Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuter

Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuter

ABOUT SUPER LAWYERS

    Kenneth Vercammen was selected to the 2015 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawvers.com/about/selection process detail.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

       Also, Kenneth Vercammen also passed the test to become one of the few Municipal Court Law Attorneys.

See http://www.judiciary.state.nj.us/notices/2014/n141007d.pdf

 SUPREME COURT OF NEW JERSEY

    It is ORDERED that, pursuant to Rule 1:39-5(a), the following named attorneys, having applied to the Board on Attorney Certification and having been found qualified by the Board, are hereby authorized to designate themselves as Municipal Court Law Attorneys before the public, the bar, and the courts of this State in accordance with the Rules of this Court during their good behavior for a term of five years from the date of this Order. ….. …… Kenneth Vercammen Middlesex

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
Super Lawyers is published as a special supplement in leading newspapers and city and regional magazines across the country. Super Lawyers magazine, featuring articles about attorneys named to the Super Lawyers list, is distributed to all attorneys in the state or region, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries.
Polling, research and selection are performed by Law & Politics, a publication of Key Professional Media, Inc. Law & Politics has been publishing legal magazines since 1990 and Super Lawyers since 1991.
Super Lawyers magazine names attorneys in each state who received the highest point totals, as chosen by their peers and through the independent research of Law & Politics. Rising Stars names the state's top up-and-coming attorneys.
Super Lawyers magazine is published in all 50 states and reaches more than 13 million readers.

SUPER LAWYERS SELECTION PROCESS
OVERVIEW
In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.

PUBLICATION
The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers. All attorneys selected for inclusion in Super Lawyers, regardless of year, can be found on superlawyers.com.
http://www.superlawyers.com/new-jersey/lawyer/Kenneth-A-Vercammen/73f0b3a6-71c1-4ae1-a5d0-803ddb2739a9.html

N.M. v. Division of Medical Assistance and Health

N.M. v. Division of Medical Assistance and Health
Services and Monmouth County Board of Social Services 02-26-09
A-0828-07T1

Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the
"resource limit" for Medicaid eligibility.

ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009

ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009
ABA General Practice, Solo and Small Firm Division

Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA

In this issue:

1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009




1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.

s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. 
The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.

s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”

s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.

The Theory Behind a Medicare Set Aside Arrangement.

s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).

s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.


When is an MSA Required?

While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.

What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?

s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.

0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.

How is the Set-Aside Amount Determined?

There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.

Administering the MSA.

There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.

s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.

s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.

s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.

Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered

Pooled Trust
Large Settlement

Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.

How does a Structured Settlement fit into an MSA?

s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.

Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.

__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________

Quick Screen
Medicare Set-Aside Arrangements

Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No

Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No

Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No

Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No

Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No

Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722


2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison

Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)

KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)

KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)

MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)

Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including:
• Why Have a Will? 
Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client?
• Powers of Attorney 
Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms
• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool 
Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms
• Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; 
sample forms/letters
• Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists
• Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules
 …and more


Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU


NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.


New Jersey Institute for Continuing Legal Education 
The non-profit continuing education service of: 
The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University 
One Constitution Square, New Brunswick, New Jersey 08901-1520 
Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com


3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago

Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Charles Sabatino, director of the ABA's Commission on Law & Aging

Parag Patel, Esq. Iselin, NJ

Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section

Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct

Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.


_______________________

WE PUBLISH YOUR FORMS AND ARTICLES


To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.


Send us your articles & ideas

To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.


Who We Are- ABA GP Solo ELDER LAW COMMITTEE

This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.

To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.

________________________________________

The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>

We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/

estate can still make claims if spouse dies while divorce pending
01-28-09 Kay v. Kay
Bernard Kanefsky, Executor of the Estate of George Kay
A-1594-07T3

George Kay died during the pendency of an action for
divorce, and the trial court denied his estate leave to
substitute for defendant and file amended pleadings. On appeal
the estate contends that the trial court erred by relying on
Krudzlo v. Krudzlo, 251 N.J. Super. 70, 73 (Ch. Div. 1990), in
which the court held that, unlike a surviving spouse, the estate
of a decedent spouse "is not entitled to assert equitable claims
against the marital estate sounding in constructive trust,
resulting trust, quasi-contract or unjust enrichment" in
accordance with Carr v. Carr, 120 N.J. 336 (1990).

We conclude that the trial court should have accepted the
pleadings and considered whether the equities stemming from the
facts alleged call for relief from the strict legal effects of
defendant's death during the pendency of the divorce action. To
the extent that Krudzlo provides a contrary rule, we disapprove

Executor should not be removed without proof of fraud, gross carelessness, or indifference to duty

Recent case-


IN THE MATTER OF THE ESTATE
OF JOHN H. HNAT, DECEASED.

NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO A-4672-07T2

________________________________________________

Argued: January 12, 2009 - Decided:

Before Judges Carchman and Simonelli

On appeal from the Superior Court of New Jersey,
Chancery Division, Probate Part, Ocean County,
Docket No. 174370.

Anne Baglivo Fitzpatrick argued the cause for
appellant Patricia Ann Sweeney (McDonald Law
Group, attorneys; Ms. Fitzpatrick, on the brief).

Joel A. Davies argued the cause for respondent
John J. Hnat (Taff & Davies, attorneys; Mr.
Davies, of counsel and on the brief).


PER CURIAM

Appellant Patricia A. Sweeney (Sweeney) appeals from the
April 21, 2008 order of a Chancery Part judge removing her as
executrix of the Estate of John H. Hnat (the decedent). We
reverse.
The decedent and Sweeney, a quadriplegic, lived together
for almost fifteen years. They would have married if not for
the potentially adverse impact marriage would have on Sweeney's
January 29, 2009
A-4672-07T2
2
medical benefits. During the last ten years of the decedent's
life, his son, plaintiff John J. Hnat (Hnat), and his daughters,
Bonnie Myszka (Myszka) and Wendy Wildman (Wildman), had little
contact with him.
The decedent appointed Sweeney as executrix of his Last
Will and Testament (the Will). Among other things, the decedent
bequeathed to Sweeney a life estate in the home where they
lived. After her death or her permanent inability to live in
the home, the property would be liquidated and the net proceeds
divided equally between the children. The decedent also
bequeathed to Sweeney $50,000 to be used to pay the expenses
associated with the disposition of the estate. Once all of the
estate's obligations were fulfilled, the children would equally
divide the remainder of the $50,000. Also, the decedent
bequeathed to Hnat a 1929 Ford, Haulmark trailer, and his
antique guns and tools; to Wildman his 1931 Ford; and to Myszka
his funeral plots located in the St. Josephs Cemetery. Decedent
bequeathed the remainder of his estate, including personal
property, to Sweeney and the children in equal shares.
The decedent died on September 26, 2007, at age seventy-
three. On or about October 26, 2007, Sweeney was appointed
executrix of the estate. She immediately retained counsel to
A-4672-07T2
3
assist her in administering the estate.1 Thereafter, among other
things, Sweeney opened an estate account, closed the decedent's
checking, savings and credit card accounts, submitted insurance
claims for all policies the decedent held, and contacted Smith
Barney regarding the decedent's IRA accounts. She also
instructed her then attorney to prepare a draft of the
inheritance tax return, which was not due until May 2008.
On January 10, 2008, Sweeney was hospitalized for
respiratory failure following pneumonia. Following her
hospitalization, she spent time in a rehabilitation facility.
Sweeney has returned home and lives alone. There is no evidence
of any further illnesses or hospitalization. In late January
2008, Sweeney directed her then attorney to obtain an appraisal
of the home for inclusion in the inheritance tax return.
Hnat does not deny that during Sweeney's hospitalization,
he entered the home without her knowledge or authorization,
videotaped its contents, removed a dog that she and the decedent
jointly owned, and removed many of the decedent's personal
items, including the keys to the cars bequeathed to him and
Wildman. Hnat also changed the locks, depriving Sweeney of
access to her medical equipment.

