On September 2, 2011, in V.P. v. Dept. of Human Services, the Appellate Division addressed the caregiver exception to Medicaid transfer rule.
In October 2008, V.P. was admitted to a nursing home after having suffered a stroke and a heart attack. She has previously lived in her home with her son, R.P. In March of 2009, shortly after transferring ownership of her home to R.P, she applied for Medicaid benefits. The Board of Social Services concluded that V.P. was ineligible due to what it determined was an impermissible transfer of her home. The Administrative Law Judge found that the transfer met the child caregiver exception. The witnesses testified that R.P. helped V.P. move around the home, assisted her walking up and down the stairs, cleaned the house, drove her to doctors’ appointments, ran errands, supervised her medicine intake and helped her with bathing and toileting. He also cooked all of her meals, making sure that they fit within her dietary requirements for diabetes and high blood pressure. V.P. had significant medical issues, and as a result of her medical conditions, the doctor thought that V.P. would have had to enter a nursing home at least two years earlier if R.P. had not been caring for her.
The caregiver exemption is set forth in N.J.A.C. 10:71-4.10(d), and provides that an individual shall not be ineligible for an institutional level of care because of the transfer of his or her equity interest in a home which serves as the individual’s principal place of residence and the title to the home was transferred to a son or daughter who was residing in the individual’s home for a period of at least two years immediately before the date the individual becomes an institutionalized individual and who has provided care to such individual which permitted the individual to reside in the home rather than in an institution or facility. The care provided by the child must exceed the normal personal support activities (for example, routine transportation and shopping). The person’s physical or mental needs must require special attention and care. The care provided by the child must be essential to the health and safety of the individual and must consist of supervision of medication, monitoring of nutritional status, and insuring the safety of the individual.
The decision notes that N.J.A.C. 10:71-4.10(d) describes normal personal support as services such as “routine transportation and shopping.” To qualify for the child caregiver exemption “special attention and care” must be both needed and provided. This care must be essential to the health and safety of the individual and consist of “activities such as, but not limited to, supervision of medication, monitoring of nutritional status, and insuring the safety of the individual.” The Appellate Division found that the aid provided by R.P. met the requirements of the code section and, therefore, the transfer of the principle resident fit within the exemption.