A person with a disability is entitled under N.J.S.A. 10:71-1.2 to choose the least restrictive environment to live.- An individual who qualifies, medically, for an institutionalized level of care may choose his or her less restrictive environment.
- A County Board of Social Services cannot require that an applicant be approved for admission to a nursing home or assisted living as a condition of Medicaid approval.
In a recent case filed in our office, it was undisputed that our client medically qualified for an institutional level of care. It was also undisputed that she is a person with a disability. Disability is a term defined in N.J.A.C. 10:71-3.12. Because our client is a person with a disability, she is entitled under N.J.A.C. 10:71-3.12 to choose the least restrictive environment for long term care. Monmouth County is attempting to argue that she cannot pick the least restrictive environment – a community placement – because she had not yet located a bed when she applied. That position, in our opinion, is wrong.
Monmouth County’s eligibility analysis is wrong
An individual who qualifies, medically, for an institutionalized level of care may choose a less restrictive environment. Living arrangements are addressed in two places, in the introduction to the administrative code authorizing adoption of Home and Community-Based Medicaid and in the Medicaid Manual.
The purpose of Home and Community-Based Services Waiver Programs is to allow an individual who is eligible to receive services in the community rather than be cared for in a nursing facility.
The Medicaid Only Manual states, “An aged, blind, or disabled individual who desires Medicaid may apply for the Medicaid Only program. To qualify for this program, he/she must have financial eligibility as determined by the regulations. The Manual addresses living arrangements in N.J.A.C. 10:71-1.3, titled “Living Arrangements.” It states, “Aged, blind and disabled persons who are receiving care in an eligible medical institution and, because of income or resources, do not qualify for SSI may be eligible for Medicaid Only.” N.J.A.C. 10:71-1.3.
Monmouth County incorrectly imposes an unlawful placement requirement as a condition of eligibility.
N.J.A.C. 10:71-3.15, defines the responsibility of the county welfare agency:
County Welfare agency responsibility and procedures; eligibility factors:
(a) The CWA shall be responsible for determining income and resource eligibility, as outlined in N.J.A.C. 10:71-4 and 5, for Medicaid Only when the applicant is receiving care in institutions defined in N.J.A.C. 10:71-4.14(d). . .
(b) When eligibility depends upon the disability or blindness factor, the determination of medical eligibility shall be the responsibility of the Medical Review Team (MRT). The CWA shall furnish the MRT with current, pertinent social and medical information as outlined in this subchapter.
(c) When eligibility for Medicaid Only has been determined, the CWA will complete and process a Medicaid Status File Transaction, Form MAP-1, within 10 working days from the date of such determination. The SWA will issue and distribute Medicaid validation stubs to Medicaid Only beneficiaries who are not in long-term care facilities. The CWA will complete the statement of income available for nursing home payment (PR-1) (Formerly PA-3L) when appropriate.
(d) A determination of continuing eligibility shall be made in accordance with N.J.A.C. 10:71-5.
10:71-3.15 (emphasis added). There are two eligibility requirements for Medicaid Only. The first is medical eligibility. The second is financial. The County is attempting to interpret the regulations to add a third eligibility requirement. A third factor is not contained in the Manual, and it is not the responsibility of the county to create a third criteria for eligibility. It is the responsibility of the state.
N.J.A.C. 10:71-2.2 breaks down the responsibilities of the Division of Medical Assistance and Health Services, the County, and the applicant. The regulation states:
Responsibilities in the application process:
(a) The Division of Medical Assistance and Health Services is the administrative unit of the Department of Human Services responsible for coordinating the administration of Medicaid Only with the Supplemental Security Income program. This Division provides for payment of claims for, and evaluation of health services rendered under, Medicaid Only; maintains administrative liaison with other departmental divisions; and provides professional, medical and paramedical staff that is advisory to this Division in all matters of health care relevant to the administration of Medicaid Only. This Division contracts with CWAs for reimbursement of costs of administering the Medicaid Only program.
(b) The Division of Medical Assistance and Health Services and the Commissioner of the Department of Human Services shall establish policy and procedures for the application process and supervise the operation of and compliance with the policy and procedures so established.
(c) The CWA exercises direct responsibility in the application process to:
- Inform the applicants about the purpose and eligibility requirements for Medicaid Only, inform them of their rights and responsibilities under its provisions and inform applicants of their right to a fair hearing;
- Receive applications;
- Assist the applicants in exploring their eligibility for assistance;
- Make known to the applicants the appropriate resources and services both within the agency and the community, and, if necessary, assist in their use; and
- Assure the prompt and accurate submission of eligibility data to the Medicaid status files for eligible persons and prompt notification to ineligible persons of the reason(s) for their ineligibility.
(d) The CWAs shall also provide supportive social services, which will enhance cure and rehabilitation of beneficiaries of Medicaid Only.
(e) As a participant in the application process, an applicant shall:
- Complete, with assistance from the CWA if needed, any forms required by the CWA as a part of the application process;
- Assist the CWA in securing evidence that corroborates his or her statements; and
- Report promptly any change affecting his or her circumstances. Nowhere in the Manual does DMAHS require an individual to locate a placement which will accept Medicaid before the person can be determined Medicaid eligible.
The county also has not produced a policy statement, medcom, or other directive from DMAHS which instructs it to deny eligibility if the applicant has not yet located a placement. Under N.J.A.C. 10:71-6.1, “There shall be strict adherence to law and complete conformity with administrative policies. Requirements other than those established by law or regulations shall not be imposed on any person as a condition of receiving medical assistance.” N.J.A.C. 10:71-1.6(a)(4). Nowhere in the publicly available MedComs or Newsletters is there a policy statement from the DMAHS directing the county to confirm an applicant has located a bed before the County can approve the application. No policy statement or regulation has been produced because it does not exist. In the absence of an articulated policy from DMAHS, the County is engaging in unlawful rulemaking. Metromedia Inc. v. Director of Division of Taxation, 97 N.J. 313, 327 (1984).
To discuss your NJ Medicaid appeal, 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 Appeal of Medicaid Denial Attorney