Hanlon Niemann Blog | A Freehold, New Jersey Law Firm

Fredrick P. Niemann, Esq., NJ Veterans Attorney

Nursing home coverage for veterans is available from two sources within the Department of Veterans Affairs — the veteran’s health care system and the state veteran’s homes system.

Nursing Home Coverage Through the VA Health Care System
Nursing home coverage along with other long term care services such as home care and assisted living as well as geriatric care management are available through the Veterans Health Administration for qualifying veterans.

In order to get into the veterans health care program, the veteran must have service-connected disabilities, or be below a qualifying income level or be receiving Veterans Pension income. Once in the system, veterans are not guaranteed long term care services, including nursing home care, unless they meet specific requirements. Here is a list of these requirements for nursing home coverage.

Who is Eligible for Nursing Home Care

• Any veteran who has a service-connected disability rating of 70 percent or more; 
• A veteran who is rated 60 percent service-connected and is unemployable or has an official rating of “permanent and total disabled;” 
• A veteran with combined disability ratings of 70 percent or more; 
• A veteran whose service-connected disability is clinically determined to require nursing home care; 
• Non-service-connected veterans and those officially referred to as “zero percent, non-compensable, service-connected” veterans who require nursing home care for any non-service-connected disability and who meet income and asset criteria; or 
• If space and resources are available, other veterans on a case-by-case basis with priority given to service-connected veterans and those who need care for post-acute rehabilitation, respite, hospice, geriatric evaluation and management, or spinal cord injury.

VA’s nursing home health system programs include VA-operated nursing home care units and contract community nursing homes. Many VA hospitals operate nursing home care units located in or near the hospital. Other hospitals, without adequate nursing home beds, contract with approximately 2,500 community private nursing homes nationwide to provide services.

State Veterans Homes
State veterans homes fill an important need for veterans with low income and veterans who desire to spend their last years with “comrades” from former active-duty. The predominant service offered is nursing home care. VA nursing homes must be licensed for their particular state and conform with skilled or intermediate nursing services offered in private sector nursing homes in that state. State homes may also offer assisted living or domiciliary care which is a form of supported independent living.

Every state has at least one veterans home and some states like New Jersey have three (3) of them. There is great demand for the services of these homes, but lack of federal and state funding has created a backlog of well over 130 homes that are waiting to be built.

Unlike private sector nursing homes where the family can walk in the front door and possibly that same day make arrangements for a bed for their loved one, state veterans homes have an application process that could take a number of weeks or months. Many state homes have waiting lists especially for their Alzheimer’s long term care units.

No facilities are entirely free to any veteran with an income. The veteran must pay his or her share of the cost. In some states the veterans contribution rates are set at a certain level and if there’s not enough income the family may have to make up the difference. Federal legislation, effective 2007, also allows the federal government to substantially subsidize the cost of veterans with service-connected disabilities in state veterans homes.

Eligibility and Application Requirements for State Veterans Homes
From state to state, facilities vary in their rules for eligible veterans. And even in the same state it is common, where there is more than one state home, for some homes to have very stringent eligibility rules and others to be more lenient. New Jersey’s regulatory criteria are uniform.  These differing rules are probably based on the demand for care and the available beds in that particular geographic area.

Federal regulations allow that 25% of the bed occupants at any one time may be veteran-related family members, i.e., spouses, surviving spouses, and/or gold star parents who are not entitled to payment of VA aid. When a State Home accepts grant assistance for a construction project, 75% of the bed occupants at the facility must be veterans.

Domicile residency requirements vary from state to state. New Jersey requires an applicant to be a NJ resident domiciliary.

All states require an application process to get into a home. Typically a committee or board will approve or disapprove each application. Many states have waiting lists for available beds.

For further information and advice in any veterans, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., NJ Medicaid Application Attorney

Most people want to avoid nursing home care.  Many people believe that assisted living provides them with something better: choice, control, independence, and safety in a “non-institutional, community-based setting.”  What is not widely known is that the protections for nursing home residents provided by the federal Nursing Home Reform Law do not apply to Assisted Living facility (ALF) residents, even those who are eligible for nursing home care and receive Medicaid for ALF services under a home and community-based waiver. Moreover, no separate federal legislation protects ALF residents.

