Recently, we were advised that a client of ours was a lawful permanent resident, and had resided in the US continuously since 1985. The client did not tell us he arrived on a visitor visa in 1988, and did not have legal status until March 2018.
We received a copy of the green card on October 2, 2020. We found out his daughter had sponsored him. I do not know if she filed an affidavit of support.
Because our client has not been a lawful permanent resident for 5 years, his application for MLTSS was denied. We advised the client orally that if she wanted to request a fair hearing, the deadline to submit her appeal was quickly approaching.
Analysis of a Successful Fair Hearing Appeal
Under these facts, I do not believe a fair hearing will be successful. We have previously obtained MLTSS for a lawful permanent resident who had lawful status for the 5 years required by federal law and New Jersey statute(s) and regulation. Federal law (the Personal Responsibility and Work Opportunity Reconciliation Act of 1996) requires a resident alien to have lawful permanent resident status for five (5) years before receiving anything but emergency Medicaid. New Jersey regulation and statute appears to be against this client.
A quick review of the definitions section in N.J.S.A. 30:4D-1 defines “lawful alien” in subsection “q”. He does not clearly fall within the definition. N.J.A.C. 10:71-3.2 refines the definition of “lawful alien”. It appears to exclude him from the class of individuals entitled to MLTSS because he was not a lawful alien before he received his green card.
We declined taking this case to a fair hearing. The client was not forthcoming about his immigration status when we filed the Medicaid application. With the information now available, I think we will lose on those merits.
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 Appeal of Medicaid Denial Attorney