440.8 Disposition of Assets and Fair Consideration

PMN17815440   Treatment of Long Term Care (LTC) Insurance Policies - December 29, 2015

 

There is no penalty for a transfer or disposition of an asset for Fair Market Value (FMV). FMV is:  

                                                                                                                         55 Pa. Code § 178.2  

 

See Section 440.812, When Fair Consideration Does Not Apply.

 

If an individual or the individual's spouse disposes of or transfers assets for less than FMV, the CAO will apply the fair consideration requirements to the individual who is applying for or receiving:  

                                            55 Pa. Code § 178.104(a)

 

The CAO will deny eligibility for payment of LTC services to otherwise eligible individuals who transfer assets for less than FMV. The disposal of assets for less than FMV also applies to an individual acting on behalf of an applicant or recipient.  This includes a guardian, attorney, individual with power-of-attorney or the adult son or daughter.           

Assets include all income and resources of the individual and his or her spouse. This includes both income and resources that the individual or spouse is entitled to but does not receive because of any action by:        

55 Pa. Code § 178.104(b) 

  

"Assets an individual or spouse is entitled to" include any assets the individual can get or make available, unless the individual can show good cause for not doing so.         

Examples of actions that cause the individual not to receive income or resources include:       

 

In most cases, an action that causes income or resources not to be received is considered a transfer of assets for less than FMV. 

 55 Pa. Code § 178.1(g)

55 Pa. Code § 181.1(d)

 

 

It may not be a transfer of assets for less than FMV if the individual cannot afford to take the action needed to get the assets. The cost of getting the assets may be greater than the assets’ value, thus making the assets worthless to the individual. The CAO must examine the specific circumstances of each transfer before deciding that the transfer was for less than fair consideration.   

 

NOTE: Assets are considered transferred by the MA LTC applicant/recipient if they are transferred by a parent, guardian, court, administrative body, or by anyone acting in place of, on behalf of or at the applicant/recipient or spouse’s direction or request.     

55 Pa. Code § 178.104

440.81  Description of disposition of an asset

The disposition of an asset occurs when there is a transfer of ownership of, or interest in, a property.  This may affect the individual's eligibility for payment of LTC services.  Disposing of an excluded or countable asset includes, but is not limited to:       

NOTE: If an asset is used to pay medical expenses during the requested date of MA coverage (retroactive) or continuing eligibility period (before expiration of an advance notice to end MA due to excess resources), the CAO will treat the asset as if it never existed.          

 

NOTE: As a condition of eligibility, the individual (or someone applying on behalf of the individual such as a guardian and/or trustee) must report and give proof of all trusts that are or will be established with the individual as a beneficiary. This includes Special Needs Trusts.            

 

NOTE: The eligibility of a spouse receiving MA is not affected if his or her community spouse owns an asset other than the home and disposes of it after the CAO authorizes MA for the spouse receiving LTC services.

55 Pa. Code § 178.1(c)

55 Pa. Code § 178.1(j)

 

440.811  Determination of receipt of fair consideration  

The CAO is responsible for determining if transfers for less than fair market value were made during the look-back period by the applicant or spouse (if any). While the CAO should not be 'fishing' for information, the CAO has the discretion to ask for the information needed to properly review for eligibility. As a general rule, the CAO will request the following financial account statements (to include all bank and investment accounts as well as stock and bond portfolio information) from individuals applying for LTC services:

Prior to processing the LTC application, if the information provided raises questions or new issues, follow-up information will be requested to verify whether or not fair market value was received by the applicant or spouse (if any).

Example: On May 20, 2016, Allen submitted an application for payment of LTC services effective April 15, 2016. Allen stated on the Application for Benefits that no assets were transferred in the past 60 months. The look-back period runs from May 20, 2011 through May 20, 2016. The CAO sends a pending verification list requesting all needed documentation including:

The requested financial documentation includes a January 2013 bank statement with an ending balance of $35,000.00 and a June 2014 bank statement with a $3,000.00 balance. In this case, the CAO will request further documentation to verify how the $32,000.00 was spent or where the money was deposited.

The CAO has the right to ask for more or less documentation depending on the specific case. If it is felt that more or less documentation is needed than the suggested guidance above, the caseworker will discuss the case with his/her supervisor and obtain the supervisor's approval. The case narrative will be completed, detailing the steps taken to gather the requested information.

NOTE: Direct Express accounts allow individuals to receive their federal benefits such as Supplemental Security Income (SSI) payments on a debit card.  Look-back period documentation will not be required for Direct Express accounts unless there is something questionable on the application or in other documentation received. 

When an individual or spouse disposes of an excluded or countable asset, the newly acquired cash or item will count as an asset. It is subject to continuing eligibility requirements.     

55 Pa. Code § 178.1(i)

To determine if fair consideration was received when an individual or spouse transfers assets, the CAO will determine whether:         

 

NOTE:   For an asset to be considered transferred for FMV or transferred ownership for valuable consideration, the compensation received for the asset must be in a tangible form.  A transfer for love and consideration is not considered a transfer for FMV. Relatives and family members can legitimately be paid for providing care to an individual.  If care services were provided for free, it is presumed that they were intended to be provided without compensation.  Therefore, a transfer of assets to a relative for care that was previously provided for free is considered a transfer of assets for less than FMV.  An individual can rebut this presumption with evidence such as a payback agreement in writing, written at the time the services were provided.        

