By: Judith Graham August 5, 2022 Eight months after falling ill with covid-19, the 73-year-old woman couldn’t remember what her husband had told her a few hours before. She would forget to remove laundry from the dryer at the end of the cycle. She would turn on the tap at a sink and walk away. […]
One strategy used when planning for Medicaid eligibility is called “spousal refusal.” It is authorized under 42 U.S.C. § 1396r-5(c)(3). There, the federal statute provides: (3) Assignment of support rights The institutionalized spouse shall not be ineligible by reason of resources determined under paragraph (2) to be available for the cost of care where— (A) the […]
We regularly scour the internet looking for information relating to elder care, special needs and elder law. Although we review a number of sources collecting information, many of the articles listed here were found using Google Scholar Alerts. If a link you need has gone missing, try pasting the link into the Wayback Machine (Internet […]
If you care about making sure the application is filed correctly and processed swiftly, the you should consult with an elder law attorney and probably hire him or her. Attorney assistance in completing the application is advised if any of the following are concerns: (1) the applicant made significant gifts within the look-back period; (2) […]
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
(Last Updated: 9/6/2022) We’ve found the Georgia legal forms linked below from various sources. By linking them here, we are not suggesting that you DIY your legal work. If you care about something enough to protect it, hire a lawyer who knows how to do it right. Abraham Lincoln is one of the individuals credited […]
We reached out to Medicaid caseworkers to see whether they had any advice for law firms helping Medicaid applicants. Not surprisingly, they did have some advice, so here it is: Be honest and don’t hide the ball. It only takes one act of dishonesty to lose trust. File “complete” applications. If they are completed from […]
We regularly scour the internet looking for information relating to elder care, special needs and elder law. Although we review a number of sources collecting information, many of the articles listed here were found using Google Scholar Alerts. If a link you need has gone missing, try pasting the link into the Wayback Machine (Internet […]
There are numerous ways to contact Georgia Medicaid. We will list a few here: Online How to Apply (Georgia.gov) Georgia Gateway Customer Portal How to Apply for Medicaid and CHIP (USA.gov) Once you apply for Medicaid your Medicaid application will be assigned to a Medicaid Eligibility Specialist to complete and make an eligibility determination. You […]
There is no automatic right to appeal from the Superior Court to the Court of Appeals. An application for the right to file an appeal is necessary. If it is granted, then appeals follow the typical appeal process. O.C.G.A. § 5-6-35 provides the rule for discretionary appeals: (a) Appeals in the following cases shall be taken […]
After exhausting all administrative remedies, the Applicant may file a Petition for Review in Superior Court. See O.C.G.A. § 49-4-153(c); O.C.G.A. § 50-13-19. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. O.C.G.A. § 49-4-153(c). O.C.G.A. § 49-4-153(c) provides: […]
After entry of an initial decision, the Clerk must certify the record, including the Initial Decision and any tapes or other recordings of the hearing, to the the parties upon request. Ga. R. & Regs. § 616-1-2-.33. The Applicant or the Department may appeal. In Georgia, the OSAH decision is an initial decision. O.C.G.A. § […]
The ALJ is a representative of the Department throughout the hearing process. As such, the ALJ makes a written recommendation known as the initial decision. Greene v. Dep’t of Cmty. Health, 293 Ga. App. 201, 203 (2008). The initial decision is reviewable by the Department of Community Health. See O.C.G.A. § 49-4-153(b)(1); Ga. R. & […]
Medicaid eligibility determinations must be based on “ascertainable standards.” See J. Perkins, Issue brief: Appeal Rights and Medicaid Benefits citing Holmes v. New York City Hous. Auth., 398 F.2d 262, 265 (2d Cir. 1968). In Holmes, in the context of housing authority decisions, the Court said “due process requires that selections among applicants be made […]
A record must be kept in all contested cases. 42 C.F.R. § 431.244 provides: (b) The record must consist only of— (1) The transcript or recording of testimony and exhibits, or an official report containing the substance of what happened at the hearing; (2) All papers and requests filed in the proceeding; and (3) The […]
In preparing the original version of these materials several years ago, I spoke with one of the Administrative Law Judges (the Hon. Patrick Woodard) regarding what Judges want advocates to know about hearings. Make copies. Although you may presume your judge knows Medicaid law, don’t presume your judge is a Medicaid expert. Make copies of […]
