No. 28595: R414-305. Resources

DAR File No.: 28595
Filed: 03/31/2006, 02:56
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule puts into effect the provisions from Pub. L. No. 109-171 that affect several eligibility criteria for the receipt of Medicaid for nursing home and long-term care services provided under a home and community based waiver program. These provisions became effective on the enactment date of the law and will affect the state's federal financial participation beginning 04/01/2006.

 

Summary of the rule or change:

This rulemaking incorporates sections of Pub. L. No. 109-171 that affect the treatment of transfers of assets for less than fair market value. It changes the length of the look back period for transfers of assets. It changes the date the sanction period begins when an individual or the spouse has transferred assets for less than fair market value. It also requires the state to assess sanctions for transfers that are equal to less than the one month average private pay rate for nursing home services. Pub. L. No. 109-171 also establishes new requirements for annuities for which an institutionalized individual or the individual's spouse has an interest. Annuities will have to name the Utah Medicaid Program as the remainder beneficiary. It sets a limit to the amount of equity an institutionalized individual can have in the individual's principal residence at $500,000 or less and still qualify for Medicaid for long-term care services. In conjunction with these changes, this rulemaking redefines when an individual's home or life estate can be excluded.

 

State statutory or constitutional authorization for this rule:

Title 26, Chapter 18

 

This rule or change incorporates by reference the following material:

Pub. L. No. 109-171, Sections 6011, 6012, 6013, 6014, 6015, and 6016

 

Anticipated cost or savings to:

the state budget:

There could be some increased administrative costs because of additional staff work in gathering and evaluating information relating to these new eligibility requirements. We do not have any data about any savings that may be realized by the state, but the expectation of Congress is that these changes could save Medicaid dollars because some individuals will not qualify for long-term care services.

 

local governments:

This rulemaking action does not impact local governments because determining Medicaid eligibility is not a local government function so there are no costs or savings.

 

other persons:

Individuals who are seeking long-term care services from Medicaid may face increased costs if they are determined ineligible for long-term care services as a result of these new provisions. However, we do not have data as to the aggregate costs or number of individuals who may be affected.

 

Compliance costs for affected persons:

Individuals who seek Medicaid to pay for nursing home or other long-term care services may face increased costs because they may be ineligible under these new provisions of the law. However, we do not have data as to the individual costs or number of individuals who may be affected.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule amendment will have no fiscal impact on businesses. It applies only to individuals who have transferred away their assets as a means to qualify Medicaid eligibility for long-term care. David N. Sundwall, MD, Executive Director

 

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Pub. L. No. 109-171 was enacted 02/08/2006. It has several amendments affecting Medicaid eligibility for nursing home and long-term care services under home- and community-based Medicaid waivers that became effective on the date of enactment. Emergency rulemaking is needed to comply with these new requirements.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Care Financing, Coverage and Reimbursement Policy
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY UT 84116-3231

 

Direct questions regarding this rule to:

Ross Martin at the above address, by phone at 801-538-6592, by FAX at 801-538-6099, or by Internet E-mail at [e-mail]

 

This rule is effective on:

04/01/2006

 

Authorized by:

David N. Sundwall, Executive Director

 

 

RULE TEXT

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-305. Resources.

R414-305-1. A, B and D Medicaid and A, B and D Institutional Medicaid Resource Provisions.

(1) This section establishes the standards for the treatment of resources to determine eligibility for aged, blind and disabled Medicaid and aged, blind and disabled institutional Medicaid.

([1]2) To determine eligibility of the aged, blind or disabled, the[The] Department adopts 42 CFR 435.[735]725 and 435.726, 435.840 through 435.845, [2001]2005 ed., and 20 CFR 416.1201 through 416.1202 and 416.1204 through 416.1266, [2002]2005 ed., which are incorporated by reference. The Department adopts Subsection 1902(k) of the Compilation of the Social Security Laws, 1993 ed., which is incorporated by reference. The Department adopts 1917(d) and (e), 404(h)(4) and 1613(a)(13) of the Compilation of the Social Security Laws in effect January 1, 1999, which are incorporated by reference. The Department adopts sections 6012, 6014 and 6015(b) of Pub. L. 109-171 which are incorporated by reference. The Department shall not count as an available resource any assets that are prohibited under other federal laws from being counted as a resource to determine eligibility for federally-funded medical assistance programs. Insofar as any provision of this rule is inconsistent with applicable federal law, the applicable federal law governs over the inconsistent rule provision.