NOTE: The CAO will verify a caregiver agreement by reviewing the written contract between the applicant and the provider/relative. The contract must show:

1.  The type, frequency and duration of services being provided to the applicant.

2.  The amount of consideration (money or property) received by the provider/relative.

The applicant must show that resources were transferred under a valid caregiver agreement. If the amount paid for the services is above FMV of the services at the time services were delivered, then the applicant will be considered to have transferred the assets for less than FMV.  If the FMV is in question, the CAO should consult with an area business that provides such services.  If the CAO cannot determine whether a caregiver contract is valid, the CAO may send the contract to the regional Office of General Counsel (OGC) for review.

 55 Pa. Code § 178.104(e)(3)

 55 Pa. Code § 178.104(b)

 

If the individual owned an asset with other individuals in joint tenancy, tenancy in common, tenancy by the entities or a similar arrangement, the CAO will determine if the person transferred the asset (or the affected portion of the asset) as the result of an action taken, either by the individual or by another owner, that reduces or eliminates the individual's ownership or control of the asset.  The CAO considers an asset as transferred for less than FMV if an individual or his agent has taken an action that reduces or eliminates the individual’s ownership or control of the asset.           

The placing of another individual's name on an account or asset as a joint owner may not be a transfer of assets, depending on the specific circumstances of the transfer.  The individual may still possess ownership rights to the account or asset and have the right to withdraw all of the funds or to possess the asset at any time. 

Actual withdrawal of funds from the account, or removal of the asset by the other individual, removes the funds or asset from the individual’s control. This is a transfer of assets.  

The CAO will determine what portion of a jointly held asset belongs to an individual.  That portion is subject to a transfer penalty if the joint owner withdraws it. The CAO must give the individual the right to explain that the transfer of the asset was for FMV.

If the individual (or the other owner) can prove that the funds withdrawn did not belong to the individual and were the sole property of and contributed by the other owner, there is no transfer penalty for withdrawal of those funds. 

When a transfer by the individual’s spouse results in a period of ineligibility for MA LTC and the spouse becomes otherwise eligible for MA LTC services during the disqualification period, the CAO will divide the ineligibility period (or portion of the period) between the individual and the spouse.         

Example: Jack enters an LTC facility on April 1. Jenna transfers her home to her son for a $1 on May 1. This results in a 365 day penalty period for Jack beginning April 1. On July 1, Jenna enters the same LTC facility as her husband and Jenna is otherwise eligible for MA LTC. There are 274 days remaining in the penalty period. Each spouse is now ineligible for 137 days. They may both reapply for payment of LTC services on November 15.     

NOTE: During the period of ineligibility for payment of LTC services due to a transfer of assets for less than FMV, the individual remains eligible for all other MA services.        

55 Pa. Code § 178.104a(e)

55 Pa. Code § 178.104(d)

 

Contributions to ABLE accounts must be evaluated for fair consideration.  For contributions, an individual may be ineligible for payment of Long-Term Care and Home and Community-Based Services unless:

·        The individual adds to his or her own ABLE account, and

·        The individual remains the owner of the account. 

Example:  Barry makes a $4,000 cash contribution to his friend’s ABLE account on September 12, 2022.  On September 15, 2023, Barry applies for LTC nursing facility care.  Barry is not the account owner, so the contribution is subject to fair consideration.  He meets all other criteria for LTC eligibility.  Barry received nothing in return for the cash transfer, so a penalty period will be calculated using the full uncompensated value of $4,000.

 

440.812  When fair consideration does not apply

Fair consideration does not apply if the assets were the resident property (home) and the home was transferred to:           

55 Pa. Code § 178.104(e)(1)(i)

 55 Pa. Code § 178.104(e)(1)(ii)

NOTE: The blindness or permanent or total disability of the child must meet SSI criteria specified in

  42 U.S.C. § 1382c(a)(3).

 55 Pa. Code § 178.104(e)(1)(ii)

 

55 Pa. Code § 178.104(e)(1)(iii)

55 Pa. Code § 178.104(e)(1)(iv) 

NOTE:  This caregiver exception applies only to sons and daughters, not friends or other relatives.  The son or daughter must have resided  in the applicant/recipient’s home for at least two years.  The two years must be immediately prior to the institutionalization.  The CAO may use tax, employment, postal or other records to verify the residency of the son or daughter.  A doctor must provide verification of the care.  The doctor’s written statement must declare that the care provided  by the applicant’s son or daughter over the two years allowed the applicant to live at home rather than in an LTC facility. The exception does not apply when only companionship was provided; the verification must show that the applicant would have needed long-term care if not for the caregiver’s services.

 

 

Fair consideration also does not apply if the assets were transferred to:      

 

 

NOTE: The blindness or permanent or total disability of the child must meet SSI criteria specified in  42 U.S.C. § 1382c(a)(3).

 

 55 Pa. Code § 178.104(e)(2) 

Example:  Betty is single.  She has $50,000 in a deferred compensation fund which she converts to cash on August 31, 2022.  She spends $30,000 on living expenses.  A nursing facility admits her on September 15, 2023 and she applies for nursing facility care.  On September 14, 2023, she transferred $14,000 into her newly opened ABLE account.  The transfer occurred within the lookback period.  Because she is the owner of the account, the resource transfer is not subject to fair consideration as long as Betty remains the owner of the account.

