Current through all regulations passed and filed through September 16, 2024
(A)
This rule
implements section 1917 of the Social Security Act (as in effect on October 1,
2016) and describes the treatment of transfers of assets when an
institutionalized individual, as defined in rule 5160:1-6-01.1 of the
Administrative Code, is seeking medicaid payment for long-term care (LTC)
services. This rule, and rules 5160:1-6-06.1 to 5160:1-6- 06.8 of the
Administrative Code, only apply to institutionalized
individuals.
(B)
If the institutionalized individual (or his or her
spouse) disposes of assets for less than fair market value on or after the
look-back date specified in paragraph (C) of this rule, any such transfer will
be presumed an improper transfer and will result in a restricted medicaid
coverage period (RMCP) in accordance with rule 5160:1-6-06.5 of the
Administrative Code.
(C)
The look-back date is sixty months (five years) before
the individual's baseline date, as defined in rule 5160:1-6-01.1 of the
Administrative Code.
(1)
If the individual is already eligible for medical
assistance when he or she first became an institutionalized individual, the
baseline date is the first day of institutionalization.
(2)
If the individual
is requesting enrollment in home and community-based (HCBS) waiver, the
baseline date is the first date that the individual has both applied for
medical assistance and requested enrollment on an HCBS waiver. These transfer
of asset provisions only apply if the individual is eligible for medical
assistance using the special income level (SIL).
(D)
The following
transfers are not considered improper:
(1)
The title to the
home was transferred to the institutionalized individual's spouse, child who is
under the age of twenty-one, or child who is blind or disabled in accordance
with section 1614 of the Social Security Act (as in effect on October 1,
2016).
(2)
The title to the home was transferred to the
institutionalized individual's child (other than a child described in paragraph
(D)(1) of this rule) who:
(a)
Provided care to the institutionalized individual which
permitted the institutionalized individual to reside at home rather than in a
long-term care facility (LTCF) or be enrolled in an HCBS waiver;
and
(b)
Resided in the home for a period of at least two years
immediately before and on a continuous basis since the individual became an
institutionalized individual; and
(c)
Documents that he
or she has fulfilled all of the requirements in paragraphs (D)(2)(a) to
(D)(2)(c) of this rule by submitting the following:
(i)
A written
statement of the date that he or she moved into the home; and
(ii)
A level of care
assessment showing that the individual would have become institutionalized
earlier without care provided by the child; and
(iii)
A written
statement from the individual's attending physician stating the kind and
duration of care that was required to delay the individual's
institutionalization; and
(iv)
All relevant
documentation of the care that delayed institutionalization and the role the
child played in that care. This documentation may include (but is not limited
to) one or more of the following:
(a)
A written statement of the number of hours per day
during which the child provided personal care, specifying the extent and type
of care provided;
(b)
A written statement of any part-time or full-time jobs
performed by the child, and any schools or other similar institutions attended
by the child, while providing care; or
(c)
Written
documentation from a service agency which provided care to the individual, the
dates on which care was provided, and the extent and type of care
provided.
(3)
The title to the
home was transferred to the institutionalized individual's sibling who has an
equity interest in the home and who was residing in the institutionalized
individual's home for a period of at least one year immediately before the date
the individual was admitted into a LTCF or enrolled in an HCBS
waiver.
(4)
The assets were transferred to or from (i.e. between
the spouses) the institutionalized individual and his or her spouse, or to
another for the sole benefit of the institutionalized individual's
spouse.
(5)
The assets were transferred to the institutionalized
individual's child who is blind or disabled in accordance with section 1614 of
the Social Secuity Act (as in effect on October 1, 2016) (or to a trust,
including an exempt trust described in rule 5160:1-3-05.2 of the Administrative
Code), for the sole benefit of that child.
(6)
The assets were
transferred to a trust (including an exempt trust described in rule
5160:1-3-05.2 of the Administrative Code) created for the sole benefit of an
individual under the age of 65 who is disabled, as defined in section 1614 of
the Social Security Act (as in effect on October 1, 2016).
(7)
The
institutionalized individual's income transferred to a qualified income trust
(QIT) in accordance with rule 5160:1-6-03.2 of the Administrative
Code.
(E)
For transfers described in paragraphs (D)(4) to (D)(6)
of the is rule to be considered for the sole benefit of the individuals
described in such paragraphs, the instrument or document must provide for the
spending of the funds involved for the benefit of the individual on a basis
that is actuarially sound based on the life expectancy of the individual
involved. When the instument or document does not provide for such, any
potential exemption from an RMCP, in accordance with rule 5160:1-6-06.5 of the
Administrative Code, is void.
(F)
Rebutting the
presumption that a transfer was improper.
(1)
The
institutionalized individual, his or her spouse, or anyone acting on the
institutionalized individual's behalf may make a satisfactory showing to the
agency that the institutionalized individual or such individual's spouse
intended to:
(a)
Transfer the asset for fair market value or for other
valuable consideration; or
(b)
Transfer the
asset exclusively for a purpose other than to qualify for medical
assistance.
(2)
The institutionalized individual, his or her spouse, or
anyone acting on the institutionalized individual's behalf must provide a
written explanation with supporting documentation which explains the
following:
(a)
The reason for transferring the asset for less than fair market value;
and
(b)
The attempts that were made to transfer the asset for
fair market value; and
(c)
The reasons for accepting less than fair market value
for the asset; and
(d)
The institutionalized individual's relationship to the
person to whom the asset was transferred.
(e)
The occurrence of
one or more of the following after a transfer of the asset(s), while not
conclusive, may indicate that the asset(s) was transferred exclusively for some
purpose other than to qualify for medical assistance:
(i)
Traumatic onset
of disability or blindness (e.g., due to traffic accident); or
(ii)
Diagnosis of a
previously undetected disabling condition.
(f)
Supporting
documentation may include, but is not limited to, a contract, realtor
agreements, sworn statements, third party statements, medical records,
financial records, court records, and relevant correspondence.
(3)
If the
institutionalized individual proves to the agency that a transfer was not
improper then no RMCP will be imposed with respect to that
transfer.
(G)
If the imposition of a RMCP would result in an undue
hardship, the institutionalized individual can request an undue hardship
exemption in accordance with rule 5160:1-6-06.6 of the Administrative
Code.
(H)
Verification of transfers.
(1)
The
administrative agency shall determine at the time of application, renewal or
anytime upon discovery of a transfer whether the institutionalized individual
executed an improper transfer.
(2)
An
institutionalized individual must inform the administrative agency of any
transfers of real or personal property.
(3)
The
institutionalized individual must provide the administrative agency with
documentation verifying any transfer and the details of any exchanges or
transactions. If requested the administrative agency shall assist the
institutionalized individual in gathering such documentation.
Replaces: 5160:1-3- 07.2
