I meet with close to 500 families a year. Each family has a unique situation, but more often than not, the questions and legal issues are similar. Since you’re here with me now and have navigated to this page, I’ve provided a comprehensive list of questions and answers to support your Medicaid education. Remember, I’m an experienced New Jersey Medicaid Lawyer, and you can always schedule an appointment, come in, and see me for answers to your particular questions.
If a person is going to transfer assets, do they need to do it more than five (5) years before entering a nursing home?
No, not always. The five (5) years is simply a look back. If transfers occurred more than five (5) years look back, there is no penalty. If transfers occurred during the five (5) year look-back, there is a penalty. In most instances, the penalty is significantly shorter than five (5) years.
Is it too late to do Medicaid Planning if someone is close to being admitted or is already in a nursing home?
No. Medicaid Planning can be done even after someone has already entered a nursing home.
Under Medicaid, is it okay to transfer $19,000 to each family member each year? My accountant says the IRS allows it.
No, it’s not okay. The $19,000+ per-year gifting limit is part of federal gift tax law, not Medicaid law. Medicaid does not permit gifts or transfers made within the 5-year look-back period without incurring a penalty. On the other hand, even if a gift(s) exceeds $19,000 per person per year, it generally does not trigger any gift tax payment.
It simply means that a gift tax return may be required. Today, a person can gift almost $14,000,000 (indexed for inflation) during his or her lifetime or at death, in addition to the $19,000 per person per year, without paying any Federal estate or gift tax.
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—Nick Alfano, Morganville, NJ
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—Josephine Pysniak, Woodbridge, NJ
Does the person receiving the gift for Medicaid Planning purposes have to pay income tax on it?
No. A gift is not taxable income. The recipient does not report the gift on their 1040 tax return. However, if the recipient invests the gift, they must report the investment income from it on their 1040.
Are there any income tax issues to be considered in Medicaid Planning?
Yes. If a person withdraws money from an IRA, it is taxable income. If a person liquidates certain Bonds, the proceeds are taxable income. If a person liquidates H Bonds that have been converted from E or EE Bonds, the liquidation generates taxable income. If a person withdraws money from an annuity, a portion of the withdrawal is taxable income. If a person assigns an annuity, it triggers immediate income tax on the deferred income. These are a few examples of the many events that trigger income tax. Carryover basis, step-up in basis, and tax on the sale of a home are among others. Good Medicaid Planning incorporates good tax planning.
Can trusts be used for Medicaid asset transfer purposes?
Yes. The Federal Government has approved the use of certain types of trusts for Medicaid Planning purposes.
Is it true that a home is not counted for Medicaid eligibility purposes?
In some cases, a home is not counted as an asset for Medicaid eligibility purposes. However, it is not exempt from a single person. The home must always be considered in Medicaid Planning. Even if it is not counted as an asset for Medicaid eligibility purposes, New Jersey will file a lien on the home upon the Medicaid applicant’s death, under certain circumstances.
Is there a way I can transfer my home to my children while still living there for the rest of my life?
Yes. There is a technique known as a life estate or an occupancy agreement. Under a life estate, or a right of occupancy, the parent transfers a remainder interest in the home to the child(ren) but reserves the right to live there for the rest of the parent’s life. The children cannot sell the home out from under the parent or mortgage it without the parent’s consent.
Is an annuity a good Medicaid Planning technique?
Under current New Jersey law, purchasing a qualifying Medicaid annuity may be treated as an exempt transfer of assets if properly structured. Using an annuity may or may not be a good Medicaid Planning technique.
Is it important to have my legal documents reviewed as part of Medicaid Asset Protection Planning?
Yes. It is always important to review Wills, Living Wills, and Powers of Attorney. These documents are usually not designed for situations in which a family member will be applying for Medicaid. For example, if a husband and wife are married and the husband enters a nursing home, the wife’s Will usually leaves her assets to the husband. This needs to be changed. It’s potentially fatal!
Where are Medicaid Applications Filed?
In New Jersey, Medicaid Applications are filed at the County Board of Social Services. Some counties maintain outreach offices at satellite locations; otherwise, the application must be filed at the central county office.
What type of documents are required in connection with an application?