1
Sweeney subsequently terminated the services of that attorney
after discovering that he was also providing legal advice
relating to the estate to Hnat and his sisters.
A-4672-07T2
4
On February 27, 2008, Hnat filed a verified complaint and
order to show cause seeking Sweeney's removal as executrix
solely on the grounds that she was unfit and unable to serve due
to her medical condition and hospitalizations. He also sought
his appointment as executor of the estate, despite the fact that
the Will designated Wildman as alternate executrix.
The parties appeared before a Chancery judge on April 7,
2008, the return date of the order to show cause. Sweeney
attended, but no plenary hearing occurred. Hnat argued that
Sweeney was unable to fulfill her duties in a timely manner due
to her physical limitations and recent illness. Hnat raised no
friction or hostility claim. Nevertheless, based upon oral
argument alone, the judge summarily removed Sweeney as executrix
and appointed an independent third party as administrator of the
estate, concluding that "it would be inappropriate for the
parties who cannot cooperate with one another to proceed
further. It would inevitably entail further avoidable counsel
fees, time, energy and expense."
We review a trial judge's removal of a trustee,
executor/executrix or fiduciary under the abuse of discretion
standard. We will not disturb the judge's exercise of
discretion in removing a trustee absent "manifest abuse."
Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360
A-4672-07T2
5
(App. Div. 1985) (citing 2 Scott on Trusts, 3d Ed. 1967).
Whether the trial judge properly exercised his or her discretion
"implies conscientious judgment and not arbitrary action." Id.
at 363 (citing In re Koretzky, 8 N.J. 506, 535 (1951)).
Further, such discretionary action requires
the trial judge to take account of the law
applicable to the particular circumstances
of the case under consideration. Should
that judge misconceive the applicable law or
misapply it to the factual complex, the
result is an impermissible arbitrary act
however conscientious the trial judge may
have been.

[Ibid.]

Under N.J.S.A. 3B:14-21, a fiduciary may be removed for the
following reasons:
a. After due notice of an order or
judgment of the court so directing, he
neglects or refuses, within the time fixed
by the court, to file an inventory, render
an account or give security or additional
security;

b. After due notice of any other order or
judgment of the court made under its proper
authority, he neglects or refuses to perform
or obey the order or judgment within the
time fixed by the court; or

c. He has embezzled, wasted or misapplied
any part of the estate committed to his
custody, or has abused the trust and
confidence reposed in him; or

d. He has removed from the state or does
not reside therein and neglects or refuses
to proceed with the administration of the
A-4672-07T2
6
estate and perform the duties and trust
devolving upon him; or

e. He is of unsound mind or mentally
incapacitated for the transaction of
business; or

f. One of two or more fiduciaries has
neglected or refused to perform his duties
or to join with the other fiduciary or
fiduciaries in the administration of the
estate committed to their care whereby the
proper administration and settlement of the
estate is or may be hindered or prevented.

To dismiss a trustee appointed by a will, "much more should
be shown by those who wish to see them dismissed than would be
the case where the trustees are appointed by the court". Braman
v. Central Hanover Banl & Trust Co., 138 N.J. Eq. 165, 197 (Ch.
1946). Removal of a trustee appointed by will should be granted
sparingly and with great caution. Ibid. Courts are reluctant
to remove a fiduciary appointed by a will unless there is "clear
and definite proof of fraud, gross carelessness or
indifference." Id. at 196-97; see also In re Will of Landsman,
319 N.J. Super. 252, 270 (App. Div.) certif. denied, 161 N.J.
335 (1999); In re Beales' Estate, 13 N.J. Super. 222, 228-29
(App. Div.), certif. denied, 7 N.J. 581 (1951). Not only should
the court be reluctant to remove fiduciaries, but "so long as an
executor or trustee acts in good faith, with ordinary discretion
and within the scope of his powers, his acts cannot be
successfully assailed." Connelly v. Weisfeld, 142 N.J. Eq. 406,
A-4672-07T2
7
411 (E. & A. 1948). Therefore, to remove an executrix, the
court "must have some fact legally before it in order to justify
a removal." Matter of Konigsberg, 125 N.J. Eq. 216, 219
(Prerog. Ct. 1939). Where, such as here, the facts for and
against removal are disputed, a plenary hearing must be held.
See Wolosoff, supra, 205 N.J. Super. at 366.
Here, no plenary hearing occurred. There is no proof that
any of the reasons for removal set forth in N.J.S.A. 3B:14-21
exist. There also is no proof of fraud, gross carelessness,
indifference to duty, or that Sweeney did not act in good faith
or continues to suffer from an illness that prevents her from
properly administering the estate. Thus, had Hnat asserted any
of these reasons for Sweeney's removal and had the judge relied
upon them to remove Sweeney, the result would constitute a
manifest abuse of discretion.
The judge removed Sweeney for a reason not asserted by
Hnat. That is, the judge summarily removed Sweeney due to
assumed friction and hostility between the parties. "The
general rule is that mere friction or hostility between a
beneficiary and a trustee is not necessarily a sufficient ground
for removal. If not, a beneficiary who otherwise lacks
sufficient grounds for removal of a trustee could nevertheless
compel that removal simply by instigating a fight." Wolosoff,
A-4672-07T2
8
supra, 205 N.J. Super. at 360 (citations omitted); see also
Braman, supra, 138 N.J. Eq. at 196). "[T]he mere fact that a
beneficiary disagrees with a fiduciary's proper exercise of
discretionary powers, or is resentful of the fiduciary's
authority, or is antagonized by his personality, is not
sufficient [cause for] his removal." In re Koretzky, 8 N.J.
506, 531 (1951). "Generally, in order for friction or hostility
between the beneficiary and trustee to form the basis for
removal, there must be a demonstration that the relationship
will interfere materially with the administration of the trust
or is likely to do so." Wolosoff, supra, 205 N.J. Super. at
360-61. There also must be proof that the friction or hostility
arose out of the trustee's behavior. Ibid.; Starr v. Wiley, 89
N.J. Eq. 79, 90 (Ch. 1918).
Here, there is no evidence whatsoever that Sweeney caused
any friction or hostility between the parties, either before or
after her hospitalization. To be sure, Hnat did not even assert
this as a reason for Sweeney's removal. Rather, the record
indicates that Hnat "instigated a fight" with the appointed
executrix and caused whatever friction and hostility may exist
here, a fact the judge, in a manifest abuse of discretion,
ignored.
A-4672-07T2
9
We reverse and remand with direction to reinstate Sweeney
as the executrix of the estate.

