When a nursing home resident applies for Medicaid in New Jersey, someone often needs to help with the application and appeal process. But who can act for the applicant, and when is a Designated Authorized Representative (DAR) form required?
Those questions were at the center of E.B. v. Division of Medical Assistance and Health Services, 431 N.J. Super. 183 (App. Div. 2013), a case that remains highly relevant for Medicaid applicants, nursing facilities, and elder law attorneys today.
The Facts of the Case
The case involved two nursing home residents who had been approved for Medicaid but wished to challenge adverse determinations through fair hearings. Their nursing facilities, acting on their behalf, requested appeals regarding Medicaid penalty periods and other issues.
The nursing homes’ attorney submitted hearing requests. However, the attorney expressly stated that he represented the nursing facilities, not the Medicaid applicants themselves. The Division of Medical Assistance and Health Services (DMAHS) responded by requiring completion of its Medicaid Designation of Authorized Representative (MDAR) form before proceeding with the appeals. The facilities refused and instead submitted their own authorization forms. DMAHS rejected those forms and would not schedule the hearings. The nursing facilities argued that DMAHS could not require use of the MDAR form. The Appellate Division disagreed.
The Court's Holding
The court upheld DMAHS's authority to require a standardized authorized representative form. It found that the MDAR requirement was consistent with federal and state Medicaid law and helped protect applicants by ensuring that the person acting on their behalf was properly authorized. The court specifically held that DMAHS's requirement that Medicaid applicants use the MDAR form did not violate federal law, did not interfere with fair hearing rights, and was a reasonable measure to protect applicants and the integrity of the Medicaid program.
Why the DAR Form Matters
From a practical standpoint, this case highlights a lesson I regularly encounter in Medicaid cases: if someone other than the applicant is acting on the applicant's behalf, a completed DAR form can prevent unnecessary delays. Counties and DMAHS often refuse to discuss eligibility issues, process appeal requests, or release information unless they have proper authorization in their files. When a DAR form is missing, the result can be avoidable delays in an already time-sensitive Medicaid application. This is particularly important in long-term care Medicaid cases, where delays can affect nursing home reimbursement and create significant stress for families.
For more information on avoiding procedural problems in Medicaid cases, see my articles on mailing Medicaid applications, Medicaid spousal waivers, and VA benefits, QITs, and Medicaid planning.
The Important Attorney Exception
One of the most significant parts of the decision is something many county welfare agencies improperly overlook or ignore. The attorney in E.B. did not represent the Medicaid applicants. He represented the nursing facilities. That distinction drove the outcome. The court noted that the problem arose because the attorney sought a hearing "on behalf of the respective Facility." The court explained:
Had counsel requested the fair hearings in their capacity as the plaintiffs' legal representative, we suspect that this matter would not have caused the CWA any concern.
The court also discussed DMAHS's proposed rule (which is still not formally adopted), which expressly provided:
Use of the Division's Designation of Authorized Representative Form is not required if the authorized representative is the beneficiary's legal guardian, a relative by blood or marriage, the attorney of the beneficiary hired by the beneficiary to represent the beneficiary, or a person with power of attorney for the beneficiary.
In other words, when an attorney actually represents the Medicaid applicant, a DAR form generally should not be required.
The Real-World Problem: Counties Sometimes Get This Wrong
Despite the language discussed in E.B., I still see situations where county agencies request a DAR form from an attorney who already represents the Medicaid applicant. That request is often unnecessary. An attorney retained by the applicant stands in a different position than a nursing facility, its employees, or another third party attempting to act for the applicant. The entire point of the attorney exception is that counsel already has authority through the attorney-client relationship. Unfortunately, the rules are applied inconsistently. As a result, attorneys sometimes need to explain the distinction and push back.
The Takeaway
The lesson from E.B. v. DMAHS is straightforward: make sure the proper authorization documents are in place before problems arise. If a nursing facility, family member, friend, or other third party will be communicating with the county welfare agency or DMAHS, a completed DAR form can prevent delays and disputes.
At the same time, applicants should understand that attorneys who directly represent the Medicaid applicant are treated differently. The key distinction in E.B. was that the lawyer represented the facility, not the Medicaid applicant. Getting this right can mean the difference between a smooth Medicaid process and months of unnecessary delay.