Undocumented Caregiving results in Medicaid Penalty Period

In a case that stresses the importance of keeping accurate records, especially for paid family caregivers, a New Jersey appeals court upheld a penalty period imposed by Medicaid against a Medicaid applicant for payments the applicant’s daughter received for providing caregiving service. E.B. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-3087-15T4, July 13, 2018).

The daughter [J.W.] testified that, in 2003, her then eighty-year old mother moved into her home. There was an area of J.W.’s home which, although physically attached to the house, was a separate unit where her mother lived. Her mother moved into the apartment because she was afraid of living by herself and was unable to shop or cook for herself.

In 2009, J.W. resigned from her job in order to care for her mother full time. In addition to providing supervision, J.W. assisted her mother with the activities of daily living. In 2011, J.W. was finding it too difficult to make ends meet because she was not earning income. She determined she either had to return to work and let a third party care for her mother during the day, or pay herself from her mother’s savings to compensate her for providing companion services. She chose the latter solution.

After some adjustments, Medicaid determined that $69,211.90 paid from the mother’s funds in order to pay for companion services was not for fair value, and imposed a penalty period. [Normally, the length of the penalty period is determined by the disallowed transfer – $69,211.90 – divided by the average monthly cost of nursing case in the area in which the applicant lives. For example, if the average cost of care in her area was $6,000 per month, then the penalty period would last for roughly one year.]

In making its determination, Medicaid found that the “proof of services rendered on a daily basis to the petitioner deficient”. There were no log sheets or like records tracking the hours she worked and the duties she performed. Second, it found the hourly rate paid to J.W. was not substantiated as appropriate for companion services. Third, J.W. began receiving wages when it was “foreseeable that advanced age and deteriorating condition would require intensive care and the possibility of entering a nursing care facility.” Finally, he observed there was no pre-existing written agreement between the mother and J.W. to pay for the subject services.

In denying her appeal, the Superior Court of Appeals in New Jersey stated:

We understand J.W.’s reasoning, specifically, that if she had to return to work, petitioner may as well pay her rather than a third party to provide companion services, especially because J.W. is a family member and would have her best interests in mind. Nevertheless, “a transfer of assets to a friend or relative for the alleged purpose of compensating for care or services provided free in the past shall be presumed to have been transferred for no compensation.” N.J.A.C. 10:71- 4.10(b)(6)ii.

Family caregivers should take note and adopt written care agreements, and keep time and task logs to guard against similar penalty impositions. Above all, seek the advice of a qualified Medicaid attorney in the state the applicant lives in to help navigate the complex process of applying for Medicaid.

For the full text of this decision, go to: https://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a3087-15.pdf?cacheID=TSSOcTe

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