ABA GP|Solo Elder Law Committee Newsletter • Winter 2009

ABA GP|Solo Elder Law Committee Newsletter • Winter 2009


Chairs:
Kenneth Vercammen (Edison, NJ)
Jay Foonberg (Beverly Hills, CA)

In this issue:

1. Spending Down Medicaid Planning
2. Social Networking Websites for Business and Exposure
3. Exempt Medicaid Transfers
1. Spending Down Medicaid Planning
By Thomas D. Begley, Jr., Esquire

The client who engages in Medicaid planning is usually a person of modest means who has been diagnosed with an illness and therefore the option of long-term care insurance is no longer available. A typical client may own a home and have countable assets of between $100,000 and $400,000. Most clients' goals are as follows:

To obtain the best quality of care for the institutionalized person
To maintain the standard of living of the community spouse, including providing sufficient income and assets so that the community spouse can continue to reside in the family home
Avoid Medicaid liens being placed on the home
Preserving a modest legacy for the children
Addressing tax issues, including:
Federal and state income taxes
Federal and state gift taxes
Federal estate tax
State estate tax
State inheritance tax
At the beginning of the initial client meeting, the attorney must begin the process of managing client expectations.

There are many strategies available to obtain or accelerate Medicaid eligibility. Significant factors include whether the client is married; whether the client is in crisis; the nature and extent of the client's assets; and the size of the IRAs of the respective spouses.

Spending Down

Most states limit a Medicaid recipient to approximately $2,000 of countable resources. One way to achieve this limit is to "spend down" all but the permissible amount of countable resources. What clients typically want to avoid is spending all of their assets on nursing home care. There are several ways a client might spend down his assets.

Pay Off Debts

Repayment of a debt is not considered a transfer, because the individual is receiving fair market value, and transfers are penalized only if the transferor does not receive fair market value. Typical debts clients might have include mortgages, home equity loans, car loans, and credit card bills. In order for the spend down to be accomplished, the check must actually be written and delivered. An outstanding debt is simply a liability that does not reduce assets for Medicaid eligibility purposes.

Payment for Services

Payment for services, including medical bills and legal fees, does not constitute a transfer. The services performed by the attorney are the value the client receives for the payment. Therefore, there is no uncompensated transfer of funds.

Prepayment of Real Estate Taxes

In situations where the home is occupied by a community spouse it makes sense to prepay real estate taxes. Since the home is occupied by the community spouse it is a non-countable resource. Expenditure of the funds for payment of the real estate taxes constitutes valid spend down.

Buy Household Goods or Personal Effects

Personal effects and household goods are excluded to the extent that the total equity value of such resources does not exceed $2,000. In practice, Medicaid does not appear to enforce the $2,000 limit.

The personal effects actually should be used by the community spouse. An excellent example of a violation of the "pig principle" is a recent New Jersey case. In that case, a 92-year-old grandmother was penalized for transfer of assets. The grandmother lived in a nursing home and purchased a computer that was kept at her granddaughter's home. The court held that there was no evidence that the Medicaid applicant received anything of value for her $1,478.61 expenditure.

Make Home Improvements

Making home improvements is a way to convert countable assets (i.e., cash and securities) into a non-countable asset (i.e., a personal residence). A home and lot used as a principal residence are excludable resources.

Purchase New Home

Occasionally, when one spouse enters a nursing home, the community spouse decides that the current home is too big and decides to move to a smaller home or a condominium. Since the home is a non-countable resource, if the home is sold and the proceeds of sale from the original principal residence are reinvested into a more expensive home, the additional funds spent on the new home are converted from a countable asset to a non-countable asset. This strategy relies on the principal residence exemption.

Purchase Life Estate from Children

The Deficit Reduction Act-2005 exempts from the transfer of assets penalties the purchase of a life interest in another individual's home if the purchaser resides in the home for a period of at least one year after the date of the purchase. The Act is silent as to how the life estate is to be valued, but elsewhere there are references to the publication of the Office of Chief Actuary of the Social Security Administration.

In a New Jersey case, a parent purchased a life estate in a child's house for $126,665.10. The decision noted that a life estate entitles the person to use and occupy the home. There was no evidence that the daughter or her family vacated the home. The daughter and her family had no legal right to remain in the home absent payment of rent.

The CMS Guidance contains some troubling language: "Unless a state has a provision for excluding the value of life estates in its approved State Medicaid Plan, or the property in which the individual has purchased a life estate qualifies as the individual's exempt home, the value of the life estate should be counted as a resource in determining Medicaid eligibility."

The child would not receive a Section 121 exclusion from the sale of a principal residence, because he did not sell his entire interest in the residence.

Prepaid Funeral

Most states do not count funds in an irrevocable funeral trust as countable assets. Also, most states do not have a dollar limit on the amount that can be expended for the funeral. The monies must be put in an irrevocable trust; the trust must be for the benefit of the Medicaid applicant; and the trust must be established by an individual who reasonably anticipates applying for or receiving Medicaid benefits.

An alternative to an irrevocable funeral trust is an irrevocable assignment of a life insurance policy in exchange for funeral services of the same or greater value as the cash surrender value of the policy. Funeral directors require a paid-up policy.

Irrevocable policies issued by companies, such as Choices or Forethought, are also acceptable to Medicaid and to most funeral homes. One of the nice features of these policies is that insurance companies having significant assets back them and they can be used in most funeral homes.
Purchase of burial spaces for adult children and their spouses do not constitute transfers for Medicaid penalty purposes. The burial space resource exemption applies to burial spaces for the Medicaid Applicant and also any member of his or her immediate family. Immediate family means an individual's minor or adult children, including adopted children and stepchildren, an individual's brothers, sisters, parents, adoptive parents, and the spouses of those individuals. Neither dependency nor living in the same household will be a factor in determining whether a person is an immediate family member.
Purchase New Car

Frequently, when one spouse enters a nursing home, the other spouse is driving an old car with high mileage. A good strategy is to have the community spouse purchase a new car as part of the spend down. Under current law the best time to purchase the car would be after the institutionalized spouse enters a nursing home. Under federal law, the first $4,500 of the value of a car is excluded from the calculation of countable assets. However, if the car is used for medical transportation or transportation in connection with employment, the entire value of the car is non-countable. Many states simply permit one car to be non-countable regardless of value or use.

