New Jersey Lawyers Blog

Published on: December 13, 2013

Medicaid Asset Protection: Converting Coutable Spousal Resources into a Protected Income Stream Using Annuities

Our clients often ask how they can protect their assets from Medicaid in the event a spouse must enter an assisted living facility in the future. While the Medicare Catastrophic Coverage Coverage Act of 1988 allows a community spouse (the spouse who does not require the coverage) to preserve certain assets,, the community spouse may only retain up to $113,640 (this is known as the “Community Spouse Resource Allowance”). However, often Community Spouse Resource Allowances will be insufficient for the community spouses to maintain their current standard of living.

One method which can be used to increase the funds available to the community spouse is an annuity which converts funds into income for the community spouse. As the community spouse’s income is not considered when determining Medicaid eligibility, the funds which would have been countable are removed from the eligibility determination. Those funds no longer need to be spent down prior to applying for Medicaid.

For instance, suppose a New Jersey couple has $500,000 in assets. While a community spouse may be permitted to retain $113,640, the balance of the assets would need to be “spent down” before the spouse would be permitted to apply for Medicaid. However, if the assets are transferred to the community spouse and then the community spouse uses the funds to purchase a qualifying annuity, then the assets are no longer “countable” for Medicaid purposes. This is a permissible way to protect assets for two reasons: First, transfers to spouses are permitted under the Medicaid rules and are not subject to the 5 year “look back” rule and, second, the money used by the community spouse to purchase the annuity was spent to purchase something of equal value and are also not subject to the five year look back rules. As the community spouse’s income is not considered for purposes of Medicaid eligibility, the assets have effectively been converted into an income stream and protected for the use of the community spouse. This, of course, is subject to the community spouse’s Minimum Monthly Maintenance Needs Allowance restrictions. The income cannot exceed the allowed amount.
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Published on: December 5, 2013

Internet Gambling in New Jersey

by Pauline M.K. Young

Gambling is one of the many activities that are regulated primarily by state laws (as opposed to federal laws). On February 26, 2013, New Jersey Governor Christie signed into law legislation allowing internet gambling, making New Jersey only the third state to allow internet gambling (after Nevada and Delaware). While there is a federal law called the Unlawful Internet Gambling Enforcement Act, which does, to a certain extent, restrict online gambling, that law allows individual states to permit and regulate internet gambling if the state so desires.

Atlantic City, New Jersey has always been a hot spot for gamblers from all over the world since the late 1970s and early 1980s. However, over the past several years, Atlantic City has been struggling financially with the increase of gambling in neighboring states. Therefore, New Jersey decided to combat this struggle by allowing online gambling. Six already established brick and mortar casinos were able to obtain internet gaming permits: Borgata, Trump Plaza, Trump Taj Mahal, Bally’s, Caesars, and the Golden Nugget. The first five of these permit holders were given approval to participate in a five day test run or “soft” start, of the internet gaming beginning at 6 p.m. on Thursday, November 21, 2013 (the Golden Nugget had not met all requirements in time to receive approval), with 13 websites approved for the online gambling.
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Published on: November 26, 2013

Residency Requirements for New Jersey State Employees

by Pauline M.K. Young

The New Jersey First Act makes it mandatory for many public officers and employees to live in New Jersey. The law, which went into effect September 1, 2011, requires all New Jersey state and local government employees to reside in New Jersey unless otherwise exempted. This includes, for example, employees of public agencies, commissions, public institutions of higher education, and school boards.

Employees who were already employed as of September 1, 2011 are grandfathered in, meaning they are not required to meet the residency requirement and are not required to move to New Jersey if they were not required to under prior law. However, those who begin working after September 1, 2011 must reside in New Jersey. If they do not, they have one year following the start of their employment to relocate to New Jersey. If the new employee does not move within a one year period, she may be removed from her position. The September 1, 2011 cutoff date is determined based upon when the employee actually started working, not when she received an offer of employment.

If there is a break in employment of more than seven days, an employee previously grandfathered in, may lose that status and become subject to the residency requirement. A “break in public service,” while not set forth in the language of the law, is defined by the New Jersey Civil Service Commission as “an actual separation from employment for more than seven calendar days due to such causes as resignation, retirement, layoff, or disciplinary removal.” Generally, a resignation for the purposes of a new public appointment in the same governmental jurisdiction is not considered a break in public service.
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Published on: November 18, 2013

New Jersey’s Strides Towards Equal Pay for Women

by Pauline M.K. Young

The Unites States Census Bureau has consistently found that women are paid less than men every year. Indeed, the National Women’s Law Center found that in New Jersey in 2012, a woman made approximately 79 cents for every dollar a man made. These discrepancies do not just account for females in different careers from males, but that this pay differential is also present for females in the same or similar fields as their male counterparts.

