. was prohibited from contacting them as well.
The court then went on to consider whether T.C.’s restraining order could also include advance protection for plaintiff’s unborn child, to take automatic effect upon birth so as to protect the child from T.G.
After analyzing New Jersey’s Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35., the court concluded that, since the statutory safeguards in the Act designed to protect the victim of domestic violence could have been extended to protect B.C.’s child had she already given birth to the baby before the date the restraining order was entered by the court, there was no grounds to prevent a domestic violence restraining order from providing in advance for protection of a child not yet born, The court held:
“[W]hile a fetus is not yet legally a person, upon live birth the fetus becomes a person, with rights of redress and protection from harms which originated before birth.”
Noting that there are no known reported cases in the realm of domestic violence litigation which directly deal with the issue presented here, the trial judge stated that he saw “nothing in either our law or public policy which prohibits a court of equity from entering a final restraining order protecting a pregnant victim of domestic violence by including an advance protection provision for her unborn child, to take effect immediately upon the child’s live birth.”
As a result, the court included a specific advance protection provision in B.C.’s restraining order, expressly providing that her unborn child shall, upon birth, be automatically deemed an additional protected person under the domestic violence restraining order.
The case is attached here – B.C. v. T.G.
Tags: Domestic Violence · Family Law
Several months ago, I presented a program on Veterans Benefits and Social Security Disability Benefits at the Elder Law College, a seminar on Elder Law and Special Needs Law presented each year by the New Jersey Institute of Continuing Legal Education. I wrote a blog post summarizing the seminar material presented at the Elder Law College seminar here.
The PowerPoint slide presentation I prepared for the program are attached here –
Tags: Governmental or Public Benefit Programs · Medicaid · Medicare · Personal Achievements and Awards · Social Security Benefits · Supplemental Security Income (SSI) Benefits · VA Compensation Benefits · VA Pension Benefits · Veterans Benefits
In recent years, applicants for Medicaid benefits in New Jersey have been incorrectly denied eligibility as a result of including as “countable income” the applicants’ Veterans Administration Improved Pension (“VAIP”) benefits awarded pursuant to 38 U.S.C. § 1541(d)(1) for unreimbursed medical expenses (“UMEs”). New Jersey’s Medicaid agency, the Department of Medical and Health Services (“DMAHS”), has adopted a faulty methodology which results in an inflated calculation of income that incorrectly counts benefits from the Department of Veterans Affairs (“DVA”) that are specifically earmarked for medical expenses and thus do not constitute income under federal Medicaid regulations. Although the State is aware that the methodology it uses in computing “countable income” is faulty when VAIP benefits are involved, and although it has even agreed to correct the methodology in various lawsuits brought by aggrieved Medicaid applicants who are veterans, DMAHS inexplicably continues to improperly deny benefits in the majority of Medicaid applications involving VAIP benefits filed at the present time.
How the DVA computes eligibility for Improved Pensions
VAIP benefits have historically been a means of providing additional disability benefits to veterans and their dependents who require assistance with activities of daily living. The VAIP monthly benefit consists of two parts: a “pension” portion and a “supplement” which is categorized as either “Homebound” or “Aid and Attendance,” depending on the level of care needed by the applicant. For example, an applicant requiring “Aid and Attendance” is paid the supplement based on evidence showing that the veteran is entitled to “special monthly pension because of the need for aid and attendance” and, further, that he/she is “in need of assistance of another person in performing routine activities of daily living.”
In computing the VAIP benefit, all non-VA income is subtracted from the applicable benefit amount, and the resulting difference, if any, is the amount of the VAIP award. 38 U.S.C. § 1503(a)(8). However, amounts paid for UMEs are deducted from non-VA income dollar-for-dollar. 38 U.S.C. § 1503(a)(8). In most cases, especially those in which the applicant resides in an assisted living facility or lives at home with high care costs, countable income is reduced to $0.00 due to the UMEs. As a result, the monthly benefit amount the applicant receives as VAIP are attributable to the exclusion of UMEs, and therefore constitute reimbursements for using non-VA income to pay medical expenses.
Medicaid should not treat VAIP as “countable income” because the benefit is a third-party payment for out of pocket medical expenses
Under federal law, “assistance provided in cash or in kind (including food or shelter) under a Federal, State or local government Program whose purpose is to provide medical care or medical services” is not to be considered income for Medicaid eligibility. 20 C.F.R. § 416.1103(a)(3). Further, Medicaid regulations make clear that “[p]ayments from the Department of Veterans Affairs resulting from unusual medical expenses” are not to be considered income for eligibility purposes. 20 C.F.R. § 416.1103(a)(7). Therefore, VIAP benefits paid to a Medicaid applicant because non-VA income was used to pay UMEs is not to be considered as income in determining Medicaid eligibility.