Same rules as non-jury civil cases The rules of evidence applicable in civil nonjury trials apply in administrative hearings. O.C.G.A. § 24-1-2(d)(4); Ga. R. & Regs. § 616-1-2-.18(1)(a). Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. When necessary to ascertain facts not reasonably susceptible of proof under such rules, evidence not admissible thereunder may […]
The Applicant and DFCS have the right to the following: 1. Bring and/or subpoena witnesses; 2. Establish all pertinent facts and circumstances; 3. Present arguments without undue interference; 4. Question or refute any testimony or evidence, including the opportunity to question and cross-examine adverse witnesses. 42 C.F.R. § 431.242(b) through (e). DFCS has the responsibility […]
The fair hearing or the appeal from agency review must give the applicant a de novo hearing if requested. 42 C.F.R. § 431.232(c). A de novo hearing means it starts over from the beginning. 42 C.F.R. § 431.201. The hearing includes consideration of the following: 1. Any agency action, including the following: a. Denial or […]
As a general rule, discovery is not permitted in any proceeding before an ALJ, except to the extent specifically authorized by law. Ga. R. & Regs. § 616-1-2-.38. In Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706 (1976). Appellant/defendant contends that the Civil Practice Act is not applicable to proceedings under the Georgia […]
Form All requests made to the Administrative Law Judge shall be made by motion. Unless made during the hearing, motions shall be in writing, shall state specifically the grounds therefor, and shall describe the action or order sought. A copy of all written motions shall be served in accordance with Rule 11. Ga. R. & […]
Form; timing A Motion for Summary Determination may be filed no later than thirty days prior to the date a case is set for hearing. The motion may be based on supporting affidavits or other probative evidence, for summary determination in its favor on any of the issues being adjudicated on the basis that there […]
An ALJ may order a prehearing conference to simplify the issues being presented. Conferences may be held in person or by telephone. Ga. R. & Regs. § 616-1-2-.14 is analogous to O.C.G.A. § 9-11-16(a) because it allows ALJs to clear up evidentiary and procedural matters before the hearing. Specifically, Rule 14 provides: (1) Conferences. The […]
Minimum Federal Requirements for Medicaid Fair Hearings Each State must give Medicaid applicants the right to a fair hearing when applications are denied, improperly approved, or simply not acted in a timely manner. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.200-431.250; 42 C.F.R. § part 438. The State’s hearing system must provide for a hearing […]
All applications for ABD Medicaid require that the applicant’s basic eligibility be verified. See ABD Manual Section 2201-4. Applications for long-term care Medicaid also require verification of income and resources, but caseworkers are instructed to “For ABD Medicaid verification requirements, see the sections pertaining to the specific COA and the Income and Resource Chapters.” ABD […]
If benefits are being terminated or reduced, the applicant/recipient may request that benefits continue while the appeal is pending. A request for continuation of benefits must be made within ten days following issuance of the notice. See 42 C.F.R. § 431.231(c)(2). Allowance should be made in the event the Applicant’s reports late receipt of notification […]
Right to a Hearing The right to a hearing is a property right and belongs to the applicant. See Bd. of Regents v. Roth, 408 U.S. 564 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from […]
Theoretically, Medicaid should be simple. It’s anything but simple. Also, theoretically, the Medicaid program should be administered in the best interests of Medicaid recipients. 42 C.F.R. § 435.902. Anyone who has worked on more than a few Medicaid applications knows otherwise. Still that’s what federal law requires. 42 U.S.C. § 1396a(a)(19) must “provide that State […]
Taking over a case started by someone else is never my preference. It’s far easier to do something correctly the first time. So what do you do when you’re brought in to fix a case. You pray! First, if someone hires you and no decision has been made, review the file. If there is an […]
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
in Hall v. Davis Lawn Care Service, Inc., 314 Ga. 488 (S22G0019 8/23/2022), the Supreme Court unravelled some messy litigation where a conservator was appointed for a minor, but was deemed by the lower courts as having forfeited his exclusive power to bring, defend or participate in legal proceedings for his ward pursuant to OCGA […]
The answer is, yes, maybe. At USA.gov, there are tips for caregiver support including links to programs that could pay you to serve as a family caregiver. That site offers the following insight: A caregiver helps a person with special medical needs in performing daily activities. Tasks include shopping for food and cooking, cleaning the […]
Below is an exemplar consent to a criminal background check. These are required in most guardianship cases and some probate cases.
