Current through Register Vol. 48, No. 38, September 20, 2024
a) Applicability
1) The provisions for the transfer of
property (for example, assets) in this Section only apply to institutionalized
persons when the transfer occurs on or before August 10, 1993. An
institutionalized person is defined as a resident of a long term care facility,
including a resident who was living in the community at the time of the
transfer, and to individuals who but for the provision of home and
community-based services under Section 4.02 of the Illinois Act on the Aging
would require the level of care in a long term care facility. An
institutionalized person also includes an individual receiving home and
community-based services under Section 4.02 of the Illinois Act on the Aging
who was not receiving these services at the time of the transfer.
2) Transfers of property disregarded as a
result of payments made by a Long Term Care Partnership Insurance Policy (as
described in 50 Ill. Adm. Code 2018) are not subject to the provisions of
subsection (b), (c), and (d) of this Section.
3) The provisions for the transfer of
property (for example, assets) in this Section apply to the transfer of
property by the institutionalized person's spouse in the same manner as if the
institutionalized person transferred the property.
b) A transfer of assets occurs when an
institutionalized person or an institutionalized person's spouse buys, sells or
gives away real or personal property or changes (for example, change from joint
tenancy to tenancy in common) the way property is held. Changing ownership of
property to a life estate interest is an asset transfer (the value of the life
estate and remainder interest is determined as described in Section
120.380 and 89 Ill.
Adm. Code
113.140) . A transfer
occurs when an action or actions are taken which would cause an asset or assets
not to be received (for example, waiving the right to receive an
inheritance).
c) A transfer is
allowable if:
1) the transfer occurred more
than 30 months before the date of application or more than 30 months before
entry into the long term care facility or more than 30 months before receipt of
services provided by the Illinois Department on Aging under the In-Home Care
Program (as described in Section
140.643
);
2) a fair market value was
received. Fair market value is the price that an article or piece of property
might be expected to bring if offered for sale in a fair market. Fair market
value is determined by statements obtained from institutions, community
members, etc. (for example, bankers, jewelers, reputable realtors, etc.)
recognized as having knowledge of property values;
3) homestead property was transferred to:
A) a spouse;
B) the individual's child who is under age
21;
C) the individual's child who
is blind or permanently and totally disabled;
D) the individual's brother or sister who has
an equity interest in the homestead property and who was residing in the home
for at least one year immediately prior to the date the individual became
institutionalized; or
E) the
individual's child who provided care for the individual and who was residing in
the homestead property for two years immediately prior to the date the
individual became institutionalized;
4) the transfer by the institutionalized
person was to the community spouse or to another individual for the sole
benefit of the community spouse and the amount transferred does not exceed the
Community Spouse Asset Allowance (as described in Section
120.379
);
5) the transfer was to the
individual's child who is blind or permanently and totally disabled or to
another person for the sole benefit of the individual's child;
6) the individual intended to transfer the
assets for fair market value;
7) it
is determined that denial of assistance would create an undue hardship.
Examples of undue hardship include, but are not limited to, situations in
which:
A) the individual is mentally unable
to explain how the assets were transferred;
B) the denial of assistance would force the
resident to move from the long term care facility; or
C) the individual would be prohibited from
joining a spouse in a facility or would prohibit the individual from entering a
facility that is within close proximity to his/her family;
8) the transfer was made exclusively for a
reason other than to qualify for assistance. A transfer for less than fair
market value is presumed to have been made to qualify for assistance unless a
satisfactory showing is made to the Department that the client or spouse
transferred the asset exclusively for a reason other than to qualify for
assistance;
9) the transfer by the
individual was to the community spouse and was the result of a court order;
or
10) the transfer was to an
annuity and the expected return on the annuity is commensurate with the
estimated life expectancy of the person. In determining the estimated life
expectancy of the person, the Department shall use the life expectancy table
described in Section 120.Table B.
d) If a transfer or transfers do not meet the
provisions of subsection (c), the client is subject to a period of
ineligibility for long term care services and for services provided by the
Illinois Department on Aging under the In-Home Care Program (as described in
Section 140.643). The penalty period is determined in accordance with
subsection (e). If otherwise eligible, clients remain entitled to other covered
medical services.
e) A separate
penalty period is determined for each month in which a transfer or transfers do
not meet the provisions of subsection (c). Each penalty period is the lesser of
the number of months the total uncompensated amount of the transferred assets
would meet the monthly cost of long term care at the private rate or 30
months.
f) The penalty period
begins with the month of the transfer or transfers unless the transfer or
transfers occurred during a previous penalty period. If so, the penalty period
begins with the month following the month the previous penalty period ends.
However, the penalty period cannot exceed 30 months from the month of the
transfer or transfers.
