Subchapter C. TANF-RELATED AND GA-RELATED
CATEGORIES OF MA
ADDITIONAL RESOURCE REQUIREMENTS FOR TANF-RELATED AND GA-RELATED CATEGORIES OF MA Sec.
178.151. Additional resource requirements.
RESOURCE EXCLUSIONS FOR THE TANF-RELATED AND GA-RELATED CATEGORIES OF MA
178.161. Personal property exclusions.
178.162. Real property exclusions.
178.163. Resources of children under 21 years of age and families with children under 21 years of age.
ADDITIONAL RESOURCE EXCLUSIONS FOR
GA CATEGORIES OF MA
178.165. Educational savings accounts.
DISPOSITION OF PROPERTY AND FAIR CONSIDERATION PROVISIONS FOR THE TANF AND GA CATEGORIES OF MA
178.171. Disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994.
178.172. Presumption of disposition of property to qualify for MA for transfers during the period of January 4, 1991, through July 29, 1994.
178.173. Reestablishment of MA eligibility after transfer made during the period of January 4, 1991, through July 29, 1994.
178.174. Disposition of assets and fair consideration provisions for transfers on or after July 30, 1994.
178.174a. Clarification of fair consideration provisions for disposition of assets made on or after February 8, 2006—statement of policy.
178.174b. Clarification of fair consideration provisions for disposition of assets made on or after February 8, 2006—statement of policy.
178.175. Presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994.
178.176. Reestablishment of MA eligibility after transfers made on or after July 30, 1994.
ADDITIONAL RESOURCE REQUIREMENTS FOR TANF-RELATED AND GA-RELATED CATEGORIES OF MA
§ 178.151. Additional resource requirements.
(a) As a condition of MA eligibility for dependents living with him, a spouse and the natural or adoptive parent of an unemancipated minor child shall identify nonexcluded resources, which shall be considered, used and liquidated as though the spouse or parent were receiving MA. The spouse or parent cannot be relieved of this obligation by being a nonapplicant/nonrecipient. Only the resources actually contributed to a child who is 18 years of age or older and under 21 years of age by his parents are counted in determining the MA eligibility of a child in a MNO-MA category.
(b) The cash value of life insurance is considered a resource to the applicant/recipient group only if the applicant/recipient or an LRR living in the home is the owner of the policy or has the authority to cash in the policy.
(c) If an applicant or recipient or LRR owns nonexcluded real property, he shall have a 9-month period in which to make a bona fide effort to sell the property and additional 9-month periods as long as the applicant or recipient or LRR can demonstrate good cause for not selling the property.
(d) That portion of a gift that exceeds $50 per individual in a calendar quarter as determined under § 181.263(8) (relating to other types of income not counted for the TANF and GA categories) is a countable resource.
(e) If a pregnancy is medically verified, the unborn child is counted as a member of the applicant/recipient group when establishing the resource limit. If multiple births are expected and verified, each unborn child is counted.
Authority The provisions of this § 178.151 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P.S. § § 201(2) and 403(b)); Titles I and III of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub.L. No. 104-193) (PRWORA), creating the Temporary Assistance for Needy Families (TANF) Program, and amending 42 U.S.C.A. § § 601—619, 651—669(b) and 1396u-1; section 1902(a)(10)(A) and (C) of the Social Security Act (42 U.S.C.A. § 1396a(a)(10)(A) and (C)); and the Federal TANF regulations in 45 CFR 260.10—265.10.
Source The provisions of this § 178.151 amended September 13, 2002, effective retroactively to March 3, 1997, 32 Pa.B. 4435. Immediately preceding text appears at serial pages (279715) to (279716).
RESOURCE EXCLUSIONS FOR TANF-RELATED AND GA-RELATED CATEGORIES OF MA
§ 178.161. Personal property exclusions.
The following personal property is excluded:
(1) Basic items essential to day-to-day living. Basic items essential to day to day living such as:
(i) Household furnishings.
