Current through Register 1531, September 27, 2024
(A)
Payment of Nursing-facility
Services. The MassHealth agency applies the provisions of
130
CMR 520.018 and
520.019 to nursing-facility
residents as defined at
130
CMR 515.001: Definition of
Terms requesting MassHealth agency payment for nursing-facility
services provided in a nursing facility or in any institution for a level of
care equivalent to that received in a nursing facility or for home- and
community-based services provided in accordance with
130
CMR 519.007(B):
Home- and Community-based Services Waiver Frail
Elder.
(B)
Look-back Period. Transfers of resources are subject
to a look-back period, beginning on the first date the individual is both a
nursing-facility resident and has applied for or is receiving MassHealth
Standard.
(1) For transfers occurring before
February 8, 2006, this period generally extends back in time for 36
months.
(2) For transfers of
resources occurring on or after February 8, 2006, the period generally extends
back in time for 60 months. The 60-month look-back period will begin to be
phased in on February 8, 2009. Beginning on March 8, 2009, applicants will be
asked to provide verifications of their assets for the 37 months prior to the
application. As each month passes, the look-back period will increase by one
month until the full 60 months is reached on February 8, 2011.
(3) For transfers of resources from or into
trusts, the look-back period is described in
130
CMR 520.023(A).
(C)
Disqualifying
Transfer of Resources. The MassHealth agency considers any
transfer during the appropriate look-back period by the nursing-facility
resident or spouse of a resource, or interest in a resource, owned by or
available to the nursing-facility resident or the spouse (including the home or
former home of the nursing-facility resident or the spouse) for less than
fair-market value a disqualifying transfer unless listed as permissible in
130
CMR 520.019(D), identified
in 130 CMR
520.019(F), or exempted in
130
CMR 520.019(J). The
MassHealth agency may consider as a disqualifying transfer any action taken to
avoid receiving a resource to which the nursing-facility resident or spouse is
or would be entitled if such action had not been taken. Action taken to avoid
receiving a resource may include, but is not limited to, waiving the right to
receive a resource, not accepting a resource, agreeing to the diversion of a
resource, or failure to take legal action to obtain a resource. In determining
whether or not failure to take legal action to receive a resource is reasonably
considered a transfer by the individual, the MassHealth agency considers the
specific circumstances involved. A disqualifying transfer may include any
action taken that would result in making a formerly available asset no longer
available.
(D)
Permissible Transfers. The MassHealth agency considers
the following transfers permissible. Transfers of resources made for the sole
benefit of a particular person must be in accordance with federal law.
(1) The resources were transferred to the
spouse of the nursing-facility resident or to another for the sole benefit of
the spouse. A nursing-facility resident who has been determined eligible for
MassHealth agency payment of nursing-facility services and who has received an
asset assessment from the MassHealth agency must make any necessary transfers
within 90 days after the date of the notice of approval for MassHealth in
accordance with
130
CMR 520.016(B)(3).
(2) The resources were transferred from the
spouse of the nursing-facility resident to another for the sole benefit of the
spouse.
(3) The resources were
transferred to the nursing-facility resident's permanently and totally disabled
or blind child or to a trust, a pooled trust, or a special-needs trust created
for the sole benefit of such child.
(4) The resources were transferred to a
trust, a special-needs trust, or a pooled trust created for the sole benefit of
a permanently and totally disabled person who was younger than 65 years old at
the time the trust was created or funded.
(5) Effective until 60 days after the end of
the maintenance of effort and continuous eligibility provisions of Section 6008
of the Families First Coronavirus Response Act (Public Law No. 116-127), the
resources were transferred to a pooled trust created for the sole benefit of
the permanently and totally disabled nursing-facility resident. Effective 60
days after the end of the maintenance of effort and continuous eligibility
provisions of Section 6008 of the Families First Coronavirus Response Act
(Public Law No. 116-127), this transfer is no longer permissible.
