§ 178.175. Presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994.
(a) If the presumption of disposition of assets to qualify for MA is made, the individual is notified of the finding, in writing, and is advised of his right to rebut this presumption within 15 days from the date the written notice is mailed.
(b) If the individual does not respond to the written notification within 15 days from the date the written notice is mailed, the application/reapplication for MA is completed using the UV established in § 178.174(c) (relating to disposition of assets and fair consideration provisions for transfer) and as an asset over the look-back period beginning the first date on which the individual is both institutionalized and applies for MA.
(c) If the individual responds to the written notification within 15 days from the date the notice is mailed that he wishes to rebut the presumption, the CAO shall explain to the individual that it is his responsibility to present within 10 calendar days the required verification and convincing evidence that the assets were transferred solely for some purpose other than to qualify for MA. Convincing evidence includes documentary and nondocumentary evidence which provides proof of the circumstances surrounding the transfer, including the following:
(1) The purpose for transferring the asset.
(2) The attempts to dispose of the asset at its FMV.
(3) The reasons for accepting less than the FMV of the asset.
(4) The means of, or plans for, self-support after the transfer.
(5) The individual’s relationship to the person to whom the asset was transferred.
(d) If the evidence is received within the 10 calendar day period established in subsection (c), a decision on the success of the rebuttal is made. If the establishment of MA eligibility is viewed as part of the reason for the transfer, even if another purpose has been established, the asset was not transferred solely for some purpose other than to qualify for MA and the rebuttal is not successful. The presumption is rebutted only if the individual proves that the transfer was solely for some purpose other than to qualify for MA such as:
(1) If, after the transfer of the asset, the individual either becomes disabled or has an unexpected loss of assets and this results in the need to apply for MA the presumption is rebutted. The unanticipated disability or unexpected loss of assets shall be verified.
(2) If the assets of the individual would still have been below the income and resource limits for the appropriate MA Program during each of the months in the period of ineligibility which would otherwise apply under § § 178.104(d) and 178.174(d) (relating to disposition of assets and fair consideration provisions for transfers on or after July 30, 1994) had the asset been retained, the presumption is rebutted. The individual shall provide verification of the asset value during the period in question.
(3) If the transfer was the result of a court order or written settlement of a legal action, the presumption is rebutted. A copy of the court order or written settlement is required.
(e) The determination of whether the presumption is rebutted is made by the executive director of the CAO or a delegate. The individual is given written notice of the determination and the right to appeal.
(f) If the presumption is rebutted, the transfer has no effect on the MA eligibility determination.
(g) If the presumption is not rebutted, it is presumed that the asset transferred was for the purpose of qualifying for MA and the following apply:
(1) The UV is considered an asset for 36 or 60 months, as applicable, from the date on which the individual is both an institutionalized individual and has applied for MA.
(2) The UV is added to other assets that are considered. If the total exceeds the MA income or resource limits in Appendix A or Chapter 181, Appendix B for the appropriate MA Program, the individual is not eligible for MA.
(3) If the transferred asset is returned to the individual, the UV is not considered an asset as of the date the transferred asset was returned. If the transferred asset is cash or liquid assets, the UV is reduced by the value of the asset that was returned.
(4) A returned asset is evaluated as an asset.
(5) Additional compensation received in the form of cash after the transfer of the asset further reduces the UV by the amount of cash received as of the date the cash was received.
Authority The provisions of this § 178.175 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 § 178.175 adopted December 23, 1994, effective December 24, 1994, and apply retroactively to July 30, 1994, 24 Pa.B. 6423.
Cross References This section cited in 55 Pa. Code § 178.174 (relating to disposition of assets and fair consideration provisions 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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