Required documentation begins with a birth certificate for the applicant, a marriage certificate if the applicant is or has been married, and a death certificate of the spouse or divorce decree if the marriage has been dissolved by death or divorce. In addition, five years of complete financial records may be required, along with all the documents listed on the application form. Many other documents are required for the review process and are identified in the application.
Can Medicaid applications be filed by mail?
In some counties, yes, but in other counties, no. Some counties allow appointments to be scheduled in advance or on a “wait in line” basis. Call your local County Board of Social Services to learn about its application intake process.
What documents are required to be filed in connection with an application?
Required documentation begins with the Medicaid Applicant’s birth certificate. A marriage certificate is required if the applicant is or has been married. A death certificate or divorce decree should be provided if the marriage has been dissolved by death or divorce. In addition, five years of complete and detailed financial records are required. All counties have a Medicaid checklist of required document submissions. You can generally call and ask for one, but don’t be surprised if it never comes in the mail.
What do I do if I am unable to locate a birth certificate, marriage certificate, death certificate, or divorce decree?
This can be a real problem. Medicaid is a bureaucracy; it’s the government’s paperwork processing. Oftentimes, these items can be obtained from the Registrar of Vital Statistics or from court records. If it is absolutely impossible to obtain these records, other forms of evidence may be accepted. If you’re hitting a roadblock, then consult with an experienced NJ Medicaid application attorney, or if in doubt about the completeness of your documentation, to reduce the chances of denial.
Must applicants prove that it is medically necessary that he/she be receiving the long-term care being provided?
Yes. A PAS must be ordered by the facility or by the family if care is being provided at home. Once received, Medicaid sends a nurse to examine the applicant to determine whether or not the care is medically necessary. New Jersey has an unwritten rule that the examination will take place within 30 days of the date the PAS is ordered. Medical eligibility is determined by a document called a “pre-admission survey”.
How does Medicaid know that the information I am providing is complete?
Medicaid has a computer match with the IRS. Medicaid will receive information regarding 1099s, K-1s, and 1040 tax returns from all financial institutions.
How long does it take to process a Medicaid Application?
The time required to process a Medicaid Application varies by county and depends on the nature of the financial data submitted. In some counties, an application can be approved within 60-180 days. In other counties, it takes 6 months up to a year. In special situations, the application must be approved in Trenton, a process that can take 12 months or longer.
Must I pay the nursing home while the Medicaid application is pending?
Yes, but only pay a portion of the bill. Always keep health insurance premiums current. At the time of approval of the Medicaid Application, Medicaid will inform the applicant of the applicant’s future monthly share of costs. The applicant should generally pay this share to the facility while the application is pending. When the application is approved, Medicaid will pay the nursing home retroactively to the date of eligibility.
Is the Medicaid Application process time-consuming in New Jersey?
You bet it is! Medicaid requires proof of every financial transaction for the five full calendar years preceding the application. Complete and detailed records should be obtained and furnished to the County Board of Social Services. This makes the processing simpler. If records are incomplete or the Medicaid application package is disorganized, the County Agency will require additional information. They will delay the application indefinitely. A Medicaid Application takes approximately 40+ hours of dedicated, undisturbed time to assemble and organize. A person unfamiliar with the process will spend many times that amount, often exceeding 100 hours.
Is the cost of hiring a professional, such as a law firm, to prepare and file a Medicaid Application in New Jersey a legitimate spend-down for Medicaid eligibility purposes?
Yes. The cost of professional assistance (including an attorney) and a law firm in preparing and filing a Medicaid Application is part of the spend-down process. The legal fee paid to our office, for example, is credited toward the applicant’s eligibility. Since a person can retain only $ 2,000 or $4,000 in resources to become Medicaid-eligible, it seldom makes sense for the family to assume responsibility for the application. The money will go only to the nursing home or other parties that could be paid once eligibility is established.
What do you mean when you say, “the applicant must spend down”?
To qualify for Medicaid, an applicant’s non-exempt resources must be spent down to the calculated amount, and never greater than $2,000. However, with proper planning, there are often ways to preserve some or all of these resources for the family’s benefit.