  

   

The CAO will not apply fair consideration if the individual or spouse (or a representative acting on behalf of the individual) can show that one of the following applies:  

 

NOTE: A transfer to a relative for care provided in the past is a transfer of assets for less than FMV.  The individual may rebut this by showing tangible evidence that FMV was received, such as a payback arrangement agreed to in writing at the time of the services.  FMV may be in the form of payment of the individual’s past medical expenses and debts, if measurable and verified.  The individual must receive the FMV, not delivered at a future date.

 

55 Pa. Code § 178.104(e)(1)(iv)

440.813  Rebuttal Process

When an individual transfers (gives away or sells) an asset for less than FMV, the CAO  can presume that the asset was disposed of to establish or maintain eligibility for MA LTC. The individual may rebut this presumption.       

If the CAO assumes that the asset was transferred with the intent to dispose of the asset in order to qualify for MA LTC, the CAO must:

1.   Notify the individual in writing and explain that the individual has the right to rebut (disprove) the presumption within 15 calendar days of the notice mailing date.

2.  Contact the individual within 10 calendar days if the individual states in writing upon receipt of the notice that he or she intends to rebut the presumption. If the CAO does not receive a written request to rebut the presumption, see Section 440.814, CAO Process-Presumption Not Rebutted.    

3.    Tell the individual that he or she must give proof and convincing evidence within 10 calendar days that the transfer of assets was solely for a purpose other than to qualify for MA LTC.  

Convincing evidence must include:   

NOTE: Convincing documentary evidence includes, but is not limited to, legal documents, real estate agreements, relevant correspondence, medical reports, etc.  

4.      Decide whether the individual has given enough proof to rebut the presumption and the transfer of assets was solely for some purpose other than to qualify for payment of LTC services. The CAO must receive the proof within the requested 10 calendar day time frame.   

Examples of situations that may show that the transfer was made for a purpose other than to qualify for MA:           

5.   Honor the request to rebut the presumption if the individual proves that the asset transfer was solely for some purpose other than to qualify for MA.      

6.     Deny the request to rebut the presumption if the individual had some other purpose for transferring the asset but the expectation of establishing or maintaining MA eligibility was also a factor. 

7.  Send a notice of the eligibility decision to the individual.

The determination of whether the individual successfully rebutted the presumption is made by the Executive Director of the CAO or his or her delegate.   

NOTE:  If the presumption is rebutted, the transfer has no effect on the eligibility for LTC services.           

55 Pa. Code § 178.105

 

440.814  CAO Process - Presumption not Rebutted

If the individual does not rebut the presumption, the CAO will presume that the asset was transferred to qualify for MA LTC.  The following will apply:        

55 Pa. Code § 178.105(g)  

An individual who is not eligible for payment of LTC services under the transfer of assets requirements remains ineligible until one of the following occurs:      

Example: Matthew transferred his home to his son on April 10. On June 6, he was admitted to an LTC facility. He applied for MA LTC with a requested effective date of June 6. The son transferred the home back to his father before authorization.  The CAO would authorize MA LTC with no penalty period, if all other conditions of eligibility are met.        

Example: Patty transferred $50,000 to her niece on February 3. She was admitted to an LTC facility on September 3. She applied for MA LTC and was authorized with a penalty period effective September 3. The CAO received proof that the money was returned to Patty on November 15. The CAO would end the penalty period effective November 15 and send advance notice to close due to excess resources.

The Department approves an undue hardship waiver request in part or in full. 

       55 Pa. Code § 178.106

 

440.82  Look back date and look back period

The look back date is the earliest date that the CAO can assess a penalty for the transfer of assets for less than FMV.           

In order to determine the look back period, the following rules should be applied:

 

Example: Andrew was admitted to the LTC facility on December 10, 2010 and is requesting payment of services in an LTC facility effective January 15, 2011. The CAO receives an application for MA LTC on February 5, 2011. The look-back period will run from February 8, 2006 through February 5, 2011.

 

Example: Brett was admitted to the LTC facility on December 10, 2010 and is requesting payment of services in an LTC facility effective January 15, 2011. The CAO receives an application for MA LTC on February 25, 2011. The look-back period will run from February 25, 2006 through February 25, 2011.

 

NOTE: For provider applications, the date the provider signed the application is the date used to determine the look-back period.

 

 

Example: Carlos began receiving HCBS on February 1, 2011 and is requesting payment of HCBS effective February 1, 2011. The assessment date listed on the PA 1768 is January 15, 2011 and the service begin date is February 1, 2011. The look back period will run from February 8, 2006 through January 15, 2011.

Example: Donald began receiving HCBS on March 1, 2011 and is requesting payment of HCBS effective March 1, 2011. The assessment date listed on the PA 1768 is February 15, 2011 and the service begin date is March 1, 2011. The look-back period will run from February 15, 2006 through February 15, 2011.

Example: Evan was admitted to the LTC facility on December 10, 2010 and is requesting payment of services in an LTC facility effective January 15, 2011.  The look back period will run from February 8, 2006 through December 10, 2010.

Example: Frank was admitted to the LTC facility on April 1, 2011 and is requesting payment of services in an LTC facility effective April 21, 2011. The look back period will run from April 1, 2006 through April 1, 2011.

 

Currently, the Client Information System (CIS) and e-CIS are programmed to apply a penalty period to all asset transfers exceeding a total of $500 in a month that occurred on or after February 8, 2006. Until software changes are implemented, only asset transfers that occurred during the applicable look back period should be entered in CIS. You will be notified via a Daily Status once the needed software changes are made.    

