Current through Register Vol. 24-18, September 15, 2024
(1)
When determining a client's eligibility for long-term care (LTC) services, the
medicaid agency or the agency's designee evaluates the effect of an asset
transfer made within the sixty-month period before the month that the client:
(a) Attained institutional status, or would
have attained institutional status but for a period of ineligibility;
and
(b) Applied for LTC
services.
(2) The agency
or the agency's designee evaluates all transfers for recipients of LTC services
made during or after the month the recipient attained institutional
status.
(3) The agency or the
agency's designee establishes a period of ineligibility during which the client
is not eligible for LTC services if the client, the client's spouse, or someone
acting on behalf of either:
(a) Transfers an
asset within the time period under subsection (1) or (2) of this section;
and
(b) There is uncompensated
value because:
(i) Adequate consideration was
not received for the asset, unless the transfer meets one of the conditions in
subsection (4) of this section;
(ii) The transfer was compensated, but fails
a requirement under subsection (4)(d)(iv) or (f) of this section; or
(iii) The transfer was determined to be an
uncompensated asset transfer under chapter 182-516 WAC.
(4) The agency or the agency's
designee does not apply a period of ineligibility for uncompensated value if:
(a) The total of all asset transfers in a
month does not exceed the statewide average daily private cost for nursing
facilities at the time of application or the date of transfer, whichever is
later;
(b) The transferred asset
was an excluded resource under WAC
182-513-1350
except a home, unless the transfer of the home meets the conditions under (d)
of this subsection;
(c) The asset
was transferred for less than fair market value (FMV), and the client can
establish one of the following:
(i) An intent
to transfer the asset at FMV. This intent is established by providing
convincing evidence to the agency or the agency's designee;
(ii) The asset was transferred exclusively
for a purpose other than to qualify for medicaid, continue to qualify for
medicaid, or avoid estate recovery.
(A) An
asset transfer is presumed to be for the purpose of establishing or continuing
medicaid eligibility, avoiding estate recovery, or both;
(B) A client can rebut this presumption by
providing convincing evidence that the transfer of an asset was exclusively for
a purpose other than to qualify for medicaid, continue to qualify for medicaid,
or avoid estate recovery.
(iii) All assets transferred for less than
FMV have been returned to the client or the client's spouse; or
(iv) Denial of eligibility results in an
undue hardship under WAC
182-513-1367.
(d) The transferred asset was a home, if the
home was transferred to the person's:
(i)
Spouse;
(ii) Child who meets the
disability criteria under WAC
182-512-0050(1)(b)
or (c);
(iii) Child who was under age twenty-one;
or
(iv) Child who lived in the home
and provided care, but only if:
(A) The child
lived in the person's home for at least two years;
(B) The child provided verifiable care to
that person during the time period in (d)(iv)(A) of this subsection for at
least two years;
(C) The period of
care under (d)(iv)(B) of this subsection was immediately before that person's
current period of institutional status;
(D) The care was not paid for by
medicaid;
(E) The care enabled that
person to remain at home; and
(F)
The physician's documentation verifies that the in-home care was necessary to
prevent that person's current period of institutional status; or
(v) Sibling, who has lived in and
has had an equity interest in the home for at least one year immediately before
the date the person attained institutional status.
(e) The asset was transferred to the client's
spouse; or to the client's or their spouse's child, if the child meets the
disability criteria under WAC
182-512-0050(1)(b)
or (c);
(f) The transfer was to a family member
before the current period of institutional status, and all the following
conditions are met. If all the following conditions are not met, the transfer
is an uncompensated transfer, regardless of consideration received:
(i) The transfer is in exchange for care
services the family member provided to the client or their spouse;
(ii) The client or their spouse had a
documented need for the care services provided by the family member;
(iii) The care services provided by the
family member are allowed under the medicaid state plan or the department's
home and community-based waiver services;
(iv) The care services provided by the family
member do not duplicate those that another party is being paid to
provide;
(v) The FMV of the asset
transferred is comparable to the FMV of the care services provided;
(vi) The time for which care services are
claimed is reasonable based on the kind of services provided; and
(vii) The assets were transferred as the care
services were performed, with no more time delay than one calendar month
between the provision of the service and the transfer.
(g) The transfer meets the conditions under
subsection (5) of this section, and the asset is transferred:
(i) To another party for the sole benefit of
the client's spouse;
(ii) From the
client's spouse to another party for the sole benefit of the client's
spouse;
(iii) To a trust
established for the sole benefit of the client's or their spouse's child who
meets the disability criteria under WAC
182-512-0050(1)(b)
or (c); or
(iv) To a trust established for the sole
benefit of a person who is under age sixty-five who meets the disability
criteria under WAC
182-512-0050(1)(b)
or (c).
