Category Archives: Fair Hearings

Minimum Monthly Maintenance Needs Allowance for Nursing Home Resident’s Spouse Is Now $2,002.50 until 6/30/2017

July 1, 2016 – 12:27 am

by: Brian E. Barreira, Esq.

When one spouse is living in a nursing home and the other spouse is living anywhere else, the spouse who is not living in the nursing home (who is known under federal Medicaid law as the “community spouse”) is allowed by MassHealth to keep some (or sometimes all) of the nursing home resident’s income through an income allowance known as the Minimum Monthly Maintenance Needs Allowance (MMMNA).  Every July 1st, this figure changes based on federal poverty level guidelines.  The MMMNA has now been increased to $2,002.50, effective July 1, 2016 and continuing through June 30, 2017.  (This MMMNA figure is the same in 48 states; Alaska and Hawaii have higher figures.)

The income calculation  for the community spouse does not end there.  If certain basic household expenses are more than 30% of the MMMNA, which is $600.75, the community spouse is entitled to keep an extra amount of the couple’s income.  This extra income is known as the Excess Shelter Amount (“ESA”).  Between the MMMNA and the ESA, the community spouse can now be entitled to as keep as much as $2,980.50 of the married couple’s total income.  If even more income is needed, such as where the community spouse is living in an assisted living facility, the community spouse can request a fair hearing and attempt to prove the need for more than $2,980.50 of the married couple’s total income.  In some cases, the community spouse would need more than $2,980.50 due to the costs of an assisted living facility, but would be required at the fair hearing to prove the need to live there.

Utilizing the MMMNA provisions in Medicaid/MassHealth law is always better than purchasing an immediate annuity with excess assets, since all payments from the annuity are treated as income, and taking that step ends up reducing the amount of the married couple’s income that the community spouse could otherwise keep.  Unfortunately, due to the asset rules under Medicaid/MassHealth, in many situations the community spouse has no choice but to purchase an immediate annuity with excess assets.

 

By Brian E. Barreira | Also posted in Annuities, MassHealth Application Process, Preserving Assets & Income for the Spouse | Comments (0)

Lawyers at the Office of Medicaid Attempt to Mislead Hearing Officers and Judges about Federal Medicaid Trust Law

November 19, 2015 – 5:45 pm

by: Brian E. Barreira, Esq.

The Office of Medicaid makes a willful, reckless misrepresentation of law to the extent that it suggests that all state trust law is to be ignored in the determination of eligibility for Medicaid benefits for long term care.  Current federal Medicaid law (42 USC §1396p(d)) and Massachusetts MassHealth regulations (130 CMR 520.021-520.024) address the treatment of trusts in the Medicaid arena, and they do not state or even imply that all state trust laws or the common law of trusts are to be ignored.

Under the 1985 changes in federal Medicaid trust law, a door had been left open whereby a provision could be placed in the trust limiting trustee discretion in some circumstances; the 1993 federal Medicaid law at 42 USC 1396p(d)(2)(C) corrected that problem, and specifies four (and only four) aspects of state trust law (often referred to by the Defendant as the “common law of  trusts”) that may be ignored in determining an applicant’s Medicaid eligibility:

“(i) the purposes for which a trust is established,

(ii) whether the trustees have or exercise any discretion under the trust,

(iii) any restrictions on when or whether distributions may be made from the trust, or

(iv) any restrictions on the use of distributions from the trust.”

These 1993 changes in federal Medicaid trust law ended the tactical usage of shifting trustee discretion to obtain Medicaid coverage. The 1985 Congressional intention of authorizing scrutiny of irrevocable trusts under state debtor-creditor laws remained unchanged when the 1993 changes were made, and there have been no further changes in federal Medicaid trust law since that time.

Other than these four exceptions in 42 USC 1396p(d)(2)(C), all Massachusetts trust law applies to an Irrevocable Trust in a MassHealth application.  The United States Court of Appeals for the Third Circuit has already examined Congressional intent in this context, and concluded:  “Congress rigorously dictates what assets shall count and what assets shall not count toward Medicaid eligibility.  State law obviously plays a role in determining ownership, property rights, and similar matters.” Lewis v. Alexander, 685 F.3d 325, 334 (3d Cir. 2012) “[T]here is no reason to believe [Congress] abrogated States’ general laws of trusts.  … After all, Congress did not pass a federal body of trust law, estate law, or property law when enacting Medicaid.  It relied and continues to rely on state laws governing such issues.” Lewis at 343.