55 Pa. Code § 178.104(c)

55 Pa. Code § 178.104a

440.83  Verification of fair consideration 

The individual or his or her representative must give the CAO all of the following documentation of a disposed asset:           

1.      Date of the disposal of the asset

2.      Name of the individual who transferred the asset

3.      Name of the individual to whom the asset was transferred

4.      Description of the income or resource that was transferred

5.      Fair market value of the asset at the time of the disposal

6.      Information about the individual’s ownership interest in the asset

7.      Information about any encumbrances on the asset

8.      Amount and kind of compensation received

9.   Reason for the disposal     

 

The CAO is responsible for determining if transfers for less than fair market value were made during the look-back period by the applicant or spouse (if any).

 

For transfers of assets that meet fair consideration requirements, the CAO will verify that the asset was transferred. The CAO uses such sources as, but not limited to:

For transfers of assets that do not meet fair consideration requirements, the CAO will determine the FMV of the asset. The CAO will review the submitted proof to determine what compensated value was received.  Acceptable documentation may include, but is not limited to:

Prior to processing the LTC application, if the information provided raises questions or new issues, follow-up information will be requested to verify whether or not fair market value was received by the applicant or spouse (if any).

If the individual did not receive FMV when the asset was transferred, the CAO will determine the asset’s uncompensated value.

 See Section 440.84, Uncompensated Value.    

55 Pa. Code § 178.3

440.84 Uncompensated Value

The uncompensated value of an asset is the difference between the FMV of an individual’s equity interest in an asset at the time of transfer and the compensation the individual received for the asset. The individual’s ownership interest is a resource.   

     

To determine the uncompensated value of transferred assets, the CAO will:          

1.  Determine the FMV of the asset at the time of the transfer.

2 Determine the equity value of the resource by deducting any encumbrances or costs from the FMV. Expenses include, but are not  limited to:       

3.  Subtract the amount the individual received for the asset or the value of the compensation from the equity value. The result is the uncompensated value.       

  

Example: Helen transferred her home to her son. The FMV of the property was $95,000.  Expenses for the attorney and settlement were $5,500. The equity value of the transfer was $89,500.  The son paid $50,000 for the home. The uncompensated value is $39,500 ($89,500 - $50,000).  

 

After calculating the uncompensated value of the transferred asset, the CAO will determine whether to impose a period of ineligibility. 

 See Section 440.85, Period of Ineligibility for Payment of LTC Services

55 Pa. Code § 178.2

 

440.85  Period of Ineligibility for Payment of LTC Services

PMM17626440  Using eCIStance as a reference tool for LTC application processing and case maintenance - July 16, 2015

 

If an individual or spouse makes a transfer of assets for less than FMV, the CAO will deny payment for LTC services received by the individual for a specified period of time. The individual remains eligible for all other MA services.        

When there is a transfer of assets for less than FMV, the CAO may deny eligibility for payment of LTC services including:

 

The ineligibility period for the individual who disposes of assets for less than FMV equals:    

55 Pa. Code § 178.104a(e)

  See Appendix A for the average monthly and daily private pay rates.     

 

Once a penalty period is established, it will continue to apply even if the individual is discharged from the facility or is no longer receiving HCBS. If that individual would require either LTC facility services or HCBS at some point in the future, the remainder of the original penalty period would apply until it has expired.

 

Deficit Reduction Act (DRA) of 2005

 

Exception: If the individual is granted an Undue Hardship Waiver, or the  asset is re-conveyed back to the individual, the penalty period may be shortened or eliminated.

 

Exception: The CAO will not include transfers totaling $500 or less in a calendar month.

 

Example: Shane submitted an application for MA LTC on May 1. He applied for MA LTC requesting benefits effective April 1. On February 1, Shane transferred his home to his son without receiving any compensation. The FMV of his home was $97,000. The CAO determined that Shane would be otherwise eligible for MA LTC effective April 1 but for the transfer of the home. 

 

The CAO calculated the period of ineligibility by dividing the uncompensated value of the home ($97,000) by the average daily private pay rate in effect at the determination, even if retroactive coverage (when a different average daily private rate was in effect) is being authorized. The CAO determined that Shane’s period of ineligibility for payment of LTC services was effective April 1.

Shane was found eligible for all other MA services effective April 1. The CAO authorized MA with a penalty period in an LTC category effective April 1.                                                                                                                                                           

55 Pa. Code § 178.104a

 

440.851 Period of Ineligibility for Payment of LTC Services

For an applicant, the begin date for a period of ineligibility for payment of LTC service due to a transfer of assets for less than FMV is:       

 

This policy only applies to transfers made on or after February 8, 2006 based on an application dated on or after March 5, 2007.           

Example 1:

George applies for MA LTC on February 9, 2012.

George’s requested effective date is February 9, 2012.

George’s resources are below the MA LTC limits.

George put on the application that he gifted $50,000 to his son on February 8, 2009.

 

The transfer occurred beyond the previous 36 month look back period but on or after February 8, 2006. The application date is on or after March 5, 2007. The look back period is 60 months, going back from February 9, 2012.

 

The CAO determines that the transfer of assets took place within the required look back period.

George is otherwise eligible for MA LTC. The CAO will apply a period of ineligibility that begins on February 9, 2012.          