([2]3) The definitions in R414-1 and R414-301 apply to this rule, in addition:

(a) "Burial plot" means a burial space and any item related to repositories customarily used for the remains of any deceased member of the household. This includes caskets, concrete vaults, urns, crypts, grave markers and the cost of opening and closing a grave site.

(b) "Sanction" means a period of time during which a person is not eligible for Medicaid services for institutional care or services provided under a Home and Community Based waiver due to a transfer of assets for less than fair market value.

(c) "Transfer" in regard to assets means a person has disposed of assets for less than fair market value.

([3]4) A resource is available when the client owns it or has the legal right to sell or dispose of the resource for the client's own benefit.

([4]5) Except for the Medicaid Work Incentive Program, the resource limit for aged, blind or disabled Medicaid is $2,000 for a one[]-person household[,] and $3,000 for a two-member household[ and $25 for each additional household member].

([5]6) For an individual who meets the criteria for the Medicaid Work Incentive Program, the resource limit is $15,000. This limit applies whether the household size is one or more than one.

([6]7) The Department bases non-institutional and institutional Medicaid eligibility on all available resources owned by the client, or deemed available to the client from a spouse or parent. Eligibility cannot be granted based upon the client's intent to or action of disposing of non-liquid resources as described in 20 CFR 416.1240, 2005 ed.

([7]8) Any resource or the interest from a resource held within the rules of the Uniform Transfers to Minors Act is not countable. Any money from the resource that is given to the child as unearned income is countable.

([8]9) The resources of a ward that are controlled by a legal guardian are counted as the ward's resources.

([9]10) Lump sum payments received on a sales contract for the sale of an exempt home are not counted if the entire proceeds are committed to replacement of the property sold within 30 days and the purchase is completed within 90 days. The individual shall receive one extension of 90 days[,] if more than 90 days is needed to complete the actual purchase. Proceeds is defined as all payments made on the principal of the contract. Proceeds does not include interest earned on the principal.

([10]11) If a resource is potentially available, but a legal impediment to making it available exists, it is not a countable resource until it can be made available. The applicant or recipient must take appropriate steps to make the resource available unless one of the following conditions as determined by a person with established expertise relevant to the resources exists:

(a) Reasonable action would not be successful in making the resource available.

(b) The probable cost of making the resource available exceeds its value.

([11]12) Water rights attached to the home and the lot on which the home sits are exempt providing it is the client's principal place of residence.

([12]13) For an institutionalized individual, a home or life estate is not considered an exempt resource. [Therefore, a home transferred to a trust becomes a countable resource or constitutes a transfer of a resource. A home or life estate so transferred could continue to be excluded under the provisions of Section 1924 of the Compilation of the Social Security Laws, in effect January 1, 1999.]

(14) The Department excludes an institutionalized individual's principal home or life estate from countable resources if the individual's equity in the home or life estate does not exceed the equity limit established in Section 6014 of Pub. L. 109-171, and one of the following conditions is met:

(i) the individual intends to return to the home;

(ii) the individual's spouse resides in the home;

(iii) the individual's child who is under age 21, or who is blind or disabled resides in the home; or

(iv) a reliant relative of the individual resides in the home.

([13]15) For A, B and D Medicaid, the Department shall not count up to $6,000 of equity value of non-business property used to produce goods or services essential to home use daily activities.

[ (14) For A, B and D Institutional Medicaid where the resources are determined to exceed the limits for Medicaid, eligibility shall not be given conditioned upon disposition of resources as described in 20 CFR 416.1240, 2002 ed.