(ii) Major appliances.
(iii) Items used to provide, equip and maintain a household for the applicant/recipient.
(iv) Personal effects of limited value including clothing, children’s toys, wedding and engagement rings.
(v) Farm animals for domestic use.
(vi) Pets and family heirlooms.
(vii) Farm equipment or farm animals needed for employment.
(viii) Equipment needed for employment, rehabilitation or to implement a self-care plan.
(2) Motor vehicle. Only one motor vehicle for an applicant/recipient group is excluded. Other motor vehicles are counted at their equity value.
(3) Retroactive assistance payments. Retroactive assistance payments received as a result of a prehearing conference, a fair hearing decision or a court order. This exemption is only allowed for the calendar month in which it is received and the following calendar month. If an amount remains after the exemption period, it is considered a resource.
(4) Value of Food Stamps. The value of food stamps received by a participant in the Food Stamp Program.
(5) Personal property of an SSI or SBP recipient. Personal property of an SSI or SBP recipient is excluded even if the SSI or SBP recipient is an LRR to an applicant/recipient group member.
(6) Home Energy Assistance benefits. Home Energy Assistance (HEA) benefits furnished in-kind by a private, nonprofit organization or furnished as cash or in-kind assistance by a supplier of home heating oil or gas, by an entity providing home energy whose revenues are primarily derived on a rate-of-return basis and regulated by the Pennsylvania Public Utility Commission or by a municipal utility providing home energy. HEA benefits may include payments for heating or cooling, storm doors, weatherization services and blankets. HEA benefits do not include food or clothing.
(7) Support and Maintenance Assistance Benefits. In-kind Support or Maintenance Assistance (SMA) benefits provided by a private, nonprofit organization. SMA benefits may include in-kind provision of food, clothing, temporary emergency shelter, furniture, toys and appliances.
(8) Low Income Home Energy Assistance Program. Benefits received from the Low Income Home Energy Assistance Program.
(9) Burial space. One burial space, as defined in § 178.2 (relating to definitions), for each member of the applicant/recipient group. Burial plots include graves, burial drawers, mausoleums or other property held for final interment.
(10) Revocable burial reserve. A revocable burial reserve up to $1,500 for each applicant/recipient.
(11) Irrevocable burial reserve. An irrevocable burial reserve is considered under § 178.5 (relating to treatment of irrevocable burial reserves for all categories of MA).
(12) Uniform Gifts to Minors Act. A gift made to a person 20 years of age or younger under 20 Pa.C.S. § § 5301—5310 (relating to Pennsylvania Uniform Gifts to Minors Act) is excluded as a resource until the person attains 21 years of age.
(13) Life insurance policies. The face and cash surrender value of all life insurance owned by the applicant or recipient.
(14) Japanese-American and Aleutian restitution payments. Restitution payments made by the United States government to eligible Japanese-Americans and Aleuts who were interned or relocated during World War II are excluded. If the eligible Japanese-Americans are deceased at the time of payments, payments will be made to certain of their survivors as specified under the Civil Liberties Act of 1988 (50 App. 1989b-1—1989b-9). This payment is also excluded. This paragraph does not apply to eligible Aleuts who are covered under the Aleutian and Pribilof Islands Restitution Act (50 App. § § 1989c and 1989c-1—1989c-8). The exclusion as a resource only continues as long as the retained funds are kept identifiable. If real or personal property is purchased, the new resource is not excluded unless otherwise exempt. Interest received on retained restitution payments is also not excluded but is subject to the usual regulations governing interest as specified in Chapter 181 (relating to income provisions for categorically needy NMP-MA and MNO-MA).
(15) Agent orange settlement payments. Payments made from the Agent Orange Settlement Fund or another fund established pursuant to the settlement in the agent orange product liability litigation.
(16) Educational assistance. Educational assistance in the form of loans, grants and scholarships, and work-study income.
