Special Needs Spotlight Webinar Series: Understanding NJ Medicaid for Individuals With Disabilities


Norris McLaughlin Special Needs Spotlight Series Webinar: Understanding NJ Medicaid for Individuals With Disabilities

The law firm Norris McLaughlin, P.A., is pleased to present the Special Needs Spotlight Webinar Series. In this next session, “Understanding NJ Medicaid for Individuals With Disabilities,” Shana Siegel, a Member of the firm and Chair of its Elder Care & Special Needs Law Practice Group, was joined by Gwen Orlowski, Executive Director of Disability Rights New Jersey.

Watch the recording here or read the transcript below:

Shana Seigel: Today, we’re going to be talking about understanding New Jersey Medicaid programs. Many of you may know this is, I believe the eighth in a series of webinars that we have offered here. It’s been a really wonderful project over the summer, and we are looking forward to then having all of these recordings that will be available for you to be able to then watch as you need a refresher at any time and share with others.

Today, I am thrilled to say that I have with me Gwen Orlowski, who is the Executive Director of Disability Rights of New Jersey. Gwen is a fantastic resource for seniors, their families, individuals with disabilities. And so, I really wanted to have Gwen participate today. Besides she knows more about Medicaid than anybody else in the state. So, I’m going to turn it over to Gwen and let her give a few—tell us a little bit about herself and her organization.

Gwen Orlowski: Great. Thank you, Shana. Thank you for having me here today. I’m really happy to be talking to everybody who’s participating today and everybody who watches in the future. I think this is just so important that we share this kind of information and make it a resource for folks because these are complicated issues—really complicated issues. So, if we could go back one screen, I just wanted to tell you real quickly about Disability Rights New Jersey. So, Disability Rights, New Jersey is the state-designated and protection and advocacy system for people with disabilities since 1994. We existed before that in state government. We were part of the first iteration of the public advocate. And every state has protection and advocacy. I say to people, think long term care ombudsman. A lot of people are familiar with long-term care ombudsman. Under federal law, we have similar authority to investigate abuse and neglect. But we also have the authority to represent individuals and to do systems—changing legal advocacy. So, we’re protection like the long-term care ombudsman and we are also a public interest law firm representing individuals. The next screen, please.

So, we do a wide breadth of work, including monitoring in all kinds of settings where people have disabilities. We’re probably best known for doing that in our developmental centers and state psychiatric facilities and nursing homes. But we also do work across all of these other areas, community inclusion, employment, special education. We have an exciting new Juvenile Justice Project, and so on. Right now, we’re really focused on voting work. I believe we have a webinar, which will be recorded on our website. And there’s a lot of concerns about voting this year and people with disabilities. So, I really would encourage you to share that our website at C sharp later share that with folks who will want to understand how voting is going to work this year and this important presidential election. Next slide, please. And then, we’re in the process of redoing our website right now. Our website is from 1994. But because of the COVID pandemic, we were doing just such a volume of COVID-specific work throughout this spring, that we decided to dedicate a full website to it at drnj-COVID.org. And I would encourage you to look there, there’s information on visitation issues, including nursing homes, the critical care rationing policy, hospitals, visitation, and other issues that are really important to individuals with disabilities and their families as it relates to COVID. And I think that’s my introductory slides, Shana.

SSI-Related Medicaid

Shana Seigel: Yes. Thank you.

So, actually, this slide was one of the reasons that I asked Gwen to join us because I thought I went to a presentation that she did and, and she was talking about the various doors of Medicaid and how confusing it is. And I know that I found that so much with my clients. And I thought this was just such a great visual, in terms of, you know, how there are different programs, and understanding what the different programs are. So, we’re going to run through these one-by-one. But the important thing is that if you are in one program and you lose eligibility, that you then need to be screened to see if you’re eligible for any of the other programs. And we’ll be talking about that in more detail later.

