Current through Supplement No. 394, October, 2024
1.
a. Except as provided in subsection 2, an
individual is ineligible for benefits under this chapter if the individual or
the spouse of the individual disposes of assets or income for less than fair
market value on or after the look-back date specified in subdivision
b.
b. The look-back date specified
in this subdivision is a date that is thirty-six months, or, in the case of
payments from a trust or portions of a trust that are treated as income or
assets disposed of by an individual, sixty months, before the date on which the
individual has applied for benefits under this chapter.
2. An individual is not ineligible for
benefits under this chapter by reason of subsection 1 to the extent that:
a. The assets transferred were a home, and
title to the home was transferred to:
(1) The
individual's spouse; or
(2) The
individual's son or daughter who is under age twenty-one, blind, or disabled;
b. The income or
assets:
(1) Were transferred to the
individual's spouse or to another for the sole benefit of the individual's
spouse; or
(2) Were transferred
from the individual's spouse to another for the sole benefit of the
individual's spouse;
c.
The individual makes a satisfactory showing that:
(1) The individual intended to dispose of the
income or assets, either at fair market value or other valuable consideration,
and the individual had an objectively reasonable belief that fair market value
or its equivalent was received;
(2) The income or assets were transferred
exclusively for a purpose other than to qualify for medicaid or benefits under
this chapter; or
(3) For periods
after the return, all income or assets transferred for less than fair market
value have been returned to the individual; and
d. The individual shows that the total
cumulative uncompensated value of all income and assets transferred for less
than fair market value by the individual or the individual's spouse is less
than the actual cost of services of a type provided as benefits under this
chapter, provided after the transfer was made, for which payment has not been
made and which are not subject to payment by any third party, provided that
such a showing may only be made with respect to periods when the individual is
otherwise eligible for benefits under this chapter.
3. There is a presumption that a transfer for
less than fair market value was made for purposes, including the purpose of
qualifying for benefits under this chapter:
a. In any case in which the individual's
assets and the assets of the individual's spouse remaining after the transfer
produce income which, when added to other income available to the individual
and to the individual's spouse totals an amount insufficient to meet all living
expenses and medical costs reasonably anticipated to be incurred by the
individual and by the individual's spouse in the month of transfer and in the
thirty-five months, or fifty-nine months in the case of a transfer to a trust,
following the month of transfer;
b. In any case in which an inquiry about
medicaid benefits or benefits under this chapter was made, by or on behalf of
the individual to any other individual, before the date of the transfer;
c. In any case in which the
individual or the individual's spouse was an applicant for or recipient of
medicaid or benefits under this chapter before the date of transfer;
d. In any case in which a transfer is made by
or on behalf of the individual's spouse, if the value of the transferred income
or asset, when added to the value of the individual's other assets, would
exceed asset limits; or
e. In any
case in which the transfer was made, on behalf of the individual or the
individual's spouse, by a guardian, conservator, or attorney in fact, to the
guardian, conservator, or attorney in fact or to any spouse, child, grandchild,
brother, sister, niece, nephew, parent, or grandparent, by birth, adoption, or
marriage, of the guardian, conservator, or attorney in fact.
4. An applicant or recipient who
claims that income or assets were transferred exclusively for a purpose other
than to qualify for medicaid or benefits under this chapter must show that a
desire to receive medicaid or benefits under this chapter played no part in the
decision to make the transfer and must rebut any presumption arising under
subsection 3. The fact, if it is a fact, that the individual would be eligible
for medicaid or benefits under this chapter had the individual's spouse not
transferred income or assets for less than fair market value, is not evidence
that the income or assets were transferred exclusively for a purpose other than
to qualify for medicaid or benefits under this chapter.
5. If the transferee of any income or asset
is the child, grandchild, brother, sister, niece, nephew, parent, or
grandparent of the individual or the individual's spouse, services or
assistance furnished by the transferee to the individual or the individual's
spouse may not be treated as consideration for the transferred income or asset
unless the transfer is made pursuant to a valid written contract entered into
prior to rendering the services.
6. A transfer is complete when the
individual, or the individual's spouse, making the transfer has no lawful means
of undoing the transfer or requiring a restoration of ownership.
7. For purposes of this section:
a. Fair market value is received:
(1) In the case of an asset not subject to
reasonable dispute concerning its value, such as cash, bank deposits, stocks,
and fungible commodities, when one hundred percent of apparent fair market
value is received;
(2) In the case
of an asset subject to reasonable dispute concerning its value, when
seventy-five percent of estimated fair market value is received; and
(3) In the case of income, when one hundred
percent of apparent fair market value is received.
b. "Uncompensated value" means the difference
between fair market value and the value of any consideration received.
8. This section is
applicable to all transfers whenever made.
General Authority: NDCC
50-06-16,
50-24.5-02(8)
Law Implemented: NDCC
50-24.5
