44 The QUEE NS Courier • health • FEBRUARY 4, 2016 for breaking news visit www.qns.com ▶health The Elder Law Minute TM Medicaid and the Undue Hardship Exception By Ronald A. Fatoullah, Esq. and Stacey Meshnick, Esq. When an individual in a nursing home applies for Medicaid benefits, the Medicaid agency will examine the applicant’s financial statements to determine if any assets were transferred during the five years prior to application. If assets were transferred to someone other than a spouse or a disabled child for less than fair market value, the agency will impose a period of ineligibility, i.e. a penalty period. The individual will not be eligible for Medicaid benefits and will be required to pay privately until the penalty period expires. There are some circumstances in which individuals have reasons for which they believe exceptions to the penalty should be made. Some examples might be that money was gifted but the recipient is unable to return the money; money was withdrawn from an account, but the applicant cannot remember where the money was spent; a family member took the money unbeknownst to the applicant; or a variety of other reasons. Upon applying elder law for Medicaid, the best method is to try to verify the explanation for transferring the assets. Despite an applicant’s best efforts, there are times when her or she is unable to provide the supporting documentation required by the Medicaid agency. A last resort is to challenge Medicaid’s imposition of a penalty period by arguing that a period of ineligibility will cause the applicant undue hardship. The law provides that an undue hardship exists if the penalty period would deprive the applicant of (1) medical care necessary to maintain health or life, or (2) food, clothing, shelter or other necessities of life. The applicant must prove to Medicaid that the hardship exists (rather than the Medicaid agency proving that the hardship does not exist). When a nursing home applies for Medicaid on behalf of a resident, the facility can also request an undue hardship waiver. In order to prove that a hardship exists, the applicant must demonstrate that he or she cannot afford nursing home care during the penalty period and that without such care, his or her health will decline. States have the option to define “hardship” and courts differ as to how they apply the undue hardship exception. In Matter of Tarrytown Hall Care Ctr. V. McGuire, decided on April 16, 2014, a New York appeals court ruled that an undue hardship exception applied even though the nursing home did not attempt to evict the applicant. The rationale was that the nursing home resident was insolvent, i.e. had no assets, and was unable to get her assets back and, as such, no other nursing home would accept her because they knew that she would not be able to pay and would be ineligible for Medicaid. On the other hand, in R.P. v. Division of Medical Assistance and Health Services, decided on October 22, 2013, a New Jersey appeals court ruled that a Medicaid applicant whose son had transferred assets to himself was not entitled to an undue hardship exception because there was no proof that his health or life were endangered. As a general rule, it is difficult to obtain Medicaid benefits using the undue hardship waiver. It is best to contact a knowledgeable elder care attorney for advice if an undue hardship waiver may be necessary. Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Stacey Meshnick, Esq. is a senior staff attorney at the firm who has chaired the firm’s Medicaid department for over 15 years. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also the co-founder of JR Wealth Advisors, LLC. The wealth management firm can be reached at 516-466-3300 or 800-353-3775. ROnald Fatoulah, ESQ, CELA* MALOCCLUSION AND PERIODONTAL DISEASE Malocclusion affects 74% of American adults. If you have malocclusion, it may affect your periodontal health, because it is difficult to remove plaque when teeth are not aligned. Periodontal disease can begin as hum redness or bleeding while brushing your teeth or using dental floss, and you may notice halitosis, or bad breath. If not treated, hum inflammation can become worse, leading to soft tissue damage, receding gums, the formation of pockets between teeth and hums, bone loss, and eventually tooth loss. THE PROGRESSION OF PERIODONTAL DISEASE When teeth are crowded, plaque with harmful bacteria can attach to the tooth surface down to the bottom of the pocket. Plaque can be difficult to remove from crowded areas because it is difficult to brush and floss here. Bacteria can cause gum tissue surrounding the tooth to degrade, and if not treated, result in bone loss. WEAR AND TRAUMA Poorly aligned teeth can also create unnatural stress and pressure on teeth and jaws. Teeth that are subject to excessive pressure can develop chipping and notches at the gum line called abfractions. Premature wear can lead to poor root support, loose teeth and eventually, tooth loss. STRAIGHT TEETH ARE HEALTHIER TEETH Straight, properly aligned teeth can help you avoid the negative effects of periodontal disease. HEALTHIER GUMS Properly aligned teeth are easier to brush and floss than crowded or crooked teeth. Properly positioned teeth can help gums “fit” more tightly around them, which may lead to better periodontal health. IMPROVED HYGIENE With good oral hygiene, the chances of having plaque retention, tooth decay, and periodontal disease can be reduced. COURTESY OF ASTORIA DENTAL GROUP 32-17 BROADWAY ASTORIA, NY 11106 SMILEdr.com • 888-711-9636 CLIFFORD E. DEGEL, D.D.S. CARMEN EVERY – DEGEL, D.D.S. Healthy Gingiva Gingivitis Periodontitis Advanced Peiodontitis
QC02042016
To see the actual publication please follow the link above