- Married couples are required to provide five (5) years worth of financial information to obtain approval for Medicaid when long term care is necessary.
- However, there are circumstances under which it is difficult, if not impossible, to get the cooperation of a spouse to provide the required information.
- A County Board of Social Services will most often deny an application because of a spouse’s refusal to cooperate and provide the demanded documents; most often bank statements, checking accounts, etc.
Using Federal Law to Your Benefit When a Spouse Refuses to Cooperate
Federal Law requires that the County Board of Social Services approve a Medicaid application once spousal refusal to cooperate is cited by an applicant. A recent New Jersey Appellate Court decision affirms an applicant’s right to invoke “spousal refusal” as a basis for not providing demanded information. An applicant should consider this strategy when faced with an inability to comply with a County Board of Social Services documentary requests.
Spousal Refusal Under Federal Law Overrides New Jersey’s Policy Concerning Information From a Spouse
42 U.S.C. §1396R-5 known as spousal refusal prohibits the denial of Medicaid coverage to individuals whose spouses refuse to cooperate with the State. Often times, the County requires an applicant to send written demands to a spouse to provide information that is requested by the County Board of Social Services. Without these written requests by the community spouse, it is likely that the County will disregard the Federal law and deny the Medicaid application. Each County is different and each County may have different requirements for proving that there is a lack of cooperation by a spouse. Nonetheless, Federal Law is controlling when an applicant can document that a spouse is not cooperative.
A Recent New Jersey Case Supports Use of Spousal Refusal
In a recent New Jersey Appellate Court decision, an applicant was living together with his spouse just before he was institutionalized. This spouse was suffering from a number of physical defects. The stepchildren demanded information from the step-parent which she refused to provide for a number of reasons. Because they were not able to obtain the requested information, the Atlantic County Board of Social Services denied the application citing in part that unless there is a break in the marital ties and the community spouse refuses to cooperate with the eligibility determination spousal refusal is inapplicable.
The Appellate Division ruled that this interpretation by the County Board was incorrect. They found the Division’s failure to cite authority or informal guidance expressing the requirement that spouses be estranged in order to receive a spousal waiver for undue hardship under the Federal Law is unjustified. While the Appellate Division generally defers to the State’s interpretation of laws, here there was no policy or regulation which required that there be a marital separation in order to invoke the Statute. Therefore, the Appellate Division reversed the County Board of Social Services.
The lesson to be learned here is that when one is unable to obtain the assistance of a spouse to provide the necessary demanded information, use of this Federal Statute could be a powerful way to overcome a probable denial.
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 or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Medicaid Attorney