So, the first program that we’re going to talk about is probably most common in terms of individuals with special needs. Parents are very familiar with SSI-related Medicaid. So, when you enroll your child in SSI, often at age 18, along with that comes Medicaid, and the eligibility for that you have to be under age 65, blind or disabled. And we have the income limits that are here. These are for individuals who are living in their own household that income limits that we see here. There is, of course, also a resource limit, and you’ll see that it’s mirroring the SSI rules. We have $2,000 for an individual, and the individual can have a home and one car that would not be counted toward their resources. One of the things that I think people find very confusing, and we’ve talked about this in prior webinars, are the in-kind income, income support, and maintenance. And that’s very important because if you are giving money to your child, or you’re providing them with food or shelter, or you have a special needs trust that is doing that, that again is counted as in-kind income. And that is going to be counted as income not just for SSI purposes, but also for Medicaid purposes. So, when you’re considering those income caps, you need to take this into account. Now, I will note that it does not include SNAP, even though that’s food, right, it does not include, or a nonprofit providing aid based on need. So, if you have, for instance, a food pantry, that is not going to be counted as your in-kind income. But if the trust is paying for food or the trust is paying for rent, then you would have a situation where you’d be subject to the in-kind income rules. So, this is probably your most straightforward in terms of getting Medicaid. You apply for SSI, you get SSI, you get Medicaid automatically.

As we show here, where do you apply? Well, you’re not applying because you made an application for SSI and that is going to result in a Medicaid application. However, there is a certain situation where if you’re just doing Medicaid, then you would apply online or with the county welfare agencies. And this is going to provide you with the full-service package, what we call Plan A of Medicaid services. So, all of the services that you would be familiar with under Medicaid are going to be covered as opposed to, as we will see later, some of the other programs do you have a more limited package of services, and actually, some have an expanded package of services. Another program to be aware of that many individuals with special needs would be eligible for would be what we call ABD (aged, blind, and disabled). So, here we would have an individual who is over 65, or an individual who is blind or disabled at any age, and you’ll note that the income threshold here is a little bit higher. So, if you have an individual who is not SSI eligible, but because their income is a little higher, they could be eligible under ABD. The resource limit is also slightly higher here. We have $4,000, and we have the same exclusions, which would be home, personal property, and the one car are not counting towards resources. So, if you have somebody who’s earning a little bit more money, they come off of SSI, or SSI is reduced to zero, then you could have a situation where you might have eligibility for ABD.

So, ABD, because it’s not tied to SSI, you’re going to have to apply for it. So, you would apply either online or with the county welfare agencies; there is an ABD application that’s available online. And the benefits that you get through this program are the same as what you would get if you had SSI Medicaid. So, exactly the same coverage under the ABD program, but at a higher income threshold.

Gwen?

Gwen Orlowski: Yeah, great. So, I’ll take over. I just want to say one quick thing about applying online versus applying to the county welfare agency, because these slides were made pre-COVID. So, I believe you can still apply at the county welfare agency if you want to. There is some sort of dropbox at the CWAs that are being monitored for paper applications. But the conventional wisdom, and through my conversations with the state Medicaid agency, is particularly now in COVID, it is really better to apply online if you can manage to do that. So, and you also at that point, have an email account. So, it gives you a proof stamp of when you applied, which can be important also down the road. So, yeah…

Shana Seigel: Yeah, I just wanted to share with that, that we have found that particularly in Essex County that dropbox is not really working so well. So, it would be good to go online, if you can.

New Jersey Family Care Program

Gwen Orlowski: Go online. Yeah, yeah, I agree. So, I’m going to talk now about single adults and parents under the New Jersey Family Care Program. It’s one of the things, I think is a particular habit of the state of New Jersey. They use the same name to mean more than one thing. And that can be confusing to people. And so, I think it’s good to mention that on this slide. So, they call the entire program that includes all of these Medicaid programs we’re talking about today. And by the way, more, there are many more eligibility groups. They’re just very rarely used. As well as the Children’s Health Insurance Program, also known as CHIP, which covers children at a much higher level of eligibility, they call that entire program, New Jersey Family Care. In addition, they call this doorway, this entry point, New Jersey Family Care. I think this can be a little confusing to people. So, this is the doorway for single adults and parents under the Affordable Care Act. We call that—some people call that Medicaid expansion, some people call it Obamacare Medicaid, and some people call it MAGI Medicaid. MAGI stands for a modified gross adjusted gross income. It’s a different way of counting income, tied to people’s income taxes, IRS rules. All of those things, New Jersey family care, ACA expansion, MAGI, they’re all talking about the same program, which is the program that came into effect on July 1, 2014. And frankly, a lot of individuals with disabilities, this is the door that they come through initially also because this has higher income limits and no resource test. So, in order to be eligible, you need to be between the ages of 21 and 64. Once you turn 65 you’re no longer eligible and that’s really important for people to know, because some people when they become eligible for Medicare down the line when they turn 65, decline their Medicare Part B, because it’s expensive, not really thinking that they’re going to lose this Medicaid. So, there’s no disability determination needed, this covers all adults, not just adults with disabilities. But if you have a disability determination, that’s fine, too. That doesn’t exclude you from ACA, Medicaid. However, if you have a disability determination and you’re getting SSDI, at some point, you’re going to become eligible for Medicare. And once you’re eligible for Medicare, you’re no longer eligible for ACA Medicaid. As I said, this has a higher income limit, it’s 138% of the federal poverty level for adults. Children can be on this too, this slide is on adults. If you’re under the age of 21, you’re considered a child and then you have a higher income limit, it’s 147% of poverty. That amount this year of $1,468 a month is tied to your income tax return. And I want to emphasize again, that there is no resource limit for this program, which is very important for people, but also, important for people to be aware of if they’re hitting that point where they’re going to become Medicare eligible and need to find another doorway of program eligibility. They’re going to have to deal with resources at that point in time.