(17) Family savings account. A family savings account established under Chapter 21 of the Job Enhancement Act (73 P. S. § § 400.2101—400.2103).
(i) The account shall be clearly identified as a family savings account.
(ii) The savings account, its ownership and the account balance shall be verified by written documentation. Documentation may include a copy of the passbook or a current statement from the bank or other financial institution.
(iii) Moneys deposited into the account, plus interest earned on the account shall be exempt in determining eligibility as long as the funds remain on deposit.
(iv) Moneys withdrawn to pay for expenses outlined in an approved savings plan for this account are exempt. Documentation shall be provided that verifies the expenses were incurred.
(v) Moneys withdrawn from a family savings account that are used for a purpose unrelated to the approved savings plan shall be added to the applicant or recipient group’s resource amount and used to determine eligibility beginning with the date of withdrawal. Exception: moneys withdrawn to pay for educational expenses shall be exempt.
Authority The provisions of this § 178.161 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § § 201(2) and 403(b)); Titles I and III of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193) (PRWORA), creating the Temporary Assistance for Needy Families (TANF) Program, and amending 42 U.S.C.A. § § 601—619, 651—669(b) and 1396u-1; section 1902(a)(10)(A) and (C) of the Social Security Act (42 U.S.C.A. § 1396a(a)(10)(A) and (C)); and the Federal TANF regulations in 45 CFR 260.10—265.10.
Source The provisions of this § 178.161 adopted August 26, 1988, effective November 1, 1988, 18 Pa.B. 3979; amended March 22, 1991, effective upon publication in the Pennsylvania Bulletin, and applies retroactively to August 10, 1988, 21 Pa.B. 1182; amended August 27, 1993, effective August 28, 1993, with the exception of the Agent Orange Settlement Payments requirement which is retroactive to January 1, 1989, 23 Pa.B. 4071; amended September 13, 2002, effective September 14, 2002, 32 Pa.B. 4435. Immediately preceding text appears at serial pages (279716) to (279718).
§ 178.162. Real property exclusions.
The following real property is excluded:
(1) Resident property owned by an applicant/recipient.
(2) Real property owned by a SSI or SBP recipient.
§ 178.163. Resources of children under 21 years of age and families with children under 21 years of age.
The resources of the TANF-related and GA-related child under 21 years of age and TANF-related and GA-related immediate families with children under 21 years of age are excluded. If the child who is under 21 years of age is living with a caretaker who is not immediate family as defined in § 178.2 (relating to definitions) and who exercises care and control of the child, the resources of the caretaker are excluded.
Authority The provisions of this § 178.163 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 § 178.163 adopted June 15, 2001, effective June 16, 2001, 31 Pa.B. 3196.
ADDITIONAL RESOURCE EXCLUSIONS FOR
GA CATEGORIES OF MA§ 178.165. Educational savings accounts.
(a) For GA categories of MA, an educational savings account established by an individual at a bank or other financial institution to pay for education expenses, including tuition, books and incidental expenses related to attendance at a vocational school, community college, college or university is not counted in determining eligibility.
(1) The account shall be clearly identified as having been established for or restricted to payment of educational expenses.
(2) The savings account, its ownership, the account balance and the fact that the account is restricted for payment of educational expenses shall be verified by written documentation. Documentation may include, but is not limited to, a copy of the passbook or a copy of a current account statement from the bank or other financial institution.
(3) Moneys deposited in an account plus interest earned on the account shall be exempt in determining eligibility for GA as long as the funds remain on deposit.
(4) Moneys withdrawn to pay for educational expenses are exempt. Documentation shall be provided that verifies the expenses were incurred and related to attending school.
(5) Moneys withdrawn from an educational savings account that are used for a purpose unrelated to education shall be added to the budget group’s resource amount and used to determine eligibility beginning with the date of withdrawal.