Similarly, for married couples, the rules are even more complex. The community spouse (i.e., the at-home spouse) may generally keep roughly one-half of the couple’s assets up to a maximum of about $120,000. Depending on their resources, the couple may need to spend a substantial amount of money before the nursing home spouse qualifies for Medicaid.
A person pursuing Medicaid eligibility may want to purchase a new car, prepay nursing home expenses, buy clothing, a wheelchair, or household goods, make home improvements, consolidate debt, or even purchase a vacation for a spouse living at home. Many things can be spent down to achieve eligibility that benefits the applicant or the family if you know what to do.
A pre-paid funeral plan is often another good item to purchase during the spend-down process. However, funeral rules vary, so you should work only with a funeral home knowledgeable about this type of planning.
These are, of course, not the only appropriate items for a spend-down. Other expenses would also qualify. The main thing to keep in mind is that any goods or services purchased must be at fair market value. In other words, giving away money or paying outrageous amounts for services that are worth less than their real value can result in Medicaid disqualification.
Also, don’t let anyone tell you that anything spent must be done solely for the benefit of the nursing home spouse. On the contrary, virtually anything that benefits the community spouse will also benefit the nursing home spouse and, therefore, may be an appropriate spend-down item.
Finally, keep in mind that while some of the spend-down strategies will not work as well for a single person when qualifying for Medicaid, other strategies can work very well when you are dealing with a single person. Consult an experienced Medicaid planning attorney for guidance.
Can I give away my assets to qualify for Medicaid?
Generally, no. We frequently counsel clients who believe they can give away $19,000 as a gift under the federal gift tax rules. Federal gift and estate tax rules allow gifting up to $19,000 per person per year without incurring any gift tax. However, those gifts will result in a period of ineligibility for someone applying for Medicaid benefits. That does not mean gifting can’t be done. You just need to learn the rules.
Can I gift certain amounts of money to my family and still be eligible for Medicaid?
There are ways to gift; however, this must be done in strict compliance with Medicaid rules and regulations. So, the answer is “yes” and “no”. Sorry.
Since my children’s names are on my bank accounts, will those assets still count against me for Medicaid purposes?
Simply placing a child’s name on a bank account and creating a joint account does not transfer the account to your child. This is true even if the child’s name has been on those accounts for several years. The state says when you add your child’s name to an account, you are doing so for “convenience purposes.” Generally, the entire amount will be counted for Medicaid purposes unless it can be proven that the monies in those accounts were contributed by the child. This rule applies to savings and checking accounts, credit union and share draft accounts, certificates of deposit, and other similar financial accounts.
All of my assets are in a Revocable Living Trust. Are these assets exempt from Medicaid?
Medicaid counts all assets in a revocable trust as countable. Therefore, they are not protected and must be spent down. Only a qualifying Irrevocable Trust can work.
Will I lose my home if I need long-term care?
Oftentimes, people are concerned that they will have to forfeit their home to qualify for Medicaid benefits. When an individual applies for Medicaid benefits, the home may be a non-countable resource. However, there is a federal law requiring each state to have a plan in place to recover the costs Medicaid pays for long-term care. This is called Estate Recovery. In other words, after an individual who has received Medicaid benefits passes away, it is the State’s responsibility to recover the value of Medicaid payments from the recipient’s estate, including a home.
New Jersey’s Estate Recovery Act attempts to recover the money paid for benefits through the estate of the individual who received the benefits. For a married couple, however, this typically does not occur until both spouses have passed away. Once that happens (or upon the death of a single Medicaid recipient), the Estate Recovery Act will lay claim to the value of the house up to the cost of benefits provided by Medicaid. Of course, estate recovery planning should not be left until the individual passes away. It should be part of an overall plan before the application.
My husband is 59 and has just been diagnosed with early-onset Alzheimer’s disease. Can you explain some of the unique legal issues that will arise due to this?
In future years, more individuals will be accurately diagnosed at younger ages as more effective diagnostic procedures become available. Alzheimer’s disease is considered to be early onset if an individual is age 55 or younger when symptoms first appear. Early-onset individuals may not necessarily be in the early stage of Alzheimer’s when the diagnosis is made. Individuals with early-onset Alzheimer’s will experience similar symptoms as early-stage Alzheimer’s, but other issues may also be present. These individuals may experience unique physical and cognitive issues due to their younger age (e.g., children still living at home, employment issues). It is critically important that if a loved one receives a diagnosis of early-onset anything (ALS, Parkinson’s, Dementia, etc.), they see me immediately. Time is the enemy. The condition will never get better. Do not wait for a crisis to occur. You have time if you act immediately.