(6) The nursing facility resident transferred
the home he or she used as the principal residence at the time of transfer and
the title to the home to one of the following persons:
(a) the spouse;
(b) the nursing facility resident's child who
is younger than 21 years old, or who is blind or permanently and totally
disabled;
(c) the nursing facility
resident's sibling who has a legal interest in the nursing-facility resident's
home and was living in the nursing facility resident's home for at least one
year immediately before the date of the nursing facility resident's admission
to the nursing facility; or
(d) the
nursing facility resident's child (other than the child described in
130
CMR 520.019(D)(6)(b)) who
was living in the nursing facility resident's home for at least two years
immediately before the date of the nursing facility resident's admission to the
institution, and who, as determined by the MassHealth agency, provided care to
the nursing-facility resident that permitted him or her to live at home rather
than in a nursing facility.
(7) The resources were transferred to a
separately identifiable burial account, burial arrangement, or a similar device
for the nursing facility resident or the spouse in accordance with
130
CMR 520.008(F).
(E)
Repayment of
Financial and Medical Assistance. A nursing-facility resident who
has received or will be receiving payment from a third party as a result of an
accident, injury, or other loss must first repay the MassHealth agency for
medical assistance under M.G.L. c. 118E, § 22 and
42 U.S.C.
1396a(a)(25)(A) and (B) and
the Department of Transitional Assistance for financial assistance under M.G.L.
c. 18, § 5G, before the MassHealth agency will consider whether a transfer
of such third-party payments may be permissible under
130
CMR 520.019(D), (F), or
(J).
(F)
Determination of
Intent. In addition to the permissible transfers described in
130
CMR 520.019(D), the
MassHealth agency will not impose a period of ineligibility for transferring
resources at less than fair-market value if the nursing-facility resident or
the spouse demonstrates to the MassHealth agency's satisfaction that
(1) the resources were transferred
exclusively for a purpose other than to qualify for MassHealth; or
(2) the nursing-facility resident or spouse
intended to dispose of the resource at either fair-market value or for other
valuable consideration. Valuable consideration is a tangible benefit equal to
at least the fair-market value of the transferred resource.
(G)
Period of
Ineligibility Due to a Disqualifying Transfer.
(1)
Duration of
Ineligibility. If the MassHealth agency has determined that a
disqualifying transfer of resources has occurred, the MassHealth agency will
calculate a period of ineligibility. The number of months in the period of
ineligibility is equal to the total, cumulative, uncompensated value as defined
in
130 CMR
515.001: Definition of Terms
of all resources transferred by the nursing-facility resident or the
spouse, divided by the average monthly cost to a private patient receiving
nursing-facility services in the Commonwealth of Massachusetts at the time of
application, as determined by the MassHealth agency.
(2)
Determination of the Period
of Ineligibility in Special Circumstances. The MassHealth agency
determines the periods of ineligibility in the following situations.
(a)
Transfers in the Same
Month. When a number of resources have been transferred in the
same month, the MassHealth agency calculates the period of ineligibility by
dividing the total value of the transferred resources by the average monthly
cost to a private patient receiving nursing-facility services in the
Commonwealth of Massachusetts at the time of application, as determined by the
MassHealth agency. The period of ineligibility begins on the first day of the
month in which the resources were transferred.
(b)
Periods of Ineligibilty that
Overlap. When transfers of resources result in periods of
ineligibility that overlap, the MassHealth agency adds the value of all the
transferred resources and divides the total by the average monthly cost to a
private patient receiving nursing-facility services in the Commonwealth of
Massachusetts at the time of application, as determined by the MassHealth
agency. The result is a single period of ineligibility beginning on the first
day of the month in which the first transfer was made.
(c)
Periods of Ineligibility that
do not Overlap. In the case of multiple transfers where the
periods of ineligibility for each transfer do not overlap, the MassHealth
agency considers each transfer as a separate event with its own period of
ineligibility. For non- overlapping multiple transfers occurring on or after
February 8, 2006, see130 CMR 520.019(G)(2)1.
(d)
Periods of Ineligibility of
less than One Month. If the calculated period of ineligibility is
less than one month, the MassHealth agency imposes a partial-month period of
ineligibility and does not round down or disregard any fractional period of
ineligibility.