(b) For GA categories of MA, savings accounts established and bonds purchased under the Tuition Account Program and College Savings Bond Act (24 P.S. § § 6901.101—6901.701) are not counted in determining eligibility.
Authority The provisions of this § 178.165 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P.S. § § 201(2) and 403(b)); Titles I and III of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub.L. No. 104-193) (PRWORA), creating the Temporary Assistance for Needy Families (TANF) Program, and amending 42 U.S.C.A. § § 601—619, 651—669(b) and 1396u-1; section 1902(a)(10)(A) and (C) of the Social Security Act (42 U.S.C.A. § 1396a(a)(10)(A) and (C)); and the Federal TANF regulations in 45 CFR 260.10—265.10.
Source The provisions of this § 178.165 adopted July 28, 2000, the provisions under Act 49 effective September 1, 1994, 30 Pa.B. 3779; amended September 13, 2002, effective retroactively to March 3, 1997, 32 Pa.B. 4435. Immediately preceding text appears at serial page (279119).
DISPOSITION OF PROPERTY AND FAIR CONSIDERATION PROVISIONS FOR THE TANF AND GA CATEGORIES OF MA
§ 178.171. Disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994.
(a) If property was disposed of during the period of January 4, 1991, through July 29, 1994, § § 178.172 and 178.173 (relating to presumption of disposition of property to qualify for MA for transfers during the period of January 4, 1991, through July 29, 1994; and reestablishment of MA eligibility after transfers made during the period of January 4, 1991, through July 29, 1994) and this section apply to an applicant/recipient who is applying for or receiving NFC as defined in § 178.2 (relating to definitions), including services in an ICF/MR facility, if the property was transferred for less than FMV.
(b) An institutionalized applicant/recipient who transferred property for less than FMV is ineligible only for NFC for a period not to exceed 30 months from the date of transfer. The person continues to be eligible for other MA services.
(c) A transfer of property 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 transfers by the institutionalized spouse.
(d) The CAO shall evaluate a transfer completed during or after the 30-month period immediately before the date:
(1) The person is institutionalized, if the person was MA eligible on that date.
(2) The person applies for MA while institutionalized.
(e) The transfer of excluded personal property is not subject to the fair consideration provisions. The applicant/recipient shall promptly report the transfer and the compensation received shall be verified and treated as a resource subject to other resource requirements in this chapter.
(f) The transfer of the resident property is subject to the fair consideration provisions. The institutionalized person does not lose eligibility for payment of nursing facility services or ICF/MR services because of the transfer of the resident property if the resident property was transferred to:
(1) The spouse.
(2) A child who is under 21 years of age or a child who is blind or permanently and totally disabled regardless of age.
(3) A sibling who has equity interest in the resident property and who resided in the resident property for at least 1 year immediately before the person was admitted to the nursing facility or ICF/MR.
(4) A son or daughter, other than those described in paragraph (2), who resided in the resident property for at least 2 years immediately before the parent’s admission to a nursing facility and who provided care during the 2-year period which permitted the parent to stay in the resident property rather than be admitted to the nursing facility or ICF/MR.
(i) Sufficient evidence shall be presented by the child and the parent, or the parent’s representative, for the Department to determine if the conditions are met.
(ii) Otherwise, a written statement from the parent’s physician, a visiting nurse or other health professional familiar with the case is needed to determine if the conditions are met.
(g) An institutionalized person does not lose eligibility for payment of nursing facility services or ICF/MR services because of a transfer of resources for less than fair consideration if one of the following applies:
(1) The transfer was to, or for the benefit of, the community spouse, or to a child who is blind or permanently and totally disabled regardless of age, or to another person for the sole benefit of the person’s spouse if the spouse does not transfer the resource to another person other than the institutionalized spouse for less than fair consideration.
(2) The person, a family member or someone else acting on behalf of the person can show that:
(i) The transfer was with the intention of receiving FMV or other valuable consideration.