For a recipient, the begin date for an ineligibility period for payment of LTC services due to a transfer of assets for less than FMV is:       

Example 2:

 Shawn was admitted to an LTC facility on July 1.  He applied for MA LTC and was approved for payments beginning on August 1.  On October 15 he transferred his home to his son for $1.00.  The uncompensated value of the property was $97,000. 

To determine the length of the penalty period, the CAO divides $97,000 by the average daily private pay rate in effect at the time the period of ineligibility is determined.

55 Pa. Code § 178.104a(e)

 

The penalty period for recipients of MA LTC begins the first day of the month following the expiration date of the advance notice to discontinue LTC payments. The advance notice expired on October 29.  The penalty period will begin November 1 and continue for the determined amount of time.

 

 55 Pa. Code § 178.104(b)

55 Pa. Code § 178.104(c)  

440.852 Guidelines for assets transfers between spouses

1.   A transfer of assets from the Institutionalized Spouse (IS) to the Community Spouse (CS) after the CAO has authorized MA LTC for the  IS does not affect eligibility for payment of LTC services if the amount of the transfer to the CS is not greater than the original assessed protected resource share of the CS.      

1  Asset transfers by the CS before the CAO authorized MA LTC for the IS may affect eligibility of the IS.

2.  Asset transfers before the look back period do not affect the IS’s MA LTC eligibility.      

3.  Transfer of the resident home by the CS after the CAO authorized MA LTC for the IS may affect eligibility of the IS.        

NOTE:  The CAO should explain to the IS/CS or responsible party that a transfer of the resident home by the CS may affect the IS’s continued eligibility for payment of LTC services. 

5.  Transfer of excluded assets other than resident property by the CS after the CAO authorized MA LTC for the IS does not affect eligibility of the IS.

6.  Transfer of CS’s protected share of assets after the CAO authorized MA LTC for the IS does not affect the IS’s continued eligibility for payment of LTC services.                                                                                          

55 Pa. Code § 178.104

55 Pa. Code § 178.51

The scenarios below give some common asset transfers and general guidelines on how to treat various transfers. Many cases require case-by-case review and action based on the unique circumstances of the specific transfers.  

 

In the scenarios below, the CAO has authorized MA LTC and the CS lives at home:

Scenario 1: 

CS has protected share of $50,000 in liquid resources (stocks, bonds, & savings). The CS gives away $25,000 to his son after the CAO authorizes MA LTC for the IS. There is no adverse action.  The transfer by CS has no effect on MA LTC eligibility of IS.      

Scenario 2:

CS owns the home jointly with IS. CS takes IS name off deed and sells home to son for $1.Transfer of resident property has occurred, FMV has not been received, penalty period must be calculated and imposed against IS for the entire FMV less any encumbrances.  

Scenario 3:

Couple owns a non-resident (NR) four-unit apartment building (FMV = $36,000). CS sells the property to children for 50% of FMV ($18,000). The NR property is not part of the protected share for the CS. The CAO excluded the NR property because it was up for sale.  When CS sold the NR property for less than FMV, fair consideration was not received and a penalty period must be imposed. $18,000 (IS share) is the amount to calculate the penalty period for the IS.   

Scenario 4:

CS has protected share of $50,000 that includes a NR four-unit apartment building owned by the CS (FMV = $36,000). CS sells the property to children for $1. No adverse action. The transfer by the CS has no effect on MA LTC eligibility of IS. The NR property is part of the CS’s protected share of resources. If the CS becomes otherwise eligible for MA LTC within 60 months of the transfer, a penalty period would be assessed.     

When the CS transfers an asset that results in a penalty for the IS, the CAO must apportion the period of ineligibility between the IS and the spouse if the spouse becomes otherwise eligible for payment of LTC services.   

              55 Pa. Code § 178.104(b)

 

The CAO must apportion the penalty when: 

 

When these conditions are met, the CAO must divide any existing penalty period between the spouses. However, the total penalty period imposed on both spouses may not exceed the length of the penalty period originally imposed on the IS.       

Example: Anthony enters an LTC facility and applies for MA LTC. Anna transfers an asset that results in a 1,200 day penalty against Anthony.  360 days into the penalty period, Anna enters an LTC facility. Anna would otherwise qualify for payment of LTC services if not for the transfer. The penalty period against Anthony still has 840 days to run. Because Anna is now in an LTC facility, and a portion of the original penalty period remains, divide the remaining 840 days of the penalty period between Anthony and Anna.      

When one spouse is no longer subject to a penalty period (e.g., the spouse no longer receives LTC services or the spouse dies), apply to the remaining spouse the remaining penalty period that is applicable to both spouses.        

In the above example, assume the 840-day penalty period was divided equally between Anthony and Anna (420 days each). After 180 days, Anthony leaves the LTC facility, but Anna remains. Because Anthony is no longer subject to the penalty period. Anthony's remaining penalty period of 240 days must be imposed on Anna. Anthony then has 480 days remaining in the penalty period. If Anthony returns to the LTC facility before the end of the 480 day period, the remaining penalty is again divided between the two spouses.  

55 Pa. Code § 178.104(g)

440.86 Transfer of assets rule applied to income

Income, in addition to resources, is considered to be an asset for transfer purposes. When an individual’s income is given or assigned to another individual, the gift or assignment is considered a transfer of assets for less than FMV.      

55 Pa. Code § 178.2

 

The CAO must evaluate a lump sum transfer to determine whether there was a transfer of an asset for less than FMV. For eligibility purposes, these payments may be counted as income in the month received. The payments are counted as a resource in the following month if they are kept.