(e)
Transfer of Lump-sum Income. When income has been
transferred as a lump sum, the MassHealth agency calculates the period of
ineligibility on the lump-sum value.
(f)
Transfer of Stream of
Income. When a stream of income has been transferred, the
MassHealth agency calculates the period of ineligibility for each income
payment that is periodically transferred. The MassHealth agency may impose
partial-month periods of ineligibility.
(g)
Transfer of the Right to a
Stream of Income. When the right to a stream of income has been
transferred, the MassHealth agency calculates the period of ineligibility based
on the total amount of income expected to be transferred during the
nursing-facility resident's life, according to the life-expectancy tables as
determined by the MassHealth agency.
(h)
Transfer by the
Spouse. When a transfer by the spouse results in a period of
ineligibility for the nursing-facility resident, and the spouse later becomes
institutionalized and applies for MassHealth agency payment of nursing-facility
services, the MassHealth agency apportions the remaining period of
ineligibility equally between the spouses. If both spouses become
nursing-facility residents in the same month, the MassHealth agency divides the
period of ineligibility equally between them. When one spouse is no longer
subject to a penalty, any remaining penalty must then be imposed on the
remaining nursing-facility-resident spouse.
(i)
Multiple Transfers Occurring
on or after February 8, 2006. For transfers occurring on or after
February 8, 2006, the MassHealth agency adds the value of all the resources
transferred during the look-back period and divides the total by the average
monthly cost to a private patient receiving long-term-care services in the
Commonwealth of Massachusetts at the time of application, as determined by the
MassHealth agency. The result will be a single period of ineligibility
beginning on the first day of the month in which the first transfer was made or
the date on which the individual is otherwise eligible for long-term-care
services, whichever is later.
(3)
Begin Date. For
transfers occurring before February 8, 2006, the period of ineligibility begins
on the first day of the month in which resources have been transferred for less
than fair-market value. For transfers occurring on or after February 8, 2006,
the period of ineligibility begins on the first day of the month in which
resources were transferred for less than fair-market value or the date on which
the individual is otherwise eligible for Mass- Health agency payment of
long-term-care services, whichever is later. For transfers involving revocable
trusts, the date of transfer is the date the payment to someone other than the
nursing-facility resident or the spouse is made. For transfers involving
irrevocable trusts, the date of transfer is
(a) the date that the countable trust
resources are transferred to someone other than the nursing-facility resident
or spouse; or
(b) the latest of the
following:
1. the date that payment to the
nursing-facility resident or the spouse was foreclosed under the terms of the
trust;
2. the date that the trust
was established; or
3. the date
that any resource was placed in the trust.
(H)
Transfers of
Jointly Held Resources. The MassHealth agency will determine the
amount of the nursing-facility resident's ownership interest of jointly held
resources as defined in
130 CMR
515.001: Definition of Terms
in accordance with the ownership rules at
130 CMR
520.005. The MassHealth agency will consider
as a transfer any action taken by any person that reduces or eliminates the
nursing-facility resident's ownership or control of the resource. The
MassHealth agency then will determine whether the transfer was made at less
than fair-market value in accordance with the transfer rules.
(I)
Transfer of Life-estate and
Remainder Interest. The rules pertaining to transfer of
life-estate and remainder interest apply in instances involving remainder
interest of property including life estates, annuities, wills, and trusts.
(1) The MassHealth agency considers a
transfer of property with the retention of a life estate, as defined in
130 CMR
515.001: Definition of
Terms, to be a transfer of resources. The difference between the
fair-market value of the entire asset and the value of the life estate is
called the remainder interest. The remainder interest is the amount considered
to be transferred at less than fair-market value. The MassHealth agency will
calculate the values of the remainder interest and the life estate in
accordance with the life-estate tables, as determined by the MassHealth agency.
If the language of the document creating the life estate explicitly states that
the owner of the life estate has the power to sell the entire property (not
simply the life estate), then the creation of this type of life estate will be
treated as a trust.