Over the years, Medicaid spending for long-term care services has shifted significantly from nursing home care to home and community-based alternatives, including services in ALFs. Between 1995 and 2007, Medicaid spending on nursing home care declined from 61% to 47% of all Medicaid spending in long-term care, while Medicaid spending on home and community-based waiver programs, including ALF care, increased from 9% to 27% of Medicaid’s long-term care spending.[1] In 2002, 41 states used Medicaid to pay for assisted living services for more than 100,000 residents.[2]

Earlier this month, ALF residents in Washington State suffered a set-back in legal protection, highlighting the need for federal legislation.  In Washington State, a federal district court rejected limited state law protections for ALF residents whose facilities terminate their Medicaid participation. In contrast, residents of nursing facilities that participate in the Medicaid program have the benefit of a 1999 amendment to the federal Nursing Home Reform law, which offers broader protections to residents in identical circumstances.

Assisted Living Residents Lack Protection When their Facilities Terminate Participation in the Medicaid Program.

In 2007, ALFs in Washington State and elsewhere began voluntarily terminating their Medicaid provider agreements with the States and evicting their Medicaid residents.  Not atypical was the story of a 98-year old woman who had spent more than $300,000 of her life savings, paying privately for her stay at an ALF owned by Assisted Living Concepts. She was told that the facility would not accept Medicaid for her care and that she would have to leave, despite the fact that the facility had promised repeatedly over the nine years that she had paid privately that she could stay as a Medicaid beneficiary when her private funds ran out.[3]

Although Assisted Living Concepts, the chain that owns the woman’s ALF, evicted residents from its facilities across the country, only Washington State enacted protective legislation.  The protection for residents who were being displaced from their ALFs was limited. As enacted, the Washington legislation required ALFs to keep only residents who were receiving Medicaid at the time of their facility’s withdrawal and those who had paid privately for their stays for at least two years and who became eligible for Medicaid within 180 days of the facility’s withdrawal from the Medicaid program.[4]  The law was challenged by the Washington Health Care Association, a trade association of nursing homes and assisted living facilities. In a summary judgment decision issued this month, the federal district court in Washington State sustained the industry’s challenge and struck down the law on the grounds that it violates the Contract Clause of the United States Constitution[5]

The Court described the legal question as whether the state law was a substantial impairment to a contractual relationship and, if so, “whether the impairment is reasonable and necessary to serve an important public purpose.”[6] It found, first, that the 2008 legislation impaired facilities’ contractual relationship with the state by unilaterally invalidating the contract’s termination clause, which allowed ALFs to terminate a Medicaid contract on 30 days’ notice. Next, despite acknowledging that assisted living residents “are vulnerable elderly and/or disabled adults” for whom “forced and sudden discharge poses a significant threat to the residents’ emotional and physical well-being,” the Court held that “the drastic measure of requiring boarding homes to continue to provide services” to certain Medicaid residents “in exchange for the Medicaid rate [that the Department of Health and Social Services] DSHS decided to pay” was neither “reasonable” nor “necessary.”[7] The Court suggested that alternative legislative solutions could have served the state’s purpose “equally well without impairing the State’s own contracts.”[8]

The Washington federal court decision underscores the need for federal legislation to protect assisted living residents. Significantly, similar, but broader, federal law does protect nursing home residents in the identical situation.

Protection is Available for Nursing Home Residents when their Facilities Terminate their Medicaid Participation.

A 1999 amendment to the federal Nursing Home Reform Law - “Continuing Rights in Case of Voluntary Withdrawal from Participation”[9] - was Congress’ response to the decision of the Vencor Corporation (now known as Kindred) to terminate its nursing home Medicaid contracts and evict its Medicaid residents. The federal law allows nursing facilities to withdraw from the Medicaid program, but only prospectively.  All individuals living in a nursing facility at the time of a nursing facility’s withdrawal from the Medicaid program are protected, including those who become eligible for Medicaid at some undefined time in the future. The nursing home industry did not challenge the 1999 law. Notably, the Contract Clause, an important vehicle for challenging the Washington state law, does not apply to the federal government.

Conclusion
As assisted living becomes an increasingly prominent part of the country’s long-term care system, assisted living residents need to be adequately protected.  Congress should extend Medicaid nursing home protections to assisted living residents who use Medicaid and should consider whether additional, broader federal legislation is appropriate as well.