If lump sum payments are disposed of before they are counted as resources, it could be treated as a transfer of assets without receiving fair market compensation. The CAO should try to determine whether regularly scheduled income amounts (or lump sum payments) that the person received have been transferred.  Sometimes a transfer takes the form of a transfer of the right to receive income.            

For example, a private pension may be diverted to a trust and no longer paid to the individual. The CAO must verify the circumstances involving the disposal of a lump sum of income or the transfer of the right to receive income. The individual who disposed of or transferred the income must provide information such as:

The CAO must impose a penalty period for individuals applying for or receiving LTC services when the CAO finds that income or the right to income was transferred on or after the look back date.

When a single lump sum is transferred, the CAO will compute the penalty period on the basis of the value of the lump sum payment. The CAO will do this, for example, when a stock dividend check is given to another individual in the month the individual receives it, regardless of whether the lump sum is treated as income or as a resource.          

 

Example: Zachary is receiving MA LTC. Zachary receives a stock dividend check of $600 on May 10. On May 14, Zachary gives to his son the money received for the stock dividend. The $600 is subject to a penalty period.    

 

The CAO will compute the penalty period as a single lump sum when a stream of income (income received on a regular basis, such as a pension) or the right to a stream of income is transferred. A penalty period is imposed for each payment of income received. 

For a transfer that involves a right to lifetime income, the CAO will:

1.  Determine the total amount of income expected to be transferred during the individual’s life based on the actuarial projection of the person’s life expectancy

440.87 Treatment of jointly owned assets

The CAO considers an asset transferred by an individual when that individual or someone else takes action that reduces or eliminates the person’s ownership or control of an asset (or affected portion of an asset) held with another individual, or individuals, in a joint tenancy, tenancy in common, joint ownership, or similar arrangement.

Placing another individual’s name as a joint owner on an account or asset may not be considered a transfer of assets, depending on the specific circumstances of the transfer.  The account is still considered to belong to the individual if he or she has ownership rights to the account or asset and has the right to withdraw all of the funds in the account or to possess the asset at any time.  

It is considered a transfer of assets if the other individual actually withdraws funds from the account or removes the asset, because the action removes the funds or property from the person’s control. 

Placing another individual's name on the account or asset is considered a transfer of assets if the individual’s right to sell or otherwise dispose of the asset is limited. This is true, for example, if adding another individual’s name requires that the individual agrees to the sale or disposal of the asset where no such agreement was necessary before.  

The CAO will determine what portion of a jointly held asset is presumed to belong to the individual. There is a transfer penalty for that portion if a joint owner withdraws it. The CAO must give the owners an opportunity to rebut the presumption of ownership. 

There is no penalty for withdrawal of those funds if either the individual or the joint owner can establish that the funds withdrawn were the sole property of, and were contributed to the account by, the joint owner, and did not belong to the individual.  

55 Pa. Code § 178.4(a)(4)

 

440.88  Treatment of Certain Kinds of Transfers for less than FMV

The CAO may consider certain financial transactions or purchases as a transfer of assets for less than FMV

440.881 Annuities

An annuity is a financial instrument that provides a return of principal and interest on an individual’s investment. There are two basic types of annuities:        

1A qualified annuity is an annuity in which the funds are part of or in conjunction with certain employer-established accounts or individual retirement plans, such as an Individual Retirement Annuity or Account (IRA), Roth IRA, or Keogh  

2A non-qualified annuity is an annuity that is purchased outright by an individual and is part of a retirement plan.           

NOTE: A qualified annuity owned by a community spouse is not considered an available resource.

 

An applicant, recipient and the spouse of the applicant or recipient, is required to disclose any interest in an annuity.           

The purchase of an annuity by an individual or an individual’s spouse is treated as an allowable transfer of an asset when all of the following conditions are met:      

NOTE: The term of the purchased annuity must be equal to or less than the life expectancy of the applicant.  As long as the number of payments are equal to or less than the life expectancy of the applicant, and all other requirements are met, the CAO cannot penalize the annuity purchase as a transfer for less than FMV.

55 Pa. Code § 178.104a(h)

 

Example 1: Non-qualified Annuity of Applicant Meets DRA Requirements 

1.   Daniel, an 86-year-old widower, was admitted to an LTC facility and applied for MA LTC on March 5, 2011. Daniel requested that MA LTC benefits be effective the day of his admission.

2.   Daniel purchased an annuity for $20,000 on July 15, 2010. The annuity:    

3.   The life expectancy for an 86-year old male is 4.85 years. See Appendix D, Life Expectancy Tables.

4.   The CAO determined that Daniel is eligible for MA effective March 5, 2007.

5.   The payment terms of the annuity provide for payments over a 4-year period. The actuarial life expectancy of an 86 year old male is
4.85 years. The annuity meets the requirement to be actuarially sound, due to the payments terms of the annuity being equal to or less than Daniel's life expectancy.

6.   The CAO would complete the following actions:     

An annuity which does not meet DRA specifications that was purchased within the look-back but has paid out, surrendered, or been exhausted already will still be penalized on the purchase price of the annuity. The burden is on the applicant/individual to make the argument and prove that the asset was re-conveyed and reduced permissibly.
     