Answers to Additional Commonly Asked Questions About Medicaid and Other State Programs and Insurance
Some people enrolled in New Jersey Medicaid/NJ FamilyCare are covered by private health insurance or other insurance. If this describes your situation, it is important for you to understand how these different types of coverage work together and what your legal obligations are to Medicaid or the NJ FamilyCare program.
What is New Jersey Medicaid, and what is NJ FamilyCare?
New Jersey Medicaid and NJ FamilyCare are health care programs paid for by federal and state funds. ‘A person’s eligibility for either of these programs is based on income and other information. Both programs pay certain medical and health care costs.
Both programs are administered by the New Jersey Division of Medical Assistance and Health Services (DMAHS). Neither Medicaid nor NJ FamilyCare should be confused with Medicare, which is administered solely by the federal government.
Both NJ Medicaid and NJ FamilyCare services paid for by Medicaid are referred to as “Medicaid.”
What is private health insurance?
Private health insurance is any individual or group health insurance or health care plan that you pay for, or that is provided through an employer, union, absent parent, or military or other organization. Like Medicaid, private health insurance pays all or part of the medical, vision, prescription, dental, or other health care bills for you and/or your family.
Also, like Medicaid, private health insurance is often provided through an HMO.
Can I qualify for Medicaid if I have private health insurance?
Yes, you may qualify, regardless of any other health insurance you may have.
In addition, if you do not have private health insurance but it is available to you, for example, through an employer, Medicaid may require you to apply for it.
Why should I tell Medicaid if I have private health insurance?
Federal and state laws require you to report your private health insurance coverage to your eligibility caseworker. In most cases, federal and state law also requires you to use your private health insurance to pay for health care before using Medicaid.
What should I do to make sure that my private insurance and Medicaid work together?
Whenever you choose a health care provider, you should make sure that he or she accepts both your private health insurance and Medicaid. When you visit your health care provider, you should provide both your Medicaid identification card and your private health insurance information.
If the service you receive is covered by both your private health insurance and by Medicaid, Medicaid may pay a portion of the bill that is not paid by your private health insurance company. Generally, your health care provider must bill your private insurance company first. The provider may bill Medicaid only for any amount not paid by your private health insurance, and if Medicaid does pay, it will pay only up to a certain amount.
It is important to remember that if you receive services from a health care provider who does not accept Medicaid, Medicaid will not cover any portion of your bill.
What if I have co-pays or deductibles with my private health insurance?
If the co-payments or deductibles under your private health insurance plan are for services that are covered by Medicaid, the Medicaid program may pay some or all of them. Your health care provider must bill your private health insurance company first for the services they have provided. Then, Medicaid can be billed for the co-payment and/or deductible. Again, if Medicaid then pays anything, it will only pay up to a certain amount.
Will Medicaid ever pay the premiums for my private health insurance?
Premiums for a private health insurance plan are your responsibility. Sometimes, however, Medicaid may decide that it is cost-effective to pay your premiums. An example might be a medical condition that requires costly care covered by your private health insurance.
If you are eligible for, or are currently enrolled in, a job-related health plan, then you may be eligible for the Premium Support Program (PSP). If you or a member of your family has costly medical expenses and has access to either a job-related or individual insurance plan, then you may be eligible for the Payment of Premium (POP) program. If you are interested in learning more about either PSP or POP, contact the DMAHS Hotline at 1-800-356-1561.
What if my private health insurance changes? Can I still qualify for Medicaid?
You must report any changes in your health insurance coverage to your eligibility caseworker. This includes any changes to insurance companies or to what your insurance covers.
This requirement also applies to any health insurance carried by someone other than yourself who provides health insurance coverage for you and/or your family.
What if I am no longer covered by private health insurance?
If your private coverage ends, provide your eligibility caseworker with proof of termination. Proof may be:
- A letter from your health plan showing the date the coverage ended.