However, in processing a Medicaid applicant’s claim, New Jersey has repeatedly failed to apply what federal courts and federal regulations have consistently held – that a veteran’s pension for UMEs is not income because it is a third-party payment for out of pocket medical expenses. See Summy v. Schweiker, 688 F.2d 1233, 1235 (9th Cir. 1982); Peffers v. Bowman, 599 F. Supp. 353, 355 (D. Idaho 1984); Mitson v. Coler, 670 F. Supp. 1568, 1575 (S.D. Fla. 1987); Sherman v. Griepentrog, 775 F. Supp. 1383, 1393 (D. Nev. 1991); Buchanan v. Whiteman, 877 F. Supp. 571, 575 (D. Kan. 1995). As discussed in Mitson, UMEs are excluded from income under 20 C.F.R. § 416.1103(a)(3) as “assistance provided … under a Federal, State, or local government program, whose purpose is to provide medical care or services” just as they would have been excludable under 20 C.F.R. § 416.1109(a) as “third party payment for medical care of medical services.” Mitson, 670 F. Supp. at 1575.
DMAHS utilizes an improper method to determine whether a Medicaid applicant’s IVAP benefit is countable as “income”
During Medicaid’s application process, DMAHS now requires the applicant to obtain a letter from the DVA indicating how much of the pension is categorized as “pension” and how much is categorized as “aid and attendance.” In the usual case, upon request the DVA will issue a letter setting forth the gross benefit amount of the VAIP benefit, and breaking down the gross benefit amount as consisting of the “Pension Amount” and “Aid and Attendance” portion. Based on the letter, DMAHS typically counts the “Pension Amount” of the DVA pension as income which, in the usual case, puts the applicant over Medicaid’s income limit, resulting in a denial of Medicaid benefits.
However, the DVA letter which DMAHS relies upon to deny Medicaid benefits is merely a breakdown showing how the DVA arrives at the correct payment amount as per the statute (38 U.S.C. § 1541(d)(1)). The letter does not and is not intended to advise Medicaid whether the pension is the result of UMEs. Indeed, that question is never posed to the DVA, and the applicant is never asked to obtain that information. Moreover, DMAHS could have learned that the applicant is entitled to a DVA pension as a result of UMEs had the agency simply reviewed the applicant’s DVA award letter. Thus, the fundamental error being made by DMHAS is its reliance on the so called DVA allocation letter. In doing so, DMHAS places the burden on the applicant to contact the DVA and obtain an allocation letter that has the precise language and allocation sought by DMHAS.
More importantly, DMHAS should not rely on an allocation letter from DVA because neither Medicaid applicants nor the DMHAS has any control over how the DVA drafts these letters. Instead of asking the applicant to obtain a letter that may or may not correctly characterize the VAIP benefit, DMAHS should analyze the applicant’s DVA pension and determine, as instructed by Mitson, whether the applicant is receiving the pension as a result of UMEs, which makes the payments excludable from income under 20 C.F.R. § 416.1103(a)(3) as “assistance provided … under a Federal, State, or local government program, whose purpose is to provide medical care or services” just as they would have been excludable under 20 C.F.R. § 416.1109(a) as “third party payment for medical care of medical services.” Mitson, 670 F. Supp. at 1575. By looking at the applicant’s DVA award letter, one can quickly determine whether or not the VAIP is based on an applicant’s UMEs. Rather than access readily available information as to the basis of the DVA pension, however, DMAHS instead has abdicated its responsibility to assist applicants and has placed the burden on the applicant to obtain an unnecessary allocation letter from the DVA.
(This blog post was adapted from a brief written by Alan H. Sklarsky, Esq., a partner in the law firm of Williams Cuker Berezofsky, and filed today in the United States District Court for the District of New Jersey, Camden Vicinage. I am co-counseling with Alan in a federal class action lawsuit challenging, among other things, DMAHS’s improper denial of Medicaid benefits to a veteran’s widow as a result of incorrectly including the widow’s VAIP benefits as “countable income” in determining Medicaid eligibility.)
Tags: Medicaid Planning · VA Pension Benefits · Veterans Benefits
On Saturday, April 27, 2013, I presented a session on the impact of elder law issues on divorce mediation at the 2013 Annual Divorce Mediation Seminar by the New Jersey Association of Professional Mediators. The topics covered in my session included Social Security, including retirement, disability and survivors benefits, Supplemental Security Income benefits, Medicare, Medicaid, Veterans benefits, the use of Special Needs Trusts to shield alimony and child support payments from consideration by public benefit providers, and the use of the so-called Medicaid divorce as a public benefit planning technique. I prepared a paper and a powerpoint presentation for the session, The powerpoint presentation is attached below.I’d like to thank the organizers for inviting me. I enjoyed the seminar, and hope my participation was helpful to attendees.
My powerpoint presentation on the impact of elder law issues on divorce mediation follows:
Tags: Child Support · Divorce · Divorce Mediation · Elder Law · Family Law · Governmental or Public Benefit Programs · Mediation · Medicaid · Medicaid Planning · Medicare · Personal Achievements and Awards · Social Security Benefits · Special Needs Planning · Special Needs Trusts · Spousal Support · Supplemental Security Income (SSI) Benefits · Veterans Benefits