Example 2:  Non-qualified Annuity of Applicant Does Not Meet DRA Requirements     

 

1. Steve, a 91-year-old widower, was found functionally eligible for Home and Community-Based Services on April 1, 2011. On April 3, 2011, Steve completed an application and requested that MA LTC benefits be approved with an effective date of April 3, 2011.

2. Steve bought a $50,000 annuity on June 1, 2005, at age 85, naming his son as the beneficiary in the first position of the annuity.  

      Under the terms of the annuity, payments would not begin for five years (June 1, 2010). The annuity:   

3On May 1, 2010, Steve requested a change to the distribution date of his annuity and asked that his payments begin on June 1, 2011.

4. Steves request to change his distribution date is considered to be a transaction involving an annuity. As such, Steve’s annuity must meet the DRA requirements.

5The CAO explains the requirements to Steve.

6. Steve refuses to amend the annuity and name DHS as the beneficiary in the first position.

7Steve provided information that the purchase price of the annuity was $50.000.

8The CAO determined that Steve is otherwise eligible for MA and payment of LTC services effective April 3, 2011.  

9The CAO determined that Steve transferred assets for less than FMV since Steve refused to name DHS as the beneficiary in the first position.

10. The CAO determined that the period of ineligibility for the $50,000 transfer would commence on April 3, 2011.

11. The CAO determined the period of ineligibility for payment of LTC services by dividing the amount transferred by the average daily rate in effect at the time of the determination.

12The CAO would:       

NOTE:  The CAO will count interest generated from the annuity as unearned income in the computation towards the cost of care when the penalty expires.

 55 Pa. Code § 178.104a(i)

 

An annuity which does not meet DRA specifications that was purchased within the look-back and is not paying out yet will be assessed a penalty based on the purchase price (even if it has increased in value) AND the CAO should include a monthly interest income estimate in cost of care calculations.

440.882 Promissory notes, loans and mortgages

A promissory note, loan or mortgage of an individual that meets all of the following requirements as a transfer of assets for FMV will not affect eligibility for payment of LTC services:     

 

The value of the note will be the outstanding balance as of the application date for MA LTC.  To determine the outstanding balance due on the promissory note, loan or mortgage, the person must provide the following:  

        

 

Example: Kevin, age 70, loaned his son $32,400 on January 11. In exchange the son gave his father a promissory note for $32,400. The terms of the note state that the son would repay his father over a fifteen year period in equal monthly payments. In the event of Kevin’s death, the balance due would be payable to Kevin’s estate. The current life expectancy of a 70 year old male is 12.81 years. See Appendix D  for the current tables. The note is not actuarially sound.

      

Kevin was admitted to an LTC facility on March 1. On March 6, Kevin signed his application for Kevin requesting MA LTC services effective the date of admission. Kevin gave a copy of the promissory note to the CAO.        

The CAO determined the promissory note is not actuarially sound. The CAO will count the full amount of $32,400 as a transfer of an asset for less than FMV and apply a penalty effective the day Kevin is otherwise eligible for MA LTC.    

 55 Pa. Code § 178.104.a(f)

 

440.89 Undue Hardship

PMM17626440  Using eCIStance as a reference tool for LTC application processing and case maintenance - July 16, 2015

 

Undue Hardship exists when denial of MA, excess home equity or application of the transfer of asset provisions would:

 

NOTE:   Undue hardship does not exist when denial of MA, excess home equity or application of the transfer provisions merely  causes restrictions or inconveniences an individual’s lifestyle.

55 Pa. Code § 178.104(e)(4)

55 Pa. Code § 178.2

 

440.891 Undue Hardship due to extenuating circumstances

When determining whether an undue hardship exists, the CAO must consider why the denial of MA LTC would deprive the individual of needed health care, food, clothing, shelter or other basic necessities of life.

Extenuating circumstances include but are not limited to:    

The individual is not required to apply for Undue Hardship Waiver Request in these situations.  The CAO will determine undue hardship case-by-case.  Because of the potential for fraud and/or misapplication of this provision, the CAO should carefully review and document the circumstances of the extenuating circumstance, such as with a copy of Protection From Abuse (PFA).   

      

Example: Linda is admitted to an LTC on October 26. Linda states that her husband left her over 20 years ago and has not been heard from since. She has no information on where he lives. Her long-time neighbor has signed a statement that Linda is unable to locate her husband. Linda's daughter also signed an affidavit that she has had no contact with her father in over 20 years. The CAO will determine that an undue hardship exists and evaluate Linda's MA LTC eligibility as a single person. 

55 Pa. Code § 178.2

 

440.892 Undue Hardship due to transfer of assets for less than FMV or excess home equity

Under the Deficit Reduction Act (DRA) that was enacted into law on February 8, 2006, each state must establish procedures (an Undue Hardship Waiver process) to determine whether the denial of MA LTC eligibility would work an undue hardship in  accordance with section 1917(c)(2)(D) of the Social Security Act.

An Undue Hardship Waiver process must be available to an applicant or recipient who is denied eligibility for payment of LTC Services under the MA Program due to a transfer of assets for less than FMV or whose equity interest in a home is above the excess home equity limit listed in Chapter 468 Appendix A, Determining Medical Assistance Eligibility and Payment Toward the Cost of LTC Facility Services

When determining whether undue hardship exists for an individual, the CAO must consider all circumstances involving the transfer of the asset for less than FMV that resulted in the denial of payment of LTC Services.

