37.82.417 TRANSFER OF RESOURCES

(1) The following definitions apply to this subchapter:

(a) "Fair market value" means the amount of compensation at which property would change hands between a willing buyer and an unrelated seller, neither being under compulsion to buy or sell and both having reasonable knowledge of the relevant facts.

(b) "Compensation" means money, food, shelter, support, maintenance, services, or other valuable real or personal property, as further specified in (5), received by an individual in exchange for the transferred property.

(c) "Uncompensated value" means the difference between the property's fair market value at the time of the transfer less any outstanding encumbrances on the property and the fair market value of compensation received in exchange for the property.

(d) "Transfer of property" means any transfer or renunciation of a client's property. Transfers to joint tenancy or to tenancy in common are included in this definition. Transfers of or restrictions upon a client's right of access to or legal ability to dispose of property are also included in this definition, except as provided in (8)(b)(iv).

(e) "Incurred medical expenses" are those actually incurred medical expenses which are not subject to payment by a third party.

(f) "Undue hardship" means any one of the conditions specified in (8)(b)(i) through (8)(b)(v).

(g) "Client" means applicant for or recipient of Medicaid services or such a person at any time prior to application and, where the context allows, includes any person whose resources are considered by the department in determining eligibility of the applicant or recipient.

(h) "Property" means any full or proportionate right, title or interest in or to any real or personal property or property right.

(i) "Institutionalization" means admission to a nursing facility, admission to a medical institution at a level of care equivalent to nursing facility services, or commencement of services to the applicant or recipient under the Home and Community Based Waiver program.

(j) "Home" means the client's principal place of residence, including adjoining land and outbuildings;

(k) "Principal place of residence" means the property on which the individual, the individual's spouse, or a dependent child of the individual (including a dependent adult child) currently resides or has resided within the previous six months and the individual, the individual's spouse, or a dependent child of the individual intends to return to the property to reside within six months of absence in the event of a temporary absence. Only one property may qualify as an individual's principal place of residence.

(2) The client's home:

(a) is a countable resource; and

(b) will be considered an exempt resource so long as the client or a dependent child resides in the home and ownership is retained by the client.

(3) Property transfers made on or after July 1, 1988, are evaluated for only those clients applying for or receiving nursing facility services, services in a medical institution at a level of care equivalent to nursing facility services, or services under the Home and Community Based Waiver Program.

(4) For transfers made on or after July 1, 1988:

(a) A client is ineligible for the medical services specified in (3) for a period of time calculated in accordance with (4)(b)(i) and (ii) if, for the purpose of qualifying for medical assistance, the client has disposed of any resource, including his home, for less than fair market value within:

(i) 30 months immediately prior to institutionalization or at any time thereafter, in the case of a person who is receiving medical assistance on the date of institutionalization; or

(ii) 30 months immediately prior to the date of application for medical assistance or at any time after application, in the case of a person who is not receiving medical assistance on the date of institutionalization.

(b) The period of ineligibility will begin with the month in which the resources were transferred. The number of months in such period is equal to the lesser of:

(i) 30 months; or

(ii) the uncompensated value divided by Montana's statewide average private pay cost of nursing home services as determined by the department as of July 1 of the state fiscal year in which the transfer occurs.

(i) the property was transferred to a spouse or a blind or permanently and totally disabled child of the applicant or recipient;

(ii) the transferred property was the applicant's or recipient's home and was transferred to:

(A) the applicant's or recipient's spouse;

(B) a child of the applicant or recipient who is under age 21;

(D) a child of the applicant or recipient who resided in the home for at least two years prior to the client's institutionalization and who provided care which permitted the client to reside at home; or

(E) a sibling of the applicant or recipient who has equity interest in the home and resided in the home for at least one continuous year immediately preceding the client's institutionalization.

(iii) the property was transferred exclusively for a purpose other than to qualify for medical assistance; or

(iv) denial of eligibility would cause an undue hardship as defined in (1)(f).

(d) When a client, whether or not receiving medical assistance at the time of institutionalization, has disposed of any resource for less than fair market value within the periods of time described in (4)(a)(i) and (ii), it is presumed that the transfer was made for the purpose of qualifying for medical assistance, unless the client establishes by clear and convincing evidence that the transfer was exclusively for some other purpose.