(2) If the
nursing-facility resident's or the spouse's life-estate interest or property
including the life-estate interest is sold or transferred, the value of the
life-estate interest at the time of the sale or transfer is calculated in
accordance with the life-estate tables, as determined by the MassHealth agency.
The MassHealth agency will attribute the value of the life-estate interest at
the time of the sale or transfer to the person selling or transferring the life
estate.
(3) The MassHealth agency
considers the purchase of a life estate in another individual's home made on or
after April 1, 2006, a disqualifying transfer, unless the purchaser resides in
the home for a period of at least one year after the date of the
purchase.
(J)
Home Equity Loans and Reverse Mortgages. Proceeds from
a home equity loan or a reverse mortgage that are transferred in the month of
receipt will be considered a disqualifying transfer of resources if transferred
for less than fair-market value.
(K)
Exempting Transfers from the
Period of Ineligibility.
(1)
During the Eligibility Process. To avoid the
imposition of a period of ineligibility, the nursing-facility resident may take
action during the determination of eligibility before the issuance of a notice
of a period of ineligibility as follows.
(a)
Revising a Trust. During the eligibility process, the
nursing-facility resident may revise a trust to comply with the criteria of a
special-needs trust or a pooled trust, as defined in
130 CMR
515.001: Definition of
Terms. The use of resources to create these trusts are permissible
transfers, in accordance with 130 CMR 520.019(D). The MassHealth agency will
use the original application date if during the eligibility process the
nursing-facility resident provides proof that the trust has been revised
accordingly.
(b)
Curing
a Transfer. During the eligibility process, the full value or a
portion of the full value of the transferred resources may be returned to the
nursing-facility resident. The MassHealth agency will use the original
application date and consider the transfer to have been eliminated or adjusted.
The MassHealth agency will apply the countable assets rules at
130 CMR 520.007
and the countable income rules at
130 CMR
520.009 to the returned resources in
determining eligibility.
(2)
After Issuance of the Notice
of the Period of Ineligibility. After the issuance of the notice
of the period of ineligibility, the nursing-facility resident may avoid
imposition of the period of ineligibility in the following instances.
(a)
Revising a
Trust. If the nursing-facility resident revises a trust to comply
with the criteria of a special-needs trust or a pooled trust as defined in
130 CMR
515.001:
Definition of Terms
and exempted in 130 CMR 520.019(D), the MassHealth agency will rescind the
period of ineligibility as follows.
1. The
MassHealth agency will use the original application date if within 60 days
after the date of the notice of the period of ineligibility, the
nursing-facility resident provides proof that the trust has been revised to
comply with the criteria of a special- needs trust or a pooled trust. The
MassHealth agency may extend the original 60-day period for an additional 120
days, if court action is required to revise the trust, as long as the court
action is filed within the 60-day period after the date of the notice of the
period of ineligibility.
2. If
after the 60th day after the date of the notice of
the period of ineligibility, the nursing-facility resident provides proof that
the trust has been revised to comply with the criteria of a special-needs trust
or a pooled trust, the MassHealth agency will consider the trust revised as of
the date the trust has been both revised and notarized.
(b)
Curing a
Transfer. If the full value or a portion of the full value of the
transferred resources is returned to the nursing-facility resident, the
MassHealth agency will rescind or adjust the period of ineligibility and will
apply the countable-assets rules at
130 CMR 520.007
and the countable-income rules at
130 CMR
520.009 to the returned resources in the
determination of eligibility. The MassHealth agency will rescind or adjust the
period of ineligibility as follows.
1. The
MassHealth agency uses the original application date if the nursing-facility
resident provides proof within 60 days after the date of the notice of the
period of ineligibility that the transfer has been fully or partially cured. In
the case of a partial cure, the MassHealth agency recalculates the period of
ineligibility based on the transferred amount remaining after deducting the
cured portion, beginning with the date of transfer or, for cures of transfers
occurring on or after February 8, 2006, the later of the date of transfer or
the date on which the individual would have otherwise been eligible.