The CAO must notify the individual in writing of the right to request an undue hardship waiver when there is a denial or termination of payment of LTC Services that resulted from the transfer of an asset for less than FMV or equity in  the home  above the excess home equity limit listed in Chapter 468 Appendix A.

The Notice will include:

 

NOTE: The CAO must mail these forms to all persons being denied payment of LTC services due to a transfer of assets for less than FMV or due to having equity interest in the home above the excess home equity limit listed in Chapter 468 Appendix A

 

These individuals may request an undue hardship waiver due to transfer of assets for less than FMV:

 

NOTE:  An LTC provider must use the LTC Service Provider Authorization form (PA 1826) when requesting an undue hardship waiver on behalf of a resident.

 

The request for an undue hardship waiver for excess home equity may be made by having the individual or the individual's responsible party (legal representative, relative or friend) complete and submit an Application for Undue Hardship Waiver Excess Home Equity Form (PA 1827-E)

The  request for an undue hardship waiver must be in writing and contain the following:

The CAO must receive the request for an undue hardship waiver and all documentation supporting the request within 30 calendar days of the mail date of the Notice that denied or ending payment of LTC services.

The CAO will review the undue hardship waiver request and all supporting documentation. The CAO must consider other relevant information including, but not limited to:

 

NOTE:  The CAO may waive all or a portion of the penalty period under an undue hardship waiver.

 

The CAO can request any type of documentation to assist in the evaluation of the undue hardship waiver request including, but not limited to:

 

NOTE: The CAO should not wait to forward the Undue Hardship Waiver determination if an appeal has been filed at the same time. The CAO should forward the request for an under hardship waiver immediately and request a continuance of a hearing if one has been scheduled pending the outcome of the undue hardship waiver request.  

 

The CAO will follow the procedure below when an applicant or recipient has disposed of an asset without receiving FMV or has equity interest in the home above the excess home equity limit listed in Chapter 468 Appendix A, :

 

 

NOTE:  The CAO may waive all or a portion of the penalty period under an undue hardship waiver request.

 

 

 

NOTE:  The CAO decision and copies of all supporting documentation received must be submitted to headquarters within 30 calendar days of the request for the undue hardship waiver.  

 

When submitting an undue hardship waiver request via email, please do the following:

 

Reminder:  It is not necessary to include CIS or IV-B printouts of case screens or narratives with the undue hardship waiver requests.

NOTE:   The CAO must scan to the record or forward to BOP for review all requests and copies of supporting documentation received for an undue hardship waiver, regardless of the CAO decision to deny or to approve the undue hardship waiver request.

 

 

NOTE:  The CAO must not take any action on the request until BOP completes the review.

The CAO will issue a manual notice for a denied or partially approved undue hardship waiver request. The notice will advise the person of the right to appeal this decision. See Appendix G and Appendix H for language that must appear on the manual notice. Modify the automatically imposed penalty period for a decision to authorize a partially imposed penalty period.

 The CAO will notify BOP if an appeal is received on the department's undue hardship waiver decision. 

 

 Note: The final decision regarding the authorization of a full or a partial denial of the undue hardship waiver is not a BOP decision. It is a department decision.

 The following examples give a generic overview of the Undue Hardship Waiver process. Each Undue Hardship Waiver Request is evaluated, fully or partially approved or denied and is based on  case specific information.  

 

 Example 1: Annette is admitted to an LTC facility on 2/10/18. She submits an application for MA LTC on 4/20/18 requesting MA LTC effective 2/10/18. During the review of the application, it is discovered that Annette gifted $10,000 to her daughter on 10/15/14. The CAO determines Annette eligible for MA LTC but ineligible for payment of LTC services effective 2/10/18. The notice of eligibility for MA and ineligibility for payment of LTC services is mailed on 3/6/18.

 

 The CAO:   

 

 On 3/31/18, the CAO receives:

 A completed and signed (PA 1827 ) and

Annette provides a statement from her doctor and medical records. The letter states with no expectation of the need for LTC services. Her medical records document shows that she did have some health issues. However, if not a recent fall and the subsequent injuries, she would not have needed LTC services.

 

 The CAO :

 

BOP:

 

 Evaluates  the following:     

 

Approves the undue hardship waiver request based on:  

 

Sends the Undue Hardship Waiver decision (PA 1855) form along with a brief note detailing how the Departmental  decision was arrived at.

 

The CAO:

Example 2: Corey is admitted to an LTC facility on 3/01/18.  He submits an application for MA LTC on 5/30/18 requesting MA LTC with an effective date of  3/21/18.  His MA 51 shows a need for long term care. During the review of his application, the CAO discovers that Corey has given $1,000 periodically to his son since his wife passed away in November 2016.  The total transfer was for $10,000.  The CAO determines Corey eligible for MA LTC but ineligible for payment of LTC services effective 3/21/18.  The notice of eligibility for MA and ineligibility for payment of LTC services is mailed on 6/24/18.

 

The CAO:

Corey writes on the PA 1827 that he is not pursuing the return of the monies even through his son took the money without his knowledge. He submits as proof to the CAO copies of the checks which he states were signed by his son (POA). His son provided no explanation as to why he took the money other than payment for helping his dad at various times and that his father told him to take it.

 

The CAO:

BOP:

Evaluates the following:

 

The CAO contacts Corey and gives BOP the following answers:

 

Denies the undue hardship waiver based on:

 

The CAO:

 

Updated December 4, 2023, replacing March 30, 2023