Copyright 2008 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722

2. Social Networking Websites for Business and Exposure

A newer way to connect with friends and obtain business is become active in online social networking websites. At the ABA Annual meeting the GP Solo Division held a program which looked at online social networking. For example, schedule a free seminar on Probate & Estate Planning for Accountants and Financial Planners. Visit some of the below Social networking site for ideas. These are examples of Ken Vercammen’s profile. :

Facebook:
http://www.facebook.com/event.php?sid=f89130f4cec290fe43c099fe37a58d31&eid=56435283974

Linkedin.com:
http://www.linkedin.com/in/kennethvercammen

Myspace:
http://www.myspace.com/kennethvercammen

Twitter:
http://twitter.com/vercammen

Meet the Elite:
http://www.MeetTheElite.net/vercammen

Google:
http://www.google.com/s2/profiles/105523288807097339409

Flickr:
http://www.flickr.com/photos/kenvercammen/

YouTube:
http://www.youtube.com/user/kvercammen

Justia Lawyer Directory:
http://lawyers.justia.com/lawyer/mr-kenneth-albert-vercammen-esq-1171249/

JD Supra:
http://www.jdsupra.com/profile/KennethVercammen/

Athlinks:
http://www.athlinks.com/racer.aspx?rid=23481836

Avvo Legal rating:
http://www.avvo.com/attorneys/08817-nj-kenneth-vercammen-571594.html?edit=true

Friendfeed.com:
http://friendfeed.com/vercammen

Gather:
http://vercammen.gather.com/

Mixx:
http://www.mixx.com/users/vercammen

Orkut:
http://www.orkut.com/Main#Profile.aspx?rl=ls&uid=17513593040289518671

Plaxo:
http://KennethVercammen.myplaxo.com/

Virb.com:

http://www.virb.com/backend/kenvercammen/events


3. Exempt Medicaid Transfers
By Thomas D. Begley, Jr., Esquire

As a general rule, when assets are transferred to third parties, the transfer results in a period of Medicaid ineligibility. Some transfers, however, are exempt and do not result in the imposition of a period of ineligibility for Medicaid. It is important to make transfers that are consistent with the estate planning goals of the client. If inconsistent transfers are made, they may result in litigation from beneficiaries of the estate who consider themselves to be treated unfairly.

1. The Family Home

There are four exceptions from the general transfer rules relating to a principal residence. These transfers are exempt.

Community Spouse
The residence can be transferred to the community spouse without penalty. A married couple can simply deed the house to the community spouse. There is no transfer penalty because the transfer is between spouses. In a typical situation, husband and wife own the home as tenants by the entirety. If one spouse enters a nursing home, and the community spouse predeceases that spouse, then by operation of law, title to the home will vest in the institutionalized spouse. The institutionalized spouse would then be required to sell the home and use the proceeds for nursing home care. In states that have a broad definition of estate for purposes of Medicaid estate recovery, the home should always be transferred to the community spouse to avoid Medicaid estate recovery.

If the property is deeded to the community spouse, and that spouse dies first, the property can be left by the will of the community spouse to a special needs trust for the benefit of the institutionalized spouse or to the children. The elder law attorney must also be aware of the state elective share statute, which prohibits a person from disinheriting a spouse. Medicaid could, conceivably, take the position that failure of the surviving spouse to exercise his rights under the elective share statute constitutes a transfer, subject to the transfer penalty provisions.

Child Under 21, Blind, or Disabled
The home can be transferred to a child of the institutionalized individual who is under the age of 21, or a child of any age who is blind or disabled. For example, a person about to enter a nursing home has a daughter who is blind. The potential Medicaid applicant can transfer the home to the blind daughter as an exempt transfer, and there will be no transfer penalty. In a second marriage situation, the question remains whether the institutionalized individual could transfer ownership of the home to a stepchild who met the criteria of caregiver.
Sibling
The home can be transferred to a brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual. It may not be necessary for the sibling to be named on the deed to the property for a year prior to the transfer. The sibling may have an equity interest if he or she has paid taxes or other expenses and has actually lived in the home for a period of time. For example, a potential Medicaid applicant is not married and lives in his home with his brother. Each owns a portion of the house as tenants in common and they have been living together for more than one year. The potential Medicaid applicant would simply deed the property to the healthy sibling, and there would be no transfer penalty.
Caregiver Child
The home can be transferred to a caregiver child. A caregiver is defined as a son or daughter of the institutionalized individual who is residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who has provided care to such individual that permitted the individual to reside at home rather than in an institution or facility. The care provided by the son or daughter must have been essential to the safety of the individual and consisted of activities such as, but not limited to, supervision of medication, monitoring of nutritional status, and ensuring the safety of the individual.

There may be an issue as to when the transfer of the home to the caregiver child must take place. In a New Jersey case, the Burlington County Board of Social Services contended that a deed transferred 90 days after institutionalization did not qualify, and that such transfers need be made within 30 days of institutionalization. The Administrative Law Judge held and the Director affirmed that there is no time set forth in the regulation as to when the deed must be given. The only reference to time is that the home must be the home in which the individual resided immediately prior to entering the nursing home. Based on this case, it would appear that a deed could be given at any time prior to, or subsequent to, entering a nursing home. For example, a potential Medicaid recipient is about to enter a nursing home. His daughter has lived with him for two years and provided a level of care sufficient to keep him out of a nursing home. The deed to the house can simply be deeded to the daughter. There would be no transfer penalty, because this is an exempt transfer.
Special California Ruling
The California Department of Health Services has ruled that transfer of a home may be an exempt transfer. The letter states that the home is an exempt resource so long as the individual files a written notice of intent to return home. Exempt property can be retained without affecting Medicaid eligibility. Since the transfer is not made for purposes of establishing Medicaid eligibility it is an exempt transfer.
2. Non-Home Assets

Community Spouse
The transfer penalties do not apply to a transfer of assets to the community spouse. This is also an exempt transfer. The assets forming a part of the Community Spouse Resource Allowance (CSRA) must be transferred to the community spouse within 90 days of Medicaid eligibility; otherwise, they are no longer exempt as part of the CSRA.

For example, a husband is ready to enter a nursing home. The husband transfers all of his assets to his wife. All assets in the names of the husband and wife are also transferred to the wife. This protects the assets as a part of the wife's CSRA. If the wife dies prematurely, her will leaves the assets to a special needs trust for the benefit of the husband, and on the death of the husband to their children.

Exempt Children
Transfers from the institutionalized individual or the community spouse to the institutionalized individual's child, who is blind or permanently and totally disabled, are exempt. Therefore, there is no transfer penalty. For example, a potential Medicaid applicant is single and has $100,000 of assets. He could transfer the $100,000 to his blind daughter immediately prior to entering a nursing home. There would be no period of ineligibility due to the transfer.
Sibling
The home can be transferred to a brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual. It may not be necessary for the sibling to be named on the deed to the property for a year prior to the transfer. The sibling may have an equity interest if he or she has paid taxes or other expenses and has actually lived in the home for a period of time. For example, a potential Medicaid applicant is not married and lives in his home with his brother. Each owns a portion of the house as tenants in common and they have been living together for more than one year. The potential Medicaid applicant would simply deed the property to the healthy sibling, and there would be no transfer penalty.
Taxation
In transferring a home to an exempt child, consideration must be given to the gift tax rules, carry over basis, and the capital gains tax exclusion from the sale of a principal residence.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722

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General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE

Who We Are

The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.

