NJNAELA, through a cooperative spirit and a wealth of experience in its membership, is creating change.
The New Jersey Chapter of NAELA (NJNAELA) is making far-reaching inroads in a state that imposes exceptionally restrictive policies with regard to legal planning for public benefits. Both the unsuspecting elderly Newark mother who compensates her caregiver daughter and the wife who annuitizes her retirement money as she pays her husband’s Atlantic City nursing home costs cannot possibly anticipate the trials of New Jersey’s Medicaid labyrinth. Over the years, attorneys who challenged Medicaid policy and underestimated our unyielding state system unintentionally diminished the rights of the population they were trying to protect.
Despite the backdrop of state policies that are often more restrictive than those of neighboring states and federal statutes, NJNAELA, through a cooperative spirit and a wealth of experience in its membership, is creating change. The Chapter’s well-crafted advocacy, proactive monitoring of state legislation, and persistence over many years not only benefit vulnerable populations but make its members more formidable attorneys.
The Impactful Litigation Committee
The Chapter first mobilized itself into an advocacy stronghold in the early 2000’s, separate from the then New Jersey Bar Elder Law Section (now the Elder and Disability Law Section). Explaining the need to activate, NJNAELA Past President (2017–2018) and Legislation Committee Chair Lauren Marinaro, Esq., explains, “it became obvious that there are limitations to what a Bar association can do for the practice of elder law because it just simply doesn’t align with what the elder law attorneys want and priorities that the Bar Association wants because [the Bar Association] represents all the attorneys. We needed NJNAELA to represent our granular needs as elder law attorneys.”
During the past 20 years, while the Chapter’s membership grew to more than 100 members, the Litigation Committee emerged as a resource for both courts and New Jersey elder law attorneys, influencing key judicial decisions that have protected the rights and legal planning opportunities for Medicaid applicants.
In 2004, in response to a New Jersey Appellate Court decision disallowing Medicaid planning by guardians, the Chapter wrote its first amicus brief and helped achieve a favorable result in the seminal decision, In re Keri, 181 N.J. 50 (2004). Reversing the lower court’s decision, the New Jersey Supreme Court found that a reasonable competent person would engage in Medicaid planning and held that an adult child serving as guardian of his institutionalized mother could transfer his ward’s assets to qualify her for Medicaid. The decision’s impact on Medicaid planning is still felt widely throughout the State.
In 2014, NJNAELA appeared as amicus curiae to argue that a firefighter’s retirement death benefit was not required to designate an individual beneficiary and may instead be placed in a special needs trust. The New Jersey Supreme Court agreed with NJNAELA’s position and highlighted the utility of self-settled special needs trusts in Saccone v. Board of Trustees, 219 N.J. 369 (2014).
“The successful interventions of the group have earned the respect of the New Jersey Supreme Court,” according to NJNAELA Vice President Dan Jurkovic, CELA. He notes that “they view us as a valuable asset to advise the court on issues of elder law.”
Protecting DRA Annuities
Although the Federal Deficit Reduction Act of 2005 (DRA) classifies certain irrevocable annuities as noncountable assets for Medicaid purposes, erroneous application of this exemption on the state level has impelled the Chapter’s Litigation Committee to act.
Teaming up as amicus curiae with the Pennsylvania NAELA Chapter (PAELA), NJNAELA helped shape the landmark spousal annuity case, Weatherbee ex rel Vecchio v. Richman, 595 F. Supp. 2d 607 (W.D. Pa. 2009), aff’d, 351 Fed. App’x 786 (3d Cir. 2009).
In 2015, NJNAELA, again with PAELA, produced an amicus brief in Zahner v. Sec’y. Pa. Dep’t of Human Servs. 802 F.3d. 497 (3rd Cir. 2015). The Third Circuit Court of Appeals cited the brief in its decision that the DRA-compliant annuity was a source of income rather than a resource.
Even after these victories, New Jersey continued to slow down processing and often deny eligibility for Medicaid applications with annuities. In 2019, the State set up a larger impasse to annuity planning when an administrative law decision held that a DRA-compliant annuity was revocable, contrary to its contract terms. The State used the decision to deny additional Medicaid applications that contained annuities with the same standard contract language.