] ([15]16) A previously unreported resource may be retroactively designated for burial and thereby exempted effective the first day of the month in which it was designated for burial or intended for burial. However, it cannot be exempted retroactively prior to November 1982 or earlier than 2 years prior to the date of application. Such resources shall be treated as funds set aside for burial and the amount exempted cannot exceed the limit established for the SSI program.

([16]17) One vehicle is exempt if it is used at least four times per calendar year to obtain necessary medical treatment.

([17]18) The Department allows SSI recipients[,] who have a plan for achieving self support approved by the Social Security Administration[,] to set aside resources that allow them to purchase work-related equipment or meet self support goals. These resources are excluded.

([18]19) An irrevocable burial trust is not counted as a resource. However, if the owner is institutionalized or on home and community based waiver Medicaid, the value of the trust, which exceeds $7,000, is considered a transferred resource.

([19]20) Business resources required for employment or self-employment are not counted.

[ (20) The Department shall exclude as a resource the contributions made by an individual into and the interest accrued on an Individual Development Account as defined in Sections 404-416 of Pub. L. No. 105-285 effective October 27, 1998.

] (21) For the Medicaid Work Incentive Program, the Department [shall ]excludes the following additional resources of the eligible individual:

(a) Retirement funds held in an employer or union pension plan, retirement plan or account, including 401(k) plans, or an Individual Retirement Account, even if such funds are available to the individual.

(b) A second vehicle when it is used by a spouse or child of the eligible individual living in the household to get to work.

(22) After qualifying for the Medicaid Work Incentive Program, these resources described in R414-305-1(21) will continue to be excluded throughout the lifetime of the individual to qualify for A, B or D Medicaid programs other than the Medicaid Work Incentive, even if the individual ceases to have earned income or no longer meets the criteria for the Work Incentive Program.

(23) Assets shall be deemed from an alien's sponsor, and the sponsor's spouse, if any, when the sponsor has signed an Affidavit of Support pursuant to Section 213A of the Immigration and Nationality Act on or after December 19, 1997. Sponsor deeming will end when the alien becomes a naturalized U.S. citizen, or has worked 40 qualifying quarters as defined under Title II of the Social Security Act or can be credited with 40 qualifying work quarters. Beginning after December 31, 1996, a creditable qualifying work quarter is one during which the alien did not receive any federal means-tested public benefit.

(24) Sponsor deeming does not apply to applicants who are eligible for Medicaid for emergency services only.

(25) Life estates.

(a) For non-institutional Medicaid, life estates shall be counted as resources only when a market exists for the sale of the life estate as established by knowledgeable sources.

(b) For Institutional Medicaid, life estates are countable resources even if no market exists for the sale of the life estate, unless the life estate can be excluded as defined in paragraph 14 of this section.

(c) The client may dispute the value of the life estate by verifying the property value to be less than the established value or by submitting proof based on the age and life expectancy of the life estate owner that the value of the life estate is lower. The value of a life estate shall be based upon the age of the client and the current market value of the property.

(d) The following table lists the life estate figure corresponding to the client's age. This figure is used to establish the value of a life estate:

 