This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.

To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

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Kenneth Vercammen, Esq. Chair
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
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Federal lawsuit filed against NJ to expand Medicaid eligibility Frugard v Velez

The Director of the NJ Division of Medical Assistance and Health Services refused to accept the well reasoned decision by Judge JOSEPH PAONE, ALJ and denied Medicaid eligibility to certain senior citizens. Director John Guhl wrote: held “Simply put, if you are seeking to shift the cost of nursing home care to the taxpayers by giving away assets so as to artificially create impoverishment, there must be a financial price to pay. Based on the basic eligibility rules, the penalty can only apply to those eligible for waiver services as the receipt of which is an eligibility requirement for that particular category.
I FIND that there is no comparability issue as this case deals with the
actual receipt of waiver services before Petitioners' penalty periods begin, not the
treatment of their assets and income. Moreover, it is disingenuous to argue the
same treatment as nursing home patients since the Petitioners are seeking
waiver services which is entirely based on permitting states to waiver of the
requirements of section 1902(a)(1) (relating to state-wideness), section
1902(a)(10)(B) (relating to comparability), and section 1902(a)(10)(C)(i)(III)
(relating to income and resource rules applicable in the community).
The income level in the community is much lower than the one afforded to
those seeking institutional level of care services either through nursing facility
services or services furnished under the waiver. If Petitioners want to be treated
like nursing facility patients, they need to enter such a facility. Without the receipt
of waiver services, Petitioners are not eligible under the waiver or entitled to the
higher income levels afforded waiver recipients. Without eligibility, there is no
start date for the penalty period.”

On of the losing plaintiffs in this case has filed a lawsuit in the United State District Court for the District of New Jersey seeking to force the NJ Department of Human Services and Division of Medical Assistance and Health Services to change this policy and permit Medicaid eligibility.

Portions of the Decisions are below:
Decision by John R. Guhl, Director
Division of Medical Assistance and Health Services


STATE OF NEW JERSEY
DEPARTMENT OF HUMAN SERVICES
DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES



O.B., :
:
PETITIONER, : ADMINISTRATIVE ACTION
:
v. : FINAL AGENCY DECISION
:
DIVISION OF MEDICAL ASSISTANCE : OAL DKT. NO. HMA 6519-07
:
AND HEALTH SERVICES AND : CONSOLIDATED
:
MIDDLESEX COUNTY BOARD OF :
:
SOCIAL SERVICES, :
:
RESPONDENTS. :
________________________________________


As Director of the Division of Medical Assistance and Health Services, I
have reviewed the record in this case, including the Initial Decision, the OAL
case file, the briefs filed, the exceptions submitted by both parties and the
documents in evidence. Petitioners and Respondent filed exceptions.
Procedurally, the time period for the Agency Head to file a Final Agency Decision
in this matter is July 14 , 2008, in accordance with an Order of Extension.
Based on my review of the record, I hereby REVERSE the Initial Decision
as inconsistent with federal law. This matter concerns date on which the transfer
penalty should start for Petitioners. All admit that they transferred assets for the
purpose of impoverishing themselves to qualify for Medicaid. The transferred
amounts ranged from $41,927.81 (O.B.) to $128,986.26 (J.B.). They also are
not residing in nursing facilities but in the community. Petitioners were denied
Medicaid eligibility due the transfers.
Petitioners argue that New Jersey's actions regarding their eligibility have
created only two options (1) to enter the nursing facility for 30 days or (2) wait
five years. What Petitioners' fail to acknowledge that this situation is of their own
making and that they can have family members return the assets. They may
also seek a hardship waiver, however, to meet that criterion they would have to
take legal action against those relatives if they did not return the assets willingly.
Petitioners have failed to pursue either option and prefer to argue that they
should be able to wait out the penalty period in the community.
This case turns on the reading of the Medicaid provisions of the Deficit
Reduction Act of 2005, which was passed in large part to stop elder law
attorneys from "exploit[ing] loopholes to get people with means onto Medicaid."
http://finance.senate.gov/hearings/statements/020906cg.pdf. The section in
4
question deals with the start date of the transfer penalty, which Petitioners' all
agree should be imposed.
c) Taking into account certain transfers of assets.
(1)
(A) In order to meet the requirements of this subsection for
purposes of section 1902(a)(18) [42 USCS § 1396a(a)(18)], the
State plan must provide that if an institutionalized individual or the
spouse of such an individual (or, at the option of a State, a
noninstitutionalized individual or the spouse of such an individual)
disposes of assets for less than fair market value on or after the
look-back date specified in subparagraph (B)(i), the individual is
ineligible for medical assistance for services described in
subparagraph (C)(i) (or, in the case of a noninstitutionalized
individual, for the services described in subparagraph (C)(ii)) during
the period beginning on the date specified in subparagraph (D) and
equal to the number of months specified in subparagraph (E).
(B) (i) The look-back date specified in this subparagraph is a
date that is 36 months (or, in the case of payments from a trust or
portions of a trust that are treated as assets disposed of by the
individual pursuant to paragraph (3)(A)(iii) or (3)(B)(ii) of subsection
(d) or in the case of any other disposal of assets made on or after
the date of the enactment of the Deficit Reduction Act of 2005
[enacted Feb. 8, 2006], 60 months) before the date specified in
clause(ii).
(ii) The date specified in this clause, with respect to--
(I) an institutionalized individual is the first date as of which
the individual both is an institutionalized individual and has applied
for medical assistance under the State plan, or
(II) a noninstitutionalized individual is the date on which the
individual applies for medical assistance under the State plan or, if
later, the date on which the individual disposes of assets for less
than fair market value.
(C)
(i) The services described in this subparagraph with respect
to an institutionalized individual are the following:
(I) Nursing facility services.
(II) A level of care in any institution equivalent to that of
nursing facility services.
(III) Home or community-based services furnished under a
waiver granted under subsection (c) or (d) of section 1915 [42
USCS § 1396n(c) or (d)]
. . .
(D) (i) In the case of a transfer of asset made before the date of
the enactment of the Deficit Reduction Act of 2005 [enacted Feb. 8,
2006], the date specified in this subparagraph is the first day of the
first month during or after which assets have been transferred for
5
less than fair market value and which does not occur in any other
periods of ineligibility under this subsection.

