By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Medicaid Attorney

In my last post, I discussed how if you are providing a high-level of care to your parent, you’re eligible to receive your parent’s interest in his/her home. Medicaid will disregard this transfer for purposes of determining eligibility.  One thing I must emphasize is that the transfer rules must be strictly adhered to.  Remember, the State is looking to deny you Medicaid, so if you choose to use this exception, you need to make sure you can meet their strict criteria.  I can think of no better case where this occurred then in M.K. v. Division of Medical Assistance and Health Services.

In this decision, M.K. was severely debilitated and required a high amount of assistance.  Her daughter provided a great amount of care over five years, including shopping for her, dressing and bathing her, cleaning the house, and attending to M.K.’s financial affairs.  The house was transferred from M.K. to the daughter for less than fair market value, and in the application, M.K. argued the caregiver exception applied to make her eligible for Medicaid despite this transfer within 5 years of the date of the application.

This position was rejected by the State and the courts for three reasons.  First, M.K.’s assets went to pay for a home health aide that came in weekdays from 8 AM to noon when the daughter was working.  Second, the daughter was able to leave M.K. home alone five hours a day while working when the home health aide wasn’t there.  Third, during the 2-year period before M.K. was sent to the nursing home, she had lived with her son for five months, with the daughter only providing assistance with M.K.’s medication and transportation to doctor’s appointments.  Because the care was not continuous in the eyes of the court for the 2 years, it concluded the exception did not apply and the penalty assessed was therefore appropriate.

So if you believe the exception applies to you and your parents, you have to really make a showing that not only was your parent debilitated and that you provided a high level of care, your parent was almost never left alone while you went to work, and if she was, you personally paid for home health assistance to stay with her.  In addition, you must also show that you provided the same level of care throughout the 2 year period even if your parent goes to live with another sibling.  In a slumping economy, with the cost of home health care rising, this is a tall task for anyone to perform over the course of 2 years.  The government essentially wants you to become a full-time nurse for your parent, and if you can’t because you need to work, then you must bear the cost for a home health assistant for Medicaid to pay for the subsequent move to the nursing home.  It is an unfortunate decision because it puts a lot of strings on the use of this exception, which was originally meant as a good intention to encourage children to move in and take care of their parents that once cared for them. More than ever you need our experience in Medicaid eligibility law to help you achieve your asset protection goals.

To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.