- A letter from your employer showing the date coverage was terminated.
- A signed affidavit.
What if I am injured by someone else and I receive a financial settlement? Will Medicaid take the money?
Generally, yes. If you are injured and there is a possibility that you may receive a financial settlement or a payment from someone else’s insurance company as a result, you are responsible for providing this information to your eligibility caseworker. If you receive Medicaid through an HMO, you are also responsible for providing this information to the HMO.
If you receive a financial settlement or insurance payment as a result of an injury or accident, you are required to use this money to repay Medicaid for any related services that it has already covered. As a result of this settlement, you might also lose your Medicaid eligibility.
If you fail to repay Medicaid, or if you do not cooperate in establishing another person’s or company’s liability for your expenses, you can lose your Medicaid coverage and face both criminal and civil penalties.
What if my attorney or other legal representative plans to take legal action on my behalf, or actually gets a settlement or judgment for me?
You or your attorney or other legal representative is required by law to notify DMAHS’s Bureau of Administrative Action and Recoveries (BAAR) in writing if a lawsuit or Workers’ Compensation claim is filed on your behalf, and also when a settlement or recovery is received on your behalf. Both written notices must be sent to the Bureau of Administrative Action and Recoveries, P.O. Box 712, Unit 6, Trenton, NJ 08625.
You and your attorney or other legal representative are also responsible for making sure that any money received as a result of a legal action or Worker’s Compensation claim is first used to immediately repay DMAHS for any Medicaid or NJ FamilyCare payments made in relation to the incidents that led to the legal action or claim. The remainder of the settlement can be paid to you only after these expenses have been reimbursed. Also, all settlements must be reported to the agency that /determined your eligibility.
What if my attorney advises me to put my settlement into a Special Needs Trust?
If you receive a settlement of any kind, you must first use it to repay Medicaid for any bills it has paid for health care services related to your injury. Any money that remains can be placed in a Special Needs Trust if you have the approval of the County Board of Social Services or of the Social Security Office, depending on which agency determines your eligibility for Medicaid.
Can a spouse keep more assets when applying for Medicaid?
Yes. New Jersey law protects the “community spouse” when one spouse needs long-term care. The community spouse can keep a portion of the couple’s assets (called the Community Spouse Resource Allowance) without affecting the institutionalized spouse’s Medicaid eligibility. The exact allowance amount is updated annually, and an experienced Medicaid attorney can help you calculate and maximize this protection.
What is a “look-back” period in Medicaid planning?
When you apply for Medicaid, your financial history is reviewed for five years (60 months) prior to the application date. Transfers of assets during this period may trigger a penalty period during which Medicaid will not pay for long-term care. Proper planning before a crisis occurs can help avoid or minimize this penalty.
What is “Medicaid spend down,” and how does it work?
“Spend down” refers to using excess assets to pay for allowable expenses until the applicant reaches the Medicaid asset limit. This can include medical bills, home modifications, or paying off certain debts. The spend-down strategy must be carefully managed to avoid unintended penalties.
Can I “spend down” assets on legitimate expenses without penalty?
Yes, you can spend down assets on things that benefit you without incurring Medicaid penalties, as long as the transfers are not gifts. Examples include paying off debt, purchasing exempt resources (like a home or car within allowances), making home improvements, or prepaying funeral expenses. An elder law attorney can help you identify lawful spend-down options.
Does Medicaid pay for assisted living or personal care in New Jersey?
Yes, Medicaid may cover some assisted living or personal care services through its waiver programs. These programs provide supportive care in the home or community settings and can help delay or avoid nursing facility placement. Eligibility rules and covered services vary by program.
What is a Medicaid “waiver” program?
A waiver program allows Medicaid to pay for services that are not typically covered under traditional Medicaid. In New Jersey, waiver programs exist to help people receive care in their homes or at any assisted living facility rather than in a nursing facility. These programs can cover case management, personal care assistance, therapy, medical equipment, and more.
Can Medicaid planning help protect a home?
Yes. A primary residence is generally exempt from Medicaid asset limits if the person or their spouse intends to return home and if certain value limits are met. In many cases, proper planning can protect the home while still qualifying for Medicaid. A Medicaid planning attorney can help ensure that the necessary steps are taken correctly.
