§ 178.174. Disposition of assets and fair consideration provisions for transfers on or after July 30, 1994.
(a) If assets are disposed of on or after July 30, 1994, § § 178.175 and 178.176 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994; and reestablishment of MA eligibility after transfers made on or after July 30, 1994) and this section apply to an individual who is applying for or receiving NFC as defined in § 178.2 (relating to definitions), including services in an ICF/MR, or a level of care in an institution equivalent to NFC, or home or community-based services furnished under a Title XIX waiver and the individual or the individual’s spouse transfers assets for less than FMV.
(b) An institutionalized individual who disposes of assets for less than FMV on or after the look-back date is ineligible for MA NFC which includes the services in subsection (a). A transfer of assets by the community spouse to a person other than the institutionalized spouse is treated and affects the eligibility of the institutionalized spouse the same as a transfer by the institutionalized spouse.
(c) The look-back date shall be 36 months from the date on which the individual is both institutionalized and has applied for MA, except in the case of payments from a trust, or portions of a trust, as described in § 178.7(e)(1)(iii) and (2)(ii) (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994) which are considered as assets disposed of for less than FMV by the individual. In this instance, the look-back date shall be 60 months.
(d) The number of months of ineligibility for the institutionalized individual who disposes of assets for less than FMV shall be equal to the total, cumulative uncompensated value of the assets transferred by the individual or the individual’s spouse, on or after the look-back date, divided by the average monthly cost to a private patient of nursing facility services in effect in this Commonwealth at the time of application.
(e) An individual will not be ineligible for nursing facility services if:
(1) The assets were a home and title to the home was transferred to one or more of the following:
(i) A spouse of the individual.
(ii) The individual’s child who is under 21 years of age, or is blind or permanently and totally disabled, as determined under § 140.81 (relating to deductions from earned income) for persons not eligible for SSI benefits, or is blind or disabled based on SSI criteria as specified in 42 U.S.C.A. § 1382c(a)(3).
(iii) A sibling of the individual who has an equity interest in the home and who resided in the individual’s home for at least 1 year immediately before the date the individual became an institutionalized individual.
(iv) A son or daughter of the individual, other than a child described in subparagraph (ii), who resided in the individual’s home for at least 2 years immediately before the date the individual became an institutionalized individual, and who provided care to the individual which permitted the individual to reside at home rather than in an institution or facility.
(2) The assets were transferred to one of the following:
(i) The individual’s spouse or to another for the sole benefit of the individual’s spouse.
(ii) To another for the sole benefit of the individual’s spouse from the individual’s spouse.
(iii) The individual’s child described in paragraph (1)(ii) or to a trust, including one described in § 178.7(f), established solely for the benefit of the individual’s child.
(iv) A trust, including a trust described in § 178.7(f) established solely for the benefit of an individual under 65 years of age who is disabled based on SSI criteria as specified in 42 U.S.C.A. § 1386c(a)(3).
(3) The individual, the individual’s spouse or someone else acting on behalf of the individual can show that one or more of the following applies:
(i) The individual intended to dispose of the assets either at FMV, or for other valuable consideration.
(ii) The assets were transferred exclusively for a purpose other than to qualify for MA.
(iii) The assets transferred for less than FMV were returned to the individual.
(4) The Commonwealth determines that denial of eligibility would cause an undue hardship as defined in § 178.2.
(f) If an asset is held by an individual in common with other persons in joint tenancy, tenancy in common or a similar arrangement, the asset shall be considered to be transferred by the individual when any action is taken, either by the individual or by another person, that reduces or eliminates the individual’s ownership or control of the asset.
(g) If a transfer by the individual’s spouse results in a period of ineligibility for MA, the Commonwealth will apportion the period of ineligibility or any portion of the period between the individual and the individual’s spouse if the spouse otherwise becomes eligible for MA for nursing facility services.
(h) During the period of ineligibility for MA nursing facility services, the nursing facility may charge the private pay rate.
Authority The provisions of this § 178.174 issued under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § § 201(2) and 403(b)).
Source The provisions of this § 178.174 adopted December 23, 1994, effective December 24, 1994, and apply retroactively to July 30, 1994, 24 Pa.B. 6423.
Notes of Decisions Transfer of Assets
The Department of Public Welfare did not err in interpreting the resources of a ‘‘couple’’ as referring not only to resources owned jointly by institutionalized wife and her noninstitutionialized husband, but also to resources owned by wife alone, and by husband alone, in its determination that the transfer of resources that wife made to her husband had no effect on wife’s eligibility for those benefits. Oriolo v. Department of Public Welfare, 705 A.2d 519 (Pa. Cmwlth. 1998).
Cross References This section cited in 55 Pa. Code § 178.5 (relating to treatment of irrevocable burial reserves for all categories of MA); 55 Pa. Code § 178.175 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994); and 55 Pa. Code § 178.176 (relating to reestablishment of MA eligibility after transfers made on or after July 30, 1994).
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