Next slide, please. And here you either apply at njfamilycare.org. That’s where the online application is. The county welfare agency AG application is a different place on the Medicaid agency’s website. Or you can download a paper application and submit it to your county welfare agency. It’s important to know that most of these applications, not all, are processed by an entity that calls themselves New Jersey Family Care. That’s actually a subcontract to a company that is a Xerox subsidiary. So, when you call them, you’re not calling state employees, you’re calling people who work for this Xerox subsidiary, but they will identify themselves as New Jersey Family Care and letter determination letters tend to save New Jersey Family Care that comes through this doorway of eligibility as opposed to coming from the Essex County Board of Social Services, Middlesex County Board of Social Services. In terms of the benefit plan, I used to have to talk a lot about this, you don’t get Plan A, you get the Alternative Benefit Plan or an ABP. The good news is, several years ago, they aligned those two plans. So, they’re exactly the same. So, I don’t have to say anything more about it, except one small thing, which is that there is a short-term nursing home benefit through the alternative benefit plan that does not require somebody to have the five-year look-back. So, there are some people who can use this doorway to be in nursing homes without worrying about the five-year look-back. But that only works for a relatively short period of time.

I think that you can move on, Shana.

New Jersey Workability

Shana Seigel: OK, great. New Jersey Workability is a really great program for many individuals with disabilities. And the reason for this is that it allows a very substantial amount of income to be earned from work. So, this is a program that allows individuals to keep their Medicaid while they are working and earning quite substantial incomes. But, you know, fairly often individuals really rely on their Medicaid benefits. And previously, without this program, we had a real barrier to work, that this program is meant to really try to eliminate. So, eligibility for the program is between the ages of 16 years and 64. So again, under 65. Here you do have to have a disability determination; you also have to be working. So that is the, you know, the fundamental underpinning of this program. And so, we do have to have work. One of the things that we have found is that during this period, during the pandemic, many people who are in this program lost their employment, and that was problematic for them. They were then losing their eligibility. Now, while they might be eligible under other doors and would be screened for that or, at least, should be screened for that, there is a fix here. If you are working, you only have to be earning $400 a year. So, you could have a situation where somebody works for, let’s say, a family member. They do have to do that work, they do have to get paid for it, and they do have to file an income tax return. But if you meet those criteria, it’s a very low bar in terms of the amount of work that you have to do in order to retain eligibility under this program. Now, you’ll note when you look at the countable income that here it’s quite high, almost $5,400 a month. It should be noted that that number is variable, there is a formula that has to be used because there is earned income, there’s unearned income, and there are disregards. So, it’s important to really take the time to—don’t just look at that number and say, “Oh, I’m over it,” but really take the time to run through the formula. And then you know, determine whether or not you may be eligible. There are a number of disregards that can be used to bring you down under that number. Here we have a substantially higher resource limit. So, we have resources of $20,000 for the individual. And importantly, SSDI and your IRA are disregarded. So, you could have an individual who does, you know, who is accumulating savings in their IRA, who would still be eligible for this program? So, it’s really nice…

Gwen Orlowski: Shana…

Shana Seigel: Yes, go ahead.

Gwen Orlowski: I just want to pop in on something because we did receive a lot of these cases, especially from the southern counties, where people were terminated by their county welfare agency from workability during COVID, because of exactly what you said earlier, that they stopped their job, and they were on unemployment. And everything you said is true. But the most critical thing right now is there’s still a moratorium on Medicaid terminations.

Shana Seigel: Right.