The Office of Medicaid continually attempts to mislead hearing officers at MassHealth fair hearings and judges in Superior Court appeals by emphasizing yet decontextualizing the phrase “any circumstances” in the 1993 federal Medicaid trust law, when in fact since 1993 these four circumstances in 42 USC 1396p(d)(2)(C) have been the only “circumstances” addressed by the federal Medicaid trust law wherein state trust law is to be ignored.

By Brian E. Barreira | Also posted in Irrevocable Trusts, MassHealth Application Process, MassHealth Denials and Appeals, Superior Court and Appeals Court Appeals | Tagged , , , , , , , | Comments (0)

What Is the Excess Shelter Allowance When Filing a MassHealth Application in 2015-2016?

November 10, 2015 – 10:39 am

by: Brian E. Barreira, Esq.

When applying for MassHealth, the at-home spouse, known as the community spouse, is allowed to keep all of the community spouse’s own income, no matter how much that amount may be.  If the community spouse’s own income is below $1,991.25, however, the community spouse is allowed to divert income from the institutionalized spouse to get up to the $1,991.25 requirement of the current law.  (Note:  the $1,991.25 minimum monthly maintenance needs allowance —MMMNA— will likely increase on July 1, 2016.)

The $1,991.25 in income currently allowed for the community spouse can be increased beyond that figure if the community spouse’s housing expenses are high.  That increase is known as the Excess Shelter Allowance.   If the community spouse’s housing expenses are more than 30% of the MMMNA, (i.e., 30% of $1991.25, which comes to $597.38), then the additional income needed is referred to as the Excess Shelter Allowance, and ends up being an additional income allowance for the community spouse.

For some spouses, the increased income allowance can mean an increase in the community spouse resource allowance, which is the total amount of assets that the at-home spouse is allowed to keep.

By Brian E. Barreira | Also posted in MassHealth Application Process, Preserving Assets & Income for the Spouse | Tagged , , , , | Comments (0)

Minimum Monthly Maintenance Needs Allowance for Nursing Home Resident’s Spouse Is Now $1,991.25 until 6/30/2016

November 5, 2015 – 6:26 pm

by: Brian E. Barreira, Esq.

When one spouse is living in a nursing home and the other spouse is living anywhere else, the spouse who is not living in the nursing home (who is known under MassHealth law as the “community spouse”) is allowed by MassHealth to keep some (or sometimes all) of the nursing home resident’s income through an income allowance known as the Minimum Monthly Maintenance Needs Allowance (MMMNA).  Every July 1st, this figure changes based on federal poverty level guidelines.  The MMMNA is $1,991.25 from July 1, 2015 through June 30, 2016.

If certain basic household expenses are more than 30% of the MMMNA, which amounts to $597.38, the community spouse is entitled to keep extra income, known as the Excess Shelter Amount (“ESA”).  Between the MMMNA and the ESA, the community spouse can now be entitled to as keep as much as $2,980.50 of the married couple’s total income.  If even more income is needed, such as where the community spouse is living in an assisted living facility, the community spouse can request a fair hearing and attempt to prove the need for more than $2,980.50 of the married couple’s total income.  In some cases, the community spouse would need more than $2,980.50 due to the costs of an assisted living facility, but would be required at the fair hearing to prove the need to live there.

Utilizing the MMMNA provisions in Medicaid/MassHealth law is always better than purchasing an immediate annuity, since all payments from the annuity are treated as income, and purchasing an annuity ends up reducing the amount of the married couple’s retirement income that the community spouse could otherwise keep.  Unfortunately, due to the asset rules under Medicaid/MassHealth, in many situations the community spouse has no realistic choice but to purchase an immediate annuity with excess assets.

By Brian E. Barreira | Also posted in Annuities, MassHealth Application Process, Preserving Assets & Income for the Spouse | Tagged , , , , , , , , , | Comments (0)

Minimum Monthly Maintenance Needs Allowance for Nursing Home Resident’s Spouse Is Now $1,966.25 until 6/30/2015

August 27, 2014 – 8:50 pm

by: Brian E. Barreira, Esq.