While New Jersey does not have as wide a gap between men and women as some other states, the pay gap is still clear and ongoing. While discrimination against women has constituted a violation of New Jersey’s Law Against Discrimination for decades, it is often difficult to prove. For instance, an employer can simply say that its female employee was being paid less than a similarly situated male employee because the male employee had better qualifications or performed better. It would be rare for an employer to have two employees, one male and one female, who had the same education, the same grades, attended the same schools, had the same level of experience and measures of success, and performed or produced exactly the same. Therefore, it is difficult to prove that any pay discrepancy is due to gender and not some other valid reason.

However, even more basic than that, the employee would have to be able to find out in the first place that she was in fact being paid less than what she would be paid if she were male. Indeed, many employers have a strict policy of forbidding employees from discussing their salaries, wages, or other benefits. While employers have a right to make the determination about what they will pay their employees, employers cannot take something such as gender into account when making that determination, just as employers cannot alter their payments as a result of race or religious beliefs.
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Published on: November 15, 2013

Alternatives to Mortgage Foreclosure in New Jersey

by Jennifer C. Meusel

If you have been served with a foreclosure complaint for failing to make payments on your mortgage, and you would like to keep your home, there are several options available to you: loan modifications, NJ HomeKeeper program, foreclosure mediation, and Chapter 13 bankruptcy. All these programs are available to New Jersey Homeowners, and our attorneys can help you pursue each.

Loan Modification

The Home Affordable Modification Program is a federal program which can lower your monthly mortgage payments and/or wrap arrearages into your loan enabling you to retain ownership of your home. It typically extends the length of your mortgage to forty year mortgage and lowers your interest rate. In order to be considered for a modification, you must submit an application to your lender accompanied by all required back up documentation. This includes a hardship affidavit, tax returns, pay stubs, bank statements, statement of expense, and a recent utility bill.

This can be a difficult process; the lender often requests the same documentation multiple times, or requests minor changes to the documents which have been submitted. Additionally, if time passes after the documents have been submitted without the lender’s review, the lender may require updated current documents be resubmitted. This can be frustrating for the homeowner who is concerned about losing their home. However, persistence can pay off.

NJ Homekeeper

The New Jersey HomeKeeper Program is a New Jersey program which provides financial assistance to homeowners who are unemployed or underemployed and are therefore at risk of losing their homes. To be eligible, you must demonstrate that you were making your mortgage payments until the time you became unemployed (or underemployed) and that the unemployment occurred not more than 36 months before the date of the Homekeeper application. If eligible, NJ Homekeepers can provide up to $48,000 over a period of 24 months which can be used to help make current payments or pay arrearages. The funds provided by NJ Homekeepers are a loan which must be paid back if the homeowner sells, refinances, transfers ownership or no longer occupies the property within 10 years.
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Published on: November 13, 2013

Pretrial Intervention Program

by Boris Peyner

Under New Jersey criminal law, the Pretrial Intervention Program, commonly known as “PTI” provides first-time offenders with the opportunity for an alternative to the ordinary criminal justice prosecution. PTI provides rehabilitative services to deter future criminal behavior. The program is based on a rehabilitative model that recognizes that there may be a casual connection between a charged offense and the rehabilitative needs of a person. The ultimate goal of PTI is to prevent future criminal behavior.

The best benefit of successfully completing PTI is that there is no record of conviction and an individual can avoid the stigma of a criminal record. Additionally, many of the costs associated with the formal court process can be eliminated. However, acceptance into and completion of the PTI program does not remove an arrest from individual’s record. Instead, successful completion of the PTI program will result in the dismissal of the original offense. Therefore an individual who successfully completes the PTI program should still seek to an expungement to remove any record of the original arrest. Failure to successfully complete the program will result in the case returning to the ordinary course of prosecution.

To be eligible for the PTI program, a defendant must be charged with an indictable offense. The program is designed for individuals who have no previous convictions and have never been granted permission into any other diversionary program or discharge. An individual seeking entry into the PTI program must be an adult resident of New Jersey. Individuals charged with criminal or penal offenses in New Jersey criminal or municipal courts can apply.

Published on: November 12, 2013

New Jersey’s Social Media Law

by Pauline M.K. Young

It has become common to hear news stories about employees who posted something on their personal Facebook, or other social media sites, and then got fired as a result of that post. Indeed, employers have, more and more, started to use social media sites as a way of monitoring their employees, even to the point of requiring passwords or access to otherwise “private” websites or submissions.

However, beginning on December 1, 2013, New Jersey will follow the growing trend in other states in enacting legislation which will bar New Jersey employers from asking employees or potential employees for access to their personal social media accounts. This comports with the recent New Jersey law enacted in 2012 which bans colleges from requiring applicants to provide social media account passwords.

