Code of Maryland Regulations
Title 10 - MARYLAND DEPARTMENT OF HEALTH
Part 2
Subtitle 09 - MEDICAL CARE PROGRAMS
Chapter 10.09.24 - Medical Assistance Eligibility
Section 10.09.24.08-1 - Disposal of Assets for Less Than Fair Market Value
Universal Citation: MD Code Reg 10.09.24.08-1
Current through Register Vol. 51, No. 19, September 20, 2024
A. Definitions. In this regulation, the following terms have the meanings indicated:
(1) "Assets" means all income and resources
of an individual and of an individual's spouse, including any income or
resources which the individual or the individual's spouse is entitled to but
does not receive because of action by:
(a)
The individual;
(b) The
individual's spouse;
(c) A person,
including a court or administrative body:
(i)
With legal authority to act in place of or on behalf of the individual or the
individual's spouse, or
(ii) Acting
at the direction or upon the request of the individual or the individual's
spouse.
(2)
"Trust" means a legal instrument, which is either revocable or irrevocable,
created, other than by will, by a grantor for the benefit of designated
beneficiaries under the laws of the State and subject to the management of a
trustee or trustees who have a fiduciary responsibility to manage the trust's
resources and income for the benefit of the beneficiaries.
B. Disposal of Assets.
(1) In determining eligibility for Medical
Assistance for any period under consideration beginning on or after October 1,
1993, in the case of assets disposed of after August 10, 1993, a penalty period
shall be established during which an individual is determined ineligible for
nursing facility services, for a level of care in a medical institution
equivalent to that of nursing facility services, and for home and
community-based waiver services provided for under the authority of §
1915(c) and (d) of the Social Security Act if the individual or the
individual's spouse disposes of an asset for less than fair market value at any
time during or after the time periods specified under §B(2) of this
regulation.
(2) Time Periods for
Evaluating Disposals.
(a) For assets other
than trusts, the time period for evaluating disposals is the following:
(i) For disposals earlier than February 6,
2006, the 36-month period immediately before the date as of which the
individual both is an institutionalized individual and has applied for Medical
Assistance.
(ii) For disposals on
or after February 6, 2006, the 60-month period immediately before the date as
of which the individual both is an institutionalized individual and has applied
for Medical Assistance.
(b) In the case of payments from a trust or
portions of a trust that are treated as a disposal of assets under Regulation
.08-2B(4)(c), (5)(a)(ii), or (5)(b) of this chapter, the time period for
evaluating disposals is the 60-month period immediately before the date as of
which the individual both is an institutionalized individual and has applied
for Medical Assistance.
(3) The penalty period begins:
(a) For a transfer before February 6, 2006,
with the later of:
(i) The first day of the
month in which the asset was transferred; or
(ii) The date on which the individual is
eligible for Medical Assistance and, but for the transfer, would be receiving
institutional level of care; and
(b) For a transfer on or after February 6,
2006, with the later of:
(i) The first day of
the month in which the individual is eligible for Medicaid and would be
receiving Medicaid nursing facility services but for the application of this
penalty; or
(ii) The month during
or after which assets have been transferred for less than fair market
value.
(4) If
the transfer occurs while the individual is in a penalty period for an earlier
disposal, the penalty period begins on the first day of the first month
following the end of the earlier penalty period.
(5) The number of months in the penalty
period are equal to the total, cumulative, uncompensated value of all assets
transferred, divided by the average monthly cost, to a private patient at the
time of application for Medical Assistance, of nursing facility services in the
State.
(6) Asset Transfers For Less
Than Average Monthly Cost of Care.
(a) If the
amount of a transfer is less than the average monthly cost of nursing facility
services in the State, the length of the penalty period is calculated based on
the proportion of the average monthly cost of nursing facility services that
was transferred.
(b) If a series of
transfers is made, each of which is less than the average monthly cost of
nursing facility services, the penalty period is calculated based on the total,
cumulative, uncompensated value of all assets transferred.
(7) Transfers Not Equally Divisible. If the
amount of a single transfer or the amount of the total, cumulative,
uncompensated value of all assets transferred is not equally divisible by the
average monthly cost of nursing facility services in the State, the length of
the penalty period is calculated based on the proportion of the average monthly
cost of nursing facility services that was transferred.
(8) An institutionalized individual may not
be determined ineligible for Medical Assistance under §B(1) of this
regulation if the asset transferred was a home, and title to the home was
transferred to:
(a) The spouse of the
individual;
(b) The individual's
child as defined under Regulation .02B of this chapter or who is blind or
disabled as determined under Regulation .05-4 of this chapter;
(c) A sibling of the individual who has an
equity interest in the home and who was residing in the home for a period of at
least 1 year immediately before the date the individual became an
institutionalized individual; or
(d) A son or daughter of the individual other
than the individual's child described under §B(8)(b) of this regulation,
who:
(i) Is lawfully residing in the
home,
(ii) Was residing in the home
for a period of at least 2 years immediately before the date the individual
became an institutionalized individual, and
(iii) Can establish, to the Department's
satisfaction, that the son or daughter provided the care that permitted the
individual to reside at home rather than in an institution.
(9) An individual may
not be determined ineligible for Medical Assistance by reason of the transfer
of any asset, excluded or countable, if the asset was transferred under one of
the following conditions:
(a) The asset was
transferred to the individual's spouse or to another for the sole benefit of
the individual's spouse;
(b) The
asset was transferred from the individual's spouse to another for the sole
benefit of the individual's spouse;
(c) The asset was transferred to, or to a
trust established for the sole benefit of, the individual's son or daughter who
is blind or disabled as defined under Regulation .05-4 of this
chapter;
(d) The asset was
transferred to a trust established for the sole benefit of a disabled
individual, as defined under Regulation .05-4B of this chapter, younger than 65
years old;
(e) The individual
furnishes convincing evidence, consisting of testimony or other corroborative
evidence, that the individual intended to dispose of the asset at fair market
value or for other valuable consideration;
(f) The individual furnishes convincing
evidence that the asset was transferred exclusively for a purpose other than to
qualify for Medical Assistance; or
(g) The full value of the asset transferred
by an individual for less than fair market value has been returned to the
individual.
(10) In the
case of an asset held by an individual in common with another individual or
individuals in a joint tenancy, tenancy in common, or similar arrangement, the
asset, or the affected portion of the asset, shall be considered a transfer
when any action is taken, either by the individual or by any other individual,
that reduces or eliminates the individual's ownership or control of the
asset.
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