For further information and advice in any Medicaid matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

When a male graduate student pursuing a degree in military history was inclined to speak his mind in classroom discussions about women in combat and women in the military more generally, he felt inhibited by the university’s broadly worded policy on sexual harassment.

In pertinent part, the policy stated that “all forms of sexual harassment are prohibited, including… expressive, visual, or physical conduct of a sexual or gender-motivated nature, when… such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.”  The student sued the university to prohibit the enforcement of the policy on the ground that it had a chilling effect on the exercise of his right to free speech.

A federal appeals court sided with the graduate student. The sexual harassment policy’s prohibition of expressive conduct of a “gender-motivated nature” that had the purpose or effect of either unreasonably interfering with other individuals or creating an intimidating, hostile, or offensive environment was unconstitutionally overbroad under the First Amendment. It impermissibly swept within its reach speech that should not be subjected to restrictive regulation.

Regarding the “gender-motivated” characteristic of speech, the court wondered: “Whose gender must serve as the motivation, the speaker’s or the listener’s?  And does it matter? Additionally, we must be aware that ‘gender,’ to some people, is a fluid concept.  Even if we narrow the term ‘gender-motivated’ to ‘because of one’s sex,’ we are far from certain that this limitation still does not encompass expression on a broad range of social issues.”

The term” gender-motivated” also necessarily required an inquiry into the motivation of the speaker, so that the policy punished not only speech that actually caused disruption, but also speech that merely intended to do so. To protect core forms of speech, there should have been a requirement in the policy that the conduct at issue objectively and subjectively create a hostile environment. A school must show that, before prohibiting it, targeted speech is so severe or pervasive that it will actually cause material disruption, and the university’s policy was fatally deficient for not having such a requirement.

It was important to the court’s decision that the challenged harassment policy was that of a university, as opposed to an elementary school or a high school.  It is well recognized that, in the words of United States Supreme Court decisions, “[the college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' "and "[t]he First Amendment guarantees wide freedom in matters of adult public discourse.”

Discussion by adult students in a college classroom should not be restricted, while certain speech which cannot be prohibited to adults may be prohibited to public elementary and high school students. This is particularly true when considering that public elementary and high school administrators have the unique responsibility to act in the place of parents, a disciplinary and protective role not shared by their counterparts in colleges and universities. Thus, in the case of the plaintiff graduate student, the court kept in mind that the university’s administrators were granted less leeway in regulating student speech than are administrators responsible for younger and more vulnerable students.

There’s Hope in Immunity

Fredrick P. Niemann, Esq., Business Litigation Attorney

Whether an employer-employee relationship ends on good terms or with acrimony, a common final act - the employee’s request for a reference for a new job - is increasingly leading to litigation.

From the former employer’s standpoint, it can be a case of damned if you do and damned if you don’t. A candid, negative response to the request can invite a suit by the former employee. A glowing recommendation that omits some serious shortcomings in the employee’s performance, or that declines to say anything about the employee except perhaps dates of employment, could result in litigation brought by the new employer, who would have preferred to be warned about a subpar employee. The prevalence of such disputes only figures to increase in the current economic downturn.

The growing dilemma is such that some employers are telling their employees from the outset that they will get no job reference - good, bad, or indifferent - when they leave. Under such a policy, inquiring prospective employers would get only the employment equivalent of “name, rank, and serial number.” Other employers are willing to give a reference, but only after they have in their files documents in which an employee consents to having prospective employers find out all there is to know, and waiving their right to sue over anything that is said in the reference.

The good news for businesses is that their exposure to liability to disgruntled former employees who requested references is constrained in most states by statute. These laws gen¬erally provide immunity to the givers of references, so long as their actions were not motivated by malice. Of course, former employees, perhaps hurting while in between jobs and inclined to blame former employers for their predicament, are quick to argue that a negative response to a reference request was malicious.

In one such case, a nurse sued her former supervisor for defamation when the supervisor responded to a request for a job reference by stating on a form, without elaboration, that the nurse had “unacceptable work practice habits.” A court ruled that the statement came within a statutory privilege or immunity for former employers’ communications to prospective employers concerning former employees, because it was information provided about a former employee’s work performance at the request of both the former employee and a placement agency.

Although the nurse made the general argument that the immunity was lost because the statement about her was made with malice, she was unable to back up that contention with factual evidence of ill will or spitefulness directed toward her. She argued, to no avail, that if the former employer considered her work habits to be acceptable enough not to fire her, then it was reasonable to infer that the later negative inference must have been motivated by malice.