When one spouse is living in a nursing home and the other spouse is living anywhere else, the spouse who is not living in the nursing home (who is known under MassHealth law as the “community spouse”) is allowed by MassHealth to keep some (or sometimes all) of the nursing home resident’s income through an income allowance known as the Minimum Monthly Maintenance Needs Allowance (MMMNA).  Every July 1st, this figure changes based on federal poverty level guidelines.  The MMMNA was $1,939 from July 1, 2013 until June 30, 2014, and has been increased to $1,966.25 from July 1, 2014 through June 30, 2015.

If certain basic household expenses are more than 30% of the MMMNA, which amounts to $589.66, the community spouse is entitled to keep extra income, known as the Excess Shelter Amount (“ESA”).  Between the MMMNA and the ESA, the community spouse can now be entitled to as keep as much as $2,931.00 of the married couple’s total income.  If even more income is needed, such as where the community spouse is living in an assisted living facility, the community spouse can request a fair hearing and attempt to prove the need for more than $2,931.00 of the married couple’s total income.  In some cases, the community spouse would need more than $2,931.00 due to the costs of an assisted living facility, but would be required at the fair hearing to prove the need to live there.

Utilizing the MMMNA provisions in Medicaid/MassHealth law is always better than purchasing an immediate annuity, since all payments from the annuity are treated as income, and taking that step ends up reducing the amount of the married couple’s retirement income that the community spouse could otherwise keep.  Unfortunately, due to the asset rules under Medicaid/MassHealth, in many situations the community spouse has no choice but to purchase an immediate annuity with excess assets. See Protecting Assets and Maximum Income in 2014 When Applying for MassHealth to Help Pay for the Unhealthy Spouse’s Nursing Home Bills.

 

By Brian E. Barreira | Also posted in Annuities, MassHealth Application Process, Preserving Assets & Income for the Spouse | Comments (0)

How Does an Appeal of a MassHealth Fair Hearing Denial into the Court System Work?

November 21, 2013 – 11:33 am

by:   Brian E. Barreira, Esq.

If you lose your fair hearing after having received a MassHealth denial, you can file a so-called 30A appeal into Superior Court. You have 30 days from the date of the fair hearing decision to file the action, and can file it either in Suffolk County, where state government is located, or in the county where the MassHealth applicant is domiciled.

The judge in a 30A appeal is only allowed to look at the evidentiary record at the fair hearing. New evidence cannot be introduced at a 30A appeal, so it important not to take any fair hearing lightly. The grounds listed in Massachusetts General Laws, Chapter 30A that a judge can use to overturn the fair hearing decision are that it was in excess of statutory authority or jurisdiction of the agency, based upon an error of law, made upon unlawful procedure, unsupported by substantial evidence, arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.

A written transcript of the recorded fair hearing is made available by the MassHealth Board of Hearings to the Superior Court at the expense of the person filing the appeal.

By Brian E. Barreira | Also posted in MassHealth Denials and Appeals, Superior Court and Appeals Court Appeals | Comments (0)

What Is a Fair Hearing under MassHealth, and Can You Really Expect It to Be Fair?

September 5, 2013 – 11:22 am

by: Brian E. Barreira, Esq.

If you apply for MassHealth (i.e., Medicaid in Massachusetts) and receive a denial, you are entitled to an “independent” review of the denial through a scheduled “fair hearing.” You have to file a written request for the fair hearing, and there are strict deadlines for you to file for it, usually within 30 days. There are also strict deadlines for the Board of Hearings to issue a decision on your case. Unfortunately, the time limits in MassHealth regulations are strictly held against you as the appellant, yet the Board of Hearings routinely and callously fails to issue timely decisions.

The deadline under MassHealth regulations for a decision to be rendered is usually 45 days from the time of filing the appeal. I recall having cases during the 2010-2012 time period where it took 4-5 months just for an appeal to be scheduled. Apparently, regulations are meant to be followed by MassHealth applicants, but not by the people involved in running the MassHealth program.

Not only is the fairness lacking in the strict procedures required under MassHealth regulations, but many Massachusetts elder law attorneys feel the deck is stacked against people who appeal MassHealth denials. While the MassHealth lawyers who defend fair hearing decisions in court often make a point of telling the judge about the independence of the Board of Hearings, the fact remains that the hearing officers work for the Office of Medicaid, which runs MassHealth, and their decisions are subject to review by the Director of the Office of Medicaid, who can order a rehearing. (That means you can win your appeal, and the person in charge of MassHealth can decide to overturn your victory.) Does it sound like the hearing officers are truly independent?