TABLE

      Age     Life Estate Figure



      0        .97188

      1        .98988

      2        .99017

      3        .99008

      4        .98981

      5        .98938

      6        .98884

      7        .98822

      8        .98748

      9        .98663

      10       .98565

      11       .98453

      12       .98329

      13       .98198

      14       .98066

      15       .97937

      16       .97815

      17       .97700

      18       .97590

      19       .97480

      20       .97365

      21       .97245

      22       .97120

      23       .96986

      24       .96841

      25       .96678

      26       .96495

      27       .96290

      28       .96062

      29       .95813

      30       .95543

      31       .95254

      32       .94942

      33       .94608

      34       .94250

      35       .93868

      36       .93460

      37       .93026

      38       .92567

      39       .92083

      40       .91571

      41       .91030

      42       .90457

      43       .89855

      44       .89221

      45       .88558

      46       .87863

      47       .87137

      48       .86374

      49       .85578

      50       .84743

      51       .83674

      52       .82969

      53       .82028

      54       .81054

      55       .80046

      56       .79006

      57       .77931

      58       .76822

      59       .75675

      60       .74491

      61       .73267

      62       .72002

      63       .70696

      64       .69352

      65       .67970

      66       .66551

      67       .65098

      68       .63610

      69       .62086

      70       .60522

      71       .58914

      72       .57261

      73       .55571

      74       .53862

      75       .52149

      76       .50441

      77       .48742

      78       .47049

      79       .45357

      80       .43659

      81       .41967

      82       .40295

      83       .38642

      84       .36998

      85       .35359

      86       .33764

      87       .32262

      88       .30859

      89       .29526

      90       .28221

      91       .26955

      92       .25771

      93       .24692

      94       .23728

      95       .22887

      96       .22181

      97       .21550

      98       .21000

      99       .20486

     100       .19975

     101       .19532

     102       .19054

     103       .18437

     104       .17856

     105       .16962

     106       .15488

     107       .13409

     108       .10068

     109       .04545

 

R414-305-2. Family Medicaid and Family Institutional Medicaid Resource Provisions.

(1) This section establishes the [rules]standards for the treatment of resources to determine eligibility for Family Medicaid and Family Institutional Medicaid programs.

(2) The Department adopts 45 CFR 233.20(a)(3)(i)(B)(1), (2), (3), (4) and (6), and 233.20(a)(3)(vi)(A), 2004 ed., which are incorporated by reference. The Department adopts Subsection 1902(k) of the Compilation of the Social Security Laws, 1993 ed., which is incorporated by reference. The Department adopts 1917(d) and (e), Subsection 404(h) and 1613(a)(13) of the Compilation of the Social Security Laws in effect January 1, 2003, which are incorporated by reference. The Department adopts sections 6012, 6014 and 6015(b) of Pub. L. 109-171 which are incorporated by reference. The Department does not count as an available resource retained funds from sources that federal laws specifically prohibit from being counted as a resource to determine eligibility for federally-funded medical assistance programs. Insofar as any provision of this rule is inconsistent with applicable federal law, the applicable federal law governs over the inconsistent rule provision.

(3) A resource is available when the client owns it or has the legal right to sell or dispose of the resource for the client's own benefit.

(4) Except for pregnant women who meet the criteria under Sections 1902(a)(10)(A)(i)(IV) and 1902(a)(10)(A)(ii)(IX) of the Social Security Act in effect January 1, 2003, the resource limit is $2,000 for a one person household, $3,000 for a two person household and $25 for each additional household member. For pregnant women defined above, the resource limit is defined in R414-303-11.

(5) Except for the exclusion for a vehicle, the agency uses the same methodology for treatment of resources for all medically needy and categorically needy individuals.

(6) To determine countable resources for Medicaid eligibility, the agency considers all available resources owned by the client. The agency does not consider a resource unavailable based upon the client's intent to or action of disposing of non-liquid resources.

(7) The agency counts resources of a [sanctioned ]household member who has been disqualified from Medicaid for failure to cooperate with third party liability or duty of support requirements.

(8) If a legal guardian, conservator, authorized representative, or other responsible person controls any resources of an applicant or recipient, the agency counts the resources as the applicant's or recipient's. The arrangement may be formal or informal.

(9) If a resource is potentially available, but a legal impediment to making it available exists, the agency does not count the resource until it can be made available. Before an applicant can be made eligible, or to continue eligibility for a recipient, the applicant or recipient must take appropriate steps to make the resource available unless one of the following conditions exist:

(a) Reasonable action would not be successful in making the resource available.

(b) The probable cost of making the resource available exceeds its value.

(10) Except for determining countable resources for 1931 Family Medicaid, the agency excludes a maximum of $1,500 in equity value of one vehicle.

(11) The agency does not count as resources the value of household goods and personal belongings that are essential for day-to-day living. Any single household good or personal belonging with a value that exceeds $1000 must be counted toward the resource limit. The agency does not count as a resource the value of any item that a household member needs because of the household member's medical or physical condition.

(12) The agency does not count the value of one wedding ring and one engagement ring as a resource.