For further information and advice in any business matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., NJ Asset Protection Attorney

Many times the children of elderly clients ask whether they can be held responsible for Mom or Dad’s long term care costs.  My answer always was that there wasn’t anything to worry about unless you take your parents money.  That no longer appears to be the case.

A recent case in Connecticut highlights how the new Medicaid laws passed as part of the Deficit Reduction Act of 2005 are really hurting residents and nursing homes alike and now potentially also affecting other family members.  In that court case, the nursing home resident’s son signed the admission agreement on behalf of his mother.  As in most nursing home agreements Son was asked to sign as responsible party, which he did not do.  Nevertheless, Nursing Home advised him verbally that he was the responsible party.

Son then applied for Medicaid benefits on behalf of Mom.  Son did not, however, follow through on the application process in a timely manner.  He failed to provide all the information and documentation that the State needed and he did not spend down Mom’s assets quickly enough, delaying the application’s approval.  As a result, months of benefits were lost, never to be regained, benefits that Nursing Home would have received.

Nursing Home sued Son on a breach of contract claim.  It claimed that Son undertook an obligation on Mom’s behalf, when he signed the admission agreement, to promptly pursue Medicaid benefits.  Son, in response, argued that he never signed the agreement so there was no contractual obligation on his part.  The court sided with Nursing Home, finding that an oral contract was created between the two parties and that Son violated it by not conscientiously following through.

A good result for the nursing home, right?  Well, not really, when you account for the time and money it took Nursing Home to get the judgment.  It then has to collect on that judgment, assuming Son doesn’t appeal the decision, which will cause the matter to drag on even further.  And it certainly wasn’t a good result for son, who lost and now is responsible for paying Mom’s bill.  

So how could this have turned out better? If Nursing Home had encouraged Son to retain an elder law attorney to represent Mom in the Medicaid application process, it would have received a regular income stream with a timely and correctly filed application.  Sure, there is an expense involved in hiring someone.  But in the end Nursing Home would have received Medicaid benefits when it should have and Son would not be responsible for paying nursing home.  A winning result for all.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Fredrick Niemann, New Jersey Long Term Care Insurance Attorney

“According to some sources, 60% of us will need long term care sometime during our lives. It is important for all of us to prepare for that day when we will need to help loved ones with elder care or we will need elder care for ourselves.”

“It is simply a fact of life to prepare financially for unexpected disasters by covering our homes, automobiles and health with insurance policies and to provide funding for our retirement. But no other life event can be as devastating to our lifestyle, finances and security as needing long term care. It drastically alters or completely eliminates the three principal retirement dreams of elderly Americans, which are:

1. Remaining independent in the home without intervention from others
2. Maintaining good health and receiving adequate health care
3. Having enough money for everyday needs and not outliving assets and income

Yet, it is our experience that the majority of the American public does not plan for the devastating crisis of needing elder care. This lack of planning also has an adverse effect on the older person’s family, with sacrifices made in time, money, family lifestyles and even affecting the family’s or caregiver’s medical and emotional health.

Because of changing demographics and potential changes in government funding, the current generation — more-than-ever — needs to plan for long term care.

If you have spent time helping a parent or loved one cope with a disability resulting from aging, you know the frustration of balancing what you feel they need to do and what they want to do. Communication is strained at times, because after all, you are the child and they the parent, yet physically and mentally the rolls have changed.

When you make directives, assignments and arrangements in advance of needing elder care, then everyone involved can follow the prearranged care plan.

As an example, Jefferson Simpson wrote in his care plan that if dementia or Alzheimer’s inhibited his mental abilities to communicate or recognize his surroundings, he wished to be in a respectable facility and only asked that he be visited and brought chocolates. To his children this request seemed silly at the time, but when his mental capacities did diminish, the instructions were there. No one had to wonder if they should try to take care of Father Jefferson at home and how they would do it. Without quilt or question they placed him in a respectable facility that took care of his needs. All they had to do was make loving visits, and of course they brought chocolates.

In order for Jefferson’s simple request to happen, he had made financial, legal and personal long term care plans years before.

What do you want your children or friends to do on your behalf?

When it comes time for them to help, what if you can’t say what you want because of a physical or mental disability? This is where a written long term care plan comes into effect.
 