2. If the nursing-facility resident provides
proof later than the 60th day after the date of the
notice of a period of ineligibility that the transfer has been fully or
partially cured, the nursing-facility resident must reapply. The MassHealth
agency recalculates the period of ineligibility based on the amount of the
transfer remaining after the cure, beginning with the date of transfer or, for
cures of transfers occurring on or after February 8, 2006, the later of the
date of transfer or the date on which the individual would have otherwise been
eligible.
(L)
Waiver of the Period of
Ineligibility Due to Undue Hardship. In addition to revising a
trust and curing a transfer, the nursing-facility resident may claim undue
hardship in order to eliminate the period of ineligibility.
(1) The MassHealth agency may waive a period
of ineligibility due to a disqualifying transfer of resources if ineligibility
would cause the nursing-facility resident undue hardship.
The MassHealth agency may waive the entire period of
ineligibility or only a portion when all of the following circumstances
exist.
(a) The denial of MassHealth
would deprive the nursing-facility resident of medical care such that his or
her health or life would be endangered, or the nursing-facility resident would
be deprived of food, shelter, clothing, or other necessities such that he or
she would be at risk of serious deprivation.
(b) Documentary evidence has been provided
that demonstrates to the satisfaction of the MassHealth agency that all
appropriate attempts to retrieve the transferred resource have been exhausted
and that the resource or other adequate compensation cannot be obtained to
provide payment, in whole or part, to the nursing-facility resident or the
nursing facility.
(c) The
institution has notified the nursing-facility resident of its intent to
initiate a discharge of the resident because the resident has not paid for his
or her institutionalization.
(d)
There is no less costly noninstitutional alternative available to meet the
nursing- facility resident 's needs.
(2) Undue hardship does not exist when
imposition of the period of ineligibility would merely inconvenience or
restrict the nursing-facility resident without putting the nursing- facility
resident at risk of serious deprivation.
(3) Where the MassHealth agency has issued a
notice of the period of ineligibility due to a disqualifying transfer of
resources, the nursing-facility resident may request a hardship waiver. For
transfers occurring on or after February 8, 2006, nursing facilities may apply
for a hardship waiver on behalf of a resident, with the consent of the
nursing-facility resident or the resident's authorized
representative.
(4) If the
nursing-facility resident feels the imposition of a period of ineligibility
would result in undue hardship, the nursing-facility resident must submit a
written request for consideration of undue hardship and any supporting
documentation to the MassHealth Enrollment Center listed on the notice of the
period of ineligibility within 15 days after the date on the notice. Within 30
days after the date of the nursing-facility resident's request, the MassHealth
agency will inform the nursing-facility resident in writing of the
undue-hardship decision and of the right to a fair hearing. The MassHealth
agency will extend this 30-day period if the MassHealth agency requests
additional documentation or if extenuating circumstances as determined by the
MassHealth agency require additional time.
(5) The nursing-facility resident may appeal
the MassHealth agency's undue-hardship decision and the imposition of a period
of ineligibility by submitting a request for a fair hearing to the MassHealth
agency's Office of Medicaid Board of Hearings within 30 days after the
nursing-facility resident's receipt of the MassHealth agency's written
undue-hardship notice, in accordance with 130 CMR 610.000: MassHealth:
Fair Hearing Rules.
(6)
The nursing-facility resident's request for consideration of undue hardship
does not limit his or her right to request a fair hearing for reasons other
than undue hardship.
(M)
Fraudulent Transfer or Sale. If a nursing-facility
resident whose estate would be subject to a claim under
130 CMR 515.011:
Estate Recovery transfers or sells any property including a
home or an interest in the property for less than fair-market value, the
MassHealth agency may consider the transfer or sale that does not meet the
conditions of 130 CMR 520.019(D)(6) to be fraudulent under the Uniform
Fraudulent Conveyance Act (M.G.L. c. 109(A)) and take appropriate legal action
to set aside the transfer or sale.
(N)
No Double
Penalty. In the event that application of the transfer rules and
the trust rules in 130 CMR 520.000 results in a nursing-facility resident being
subject to a transfer penalty twice for actions involving the same resource,
the trust rules will supersede the transfer rules in the determination of
eligibility.