(13) For a non-institutionalized individual, the[The] agency does not count the value of a life estate as an available resource if the life estate is the applicant's or recipient's principal residence. If the life estate is not the principal residence, the rule in Subsection R414-305-1(25) applies.

(14) The agency does not count the resources of a child who is not counted in the household size to determine eligibility of other household members.

(15) For a non-institutionalized individual, the[The] agency does not count as a resource, the value of the lot on which the excluded home stands if the lot does not exceed the average size of residential lots for the community in which it is located. The agency counts as a resource the value of the property in excess of an average size lot. If the individual is institutionalized, the provisions of R414-305-1(13), (14) and (25) apply to the individual's home or life estate. In addition, the provisions of section 6014 of Pub. L. 109-171 apply.

(16) The agency does not count as a resource the value of water rights attached to an excluded home and lot.

(17) The agency does not count any resource, or interest from a resource held within the rules of the Uniform Transfers to Minors Act. The agency counts as a resource any money from such a resource that is given to the child as unearned income and retained beyond the month received.

(18) Lump sum payments received on a sales contract for the sale of an exempt home are not counted if the entire proceeds are committed to replacement of the property sold within 30 days and the purchase is completed within 90 days. The individual shall receive one extension of 90 days, if more than 90 days is needed to complete the actual purchase. Proceeds are defined as all payments made on the principal of the contract. Proceeds do not include interest earned on the principal.

(19) Retroactive benefits received from the Social Security Administration and the Railroad Retirement Board are not counted as a resource for the first 9 months after receipt.

(20) The agency excludes from resources, a burial and funeral fund or funeral arrangement up to $1500 for each household member who is counted in the household size. Burial and funeral agreements include burial trusts, funeral plans, and funds set aside expressly for the purposes of burial. All such funds must be separated from non-burial funds and clearly designated as burial funds. Interest earned on exempt burial funds and left to accumulate does not count as a resource. If exempt burial funds are used for some other purpose, remaining funds will be counted as an available resource as of the date funds are withdrawn.

(21) Assets shall be deemed from an alien's sponsor, and the sponsor's spouse, if any, when the sponsor has signed an Affidavit of Support pursuant to Section 213A of the Immigration and Nationality Act on or after December 19, 1997. Sponsor deeming will end when the alien becomes a naturalized U.S. citizen, or has worked 40 qualifying quarters as defined under Title II of the Social Security Act or can be credited with 40 qualifying work quarters. Beginning after December 31, 1996, a creditable qualifying work quarter is one during which the alien did not receive any federal means-tested public benefit.

(22) Sponsor deeming does not apply to applicants who are eligible for Medicaid for emergency services only.

(23) Business resources required for employment or self employment are not counted.

(24) For 1931 Family Medicaid households, the agency will not count as a resource either the equity value of one vehicle that meets the definition of a "passenger vehicle" as defined in 26-18-2(6), or $1,500 of the equity of one vehicle, whichever provides the greatest disregard for the household.

(25) For eligibility under Family-related Medicaid programs, the agency will not count as a resource retirement funds held in an employer or union pension plan, retirement plan or account including 401(k) plans and Individual Retirement Accounts of a disabled parent or disabled spouse who is not included in the coverage.

[ (26) The agency will not count as a resource the contributions made by an individual and the interest accrued on funds held in an Individual Development account as defined in Sections 404-416 of Pub. L. No. 105-285, effective October 27, 1998.

] ([27]26) The agency will not count as a resource, funds received from the Child Tax credit or the Earned Income Tax credit for nine months following the month received. Any remaining funds will count as a resource in the 10th month after being received.

 

R414-305-3. Spousal Impoverishment Resource Rules for Married Institutionalized Individuals.

(1) This section establishes the standards for the treatment of resources for married couples when one spouse is institutionalized and the other spouse is not institutionalized.

([1]2) To determine the countable resources of an institutionalized individual who has a community spouse, the[The] Department adopts Section 1924(a), (c) and (f) of the Compilation of the Social Security Laws, in effect January 1, 1999, which is incorporated by reference. The Department adopts section 6013 of Pub. L. 109-171 which is incorporated by reference. Insofar as any provision of this rule is inconsistent with applicable federal law, the applicable federal law governs over the inconsistent rule provision.