(ii) The transfer was exclusively for a purpose other than to qualify for MA.
(3) The Department determines that the denial would cause undue hardship.
(h) The period of ineligibility for MA nursing facility services begins with the month of transfer and is the lesser of:
(1) Thirty months.
(2) The number of months, rounded to the next lowest whole month, arrived at by dividing the UV by the average monthly cost of private NFC in this Commonwealth. The average monthly private rate for nursing facility services is available upon request at the CAOs.
(i) During the period of ineligibility for MA nursing facility services, the nursing facility may charge the private pay rate.
Authority The provisions of this § 178.171 amended 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 § 178.171 amended December 23, 1994, effective December 24, 1994, and apply retroactively to January 4, 1991, 24 Pa.B. 6423. Immediately preceding text appears at serial pages (181735) and (171831).
Cross References This section cited in 55 Pa. Code § 178.5 (relating to treatment of irrevocable burial reserves for all categories of MA); and 55 Pa. Code § 178.173 (relating to reestablishment of MA eligibility after transfers made during the period of January 4, 1991, through July 29, 1994).
§ 178.172. Presumption of disposition of property to qualify for MA for transfers during the period of January 4, 1991, through July 29, 1994.
(a) If the presumption of disposition to qualify for MA is made by the Department, the applicant/recipient is notified of the finding, in writing, and is advised of the right to rebut this presumption within 15 days from the date the written notice is mailed.
(b) If the applicant/recipient 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 as a resource over the 30-month period from the date of the property transfer, and the total resources are determined on that basis.
(c) If the applicant/recipient responds to the written notification within the 15 days from the date the written notice was mailed that he wishes to rebut the presumption, the CAO shall explain to the applicant/recipient that it is his responsibility to present within 10 calendar days the required verification and convincing evidence that the resource was 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 resource.
(2) The attempts to dispose of the resource at its FMV.
(3) The reasons for accepting less than FMV for the resource.
(4) The means of, or plans for, self-support after the transfer.
(5) The applicant’s/recipient’s relationship to the person to whom the resource 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 of the applicant/recipient 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 property 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 applicant/recipient proves that the transfer was solely for some purpose other than to qualify for MA such as:
(1) If the applicant/recipient became disabled or had an unexpected loss of other resources, or an unexpected loss of income after the transfer of the property, the presumption is rebutted. The disability or unexpected loss of income or resources, or both, shall be verified.
(2) If the resources of the applicant/recipient would have been below the MA resource limit in Appendix A for the appropriate MA Program, during each of the preceding 30 months had the resource been retained, the presumption is rebutted. The applicant/recipient shall provide verification of the resource value during the period in question.
(3) If a 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 the 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 applicant/recipient is given written notice of the determination and of 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 property transfer was for the purpose of qualifying for MA, and the following apply:
(1) The UV is considered a resource for 30 months from the date of the property transfer.
(2) The UV is added to other resources that are considered. If the total exceeds the MA resource limit in Appendix A for the appropriate MA Program, the applicant/recipient is not eligible for MA.
(3) If the transferred resource is returned to the applicant/recipient, the UV is not considered a resource as of the date the transferred resource was returned. If the transferred resource is cash or a liquid resource, the UV is reduced by the value of the resource that was returned.
(4) A returned resource is evaluated as a resource.
(5) Additional compensation received in the form of cash after the transfer of the property further reduces the UV by the amount of cash received as of the date the cash was received.
Authority The provisions of this § 178.172 amended 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 § 178.172 amended December 23, 1994, effective December 24, 1994, and apply retroactively to January 4, 1991, 24 Pa.B. 6423. Immediately preceding text appears at serial pages (171831) to (171833).
Cross References This section cited in 55 Pa. Code § 178.171 (relating to disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994); and 55 Pa. Code § 178.173 (relating to reestablishment of MA eligibility after transfers made during the period of January 4, 1991, through July 29, 1994).