(5) All property transfers made after December 19, 1989, by either the client or his spouse, will be evaluated as if the transfer was made by the client.

(6) For purposes of evaluating all transfers, regardless of date, the value of compensation received for transferred property is determined based upon the agreement and expectations of the parties at the time of the transfer. Compensation may be in the form of:

(a) cash, in the total amount paid or agreed to be paid in exchange for the resource, excluding interest;

(b) any valuable real or personal property which is valued according to its fair market value and which is exchanged for the property transferred;

(c) support and/or maintenance provided in accordance with a valid written contract entered into before the support and/or maintenance was rendered. The support and/or maintenance are valued at fair market value based upon the support and/or maintenance provided and the length of time for which the contract requires that it be provided;

(d) services provided in accordance with a valid written contract entered into before services were rendered. The services provided are valued at fair market value, considering the frequency and the duration of the services required by the contract;

(e) food valued at retail price; or

(f) shelter valued at fair market value.

(7) In all cases in which the department determines that an applicant or recipient has transferred resources to establish or maintain eligibility, regardless of the date of the transfer, the department must send a written notice to the individual, prior to a determination of eligibility or ineligibility, informing him that an uncompensated transfer of nonexcluded resources has been identified, stating the value of the property transferred, and explaining the individual's right to rebut the presumption that the transfer was made to qualify for assistance.

(8) For purposes of evaluating all transfers, regardless of date, the presumption that property was transferred to establish Medicaid eligibility shall apply unless the individual presents to the department, within 15 days of the department's mailing of notice, a rebuttal statement containing clear and convincing evidence that the property was transferred exclusively for some other reason. If the individual does not present a rebuttal statement as provided herein, the department shall deny or terminate eligibility.

(a) The individual's rebuttal statement must include, if applicable:

(i) the individual's reason for transferring the property;

(ii) the individual's attempts to transfer the property at fair market value;

(iii) the individual's representation and documentation that he did receive fair market value, if that is his belief and contention, or the individual's reasons for accepting less than fair market value for the property;

(iv) the individual's means of or plans for supporting himself after the transfer;

(v) the individual's relationship, if any, to the persons to whom the property was transferred; and

(vi) any relevant documentary evidence of the transfer or consideration received for the transfer including but not limited to legal documents, agreements, appraisals, and correspondence regarding the transfer of property.

(b) The determination of whether a transfer covered by this section has occurred will be based upon consideration of all facts and circumstances. The presence of one or more of the following or other factors, while not necessarily conclusive, may indicate that the property was transferred exclusively for some purpose other than establishing eligibility;

(i) The occurrence or onset after transfer of an unexpected event or condition which necessitates application for Medicaid benefits.

(ii) The occurrence after transfer of an unexpected loss of:

(A) other resources which would have precluded Medicaid eligibility; or

(B) income which would have precluded Medicaid eligibility.

(iii) If the property had been retained, the individual's total countable resources would have been below the general resource limit during each of the preceding 30 months.

(iv) The property transfer or restrictions upon the availability of the property to its owner were ordered by a court of law based upon an applicable statute, regulation, bona fide condition of settlement or other legal requirement and not at the request or suggestion of the client or the client's parent, child, guardian, attorney, or other legal representative.

(v) The individual was the victim of fraud, misrepresentation or coercion, and the transfer was based upon such fraud, misrepresentation or coercion, provided that the individual has taken any and all possible steps, including legal action, to recover such property or the equivalent thereof in damages.

(9) For purposes of evaluating all transfers, regardless of date, if the individual had some other purpose for transferring the property but establishing eligibility for public assistance was also a factor or foreseeable result of his decision to transfer, the presumption established in (4)(d) is not rebutted.

History: 53-2-201, 53-2-601, 53-6-113, MCA; IMP, 53-2-601, 53-6-101, 53-6-113, 53-6-143, MCA; NEW, 1981 MAR p. 1979, Eff. 1/1/82; AMD, 1987 MAR p. 710, Eff. 5/29/87; AMD, 1990 MAR p. 124, Eff. 1/12/90; AMD, 1991 MAR p. 262, Eff. 3/1/91; TRANS, from SRS, 2000 MAR p. 476; EMERG, AMD, 2003 MAR p. 652, Eff. 4/11/03.