([2]3) The resource limit for an institutionalized individual is $2,000.

[ (3) The Department shall determine the joint owned resources of married couples as available to each other. One half of the joint owned resources shall count towards the institutional client's resource eligibility determination.

] (4) [When]If a client is otherwise eligible for institutional Medicaid, but is unable to comply with spousal impoverishment rules and claims undue hardship because of an uncooperative spouse or because the spouse cannot be located, [assignment of] the client may obtain institutional Medicaid by assigning support rights to the State of Utah[shall be done by signing the Form 048].

(5) "Undue hardship" in regard to counting a spouse's resources as available to the institutionalized client means:

(a) The client [completes the Form 048]assigns support rights to the State.

(b) The client will not be able to get the medical care needed without Medicaid.

(c) The client is at risk of death or permanent disability without institutional care.

(6) The agency will determine the client's [may be eligible]eligibility for institutional Medicaid without regard to the spouse's resources if both of the following conditions are met:

(a) The spouse cannot be located or will not provide information needed to determine eligibility.

(b) The client meets the undue hardship criteria including assigning support rights to the State[signs the Form 048].

(7) The assessed spousal share of resources shall not be less than the minimum amount nor more than the maximum amount mandated by section 1924(f) of the Compilation of the Social Security Laws in effect January 1, 1999.

(8) Any resource owned by the community spouse in excess of the assessed spousal share is counted to determine the institutionalized client's initial Medicaid eligibility.

(9) A protected period, after eligibility is established, lasting until the time of the next regularly scheduled eligibility redetermination is allowed for an institutionalized client to transfer resources to the community spouse.

(10) After eligibility is established for the institutionalized client, those resources held in the name of the community spouse will not be considered available to the institutionalized client to determine the countable resources of the institutionalized client.

 

R414-305-4. Medicaid Qualifying Trusts.

The Department adopts Section 1902(k) of the Compilation of the Social Security Laws, 1993 ed., which is incorporated by reference.

 

R414-305-5. Transfer of Resources for A, B and D Medicaid and Family Medicaid.

There is no sanction for the transfer of resources.

 

R414-305-6. Transfer of Resources for Institutional Medicaid.

(1) This section establishes the standards for the treatment of transfers of assets for less than fair market value to determine eligibility for nursing home or other long-term care services under a home and community based services waiver.

([1]2) The Department adopts Subsection 1917(c) of the Compilation of the Social Security Laws, in effect January 1, 1999, which is incorporated by reference. The Department adopts sections 6011, 6012, and 6016 of Pub. L. 109-171 which are incorporated by reference. In so far as any provision of this rule is inconsistent with applicable federal law, the applicable federal law governs over the inconsistent rule provision.

(3) If an individual or the individual's spouse transfers the home or life estate, the transfer requirements of Section 1917(c) of the Compilation of the Social Security Act apply.

(4) If an individual or the individual's spouse transfers assets in more than one month on or after February 8, 2006, the uncompensated value of all transfers including fractional transfers are combined to determine the sanction period. The Department applies partial month sanctions for transferred amounts that are less than the monthly average private pay rate for nursing home services.

(5) If assets are transferred during any sanction period, the sanction period for those transfers will not begin until the previous sanction has expired.

(6) If a transfer occurs after an individual has been approved for Medicaid for nursing home or home and community based services, the sanction begins on the first day of the month after the month the asset is transferred.

([2]7) The average private-pay rate for nursing home care in Utah is $[3,618]4,526 per month.

([3]8) To determine if a resource is transferred for the sole benefit of a spouse, disabled or blind child, or disabled individual, a binding written agreement must be in place which establishes that the resource transferred can only be used to benefit the spouse, disabled child, or disabled individual, and is actuarially sound. The written agreement must specify the payment amounts and schedule. Any provisions in such agreement that would benefit another person at any time nullifies the sole benefit provision except for exempt trusts established under section 1917(d) of the Compilation of the Social Security Laws, January 1, 1999 ed., that provide for repayment of the state Medicaid agency or provide for a pooled trust to retain a portion of the remainder.