§ 178.173. Reestablishment of MA eligibility after transfers made during the period of January 4, 1991, through July 29, 1994.
An applicant/recipient who is not eligible for MA under § § 178.171 and 178.172 (relating to disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994; and presumption of disposition of property to qualify for MA for transfers during the period of January 4, 1991, through July 29, 1994) remains ineligible until one of the following occurs and the changes are reviewed based on the resource requirements in this chapter:
(1) The presumption of intent to qualify for MA is successfully rebutted at a prehearing conference, at a hearing or through a court order.
(2) The property is reconveyed to the applicant/recipient.
(3) The UV of the property is subsequently given to the applicant/recipient.
(4) Thirty months or a shorter period as established under § 178.171(h) has elapsed between the time of the transfer and the reapplication for MA. The period of ineligibility may be less than 30 months if:
(i) The property transferred for less than fair consideration was the home of the applicant/recipient.
(ii) The UV of the home was less than the average amount payable under the MA Program for 30 months of NFC. The period during which the UV shall be considered is the number of months arrived at by dividing the UV by the average monthly payment rate for NFC.
Authority The provisions of this § 178.173 amended 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 § 178.173 adopted August 28, 1992, effective upon publication and apply retroactively to October 1, 1989, 22 Pa.B. 4432; amended December 23, 1994, effective December 24, 1994, and apply retroactively to January 4, 1991, 24 Pa.B. 6423. Immediately preceding text appears at serial pages (171833) to (171834).
Notes of Decisions The proceeds from the sale of a farm held in a joint account which were then placed in a trust account administered by the petitioner’s son did not divest the petitioner of her interest in the proceeds in that such transfers were made and the funds were held by her attorney-in-fact. The funds were properly considered in determining her eligibility for MA. Park v. Department of Public Welfare, 582 A.2d 1138 (Pa. Cmwlth. 1990)
Cross References This section cited in 55 Pa. Code § 178.171 (relating to disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994).
§ 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).
§ 178.174a. Clarification of fair consideration provisions for disposition of assets made on or after February 8, 2006—statement of policy.
(a) Consistent with section 1917(c)(1)(B)(i) of the Social Security Act (42 U.S.C.A. § 1396p(c)(1)(B)(i)), regarding liens, adjustments and recoveries, and transfers of assets, effective for an application made on or after March 3, 2007, the look-back period for assets transferred on or after February 8, 2006, shall be 60 months.
(b) Consistent with section 1917(c)(1)(D) of the Social Security Act, effective for an application made on or after March 3, 2007, in the case of a transfer of assets for less than Fair Market Value (FMV) made on or after February 8, 2006, by an applicant or spouse of an applicant the penalty period shall commence on the date the applicant would otherwise be eligible for Medicaid based on an approved application for these services.
(c) Consistent with section 1917(c)(1)(D of the Social Security Act, effective with transfers of assets for less than FMV made on or after March 3, 2007, by a recipient, the beginning date of a period of ineligibility for payment of long-term care services shall commence on the first day of the month following the date specified in the Appeal and Fair Hearing section of the Advance Notice provided to the recipient.
(d) Consistent with section 1917(c)(1)(E)(iv) and (H) of the Social Security Act, effective for an application made on or after March 3, 2007, a period of ineligibility for payment of long-term care services will result when an applicant or spouse of an applicant disposes of assets for less than FMV on or after February 8, 2006. The period of ineligibility shall be determined by dividing the total cumulative uncompensated value of all assets disposed of by the applicant or the applicant’s spouse on or after the look-back date, by the average daily private pay rate in effect at the time the application is processed.
(e) Consistent with section 1917(c)(1)(E)(iv) and (H) of the Social Security Act, effective March 3, 2007, a period of ineligibility for payment of long-term care services will result when a recipient disposes of assets for less than FMV on or after March 3, 2007. The period of ineligibility shall be determined by dividing the total cumulative uncompensated value of all assets disposed of by the recipient on or after the look-back date, by the average daily private pay rate in effect at the time the period of ineligibility is determined.