(5) An asset transfer or establishment of a
trust is for the sole benefit of a person under subsection (4)(g) of this
section if the document transferring the asset:
(a) Was made in writing;
(b) Is irrevocable;
(c) States that the client's spouse, their
blind or disabled child, or another disabled person can benefit from the
transferred assets; and
(d) States
that all assets involved must be spent for the sole benefit of the person over
an actuarially sound period, based on the life expectancy of that person or the
term of the document, whichever is less, unless the document is a trust that
meets the conditions of a trust established under Section
42
U.S.C. 1396p(d)(4)(A) or
Section 42 U.S.C. 1396 (d)(4) (C) as described under chapter 182-516
WAC.
(6) To calculate the
period of ineligibility under subsection (3) of this section:
(a) Add together the total uncompensated
value of all transfers under subsection (3) of this section; and
(b) Divide the total in (a) of this
subsection by the statewide average daily private cost for nursing facilities
at the time of application or the date of transfer, whichever is later. The
result is the length, in days rounded down to the nearest whole day, of the
period of ineligibility.
(7) The period of ineligibility under
subsection (6) of this section begins:
(a)
For an LTC services applicant: The date the client would be otherwise eligible
for LTC services, but for the transfer, based on an approved application for
LTC services or the first day after any previous period of ineligibility has
ended; or
(b) For an LTC services
recipient: The first of the month following ten-day advance notice of the
period of ineligibil-ity, but no later than the first day of the month that
follows three full calendar months from the date of the report or discovery of
the transfer; or the first day after any previous period of ineligibility has
ended.
(8) The period of
ineligibility ends after the number of whole days, calculated in subsection (6)
of this section, pass from the date the period of ineligibility began in
subsection (7) of this section.
(9)
If the transfer was to the client's spouse, from the client's spouse to the
client, and it included the right to receive an income stream, the agency or
the agency's designee determines availability of the income stream under WAC
182-513-1330.
(10) If the transferred asset, for which
adequate consideration was not received, included the right to receive a stream
of income not generated by a transferred asset, the length of the period of
ineligibility is calculated and applied in the following way:
(a) The amount of reasonably anticipated
future monthly income, after the transfer, is multiplied by the actuarial life
expectancy in months of the previous owner of the income. The actuarial life
expectancy is based on age of the previous owner in the month the transfer
occurs. If the client and their spouse co-owned the asset, the longer actuarial
life expectancy is used. This product is the FMV of the asset;
(b) Any consideration received in return for
the FMV of the asset under (a) of this subsection is subtracted to calculate
the uncompensated value;
(c) The
uncompensated value in (b) of this subsection is divided by the statewide
average daily private cost for nursing facilities at the time of application or
the date of transfer, whichever is later. The result is the length, in days
rounded down to the nearest whole day, of the period of ineligibility;
and
(d) The period of ineligibility
begins under subsection (7) of this section and ends under subsection (8) of
this section.
(11) A
period of ineligibility for the transfer of an asset that is applied to one
spouse is not applied to the other spouse, unless both spouses have attained
institutional status. When both spouses are institutionalized, the agency or
the agency's designee divides the penalty equally between the two spouses. If
one spouse is no longer subject to a period of ineligibility, the remaining
period of ineligibility that applied to both spouses will be applied to the
other spouse.
(12) Throughout this
section, the date of an asset transfer is:
(a) For real property:
(i) The day the deed is signed by the grantor
if the deed is recorded; or
(ii)
The day the signed deed is delivered to the grantee.
(b) For all other assets, the day the
intentional act or the failure to act resulted in the change of ownership or
title.
(13) If a client
or their spouse disagrees with the determination or application of a period of
ineligibility, a hearing may be requested under chapter 182-526 WAC.
(14) Additional statutes that apply to
transfer of asset penalties, real property transfer for inadequate
consideration, disposal of realty penalties, and transfers to qualify for
assistance can be found at:
(a)
RCW
74.08.331 Unlawful practices-Obtaining
assistance-Disposal of realty-Penalties;
(b)
RCW
74.08.338 Real property transfers for
inadequate consideration;
(c)
RCW
74.08.335 Transfers of property to qualify
for assistance; and
(d)
RCW
74.39A.160 Transfer of
assets-Penalties.
WSR 13-01-017, recodified as §182-513-1363, filed
12/7/12, effective 1/1/13. Statutory Authority:
RCW
74.04.050,
74.04.057,
74.08.090,
74.09.530, section 6014 of the
Deficit Reduction Act of 2005 (DRA), and 2010 1st sp.s. c 37§ 209(1). WSR
12-21-091, § 388-513-1363, filed 10/22/12, effective 11/22/12. Statutory
Authority:
RCW
34.05.353(2)(d),
74.08.090, and chapters 74.09,
74.04 RCW. WSR 08-11-047, § 388-513-1363, filed 5/15/08, effective
6/15/08. Statutory Authority:
RCW
74.04.050,
74.04.057,
74.08.090,
74.09.575, and 2005 federal
Deficit Reduction Act (DRA),
Public Law
109-171. WSR 07-17-152, § 388-513-1363, filed
8/21/07, effective 10/1/07.