Fortunately, unfair decisions rendered by hearing officers can be overturned by the Superior Court in a further appeal commonly known as a 30A, but new evidence usually cannot be added after a fair hearing decision is written by a hearing officer. On appeal, the weight or amount of the evidence that was placed into the fair hearing record can be important. Therefore, if you are appealing a MassHealth denial, you need to place as much evidence as possible into the record to prove your point. You cannot assume that the hearing officer will write a decision that is fair, so you have to prepare for the fair hearing based on the assumption that you may later have to take the case to Superior Court and prove to a judge that the “fair hearing” decision was unfair.

By Brian E. Barreira | Also posted in MassHealth Application Process, MassHealth Denials and Appeals | Tagged , , , , | Comments (2)

Case of Nina Kaptchuk v. Director of the Office of Medicaid Shows that MassHealth Fair Hearing Appeals Should Not Be Treated Lightly

July 26, 2013 – 2:05 pm

by: Brian E. Barreira, Esq.

In the 2013 Massachusetts Appeals Court case of Kaptchuk v. Director of Office of Medicaid, a MassHealth denial was upheld. An application for MassHealth benefits for Nina Kaptchuk had been denied due to “disqualifying transfers.” A “fair hearing” had been requested, and the denial was not overturned. A so-called 30A appeal was filed with the Superior Court, and the judge there did not overturn the denial. On this further appeal to the Massachusetts Appeals Court, the denial remained in effect.

The Superior Court and the Massachusetts Appeals Court only reviewed the facts presented at the fair hearing to see if the hearing officer analyzed the facts fairly. Unfortunately, new or better facts cannot be presented after a fair hearing. The Massachusetts Appeals Court suggested that the preparation for the fair hearing was inadequate. Transfers to or for the benefit of a disabled person can be treated as non-disqualifying, but the lawyer handling the appeal apparently did not introduce evidence proving that the daughter who received amounts of money from Nina Kaptchuk was mentally ill.

The point that should be taken from this case: Do not treat any fair hearing lightly. Any point you want to make should be proven from every possible angle, and do not presume common sense. Most especially, do not assume that you will get another chance to explain the facts as you see them.

By Brian E. Barreira | Also posted in Gifts & Disqualifying Transfers, MassHealth Denials and Appeals, Permissible Transfers, Superior Court and Appeals Court Appeals | Comments (0)

Minimum Monthly Maintenance Needs Allowance for Nursing Home Resident’s Spouse Is Now $1,939 until 6/30/2014

July 5, 2013 – 9:17 pm

by: Brian E. Barreira, Esq.

When one spouse is living in a nursing home and the other spouse is living anywhere else, the spouse who is not living in the nursing home (who is known under MassHealth law as the “community spouse”) is allowed by MassHealth to keep some (or sometimes all) of the nursing home resident’s income through an income allowance known as the Minimum Monthly Maintenance Needs Allowance (MMMNA).  Every July 1st, this figure changes based on federal poverty level guidelines.  The MMMNA was $1,891 from July 1, 2012 until June 30, 2013, and it will increase from $1,891 to $1,939 from July 1, 2013 through June 30, 2014.

If certain basic household expenses are more than 30% of the MMMNA, which amounts to $582, the community spouse is entitled to keep extra income, known as the Excess Shelter Amount (“ESA”).  Between the MMMNA and the ESA, the community spouse can now be entitled to as keep as much as $2,898 of the married couple’s total income.  If even more income is needed, such as where the community spouse is living in an assisted living facility, the community spouse can request a fair hearing and attempt to prove the need for more than $2,898 of the married couple’s total income.

Utilizing the MMMNA provisions in Medicaid/MassHealth law is always better than purchasing an immediate annuity, since all payments from the annuity are treated as income, and taking that step ends up reducing the amount of the married couple’s retirement income that the community spouse could otherwise keep.  Unfortunately, due to the asset rules under Medicaid/MassHealth, in many situations the community spouse has no choice but to purchase an immediate annuity with excess assets.  See Protecting Assets and Maximum Income for the Community Spouse When Applying for MassHealth in 2013 to Help Pay for the Unhealthy Spouse’s Nursing Home Bills in Massachusetts.

By Brian E. Barreira | Also posted in Annuities, MassHealth Application Process, Preserving Assets & Income for the Spouse | Comments (1)