(f) Consistent with section 1917(c)(1)(I) of the Social Security Act, effective for an application made on or after March 3, 2007, the outstanding balance due on a promissory note, loan or mortgage purchased on or after February 8, 2006, that does not meet all of the following requirements will be treated as a transfer of assets for less than FMV:
(1) The repayment terms must be actuarially sound.
(2) The terms must provide for payments in equal amounts throughout the term, with no deferral of payments and no balloon payments.
(3) The terms must prohibit cancellation of the balance upon death of the lender.
(g) Consistent with section 1917(c)(1)(J) of the Social Security Act, effective for an application made on or after March 3, 2007, the purchase of a life estate interest in another individual’s home made on or after February 8, 2006, shall be considered a transfer of assets for less than FMV unless the purchaser resided in the home for at least 1 year after the purchase date.
(h) Consistent with section 1917(c)(1)(F) and (G) of the Social Security Act, effective for an application made on or after March 3, 2007, the purchase of an annuity by an applicant or applicant’s spouse on or after February 8, 2006, that does not meet all of the following requirements, will be treated as a transfer of assets for less than FMV:
(1) The annuity must be irrevocable and nonassignable.
(2) The annuity must be actuarially sound.
(3) The annuity must provide for payments in equal amounts, with no deferral and no balloon payments made.
(4) The annuity must name the Department as the remainder beneficiary in the first position for at least the total amount of medical assistance paid by the Department on behalf of the recipient. The annuity must name the Department as beneficiary in the second position when there is a community spouse (CS), minor child, or blind or permanently and totally disabled child for at least the total amount of Medical Assistance paid by the Department on behalf of the recipient and must name the Department in the first position if the CS or a representative of a minor child, or a representative of a permanently and totally disabled child disposes of any such remainder for less than FMV.
(i) Consistent with section 1917(c)(1)(F) and (G) of the Social Security Act, effective for an application made on or after March 3, 2007, the purchase of a nonqualified annuity on or after February 8, 2006, by the spouse of an applicant, that does not name the Department as beneficiary in the first position will be treated as a transfer of assets for less than FMV.
(j) This statement of policy does not prevent the Department from treating an annuity owned by an applicant or recipient or the spouse of an applicant or recipient that satisfies the requirements in subsection (h) or the requirement in subsection (i), as either income or a resource in the eligibility determination for long-term care services under the Medicaid Program.
(k) This statement of policy does not prevent the Department from treating an outstanding balance due on a promissory note, loan or mortgage satisfying the requirements in subsection (f), as either income or a resource in the eligibility determination for long-term care services under the Medicaid Program.
Source The provisions of this § 178.174a adopted March 2, 2007, amended March 3, 2007, 37 Pa.B. 1043.
§ 178.174b. Clarification of fair consideration provisions for disposition of assets made on or after February 8, 2006—statement of policy.
(a) For the purposes of this statement of policy, an undue hardship exists when application of the transfer of assets penalty provision would deprive the individual of one of the following:
(1) Medical care so that the individual’s health or life would be endangered.
(2) Food, clothing, shelter or other necessities of life.
(b) Consistent with section 1917(c)(2)(D) of the Social Security Act (42 U.S.C.A. § 1396p(c)(2)(D)), regarding liens, adjustments and recoveries, and transfers of assets, effective with applications made on or after March 3, 2007, the Department will provide undue hardship waiver guidelines to an individual who is determined ineligible for payment of long-term care services due to a transfer of assets for less than fair market value made on or after February 8, 2006. The undue hardship waiver guidelines provide for the following:
(1) A notice to the individual that an undue hardship waiver exception exists.
(2) A timely process for determining whether an undue hardship waiver will be granted.
(3) A process under which an adverse determination can be appealed.