NJNAELA’s Litigation Committee responded swiftly. Aware that a poorly-conceived Medicaid policy in one state could spread throughout the country, current Litigation Committee Chair and former NJNAELA President (2018–2019) Beth L. Barnhard, CELA, formed a subcommittee designed to streamline communication, advocacy efforts and information, and prepare for new litigation to course correct the erroneous policy. Ultimately, the issue was resolved favorably in Cushing v. Jacobs et al., Dkt. No. 20-cv-130 (March 25, 2020).
Based on New Jersey’s constricted application of federal law, NJNAELA’s Immediate Past President Melissa Abu-Adas, Esq., observes that with “any planning that you do, there’s always a possibility that you will be litigating.” This reality makes it incumbent on all practicing New Jersey elder and disability law attorneys to join the Chapter, particularly for access to the guidance of the Litigation Committee. “The Litigation Committee is there whenever members have issues that they’re concerned may go to litigation,” she says. “We’re there to brainstorm to help them out however we can.”
Access to the Litigation Committee is critical because attorneys are often misinformed about the Medicaid hearing process. “People don’t realize, even though [the hearings] are casual, they’re trials,” Barnhard observes. Attorneys conducting agency hearings therefore need to be familiar with the applicable rules of evidence and how to elicit testimony.
Because the entire Bar inevitably shares in the consequences of poorly litigated cases, Barnhard says that the Litigation Committee will gladly connect attorneys with other litigators who have handled the same issues in the past or will itself assume control of an attorney’s case. “We encourage people to contact us as soon as issues show up, so if necessary, we can step in.” She adds, “We want people to consider NJNAELA, particularly the Litigation Committee, as a tool to improve their practice.”
Proactive Legislative Agenda
In addition to its litigation agenda, NJNAELA utilizes a lobbyist to identify and make recommendations on state legislation affecting seniors and other potential recipients of public benefits. According to Lauren Marinaro, “we needed the lobbyist to improve our relationship and our clout with the State government.”
The Chapter’s input into State legislation most notably produced New Jersey Senate Bill 499, enacted in August 2019, making New Jersey’s Medicaid process more consumer friendly. The law contains suggestions NJNAELA put forth in a letter from then-president Beth L. Barnhard to State Senator Joseph Vitale, such as accommodating Medicaid applicants who require additional time to gather documentation. Additionally, the law requires the use of technology to streamline Medicaid application processing, reduce discrepancies among counties, and track each county’s progress.
Several members of the Chapter are currently preparing for an upcoming meeting with the Division of Medical Assistance and Health Services (DMAHS) to discuss and correct the delays in implementing S-499 due to the pandemic.
The Chapter continues to build its relationship with the State government. In addition to occasional private meetings with the DMAHS Director, NJNAELA representatives regularly attend meetings of the New Jersey Medical Assistance Advisory Council, which includes county Medicaid supervisors, to hear the latest policy discussions and procedural changes for Medicaid applications. In addition, NJNAELA will be participating in a multidisciplinary working group established by the New Jersey judiciary to address elder abuse. Chapter President Laura Ergood, Esq., points out that the invitation to participate shows the prestige of the Chapter within the legal community.
Forging Ahead and Imparting Knowledge
Even in the current environment of social distancing, this group of “very dedicated, intelligent and tenacious elder law attorneys,” as President Laura Ergood describes the Chapter members, remains proactive and nimble.
In response to the COVID crisis, the Chapter initiated a COVID-19 Committee chaired by Melissa Abu-Adas, who wrote to the New Jersey Supreme Court to relax the procedural requirements for guardianship appointments.
NJNAELA continues to address issues such as curbing non-legal businesses from filing Medicaid applications, facilities’ liability for failing to prevent new COVID-19 cases, the rights of individuals who receive Medicaid services in their homes, and ways to address the complexity of Qualified Income Trust rules.
As legal issues affecting the aging and special needs populations show no signs of easing up, NJNAELA remains committed to its advocacy and proactive legislative agenda. With an ever-expanding reach due to the members’ willingness to support one another, as Lauren Marinaro points out, the Chapter accords its members fellowship and friendship as well as the institutional memory the Chapter has amassed. Vice President Dan Jurkovic acknowledges that having this unusual access to such “elder law brain power” is an invaluable resource for members, especially those from smaller firms. He says, “Where else can I get 20 lawyers on the phone, and they’re the top 20 in the field?”