Current through Register Vol. 50, No. 9, September 20, 2024
A. The Deficit
Reduction Act of 2005 established new provisions governing the treatment of
transfers of assets for individuals and their spouses who apply for or receive
long-term care services.
B. The
look-back period is lengthened to five years for potential transfers of
assets.
C. For transfers of assets
for less than fair market value, the period of ineligibility for an individual
in a long term care facility begins the later of the first day of the month
after which the asset was transferred for less than fair market value or the
date on which the individual is eligible for Medicaid and is receiving
institutional level of care services (based on an approved application for such
services) that, but for the imposition of the penalty, would be covered by
Medicaid.
1. Periods of ineligibility cannot
occur during any other period of ineligibility; they must be consecutive and
not concurrent.
D. For
transfers of assets for less than fair market value, the period of
ineligibility for an individual applying for, or receiving, home and
community-based services (HCBS) waiver services begins the later of the first
day of the month after which the asset was transferred for less than fair
market value or the date on which it is determined that the individual meets
the financial and non-financial requirements for Medicaid eligibility and all
other requirements for admission to an HCBS waiver are met.
E. Partial Month Transfers. The department
shall impose penalties for transfers in a month that are less than the state's
average monthly cost to a private patient of nursing facility services in the
state.
F. Combining Multiple
Transfers Made in More Than One Month. These provisions refer to more than one
transfer during the look-back period where each transfer results in less than a
full month of eligibility.
1. The department
shall combine multiple transfers for less than fair market value in more than
one month and impose a single period of ineligibility or apply multiple penalty
periods.
a. If the department imposes a single
period of ineligibility, all transfers will be added together and a single
continuous period of eligibility will be imposed. Otherwise, a separate period
of ineligibility shall be calculated for each month and the resulting periods
of eligibility shall be imposed separately.
G. Undue Hardship. The department shall
provide for an undue hardship waiver when application of the transfer of assets
provision would deprive the individual of medical care such that the
individual's health, life or other necessities of life would be endangered.
1. Undue hardship provisions shall permit the
facility in which the individual is residing to file an undue hardship waiver
application on his behalf with the consent of the individual or the personal
representative of the individual.
2. Bed hold payments shall not be made while
an application for an undue hardship waiver is pending.
3. Terms. The penalty is a period of
ineligibility for receiving long term care vendor payments as a result of a
transfer of income or assets or both.
a. An
undue hardship exception is when a penalty will not be imposed against the
applicant/enrollee, either in whole or in part, after findings that an undue
hardship exists.
b. The community
spouse is not protected by the hardship exception. The exception is for the
applicant/enrollee not to be deprived.
4. Undue hardship does not exist:
a. when the application of the transfer of
assets provisions merely causes the individual inconvenience or when such
application might restrict his or her lifestyle but would not put him/her at
risk of serious deprivation; and
b.
when property is transferred to one or more of the following:
i. blood relatives to a third degree
cousin;
ii.
mother-in-law;
iii.
father-in-law;
iv. brother-in-law;
or
v. sister-in-law;
c. if the individual who
transferred the assets or income, or on whose behalf the assets or income were
transferred, has not exhausted all lawful means to recover the assets or income
or the value of the transferred assets or income; or
d. if the applicant/enrollee's health or age
indicated a need for long term care services was predictable at the time of the
transfer.
5. The
applicant/recipient shall be advised in writing that an undue hardship
exception.
6. If an undue hardship
exception is denied the applicant has the right to appeal the denial
decision.
7. Determining Undue
Hardship. Once a period of ineligibility has been established because of a
transfer of assets or income for less than fair market value, or the equity
value in the home, an applicant/enrollee may apply for an undue hardship
exception.
a. A n undue hardship exception
request must be made within seven days from the date of notification of the
penalty. Documentation supporting the request for the exception of undue
hardship must be provided. The department may extend the request periods if it
determines that extenuating circumstances require additional time.
b. When undue hardship requests are made for
the first time, individuals challenging the penalty must raise all claims and
submit all evidence permitting consideration of undue hardship. The individual
has to have taken action in law and equity to get the asset back before the
department can consider undue hardship.
c. Once the department determines that it has
received complete documentation, it shall inform the individual within 10
business days of the undue hardship decision.
d. If no request for undue hardship is
received within seven days after notification of a transfer penalty, or if the
request is denied, the department shall issue an eligibility determination
specifying the applicable penalty period. If the individual is a recipient, the
notice shall include the date of the Medicaid long-term care termination. The
notice shall also include the right to request a fair hearing and continuing
benefits.
8. An undue
hardship exception may be requested at any time during the penalty period if
new circumstances leading to undue hardship arise during the duration of the
penalty period. If granted, the undue hardship request shall be prospective
from the date of the request.
9.
The department shall have no obligation to pay for long-term care services
during the penalty period unless it grants an undue hardship exception or the
applicant/enrollee prevails in a fair hearing.
10. The individual must provide to the
department sufficient documentation to support, by a preponderance of the
evidence, the claim that application of the penalty will result in an undue
hardship to the applicant/enrollee (not the community spouse).
11. If undue hardship is determined to exist,
the transferred assets or equity value in the home shall not be considered in
the eligibility process.
12. If a request for an undue hardship
exception is denied, the applicant/enrollee may request a fair
hearing.
13. Terminating the Undue
Hardship Exception. The department shall terminate the undue hardship
exception, if not earlier, at the time an individual, the spouse of the
individual, or anyone with authority on behalf of the individual, makes any
uncompensated transfer of income or assets after the undue hardship exception
is granted.
a. The department shall deny any
further requests for an undue hardship exception due to either the
disqualification based on the transfer upon which the initial undue hardship
determination was based or a disqualification based on the transfer, which
required termination of the undue hardship exception.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
36:254 and Title XIX of the Social Security
Act.
