§ 108A-58.1. Ineligibility for medical assistance based on transferring assets for less than fair market value.
§ 108A‑58.1. Ineligibility for medical assistance based on transferring assets for less thanfair market value.
(a) General Rule. Exceptas otherwise provided herein, an individual who is otherwise eligible toreceive medical assistance under this Part is ineligible for Medicaid coverageand payment for the services specified in subsection (d) during the periodspecified in subsection (c) if the individual or the individual's spousetransfers an asset for less than fair market value on or after the "lookbackdate" specified in subsection (b).
(b) Lookback Date.
(1) Except as otherwiseprovided herein, the lookback date is the date specified in 42 U.S.C. §1396p(c)(1)(B).
(2) Notwithstandingsubdivision (1), the lookback date with respect to the medical servicesspecified in subdivision (d)(2) is the date specified in 42 U.S.C. §1396p(c)(1)(B) or February 1, 2003, whichever is later.
(c) Penalty Period. Thepenalty period for the transfer of assets for less than fair market value isthe period specified in 42 U.S.C. § 1396p(c)(1)(D), (E), and (H).
(d) Medical Services.
(1) In the case of aninstitutionalized individual, the transfer of assets penalty applies withrespect to nursing facility services, a level of care in any institutionequivalent to that of nursing facility services, and to home‑ orcommunity‑based services furnished under the State's CommunityAlternatives Program waiver pursuant to 42 U.S.C. § 1396n(c) or (d), andpursuant to the hardship waiver under subsection (k) of this section.
(2) In the case of anoninstitutionalized individual, the transfer of assets penalty applies withrespect to home health services and personal care services as defined in 42U.S.C. § 1396d(a)(7) and (24) and, to the extent permitted by federal law, suchother long‑term care services specified by rules adopted by theDepartment of Health and Human Services pursuant to subsection (k) of thissection.
(e) Assets. Assetsare the income and resources of an individual or the individual's spouse(including the individual's or spouse's home) as defined in 42 U.S.C. §1396p(h) and 42 U.S.C. § 1396p(c)(1)(G), (I), and (J).
(f) Fair Market Valueand Uncompensated Value.
(1) The fair marketvalue of an asset is the value (minus any valid and legally enforceable liens,mortgages, and encumbrances against the asset) that would have been received ifthe asset had been sold for good and valuable consideration at the prevailingmarket price at the time the asset was transferred. In the case of real orpersonal property that is taxable under Subchapter II of Chapter 105 of theGeneral Statutes, there is a rebuttable presumption that the fair market valueof the property is its most recent value as ascertained under Subchapter II ofChapter 105 of the General Statutes (minus any valid and legally enforceableliens, mortgages, and encumbrances against the property).
(2) The uncompensatedvalue of an asset is its fair market value minus the amount of good andvaluable consideration received in exchange for the asset's transfer.
(g) Individual. Anindividual is a person who applies for or is receiving medical assistance underthis Part regardless of whether the person was, at the time an asset wastransferred, a Medicaid applicant or recipient. The term "individual"also includes an individual's legal representative, anyone acting at theindividual's direction or request, and any person, agency, or court actinglawfully on behalf of the individual.
(h) Institutionalizedand Noninstitutionalized Individuals.
(1) An institutionalizedindividual is an individual who meets the criteria set forth in 42 U.S.C. §1396p(h)(3), regardless of whether the individual was institutionalized at thetime an asset was transferred.
(2) Anoninstitutionalized individual is any individual who (i) is not aninstitutionalized individual, (ii) is an aged, blind, or disabled person who iscategorically or medically needy pursuant to 42 C.F.R. § 120 Subpart B, C, or Dor a qualified Medicare beneficiary as defined in 42 U.S.C. § 1396d(p)(1), and(iii) is not eligible for medical assistance under this Part based on his orher eligibility for an optional State supplement pursuant to 42 C.F.R. §435.232.
(i) Exceptions.
(1) This section doesnot apply if an individual establishes by the greater weight of the evidencethat the transfer was exclusively for some purpose other than establishing orretaining eligibility for medical assistance under this Part.
(2) This section doesnot apply to any transfer specified in 42 U.S.C. § 1396p(c)(2)(A), (B), (C)(i),or (C)(iii).
(j) Application toLife Estates and Income Producing Real Property. The Department of Health andHuman Services may apply federal transfer of assets policies in accordance withthis section to (i) life estates purchased by or on behalf of the recipient,and (ii) to real property excluded as "income producing", tenancy‑in‑common,or as nonhomesite property made "income producing." The Departmentshall exclude from countable resources any life estate in real property that isin the recipient's home and is measured by the recipient's life. Federaltransfer of assets policies applied to income producing real property shallbecome effective not earlier than October 1, 2001. Federal transfer of assetspolicies applied to real property excluded as tenancy‑in‑common, oras nonhomesite property made income producing in accordance with thissubsection, shall become effective not earlier than October 1, 2005.
(k) Hardship Waiver. TheDepartment of Health and Human Services shall waive a transfer of assetspenalty that has been imposed or is imposable under this section if theDepartment determines that imposition of the penalty would create an unduehardship.
(l) Rules andCompliance with Federal Law.
(1) This section shallbe interpreted and administered consistently with governing federal law,including 42 U.S.C. § 1396p(c).
(2) The Department ofHealth and Human Services shall determine and publish at least annually theaverage monthly cost of nursing facility services for private patients thatwill be used in determining the length of a penalty period under this section.
(3) The Department ofHealth and Human Services shall provide for a hardship waiver process inaccordance with 42 U.S.C. § 1396p(c)(2)(D).
(4) The Department ofHealth and Human Services may adopt administrative rules that are necessary andappropriate to implement this section or the requirements of 42 U.S.C. §1396p(c) or other federal laws governing the transfer of assets and Medicaideligibility. (2006‑66,s. 10.5(b); 2006‑221, ss. 8(a)‑(c).)