(c) Consistent with section 1917(c)(2)(D) of the Social Security Act, the undue hardship waiver request guidelines shall permit the facility in which the institutionalized individual is residing to file an undue hardship waiver application on behalf of the individual with the consent of the individual or the personal representative of the individual.
(d) Until the Secretary of Health and Human Services establishes the demonstrated hardship process, the Department will apply the undue hardship process for an individual whose equity interest in the individual’s home exceeds $500,000. Consistent with section 1917(f)(1)(C) of the Social Security Act, this dollar amount shall be increased beginning January 1, 2011, from year to year based on the percentage increase in the Consumer Price Index for all urban consumers (all items; United States city average), rounded to the nearest $1,000. Revisions to this amount, as required by Federal law and regulations, will be published as a notice in the Pennsylvania Bulletin and will be made available upon request.
Source The provisions of this § 178.174b adopted March 2, 2007, amended March 3, 2007, 37 Pa.B. 1046; amended September 23, 2011, effective retroactive to January 1, 2011, 41 Pa.B. 5064. Immediately preceding text appears at serial page (325988).
§ 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).
§ 178.176. Reestablishment of MA eligibility after transfers made on or after July 30, 1994.
An individual who is not eligible for MA under § § 178.174 and 178.175 (relating to disposition of assets and fair consideration provisions for transfers on or after July 30, 1994; and presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994) remains ineligible until one of the following occurs:
(1) The presumption of intent to qualify for MA is successfully rebutted at a prehearing conference, at a hearing or through a court order.
(2) The property is reconveyed to the individual.
(3) The UV of the property is subsequently given to the individual.
(4) The period of ineligibility has elapsed between the time of the transfer and the reapplication for MA. The period of ineligibility is as determined in § 178.174(d) unless the transfer meets the conditions of § 178.174(e).
Authority The provisions of this § 178.176 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 § 178.176 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).
APPENDIX A
NMP-MA RESOURCE LIMITS
The resource limits against which nonexcluded resources are considered for NMP-MA persons, whether institutionalized or noninstitutionalized, are:
(a) Aged, Blind and Disabled
One person…$2,000
Two persons…$3,000
(b) AFDC
Regardless of the number of persons in the
applicant/recipient group…$1,000(c) GA
One person…$ 250
Two or more persons…$1,000
MNO-MA RESOURCE LIMITS
The resource limits against which nonexcluded resources are considered for MNO-MA persons, whether institutionalized or noninstitutionalized, are:
One person…$2,400
Two persons…$3,200
Each additional person…$300
RESOURCE LIMITS FOR PREGNANT WOMEN
If a pregnancy is medically verified, the unborn child is counted as a member of the applicant recipient group when establishing the NMP-MA or MNO resource limit.
Source The provisions of this Appendix A amended December 30, 1988, effective January 31, 1989, 18 Pa.B. 5798. Immediately preceding text appears at serial page (130564).
Cross References This appendix cited in 55 Pa. Code § 178.91 (relating to deeming of resources); 55 Pa. Code § 178.102 (relating to presumption of disposition of property to qualify for MA for transfers during the period of January 4, 1991, through July 29, 1994); 55 Pa. Code § 178.105 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994); 55 Pa. Code § 178.123 (relating to determining the spousal share of resources at the same time the institutionalized spouse applies for MA); 55 Pa. Code § 178.124 (relating to resource eligibility for the institutionalized spouse); 55 Pa. Code § 178.126 (relating to resources received by the institutionalized spouse after MA eligibility is determined); 55 Pa. Code § 178.172 (relating to presumption of disposition of property to qualify for MA for transfers during the period of January 4, 1991, through July 29, 1994); and 55 Pa. Code § 178.175 (relating to presumption of disposition of assets to qualify for MA for transfers on or after July 30, 1994).
No part of the information on this site may be reproduced for profit or sold for profit.
This material has been drawn directly from the official Pennsylvania Code full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