Do you have a financial plan or long term care insurance? Retirement savings can disappear quickly when used for care services.
 
Where is your paperwork; insurance policies, living will, medical directives, Armed Services discharge or disability papers? Is there someone designated to know the location?
 
What are the legal documents that are needed for power of attorney, estate planning and disbursement of assets? When do they have to be completed?
 
What types of care services and facilities are available and what are the costs?
 
What will government programs pay for and how do you qualify?
 
There is a lot you can do now to put together a plan for your own long term care. You may have limited resources in the future or health problems that will inhibit your ability to take care of things you could do now. For example.
 
James and Cindy want to be able to stay in their home as they age. In order to do this, when they were in their 40’s they took out a long term care insurance policy that will pay for home care if it is needed. The policy will also pay for nursing home costs as a care option. With taking the policy at a younger age and in good health the monthly payments are low. Extra funds can now be put away for retirement without worries of having to deplete savings for care costs.
 
Or consider Sarah’s following experience:
 
After taking care of her own parents for many years, Sarah realized the importance of making, in advance, a plan and preparations for herself. She saw all of her parents’ assets dissipated in order for her father to qualify for Medicaid nursing home coverage. She didn’t want the same thing to happen to her. She took the time to create her own plan on paper– expressing her wishes for her own care. A trip to her attorney provided all the legal documents and estate planning she wanted to be in place to insure care for her and an inheritance for her children.
 
There is much to learn about long term care and there are a lot of new services and programs available to draw from.
 
The National Care Planning Council has gathered together an overall review of government and private long term care services both on the Council website, www.longtermcarelink.net and in their book The 4 Steps of Long Term Care Planning.

The 4 Steps of Long Term Care Planning provides comprehensive information about long term care planning. The design also allows you to record personal information, family agreements and directions on 20 planning sheets at the back of the book. Using this book as a single-source repository for information and directions makes it much easier for you or your care coordinator to carry out your wishes when the need for care occurs.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

By Fredrick P. Niemann, Esq., NJ Special Needs Trust Attorney

Self-Settled Special Needs Trusts are often use when a person with disabilities receives a personal injury settlement, an inheritance, equitable distribution, alimony or child support.  However, in many instances a Self-Settled Special Needs Trust is not appropriate.  A disability lawyer must make an analysis on the onset to make this determination. 

Some of the reasons that the trust may be inappropriate are:

•   The beneficiary does not qualify. For example, the beneficiary may not be disabled or may be over age 64.
•   The beneficiary may not be receiving means-tested public benefits, such as SSI and Medicaid, and may never require such benefits in the future. Also, the amount may be so large that benefits may not be necessary.  In those situations a determination should be made whether a special needs trust is appropriate for other reasons. Perhaps a support trust would be adequate.
•   The amount of the net settlement may be too small. For net amounts under $100,000 it is usually better to seek an alternative to a standalone Self-Settled Special Needs Trust, because of the expense associated with establishing and maintaining the trust. If the net settlement is between $100,000 and $200,000, then a trust may or may not be appropriate. If an individual trustee is available then the trust cost may not be prohibitive. A pooled or community trust may be a good option.
•   It is difficult to find a professional trustee if the amount of liquid assets to be placed in the trust is less than $500,000 - $1,000,000. If a substantial percentage of the settlement is in the form of a structured settlement annuity, there will be insufficient liquid assets to interest a financial institution in serving as trustee.

If you have questions about protecting eligibility for government benefits when filing a personal injury lawsuit or near the end when settlement or verdict is a reality, contact Fredrick P. Niemann at 732-863-9900 or 888-800-7442.  He’s happy to be of assistance.

Fredrick P. Niemann, Esq., an Elder Law Attorney

Have you been wondering if the proposed Obama-Biden “plan to lower healthcare costs and ensure affordable, accessible, health coverage for all” would provide long-term skilled nursing home care for frail seniors?  The short answer is…no!

The key features of the plan focus on providing access to healthcare to “over 45 million Americans—including over 8 million children” who lack health insurance.  The Obama-Biden Plan has five main strategies:

1. Invest in electronic health information technology system
2. Improve access to prevention and proven disease management programs
3. Ensure that health providers deliver quality care
4. Lower drug and insurance costs
5. Reduce insurance costs for catastrophic illness coverage

Here is the principal goal as highlighted on the Obama website:  “Barack Obama and Joe Biden will guarantee affordable, accessible healthcare coverage for all Americans.”  Despite the presence of the seemingly straightforward words “healthcare coverage” and “all” in the sentence above, it’s critical to understand the definition of those words.  When it comes to healthcare and politics, even simple words may not have a common-sense meaning.  “Healthcare coverage” means “payment for acute healthcare costs.”  Acute care is the type of care given to recover from short-term diseases and accidents.