(ii) In the case of a transfer of asset made on or after the date
of the enactment of the Deficit Reduction Act of 2005 [enacted Feb.
8, 2006], the date specified in this subparagraph is the first day of a
month during or after which assets have been transferred for less
than fair market value, or the date on which the individual is eligible
for medical assistance under the State plan and would otherwise be
receiving institutional level care described in subparagraph (C)
based on an approved application for such care but for the
application of the penalty period, whichever is later, and which does
not occur during any other period of ineligibility under this
subsection.

42 U.S.C.A. 1396p

The Initial Decision reads the clause "would otherwise be receiving
institutional level care described in subparagraph (C)" in isolation and finds that
since it is in future tense, Congress permits the penalty period to run while the
individual is in the community.
However, the both clauses must be read together. For Petitioners "the
date on which the individual is eligible for medical assistance under the State
plan" is contingent on their actual receipt of waiver services. In the Stipulation of
Facts, Petitioners claim that but for the uncompensated transfer they were
eligible for benefits under the waiver program. This is not the same as being
eligible for medical assistance under the State plan.
Due to Petitioners' income level, they could only be found eligible for State
plan services by virtue of residing in a nursing home or through the waiver
program. As they are not in a nursing home, they must show that they are
eligible through the waiver program. As Petitioner are not receiving waiver
services, they are not eligible for services under the State plan.
6
To be eligible under a section 1915 waiver, a person must actually be
receiving services. Further, 42 U.S.C.A 1915(c)(1) states that "The Secretary
may by waiver provide that a State plan approved under this title may include as
“medical assistance” under such plan payment for part or all of the cost of home
or community-based services (other than room and board) approved by the
Secretary which are provided pursuant to a written plan of care to individuals
with respect to whom there has been a determination that but for the provision of
such services the individuals would require the level of care provided in a
hospital or a nursing facility or intermediate care facility for the mentally retarded
the cost of which could be reimbursed under the State plan." No such services
are being provided to Petitioners.
42 C.F.R. 435.217 provides that a state may provide services in the
community to individuals that would be eligible for Medicaid if institutionalized
and that individual actually "receives the waivered services." Since the home
and community based waiver program uses the institutional income limit (300%
of the Federal Benefit Rate) to access both waiver and State Plan services, the
individual must actually be receiving a waiver service in order to access State
Plan services. For example, if an individual stops using waiver services, they are
no longer eligible for the waiver and lose access to State Plan services. Similarly
if a waiver program's slots are full, those individuals on the waiting list are not
considered eligible and cannot access services. Their eligibility is contingent on
the receipt of waiver services. Without the provision of waiver services,
Petitioners' Medicaid eligibility does not exist.
Nor can an individual procure similar home and community based services
outside a waiver so as to mimic eligibility. Congress was very general in defining
7
the first two levels of care as nursing facility and level of care services equivalent
to nursing facility services. 42 U.S.C.A. 1396p(c)(1)(C). However, when
describing home and community services, Congress defined those services
furnished under a waiver. There was no need to qualify 42 U.S.C.A.
1396p(c)(1)(C) "is receiving" services since by virtue of the definition of
institutional level services, Congress specified that the waiver services must be
furnished under 42 U.S.C.A. 1396n(c). In the community, there is no way to
ascertain whether the individual is receiving services so that Congress specified
that the penalty period begins only if home and community based services are
furnished under a waiver, thus penalizing the individual for the transfer as those
services would no longer be paid for by Medicaid.
The Initial Decision finding would permit individuals in the community to
operate under the old rules, whereby the penalty period can lapse before any
financial hardship on the individual. Under the old rules the start date was the
date of transfer. Individuals were coached to transfer assets in such a way as to
either wait out the penalty period or the look back period. The DRA sought to
stop the choreographed transfers that resulted in little, if any, penalty and create
a financial burden that would give pause to individuals who sought to protect
assets at the taxpayers' expense.
The DRA was designed to make the penalty period more onerous as a
disincentive for individuals who transferred assets. Under Petitioners' argument,
individuals, such as themselves would have a different outcome than those in a
nursing facility. In a nursing facility, Medicaid's refusal to pay for care creates a
financial burden as medical charges are accrued. There is no penalty as
Medicaid cannot refuse to pay for services as there are no services furnished
8
under the waiver being accessed. Thus, Congress crafted a start date of the
penalty period that would have some teeth – namely not permit individuals to wait
out the penalty in the community.
Simply put, if you are seeking to shift the cost of nursing home care to the
taxpayers by giving away assets so as to artificially create impoverishment, there
must be a financial price to pay. Based on the basic eligibility rules, the penalty
can only apply to those eligible for waiver services as the receipt of which is an
eligibility requirement for that particular category.
I FIND that there is no comparability issue as this case deals with the
actual receipt of waiver services before Petitioners' penalty periods begin, not the
treatment of their assets and income. Moreover, it is disingenuous to argue the
same treatment as nursing home patients since the Petitioners are seeking
waiver services which is entirely based on permitting states to waiver of the
requirements of section 1902(a)(1) (relating to state-wideness), section
1902(a)(10)(B) (relating to comparability), and section 1902(a)(10)(C)(i)(III)
(relating to income and resource rules applicable in the community).
The income level in the community is much lower than the one afforded to
those seeking institutional level of care services either through nursing facility
services or services furnished under the waiver. If Petitioners want to be treated
like nursing facility patients, they need to enter such a facility. Without the receipt
of waiver services, Petitioners are not eligible under the waiver or entitled to the
higher income levels afforded waiver recipients. Without eligibility, there is no
start date for the penalty period.


9

THEREFORE, it is on this 14TH day of JULY 2008,
ORDERED:
That the Initial Decision is hereby REVERSED.



/S/
John R. Guhl, Director
Division of Medical Assistance and Health Services


The well reasoned decision by Judge JOSEPH PAONE, ALJ
State of New Jersey

OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION

SUMMARY DECISION CONSOLIDATED


O.B., OAL DKT. NO. HMA6519-07
Agency Final Decision
Petitioner,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND MIDDLESEX COUNTY BOARD OF SOCIAL SERVICES,
Respondents.
__________________________________________

E.B., OAL DKT. NO. HMA8059-07
Petitioner,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND OCEAN COUNTY BOARD OF SOCIAL SERVICES,
Respondents.
__________________________________________
E.A.F., OAL DKT. NO. HMA8310-07
Petitioner,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND MONMOUTH COUNTY BOARD OF SOCIAL SERVICES,
Respondents

Record Closed: April 8, 2008 Decided: April 9, 2008

BEFORE JOSEPH PAONE, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioners O.B., E.B., E.A.F., J.B. and R.M. each appeal their denial of Medicaid eligibility. Each filed for a fair hearing and the Division of Medical Assistance and Health Services (DMAHS) transmitted the contested cases to the Office of Administrative Law between August 15, 2007, and February 27, 2008. N.J.S.A. 52:14B-1 through -15; N.J.S.A. 52:14F-1 through -13. Their respective cases were consolidated at the request of their attorneys because the cases presented a common question of law. (Second Amended Order, dated April 8, 2008). Petitioners contend that when an applicant for a Medicaid waiver program makes an uncompensated transfer of an asset during the look-back period, the penalty period begins to run the month the transfer is made and the applicant is otherwise eligible for Medicaid benefits but for the application of the penalty period. Respondent DMAHS posits that a penalty period never commences in such a situation.