([4]9) No sanction is imposed when the total value of a whole life insurance policy is irrevocably assigned to the state; and the recipient is the owner of and the insured in the policy; and no further premium payments are necessary for the policy to remain in effect. At the time of the client's death, the state shall distribute the benefits of the policy as follows:

(a) Up to $7,000 can be distributed to cover burial and funeral expenses. The total value of this distribution plus the value of any irrevocable burial trusts and/or the burial and funeral funds for the client can not exceed $7,000.

(b) An amount to the state that is not more than the total amount of previously unreimbursed medical assistance correctly paid on behalf of the client.

(c) Any amount remaining after payments are made as defined in a. and b. will be made to a beneficiary named by the client.

(10) If the agency determines that a sanction period applies for an otherwise eligible institutionalized person, the agency shall notify the individual that the individual is ineligible for nursing home or other long-term care services because of the sanction. The notice shall include when the sanction period begins and ends. The individual may request a waiver of the sanction period based on undue hardship. The individual must send a written request to the agency within 30 days after the mailing date of the sanction notice.

([5]11) Clients that claim an undue hardship as a result of a transfer of resources must meet both of the following conditions:

(a) The client or the person who transferred the resources has exhausted all reasonable [legal] means including legal remedies to regain possession of the transferred resource. It is considered unreasonable to require the client to take action if a knowledgeable source confirms that it is doubtful those efforts will succeed. It is unreasonable to require the client to take action more costly than the value of the resource[.], and

(b) Application of the sanction for a transfer of resources would deprive the client of medical care such that the client's life or health would be endangered, or would deprive the client of food, clothing, shelter or other necessities of life.[The client is at risk of death or permanent disability if not admitted to a medical institution or Waiver service.]

(12) The Department bases its[This] decision that undue hardship exists [will be based] upon the client's medical condition and the financial situation of the client. The Department will consider [I]income and resources of the client, client's spouse, and parents of an unemancipated client [shall be used ]to decide if the financial situation creates undue hardship. The agency shall send a written notice of its decision on the undue hardship request. The client has 90 days from the date of mailing of the decision concerning the request for an undue hardship waiver to request a fair hearing.

[ (6) After Institutional Medicaid eligibility is determined, the client's spouse, not living in the institution, may transfer any resource to any person without impacting the Medicaid eligibility of the institutionalized spouse.

] ([7]13) The portion of an irrevocable burial trust that exceeds $7,000 is considered a transfer of resources. The value of any fully paid burial plot, as defined in R414-305-1([2]3)(a), shall be deducted from such burial trust first before determining the amount transferred.

([8]14) If more than one transfer has occurred and the sanction periods would overlap, the sanctions will be applied consecutively[,] so that they do not overlap. If a resource was transferred before February 8, 2006, the[A] sanction begins on the first day of the month in which the resource was transferred unless a previous sanction is in effect, in which case the sanction begins on the first day of the month immediately following the month the previous sanction ends.[ If resources were transferred before August 11, 1993, applicable sanction periods for those transfers may overlap.]

 

R414-305-7. Home and Community-Based Services Waiver Resource Provisions.

(1) The resource limit is $2,000.

(2) Following the initial month of eligibility, continued eligibility is determined by counting only the resources that belong to the client.

(3) For married clients, spousal impoverishment resource rules apply as defined in R414-305-3.

 

R414-305-8. QMB, SLMB, and QI[-1] Resource Provisions.

(1) The Department adopts Subsection 1905(p) of the Compilation of the Social Security Laws, 1999 ed., which is incorporated by reference.

(2) The resource limit is the same for all medically needy individuals.

(3) The QMB, SLMB, and QI[-1] resource limit is $4,000 for an individual and $6,000 for a couple.

 

KEY: Medicaid, eligibility

Date of Enactment or Last Substantive Amendment: April 1, 2006

Notice of Continuation: January 31, 2003

Authorizing and Implemented or Interpreted Law: 26-18