In Carpenter v. Carpenter, 276 Ga. 746 (2003), Gloria and Steven Carpenter appealed an order dismissing their Caveat to the Will of Everett “Leroy” Carpenter. The Probate Court had referred the case to Superior Court where the dismissal occurred. In reversing the decision below, the Georgia Supreme Court held “Probate courts have the exclusive jurisdiction […]
Who can file An application must be provided to anyone upon request and may be requested in person, by mail, telephone, facsimile, secure e-mail, or at any designated agency. ABD Manual 2050-1. Anyone may apply for Medicaid benefits, including the following: The individual requesting assistance; A personal representative (PR) acting on behalf of the applicant. […]
The Department must dispose of each application by a finding of eligibility or ineligibility, unless: (1) there is an entry in the case record that the applicant voluntarily withdrew the application, and that the Department sent a notice confirming his decision; (2) there is a supporting entry in the case record that the applicant has […]
Applicants seeking Medicaid must file a signed application with the Department. At this time, the application can be submitted through the Georgia Medicaid Gateway, through a portal at the nursing home, by visiting a local DFCS office, or through a centralized number. The initial phase of process is complete when an eligibility determination notice is […]
Carol and Wilbur Post are typical Elder Law clients. Carol married Wilbur more than forty years ago. Recently, Wilbur’s health declined. Wilbur has dementia and is living on Planet Alzheimer’s. Wilbur hears voices, especially when he wanders near the Post’s barn. Wilbur needs assistance with activities of daily living. Carol recently admitted Wilbur to Valley […]
Recently we received an unsoliticed email regarding Alternative Baseball®, which originated in Dallas, Georgia, and we decided to republish it here. If you have any interest in participating, contact information is below. Greetings! My name is Taylor Duncan! I am 26 years old and I have autism. I am also the Founder and President of […]
Both O.C.G.A. § 49-4-153(b)(1) and 42 C.F.R. § 431.244(g) require that all Medicaid agency decisions be accessible to the public, except that 42 CFR § 431.305(b) requires that the following information must be safeguarded: (1) Names and addresses; (2) Medical services provided; (3) Social and economic conditions or circumstances; (4) Agency evaluation of personal information; […]
Right to Hearing, Generally Medicaid applicants and beneficiaries are entitled to adequate notice of state agency actions and a meaningful opportunity for a hearing to review those decisions whenever their claim for benefits is denied or not acted upon with reasonable promptness. Federal law, at 42 U.S.C. § 1396a(3); 42 C.F.R. Part 431, Subpart E, […]
A single state agency must be designated to administer or supervise the administration of the State Plan. 42 U.S.C. § 1396a(a)(5); 42 C.F.R. § 431.10(b)(1). Specifically, 42 U.S.C. § 1396a(a)(5) provides: A State plan for medical assistance must— either provide for the establishment or designation of a single State agency to administer or to supervise […]
Medicaid is a cooperative venture of the state and federal governments. If a state chooses to participate in the Medicaid program, it submits a state plan for the funding of medical services for the needy. The State plan must be approved by the Centers for Medicare and Medicaid Services (CMS). The federal government then subsidizes […]
We regularly scour the internet looking for information relating to elder care, special needs and elder law. Although we review a number of sources collecting information, many of the articles listed here were found using Google Scholar Alerts. If a link you need has gone missing, try pasting the link into the Wayback Machine (Internet […]
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
Retirement accounts that qualify under the Employee Retirement Income Security Act (ERISA) are generally protected from creditors, bankruptcy proceedings and civil lawsuits. Ordinarily, the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 extends similar federal protection to IRAs up to $1 million (though money rolled over from an ERISA-qualified plan into an individual […]
We regularly scour the internet looking for information relating to elder care, special needs and elder law. Although we review a number of sources collecting information, many of the articles listed here were found using Google Scholar Alerts. If a link you need has gone missing, try pasting the link into the Wayback Machine (Internet […]
There are times when formal “legal” communication is necessary. This post addresses several instances regarding how that can be done. It is not meant to be all inclusive and, in many cases, specific communication rules apply. Beginning a lawsuit: When you begin a lawsuit, a summons must be served on the Defendant(s). Generally, Rule 4 […]
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
Sometimes nursing home residents want to leave the nursing home to visit family or just get some fresh are. So can they do that while Medicare is paying for skilled therapy. This question was address in a November, 2019, blog post by the Center for Medicare Advocacy. The article cites footnote of the Medicare Benefit […]
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