All parties moved for summary decision and submitted initial briefs and multiple reply briefs. Oral argument was heard on March 17, 2008. Upon receipt of the final stipulation of facts, related to the R.M. case, on April 8, 2008, the record closed.

STATEMENT OF FACTS
The parties have stipulated to the following relevant FACTS:
1. Petitioners are each elderly individuals within the meaning of the regulations governing the Medicaid program.
2. Petitioners have each applied for benefits under a community-based services Medicaid waiver program established pursuant to 42 U.S.C.A. ��1396n(c). O.B. applied for benefits on December 8, 2006; E.B. applied on May 1, 2007; E.A.F. on April 16, 2007; J.B. on January 29, 2007; and R.M. on June 4, 2007
3. Petitioners have each made certain uncompensated transfers of assets after February 8, 2006. O.B. transferred $34,400.66 on July 27, 2006, and $7,527.15 on August 18, 2006. E.B. transferred $80,000 on March 2, 2007. E.A.F. transferred $115,447 on April 11, 2007. J.B. transferred $128,986.26 between November 2, 2006, and January 25, 2007. R.M. transferred $47,817.25 on March 22, 2007.
4. Petitioners have each been denied Medicaid benefits under their respective community-based services Medicaid waiver program as a result of the transfers.
5. But for the uncompensated transfer of assets, petitioners were each eligible for benefits under a community-based services Medicaid waiver program.
CONCLUSIONS OF LAW
Since it is undisputed that petitioners are otherwise eligible for a community-based services Medicaid waiver program but for an uncompensated transfer of assets made after February 8, 2006, and during the look-back period, and are each subject to a period of ineligibility for those services as a result of the transfer, there are no genuine issues of material fact. Therefore, pursuant to N.J.A.C. 1:1-12.5(b) and Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 523 (1995), the matter is ripe for summary decision.
The Medicaid Act was established in 1965 pursuant to Title XIX of the Social Security Act. 42 U.S.C.A. �� 1396 et seq. The joint federal-state program provides medical assistance to “aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical care.” 42 U.S.C.A. � 1396. These individuals are known as the “categorically needy.” Although participation is not obligatory, if a state chooses to participate in the program, it must submit a state plan to the Secretary of the United States Department of Health and Human Services for approval, which must comply with the comprehensive requirements provided in 42 U.S.C.A. � 1396a. The Medicaid Act also allows a participating state to offer coverage to a class of individuals known as “optionally needy.” 42 U.S.C.A. ��1396a(a)(10)(A)(ii)(I) to (XVIII). Individuals eligible for community-based waiver services (42 U.S.C.A. � 1396a(a)(10)(A)(ii)(VI)), as well as individuals residing in a nursing facility for at least thirty consecutive days (42 U.S.C.A. � 1396a(a)(10)(A)(ii)(V)), are included in this category. As a participant in the program offering coverage to the optionally needy, the State of New Jersey is responsible for enforcement of the Medicaid Act in New Jersey. N.J.S.A. 30:4D-1 et seq. Medicaid eligibility is based upon an applicant's income and resources. When it is determined that an applicant has transferred a resource for less than fair market value during a specified period of time known as a “look-back period,” a penalty period arises. 42 U.S.C.A. � 1396p(c)(1). Compare N.J.A.C. 10:71-4.7(a); N.J.A.C. 10:72-4.5(b)(3). A penalty period is a measurable period of time during which the applicant is ineligible for an institutional level of services. 42 U.S.C.A. � 1396p(c)(1).

The Deficit Reduction Act of 2005 (DRA) modified the Medicaid Act by increasing the look-back period from three to five years. The State of New Jersey has not enacted any statute or regulation implementing the DRA. The DRA provides that the look-back begins on the “first date as of which the individual both is an institutionalized individual and has applied for medical assistance under the State plan.” 42 U.S.C.A. ��1396p(c)(1)(B)(ii)(I). Accordingly, “if an institutionalized individual . . . disposes of assets for less than fair market value on or after the look-back date . . . the individual is ineligible for medical assistance services described in subparagraph (C)(i) . . . during the period beginning on the date specified in subparagraph (D) . . . .” 42 U.S.C.A. ��1396p(c)(1)(B)(i). The length of the period of ineligibility is governed by 42 U.S.C.A. ��1396p(c)(1)(E), and is not an issue in dispute in this case. 42 U.S.C.A. ��1396p(c)(1)(C)(i) lists the following medical assistance services:

(I) Nursing facility services.

(II) A level of care in an institution equivalent to that of nursing facility services.
(III) Home or community-based services furnished under a waiver granted under [42 U.S.C.A. � 1396n(c) or (d)].
42 U.S.C.A. � 1396p(h)(3) defines an “institutionalized individual” as one
who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in [42 U.S.C.A. � 1396(a)(10)(A)(ii)(VI)].