This new law specifically prohibits employers from requesting or requiring employees’ usernames, passwords, or other access to personal accounts on websites such as Twitter and Facebook. Further, employees cannot even waive this right. Any waiver of this right is deemed void.
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Published on: November 8, 2013

Suing the Government or Its Employees in New Jersey

by Boris Peyner

Historically and as a matter of public policy, public entities are immune from suit pursuant to the doctrine of “sovereign immunity.” The New Jersey Tort Claims Act, however, creates limited exceptions to sovereign immunity. People are therefore permitted to sue for injuries but must comply with the strict requirements of the Tort Claim Act.

New Jersey’s Tort Claims Act requires that persons who have claims against a governmental entity or its employee notify the public entity within ninety days from the date the claim accrues. The notice must contain the name and address of the claimant, the date, place and circumstances of the occurrence, a general description of the injury, the damage or loss sustained, and the name of the public entity or the employees responsible. Each municipality may have its own tort claim notice form. Failure to provide notice is an absolute bar to later recovery against a governmental unit or its employees. It is therefore critical to ensure compliance with the notice provisions of the Tort Claim Act.

After notice of tort claim is submitted, the government is then permitted a six month review the claim before a lawsuit can be filed. A lawsuit can be filed upon the expiration of the six month period. However, not every injury gives rise to a cause of action that requires providing the municipality with notice and then waiting six months. For example, the Tort Claims Act does not apply to statutory claims such as those brought under New Jersey’s Conscientious Employee Protection Act and New Jersey’s Law Against Discrimination. However, because the Tort Claims Act will bar a covered but late claim, it is better to comply now than find out later you were wrong.

Published on: November 6, 2013

Revocation and Suspension of Teachers’ Certifications

by Pauline M.K. Young

Because of the high level of public concern over New Jersey’s children, teaching is a highly regulated and scrutinized industry. Not only are teachers required to meet significantly high standards of education and training, and, in most cases, to have specialized knowledge in their field, but they must also maintain a level of behavior and continued education to maintain their teaching certificates.

If a school board terminates a teacher, or otherwise refuses to renew a teacher’s contract, that school board is required, in some circumstances, to alert the New Jersey State Board of Examiners of discontinuation of employment. For instance, a school district is required to report a discontinuation of a teacher’s employment – even if that is due to the teacher’s resignation or retirement – if the teacher is accused of a criminal offense or “unbecoming conduct.”

The Board of Examiners is the state licensing agency which reviews and monitors teachers. IT has the power to bestow, deny, suspend, or revoke a teacher’s license. The Board of Examiners may revoke or suspend a teacher’s certificate if the teacher demonstrates inefficiency, incapacity, conduct unbecoming a teacher or for any other just cause – such as being convicted of a crime. However, the Board of Examiners cannot revoke or suspend a New Jersey teacher’s certificate unless it gives the teacher notice and the opportunity to be heard.
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Published on: October 28, 2013

New Jersey’s Administrative Law Courts

by Boris Peyner

As our society has grown more complex, the government has been forced to take on more responsibilities. It created administrative agencies in the executive department, including for example, the Department of Environmental Protection, the Board of Public Utilities, the Merit System Board, the Department of Community Affairs, the Casino Control Commission, and Health and Senior Services. These agencies regulate in their respective areas, investigate and prosecute violations, and make decisions and issue penalties. These agencies are known as the “fourth branch” because they combine the functions of all three government branches.

The New Jersey Office of Administrative Law (“OAL”) is an independent state agency that provides independent and neutral hearings over these agency’s actions and rulemaking procedures. Administrative Law Judges (“ALJs”) hold trials to determine facts and make recommended decisions when individuals dispute agency actions. The agency itself then makes final decisions based on the ALJ’s opinion, which can be appealed to the Appellate Division of New Jersey’s Superior Court, and then to the New Jersey Supreme Court.

What To Expect At An OAL Hearing

A request for a hearing should be sent to the appropriate state agency making a decision. That agency will then send the case to the OAL for a hearing. In “contested cases” an ALJ will be assigned, and hold a trial. The ALJ makes a recommended decision which it sends to the agency that sent the case to the OAL. The head of that agency will review the opinion and has the right to adopt, reject, or modify the opinion. That agency’s head is the final decision maker. An appeal of the final decision is available to the Appellate Division of the Superior Court within forty-five days of the date of the final decision.

Notice of Filing

When a case is sent to the OAL a Notice of Filing or a Notice of Filing and Hearing is mailed to all the parties. The notice will identify the agency that sent the request and will generally contain information that can help a party prepare for a hearing, including the issues that will be discussed at the hearing.
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