If you have been denied Medicaid benefits due to an alleged transfer for less than fair market value, you may feel overwhelmed. Fortunately, you can file an appeal, even while communicating with the Medicaid caseworker in an effort to resolve the matter. Appealing your Medicaid denial as quickly as possible is essential for timely processing.
If the denial is not timely appealed, it may result in the need to file a re-application and limit the caseworker’s ability to authorize retroactive benefits. This can leave a gap in coverage, even if you were successful with the appeal of the transfer penalty. Procedures matter. Sometimes it takes time to gather the required documentation to verify an exception to a transfer penalty, so appealing a denial also buys some time.
12 Examples of Grounds to Appeal A Medicaid Look-Back Transfer Penalty
Each case is different, but some common examples of grounds for a Medicaid transfer penalty appeal that we may explore in our office for clients include the following:
- The transfer was made exclusively for a purpose other than to qualify for Medicaid and therefore should not give rise to a transfer penalty.
- The gifted funds were fully returned, or will be fully returned.
- The applicant intended to obtain fair market value for the transfer.
- The transfer was to an exempt donee and should not be penalized. For example, paying for the living expenses of a child who is disabled pursuant to Social Security’s disability criteria should not give rise to a transfer penalty.
- The gifted funds or assets were exempt from the transfer penalty rules.
- There was no transfer. For example, making a bank account joint may not have been a transfer because under Pennsylvania’s multiple party account statute, the funds in the account are still considered as being owned 100% by the applicant, even with the account being titled jointly with right of survivorship.
- The payment was reimbursement to a family member who paid a bill of the applicant, not a gift. The way to avoid this is to have a properly drafted reimbursement agreement in place before advancing funds, or to not advance funds at all if the parent has resources. Additionally, Pennsylvania provides that a POA agent is entitled to reimbursement for actual expenses advanced on behalf of the person for whom they are serving as POA.
- The funds were not actually transferred to another person. Instead, the funds were merely moved from one account of the applicant to another account owned by the applicant. Sometimes there is a lack of clear documentation showing the Medicaid caseworker where funds went. If the money was merely “taken out of one pocket and placed in another” then no transfer has occurred. The Medicaid caseworkers need to see where the money went, or they may presume that the funds were gifted and impose a transfer penalty.
- The cash withdrawals from the bank or ATM which the County Assistance Office presumed as gifts were in fact spent for fair market value, such as when cash was withdrawn from the bank or ATM and used to pay for food and living expenses, caregivers, or for contractors to make home repairs. A lack of debits on the bank statement verifying payments to a grocery store can help support the position that the applicant paid for food in cash. The best way to win this particular appeal is to avoid it in the first place by not using cash. Avoid using cash and maintain meticulous records whenever possible to document how funds have been spent.
- The transfers totaled less than $500 in aggregate in any given month.
- The transfer penalty should be waived due to undue hardship. You must explain: 1) Why the transfer was made, 2) How the denial of payment of Medicaid long-term care benefits will deprive you of medical care such that your health or life would be endangered or the denial would deprive you of food, clothing, shelter, or other necessities of life, and 3) You must explain what efforts have been made to recover the transferred assets.
- The asset was stolen from the applicant, and the applicant has made reasonable efforts to recover the asset, such as by filing a criminal complaint with the authorities or by initiating civil litigation against the person with the asset.
Find Help to Appeal Your Medicaid Transfer Penalty
Appealing a Medicaid denial can feel like a complex endeavor. Consult an attorney for assistance in navigating your options surrounding Medicaid. If you have additional questions, contact Gerhard & Gerhard, PC to discuss your options.
—
Disclaimer: We recommend that you have ongoing legal advice from an elder law attorney before attempting to navigate the Medicaid application process. If you have questions or wish to secure our services, please contact Gerhard & Gerhard, P.C.