[Emphasis added.]
42 U.S.C.A. � 1396a(a)(10)(A)(ii)(VI) adds that an institutionalized individual is one
who would be eligible under the State plan under [42 U.S.C.A. �� 1396 et seq.] if [she] were in a medical institution, with respect to whom there has been a determination that but for the provision of home or community based services described in [42 U.S.C.A. ��1396n(c),(d), or (e)] [she] would require the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan, and who will receive home or community-based services pursuant to a waiver granted by the Secretary under [42 U.S.C.A. � 1396n(c), (d), or (e)].
[Emphasis added.]
Petitioners additionally urge consideration of N.J.A.C. 10:71-4.7(b)(3) and N.J.A.C. 10:71-4.10(b)(2), which the parties agreed in their Joint Stipulation were enacted to implement 42 U.S.C.A. � 1396p(c)(1)(B), and which also define an institutionalized individual as “a person seeking benefits under a home or community care waiver program” (emphasis added). Neither the federal statute nor the State regulation requires the actual receipt of home- or community-based services in order for a person to be characterized as an institutionalized individual. Therefore, I CONCLUDE that petitioners' applications seeking community-based waiver services are sufficient to classify petitioners as institutionalized individuals.
Since the parties have stipulated that each petitioner made an uncompensated transfer of an asset within months, and in E.A.F.'s case days, of their respective applications seeking community-based waiver services, I CONCLUDE, as the parties agreed during oral argument, that the uncompensated transfers of assets in question were each made during the look-back period. And I further CONCLUDE that as institutionalized individuals, the petitioners must each be subject to a penalty period or period of ineligibility for community-based services furnished under a waiver.
The issue in dispute in this matter is at what point the penalty period begins when an applicant for a Medicaid waiver program has made an uncompensated transfer of an asset during the look-back period. While the DMAHS agrees with petitioners that they are subject to a penalty period, the DMAHS contends that a penalty period can never begin because an applicant seeking community-based waiver services must await the expiration of the look-back period before she can seek those services. Petitioners, however, contend that if an applicant is otherwise eligible for Medicaid benefits but for the transfer of assets, the penalty period must start the month the uncompensated transfer of the asset is made.
The DRA added 42 U.S.C.A. � 1396p(c)(1)(D)(ii), a new subclause, to the Medicaid Act. Prior to enactment of the DRA, the penalty period resulting from an uncompensated transfer of assets commenced the month that the applicant made the uncompensated transfer, irrespective of what resources remained in the applicant's name. Since the parties have stipulated that the transfers were made after February 8, 2006, their periods of ineligibility must commence
the first day of a month during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the State plan and would otherwise be receiving institutional level care described in subparagraph (C) [a community-based waiver service] based on an approved application for such care but for the application of the penalty period, whichever is later, and which does not occur during any other period of ineligibility under this subsection.
[42 U.S.C.A. � 1396p(c)(1)(D)(ii) (emphasis added).]
Petitioners persuasively argue that according to the plain-language canon, the statute means what it says “and no further search is necessary or appropriate in the absence of clear ambiguity.” In re M.G., 307 N.J. Super. 348, 354 (App. Div. 1998), certif. denied, 154 N.J. 607 (1998). This cardinal doctrine of statutory construction directs that the penalty period assessed against an applicant must begin when the applicant 1) is eligible for medical assistance under the state plan, and 2) would otherwise be receiving home- or community-based services furnished under a waiver based on an approved application for such care, 3) but for the application of the penalty period. Simply stated, the penalty start date is the point in time when the applicant is eligible and would otherwise be receiving services, but for the penalty period. Petitioners submit that the insertion of “would otherwise be” and “but for” in the statute creates the grammatical tense known as the “present unreal conditional,” which is used to express what one would do in an unreal or imaginary situation. They urge that the application of this grammatical analysis to the statute makes it apparent that the statute intends that the penalty period begins when “an applicant for Medicaid benefits would otherwise be receiving services furnished under a waiver but for the fact that the applicant made an uncompensated transfer.” The applicant, however, isn't really receiving those services.
The DMAHS argues that the penalty period for an uncompensated transfer cannot start against an applicant for community-based waiver services until she is eligible for medical assistance under the State plan and is actually receiving community-based waiver services. But, as the DMAHS's reasoning continues, such an applicant cannot actually receive waiver services because the uncompensated transfer of assets prohibits receipt of waiver services. In reaching this circuitous position, the DMAHS relies on an enclosure that accompanied a letter to the State Medicaid Director from the Centers for Medicare and Medicaid Services (CMS), dated July 27, 2006. The CMS enclosure provides that
[f]or transfers of assets made on or after February 8, 2006, the period of ineligibility will begin with the . . . date on which the individual is eligible for medical assistance under the State plan and is receiving institutional level of care services (based on an approved application for such services) that, were it not for the imposition of the penalty period, would be covered by Medicaid.
[Emphasis added.]
The CMS enclosure, however, misquotes the statute, and the DMAHS's reliance on it is, thus, misplaced. In order to accommodate the language of the CMS enclosure, the DMAHS is obligated to take an inherently contradictory position. While the DMAHS deems petitioners “institutionalized individuals” in determining the look-back period start date, it denies that petitioners are “institutionalized individuals” for purposes of determining the penalty period start date. The DMAHS reasons that an applicant must be receiving waiver services in order to be denominated an institutionalized individual. Otherwise, the penalty period cannot commence. But, as had been previously noted, an “institutionalized individual” is not only an inpatient in a nursing facility or medical institution, but also, as the federal statute provides, one who would be eligible for community-based waiver services if she were in a medical institution, or, as State regulations allow, is seeking those services. 42 U.S.C.A. � 1396p(c)(1)(D)(ii) does not require that one actually receive institutional-level care as respondent contends. The statute merely demands that one “would otherwise be receiving institutional level care�.�.�. but for the application of the penalty period.”
Petitioners proffer that the Congressional Record refutes the DMAHS's construction. A proposed House Bill had provided that the beginning date for a period of eligibility be


[t]he date on which the individual is eligible for medical assistance under the State plan and is receiving services described in subparagraph (C) based on an approved application for such care but for the application of the penalty period.
[151 Cong. Rec. H10571 (daily ed. Nov. 17, 2005) (emphasis added).]
But the “is receiving services” language in the proposed legislation was later changed by Conference Agreement to the present text — “would otherwise be receiving institutional level care.” Id. at H12709-H12710. Petitioners point out that the use of the present participle “is receiving” would have suggested that the applicant must actually be receiving waiver services. But the verb tense change made during Conference Committee demonstrates that Congress was aware that an applicant for benefits under a community-care waiver program, who had made an uncompensated transfer of an asset, could not be receiving waiver services before applying for those services.
The purpose of the DRA is to deter self-impoverishment in order to qualify for Medicaid by penalizing those who transfer assets for less than fair market value. There is no evidence in the legislative record cited by the DMAHS that Congress intended to eliminate community-based waiver services completely to those who made such transfers. Application of the DMAHS's tortured construction of the DRA, however, would entirely eliminate the imposition of a penalty period and require anyone making uncompensated transfers within a look-back period and seeking waiver services to wait up to five years from the date of the transfer before an application could be made for home- or community-based waiver services. While the DMAHS suggests that its interpretation is consistent with the DRA's objective, which was to lighten the taxpayers' burden, its interpretation would actually encourage placement in a nursing facility over less-costly waiver services and undermine the impetus for the DRA's enactment.
The plain meaning of 42 U.S.C.A. � 1396p(c)(1)(D)(ii) is clear and the DMAHS's strained interpretation is conflicting, contrived and inconsistent with the statute's legislative history. I, therefore, CONCLUDE that the penalty period for an applicant for a Medicaid waiver program who has made an uncompensated transfer of an asset during the look-back period begins on the date on which she is otherwise eligible for Medicaid waiver services based on an application that would be approved, but for the transfer of assets. Thus the penalty period for each petitioner should commence on the date each petitioner submitted her application for community-based waiver services.
ORDER
Accordingly, I hereby ORDER that a penalty shall be assessed against each petitioner as a result of her uncompensated transfer of an asset and that the start date of the penalty period shall be the date on which the application for waiver services was made after the uncompensated transfer.
I hereby FILE my initial decision with the DIRECTOR OF THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES for consideration.
This recommended decision may be adopted, modified or rejected by the DIRECTOR OF THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, the designee of the Commissioner of the Department of Human Services, who by law is authorized to make a final decision in this matter. If the Director of the Division of Medical Assistance and Health Services does not adopt, modify or reject this decision within forty-five (45) days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10.

Within seven (7) days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the DIRECTOR OF THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, Mail Code #3, P.O. Box 712, Trenton, New Jersey 08625-0712, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge and to the other parties.