Gwen Orlowski: …and so,…

Shana Seigel: Very true.

Gwen Orlowski: …they are so they can act, they can determine that somebody is no longer eligible, but they should not be sending out a termination notice. And every case that we got like that we were able to resolve with the Medicaid agency. So, it may well be true that you’re no longer eligible because you’re not working, but there should not be a termination of Medicaid during the moratorium, which is still in effect.

Shana Seigel: Right. Very good. Thanks for adding that.

So, workability is a little bit different, because you can actually apply through the main office in Trenton, and you would reach out to the staff member here and do that by phone. You can also apply through the county welfare agency and online and you would use the ABD application—the aged, blind, disabled application, and then it would be referred over to the Workability group. So, that is a way to do that and still handle it online.

Okay, Gwen do you want to talk about MLTSS?

Medicaid Managed Long-Term Services and Supports (MLTSS)

Gwen Orlowski: Sure, I’m just going to also add some to that slide before. I made that slide, so I forgot something. That is a Plan A also. That is the full scope of Medicaid benefits for Workability. So, I’m going to talk a little bit about Managed Long Term Services and Support, which is one of the waiver programs that allow for much higher income. I would just sort of put a caution. I know that Shana is going to talk about the DDD specific programs. And I would just say that for individuals, especially individuals with intellectual developmental disabilities, this, generally speaking, is not the right door for you. And sometimes people inadvertently end up in MLTSS. Sort of, I think what happens there is that children age out of the children’s system, county welfare agencies sometimes direct the people, the individuals to MLTSS, when really, they should be in one of the programs that Shana is going to talk about. So, I just sort of flagged that as an issue. So, the waiver programs we’re going to talk about now really have their roots in the original Medicaid program as enacted back in the late 60s that distinguish between community Medicaid and institutional Medicaid; and institutional Medicaid historically, was just that, an institution. I know people don’t like the word institution. People let me know that in my role as Executive Director of Disability Rights in New Jersey, but I’m using that now as a Medicaid term of art. I’m not using that in a pejorative way.

So, institutional Medicaid allows individuals who met a level of care, which is not an eligibility criterion for the other Medicaid programs we talked about, other than somebody who has a disability needs our enhanced level of care criteria to get Medicaid. And along with that comes significantly higher income levels. So, for a lot of individuals, this is their way into the Medicaid program. So, you can see here, for MLTSS, the income level is $2,349. And it can even be higher than that if you use a qualified income trust. In addition, when you have a couple that’s married, there are several spousal impoverishment protections, that essentially say that the spouse was seeking the services, whether in a nursing home or in a home community setting through this program, you look at them as an economic unit of one. So, you don’t deem the spousal community spouse’s income to that individual. That again can really be beneficial. There are also rules regarding people’s resources and allowing people to use those spousal impoverishment protections to keep significantly more than the $2,000 in resources to care for an individual.

There is a five-year look-back period, and you can’t have any gifting or transfer of assets for less than the fair market value during that period. That could be a webinar in and of itself. So, that’s what I’m going to say about that now. And then the clinical eligibility determinations for this program are that you meet a nursing facility level of care. Again, that is a legal term of art, and every state is allowed to define that differently under the Medicaid rules. So, it’s not a factor of federal law. And in New Jersey, we define that as needing hands-on assistance in three activities of daily living that are listed there, or if somebody has a cognitive impairment, supervision, or cueing in three or a combination of supervision and cueing and hands-on assistance. This is a test that one should think about before they apply for MLTSS. And you can actually do a telephone screening with the aging and disability resource connection in your county, which is the same office that is the area agency on aging for the county or the office on aging and disabilities. It’s called by different names. For children 20 and under, there are much more stringent medically necessary criteria. And this is a change that came into effect in 2017. This is a slide that has all of those criteria. I know it’s a terrible slide because everything’s way too small, but I’m going to just kind of sum it up for us. The criterion for children 20 and under is that they need to meet a level of skilled nursing care, not just nursing level of care. So, that’s heightened been involves things like ventilators or tracheotomies, deep suctioning other skilled services. So, that has caused a little bit of frustration for families. Because when children could go through this door more easily pre-2017, you looked at the child as an economic unit of one and you don’t look at parental income or resources. So that allowed children who had high medical leaves to get on to Medicaid in families that might otherwise be middle class. And that was a really important access point for those individuals, especially for children, by way of example, who are getting private duty nursing at home.