What happens after my Medicaid application is submitted?
Once the Medicaid application is filed, the state agency reviews income, assets, medical records, and financial history. A caseworker may request additional documentation. If the application is approved, coverage begins; if it is denied, you have the right to appeal. An attorney can help prepare the application and represent you in any appeal.
Can I apply for Medicaid before I need long-term care?
Yes. Early application can be part of proactive planning. However, Medicaid planning is most effective when done before assets are spent down or transferred improperly. Planning in advance opens more options for protecting assets and minimizing penalties.
What documents are needed for a Medicaid application?
Typically, you will need identification, birth certificates, Social Security numbers, income statements, bank and investment statements, life insurance policies, title documents for property and vehicles, and documentation of medical conditions and care expenses. Having complete documentation can significantly speed up the process.
What is an “expedited Medicaid application”?
An expedited Medicaid application may be possible when a person is hospitalized or a nursing facility admission is imminent. This can help begin coverage more quickly, but requires prompt submission of medical records and financial information.
Can gifts given outside the look-back period still cause issues?
Transfers made outside the five-year look-back period may still affect eligibility if the documentation or explanation is inconsistent or incomplete. It’s important to clearly document the purpose and timing of transfers, especially for exceptions like caregiver support or reimbursable medical expenses.
What is a Qualified Income Trust (Miller Trust)?
In New Jersey, if a person’s income exceeds the Medicaid limit, a Qualified Income Trust (often called a Miller Trust) may be used to become eligible for Medicaid. Income that goes into the trust is not counted toward eligibility, allowing individuals with high incomes to qualify.
Does Medicaid cover hospital stays?
Yes. Medicaid covers hospital care for eligible individuals. However, for long-term care planning, the focus is usually on nursing facilities, home health, or community-based services. Coverage rules differ between acute care and long-term supports.
Can Medicaid pay for care if I return home after a hospital stay?
Many Medicaid waiver programs provide home health and community support services. If the individual meets eligibility criteria, Medicaid can help cover these services, enabling them to remain at home rather than enter a facility.
How does changing marital status affect Medicaid eligibility?
Marriage, divorce, or the death of a spouse can change eligibility and asset limits. Medicaid rules include spousal protections, but these must be applied correctly. An attorney can help you understand how family changes affect planning.
Can Medicaid planning help with Veterans benefits?
Yes. Medicaid planning can be coordinated with Veterans Aid & Attendance or Housebound benefits. These programs can sometimes provide additional financial support. Strategic coordination helps maximize overall eligibility for benefits.
When should I contact a Medicaid attorney?
You should contact an attorney when you are considering long-term care options, before transferring assets, upon initial Medicaid application, or if a denial or penalty arises. Early involvement can save significant time, money, and stress.
TESTIMONIAL
I felt like we were a team working towards our final objectives
I called Fred Niemann when I had to put my wife in a Nursing Home. It was a very difficult time, and I needed counsel and advice on how to move forward from a legal perspective and to apply for Medicaid for my wife. At first, the whole concept was mind-blowing. But working with Fred and the Paralegal assigned to me, Diane Fanok, over time, the process became very clear. I felt like we were a team working towards our final objectives. I really enjoyed working with Diane. She was professional and honest, followed up quickly whenever I called or texted her, and took the time to explain some tough concepts to me multiple times. And along the way, we could still have a few laughs. In the end, everything we set out to do was accomplished, and I was very happy. I would thoroughly recommend Fred, Diane, and his team.
John Stevens, Metuchen, NJ
Experienced New Jersey Medicaid Lawyer
Fredrick P. Niemann Esq.
If you have additional questions about New Jersey Medicaid, I’m here for you and your family. You can reach Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com.
If you call that number and have any questions about your health insurance, ask to speak with someone in the Bureau of Third Party Liability. If you have any questions about your insurance that covers accidents and injuries, auto, homeowners, or workers’ compensation claims or lawsuits that you have filed, or Special Needs Trusts, ask the Bureau of Administrative Action and Recoveries.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Medicaid Attorney Serving These Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Camden County, Mercer County, Middlesex County, Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County