In the United States, public healthcare payers, such as Medicare and Tri-Care (for retired military) and the private healthcare insurers, reimburse healthcare providers only for acute care and acute illness rehabilitation.  These payers specifically exclude long-term care in a skilled care nursing home.  Care in a skilled care nursing home is defined as chronic care.  Neither Medicare nor private health insurance pay for chronic care in assisted living facilities or nursing homes.  Unfortunately, the bottom line for America’s frail seniors with a long-term illness is that the word “all” (as defined in the Obama-Biden Healthcare Plan) does not include them.

Sadly, this means that under our current healthcare program and the Obama proposals, the majority of America’s seniors have no alternative but to pay their own nursing home bills.  If you have Alzheimer’s, Parkinson’s, or another long-term illness—you are still on your own.  Even if Obama-care is enacted, you will be required to pay your own tab for long-term healthcare until you are impoverished enough to qualify for Medicaid.

But there are ways to prevent the impoverishment required to qualify for Medicaid, if you plan far enough ahead. 

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., a NJ Estate Planning Attorney

We all know we are supposed to do estate planning, but not all of us get around to it.  So what happens if you don’t have a will when you die? Your estate will be distributed according to state laws, which may or may not be the way you want it to be distributed.

Dying without a will is called dying “intestate.” Each state has laws that determine what will happen to your estate if you don’t have a will. If you are married, most states award one-third to one-half of your estate to your spouse, with the rest divided among your children or, if you don’t have children, to other living relatives such as your parents or siblings. If you are single, most states provide that your estate will go to your children or to other living relatives if you don’t have children. If you have absolutely no living relatives, then your estate will go to the state.

Note that any jointly held assets, such as bank accounts or houses, will go directly to the co-owner. In addition any life insurance policies or retirement accounts will go directly to the beneficiary designated on the account. And if you have a trust, any assets in the trust will go to the beneficiary designated in the trust.

One purpose of a will is to name a guardian for your young children; if you do not have a will, the court will determine who will act as guardian. The court will also appoint the person who will administer your estate. In addition, if you are unmarried, but have a partner, your partner will not inherit anything from your estate without a will naming him or her as a beneficiary.

The best way to ensure your estate is distributed the way you want it is to plan your estate with a will and/or trust attorney.

For further information and advice on NJ laws, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Christopher J. Hanlon, Esq., a Personal Injury Attorney

A father’s failure to remove his child from a car before it burst into flames falls outside the exercise of child-rearing philosophy which the parental-immunity doctrine is intended to protect, a state New Jersey appeals could held.

The three-judge Appellate Division panel reinstated a dismissed wrongful death suit by the boy’s mother and ordered a new trial on whether the father’s actions were negligent.

“This case simply involves a father exposing his son to the risk of injury by not removing him from the car before the fire erupted,” Judge Marie Simonelli wrote for the court.

According to the opinion, Jasford Wiggin was driving his BMW on Route 78 in Springfield on June 17, 2004, when he smelled smoke, pulled onto the shoulder and got out to inspect his car, leaving his 4-year old son, Joseph, strapped in his car seat.  The car burst into flames a moment later.

Wiggan moved to dismiss the suit by the mother.

Superior Court Judge Marianne Espinosa granted the motion, saying the decision to leave the child in the car “falls within the area of circumstances where there should e no judicial intrusion upon his decision.”  On appeal, counsel argued that the decision by the boy’s father had nothing to do with providing for Joseph’s emotional or physical needs or fostering his well-being.

The Appellate Division agreed, citing that parental immunity is “abrogated to customary child care” but not where failure to supervise rises to the level of “willful or wanton misconduct.”

“This was not a matter of customary child care, discipline or supervision.  It had no connection whatsoever to any unique philosophy of child-rearing, nor was it designed to promote Joseph’s physical, moral, emotional and intellectual growth.”  For more information, please contact Christopher J. Hanlon, Esq. or Lauren Bercik, Esq. at 732-863-9900.