I have a couple of quick things to say about this, there isn’t a slide for it. But when these changes were made in 2017, the state amended the entire waiver document with the federal government to allow for other pathways in for children. Unfortunately, some of these pathways have not yet been operationalized. So, for example, under the children’s system of care, if you have a child with an intellectual or developmental disability or a child with a serious mental illness and that child might need out of home placement, but you don’t want to have that child out of home, there is a pathway in the waiver that will allow you to use the higher financial criteria, and no deeming of parental resources or income. Unfortunately, that has not been operationalized. That’s an issue Disability Rights New Jersey is doing and has been doing advocacy around. So, if you have that issue, please feel free to reach out to us. My contact information will be at the end of this presentation.

In addition, I just wanted to bring to folks’ attention that there’s also a new autism benefit that’s part of the 2017 waiver. It is for children under the age of 13, who have a diagnosis on the autism spectrum. And it covers both children who have Medicaid eligibility and that higher CHIP eligibility that I mentioned earlier, which goes up to 350% of the poverty level, so many more children would be covered under that program. Next slide.

This is an example of all of the services that are included under MLTSS. I want to just note that Personal Care Assistance and Adult Medical Day are actually state plan services, they’re not waiver services. And I also want to note that this is where our traumatic brain injury waiver was shifted after the move to Managed Care in 2014. And that’s another issue we work a lot on at disability rights, New Jersey, that benefit. It took a while for that to really come back into being recognized and used. There have been some issues around that. Next slide, please.

And you can apply for MLTSS, either at that ADRC that I mentioned earlier, there’s the telephone number and they can do a screen. Even if at the end of the screen, they say we don’t think you’re eligible, you can still move forward with the process. The advantage of doing that is that they send information to the Office of Community Choice option. Those are the nurses that come out and do the screen if you’re not already on another Medicaid program. If you’re already on another Medicaid program, your managed care organization will do that. You can also apply online for the county welfare agency. And again, it is the ABD application. And if you’re on MLTSS, you get all the planning plus all those waiver services that were on the other slide. I think I’m passing back to you, Shana.

Division of Developmental Disabilities (DDD)

Shana Seigel,: Yes. Great.

Okay, so this is the DDD. Now we’re going to move into the DDD services, the community care waiver—well, Community Care program, we think of it as CCW. Here are the income and eligibility rules for that. So, this is typically, of course, someone who is going to meet the criteria for this. Now, many people will come through the SSI door. If you have SSI Medicaid, then you might be on either CCP or the supports program. But even if you do not have that eligibility, you can still receive these services, but then you would have to meet these financial eligibilities that are listed here. So, you can see that the income is quite a bit higher. And again, there is a possibility, you know, we don’t see that that often that you have somebody with such substantial income, but you could, and you could use a QIT to even have a higher amount. Resources though, we’re back at the $2,000 limit. So, you would certainly have to do some planning if you had more substantial resources, looking to put them in a trust or something, or some other planning surrounding that. We do have a five-year look-back here. So, we would, you know be looking at gift, if there could be any gifting issues. We do have spousal impoverishment protections here similar to what we have under MLTSS. So, you know, again, we don’t see this that often. Most individuals that, at least in my practice, come in through the SSI door, but you could have an individual who is married and who would have those protections.

Gwen Orlowski: Shana, But I’m going to want to be clear about this on the QIT and the spousal impoverishment. Those are in the waiver documents itself. But I don’t think that DDDS figured out how to operationalize them because I think the chances are nearly non-existent. So again, if you have that issue, you might need to seek counsel because it would be novel.

Shana Seigel: Calling Gwen in that case.

Gwen Orlowski: Yeah. It’s novel, yes. But it’s there in the waiver documents.

Shana Seigel: Right, right. These are a little theoretical here. But thank you for that clarity. Yes. So, in order to qualify for this program, which as most of you know, comes with a much more substantial budget than the supports program, you would be either coming up on the waiting list or determined to be at imminent risk of homelessness. So, you would have a situation where you have parents who are older, have a parent who passes away, and that would be a situation where you would then be bumped up to the top of that waiting list. I’m happy to talk with you about the specifics, you know, with anyone about the specifics of how that all works. And you must meet the functional criteria for DDD services, and you must meet the criteria. And as you know, this is a substantially higher level of impairment than would be required under the supports program. But it also comes with a much higher budget.

Okay, so the supports program, and you’ll note that we noted here that it includes private duty nursing. So, one of the issues that we have seen is that individuals who have substantial medical needs, they are faced with a choice of whether or not to come through the DDD door or whether to come through the MLTSS door, because you cannot receive your services, you can’t receive both. You can’t receive your private duty nursing and your PCA services through MLTSS, and then get your more, you know, community support types services through the Supports Program. So, you have to really make a decision in that way. But one of the things that they have done in order to address that is that private duty nursing is included under this heading. So, you can have your community inclusion supports and all of the supports that come through the Supports Program, and the private duty nursing all through this door.

So again, as we mentioned, under the CCP, there is this option for having higher income and the spousal impoverishment; but again, we really don’t see that, so we really don’t know how operational that is. So that would, that would, again, be a Gwen call in that situation. In terms of clinical eligibility, again, you’re going to be meeting the criteria for having a developmental disability and documenting the chronic, physical, and mental impairment before age 22. All of the things that are here, I think that most of the people on this call already have done this and are already involved in this. But if not, I’m certainly happy to answer questions. You can, you know, reach me to talk about those pieces of clinical eligibility.

So, here are our Supports Program, all of the things that are included so many of these, you’re familiar with, your community inclusion, your day habilitation, your direct service professionals, supported employment. Again, although that’s secondary to DVR, so you know, somewhat more limited, and then we see our private duty nursing sort of added here at the bottom. So, you have this option as well for your more medical issues.

Gwen Orlowski: Shana, can I say something here also that we see and that is problematic—very, very frustrating to people? So, if you have a child who is on Medicaid, as a child, and getting the benefits of the EPSDT program, which is specific to children, they can be receiving 24/7 private duty nursing. I know they will tell you that’s not true, but they are wrong, I am right. I have absolutely no doubt about that. And we’ve done a lot of advocacy with the state around that. So, you could have a child who’s getting significant private duty nursing, and maybe also the family is getting PCA services. Maybe they’re even if self-directed, PCA through the personal preference program, PPP. And then they turn 21 and the world shifts because that enhanced children’s benefit under EPSDT goes away when the child turns 21. And then the private duty nurse under the state statute is limited to 16 hours a day. And that, that isn’t enough for some people. So, they’re frustrated when that happens, and they say, “But wait, I was getting more than that.” So, that’s one thing. The other thing that we’re working on, and if you have this situation, let us know, we believe at Disability Rights New Jersey, that the law is very clear that you can have, as an adult, 21 hours of private duty nursing. And you can also have PCA as, if medically necessary, and in no way limited by that 16 hours of private duty nursing.

However, the state amended the contract with the managed care organizations at some point in time to cap the total benefit at 16 hours. They say you can not—it’s duplicative, that under the 16-hour limit for private duty nursing, you must be providing 8 hours of family care. And so, you can’t have PCA. We think that’s clearly an Olmstead violation. We don’t think that that’s what the statutes and regulations say anyway, in New Jersey, it’s just a function of the contract. Unfortunately, we litigated that to the Appellate Division and didn’t get a good conclusion. We didn’t go higher.  Bad facts make bad law. So, we stopped at that point. But if you have that issue, also reach out to us, because we’ve been doing a lot of advocacy around that.

Shana Seigel: Great. Very much appreciated.

So, as many of you know, the CCP and the supports program are both through DDD. You are doing a DDD intake, they’re going to do the CAT assessment. And we can provide you with a copy of the tools, so you kind of know what you’re looking for. And then, you can, you know, be prepared for that. I think many of you have already gone through that.

And then we also have the Medicaid waiver unit in DDD. So, they’re kind of working in concert here, between DDD and Medicaid. And I know I found with my clients, there are certain issues that come up, and we’re dealing with the Medicaid part and others where we’re dealing with the DDD part. So, that I know is very confusing for parents. And you know, I’m certainly here to help clarify with those issues. And when I don’t know the answer, I call Gwen, and she always knows the answer. So, we can or will certainly find it for us. So, if you have issues, you know, please let us know.

All right, and now I’m going to turn it over to Gwen, I think that the Medicare Savings Programs are a piece that families are not as familiar with. So, I think it’s a really good piece of information to have.

Medicare Savings Programs: Partial Medicaid Program

Gwen Orlowski: Yeah, I’ll keep this quick. But this is what we call a partial Medicaid program. So, you don’t get Plan A, you don’t get waiver services. All you get is the state paying your Part B premium. And sometimes the state, under the QMB Program, Qualified Medicare Beneficiary (QMB), also pay for the deductible and the monthly premium. Having said that, in New Jersey, the QMB criteria align with aged, blind, and disabled. So, really, there shouldn’t be very many people who are enrolled in aged, blind, and disabled. There sometimes are QMB people because they have too many resources, see the resources here go up to $7860, and under ADD it’s $4,000. But for most people, it should align. I would say the other thing I would say about this program is, it may not matter for children right now, because if they’re even adult children, if they’re in a full-scope Medicaid program, Medicaid is paying for this premium. But it may matter for aging parents, that as they go onto Medicare, they may want to look whether or not they’re eligible for this program if they’re low income, because the Medicare Part B premium is significant, and to have that paid for by Medicaid. Again, this is the Medicaid program, can really be a benefit to a financial benefit to a family. Next slide, please.

So, if you’re not otherwise on Medicaid, you apply for this at the Division of Aging Services, and they now have an online site at NJ SAVE. But I’m going to talk in a second about that screening for other Medicaid programs, and this program should be screened for as well. Next slide, please.

So a big question we get at Disability Rights New Jersey is, “What if my Medicaid is terminated?” Again, there is a moratorium right now. Nobody should be receiving Medicaid termination notices, but they are. So that is problematic. If you receive a Medicaid termination notice, it must give you information about your right to a fair hearing, and how to request that fair hearing. For people who are already on services, so it’s a termination as opposed to denial, it’s really important that you know that you can have services continued pending the outcome of the hearing. You have to check a box for that. There’s language on that suggests that you might have to pay back. Federal law requires that notice to be there. I can’t guarantee the future. But I can tell you in the past, I’ve never seen the state invoke that because you ultimately want a fair hearing, unless there was some sort of financial fraud involved. So, people who make a good faith fair hearing requests, I’ve never seen that. And you need to know that these are constitutionally protected due process rights. So, they have a lot of force of law behind them. Next slide, please.

I want to say one other thing—there are time limits on that, and you really need to pay attention to the time limits. Because if you don’t request the continuation of benefits in those time limits, which are 10 days if it’s a service through a managed care organization and 20 days if it’s an eligibility determination, then you still might have a right to a fair hearing, but your right to continuation of benefits might be foreclosed.

The last thing that I want to say, and there’s some, you know, legal gobbledygook on this page, what I really want you to take away is that when we had that first slide with all the doors, that Medicaid—those are all program eligibility doors—and as you can hear from this presentation, every door has a different combination of income, age, disability status, resources, and so on and so forth—a level of care. And so just because you are no longer eligible in one door doesn’t mean that you might not meet the criteria at another door. And federal law is very clear on this. It’s been clear on this since 1997, that’s a long time ago. The state must screen you for all program eligibility before they can make a decision about termination, and before they can issue a termination notice without baring on rights. New Jersey has not been doing this. And so those of us in the public interest world have been litigating this now for quite a while, since before 2015. We’ve made progress. The progress is I think the Medicaid agency philosophically agrees with us now. We’ve convinced them of the law, but they have trouble operationalizing it. So, we do have to keep suing them. And those suits have led to a couple of things. One here, regarding SSI, it led to a process that went into effect in January of 2019, that would alert people if they were losing their SSI, that they had to fill out certain paperwork through the county welfare agency in order to get on Medicaid only or ADD, or MAGI, or whatever other doors they’re going to go through. That was working OK, not perfect, but OK, until COVID. And I want to tell you that since COVID, we’re getting a lot of SSI, Medicaid terminations. We’ve got a slew of them back in June, we solved the problem. And I just found out from the ARC of New Jersey yesterday that there’s another group of letters that went out. So, if you’re in that situation, this is really tied to people who have worked on SSI and their SSI was terminated because of employment. Unemployment, especially that $600, is not disregarded for SSI, but it is disregarded for Medicaid. If you’ve got that issue, reach out. Reach out to the ARC, reach out to us, reach out to Shana, reach out to someone. That shouldn’t be happening.

The other thing I want to say is that there’s a recent Appellate Division decision that affirms our opinion—not our opinion, our expertise on this. And so, one of the things we’re in the process of doing is reaching back out to the Medicaid agency and say, OK, we’ve been doing this for a long time, you’ve got to get it right. And you especially have to get it right for those individuals who are getting DDD services, because they’re the ones who are most frequently harmed in this because they lose not only the Medicaid but the DDD. I think they’re taking us very seriously in solving the problem. I think it involves a lot of, I don’t know, I’m not a tech person, but things related to programming computers to do certain things. And then I think COVID happened. So, we’re going to get back on it. Now we are back on it, now with the new Appellate Division decision. And I believe that they want to do the right thing, we just all have to help them get to that point, to do the right thing. So that people are not receiving these termination notices when they’re eligible, and they remain eligible through another Medicaid door.

Shana Seigel: Right. Just to put a fine point on that, you know, one of the biggest areas that we, in the past, we’re seeing this was where we had individuals who were on SSI, and then they lost their SSI when they were going onto—they got social security through their parents. Right? So, all of a sudden, now they’re not on SSI, they lose their Medicaid, and are they doing the proper screening to make sure that now they’re still eligible under another program. Because sometimes their income was going up substantially now. So, you know, how is that, you know, being addressed. So, that’s just an example. That problem we actually saw at least pre-COVID, they had finally started to address those pretty well. But I agree that now—you know, it’s like, if they’re not in the same building, they don’t know, to go down to talk to their supervisor about it, you know. So yeah, very important to know, though, if you do get that, you need to be proactive. You, as parents, need to be proactive and say, “No, we shouldn’t be losing it.”

Gwen Orlowski: And that’s why the most important thing is to request those continuations of benefits. Do that immediately, because the time can be so short, you can reach out to your attorney, you can reach out to Disability Rights, New Jersey, you can reach out to Legal Services of New Jersey. Absolutely. But don’t wait on us to get the fair hearing and the continuation of benefits. Because once that door closes, it’s harder.

Shana Seigel: Right. No. Absolutely. OK.

So, we’re going to open it up now and see if there are any questions in the chat. We certainly, if you have very specific issues that you’re dealing with, you should certainly feel free to reach out to me. My information is here. Gwen’s information is going to be on the next slide. I don’t see anything in the chat. I’m going to give people just a couple of minutes, because I know sometimes it takes people a few minutes. And I want to…

New Jersey CAT Assessment and Due Process

Gwen Orlowski: Yeah, while we’re waiting for that, Shana, I had one other thing I just want to share, that we—right before COVID happened in February, and it involves the New Jersey CAT assessment and due process. So, we took the position that when people had either initial or new assessments, that if they didn’t like the results of that assessment, that they had a constitutional due process fair hearing right. And people were very frustrated that that wasn’t happening. And we did advocate with DDD. And they did change that, and their website reflects that as of February of 2020. So, if you are—you know, there again, we’re in a period where nothing is really happening. But once we’re on the other side of this, and I do believe we will be on the other side of this, at some point in time, know that you also have that fair hearing right, because due to the New Jersey CAT, we did that advocacy, and that changed in February of 2020.

Legal Services

Shana Seigel: So, I see this a question about Legal Services being covered by Medicaid, and unfortunately, Legal Services are not covered by Medicaid. You may have eligibility for a Legal Services program, and Disability Rights does take some advocacy work depending on, you know, what it is, but in terms of having it covered through Medicaid, that’s not an option.

Gwen Orlowski: However, because we have a problem with Logistic Care around the transportation, transportation to fair hearings are covered by Medicaid, even if Logistic Care tells you they are not. And I’ll just… Yeah, and I’ll say, you know, Legal Services of New Jersey or any of the regional programs are obviously financial-based representation; that is not the case of Disability Rights, New Jersey, with the exception of some of our special ed work that’s funded by the state. But other than that, we don’t look at financial eligibility—for financial criteria for eligibility. Well, they ask about financial eligibility, because they matter for the public benefits that you’re on. But for us, eligibility is based on disability, and like income within our priority, and we do Medicaid eligibility issues. So, always feel free to reach out to us.

Shana Seigel: Great.

Gwen Orlowski: This is our contact information here on this blog.

Shana Seigel: Yes.

So, I don’t see any more questions but certainly can reach out to myself or Gwen. This recording will be available. It will be transcribed and the recording and the transcription will be available on our website, and it will be sent out to all individuals who registered for this webinar as well.

So, thank you very much. We will be having another webinar next week on dealing with residential opportunities and issues. And I just want to thank Gwen for participating, and everybody else for taking the time. Thank you very much.

Gwen Orlowski: Thank you very much. Bye-bye, all.

Shana Seigel: Bye.

If you have any questions about this post or any other related matters, feel free to email Shana at ssiegel@norris-law.com.

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