Exceptions to Disqualifying Transfer Provision 510-05-80-25

(Revised 6/1/04 ML #2925)

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(N.D.A.C. Section 75-02-02.1-33.1)

 

  1. A transfer is not disqualifying to the extent the asset transferred was the individual's home or residence, and it was transferred to:
  1. The individual's spouse;
  2. The individual's son or daughter who is under age twenty-one, or blind, or disabled;
  3. The individual's brother or sister who has an equity interest in the individual's home and who was residing in the individual's home for a period of at least one year immediately before the date the individual began receiving nursing care services; or
  4. The individual's son or daughter (other than a child described in subdivision b) who was residing in the individual's home for a period of at least two years immediately before the date the individual began receiving nursing care services, and who provided care to the individual which permitted the individual to avoid receiving nursing care services.
  1. A transfer is not disqualifying to the extent that the asset transferred was any Medicaid exempt or excluded asset other than:
  1. The home or residence;
  2. Property which is not saleable without working an undue hardship;
  3. Excluded home replacement funds;
  4. Excluded payments, excluded interest earned on the payments, and excluded in-kind items received for the repair or replacement of lost, damaged, or stolen exempt or excluded assets;
  5. Life estate interests; or
  6. Mineral acres; or
  7. Inheritances, during the six months in which they are excluded.
  1. A transfer is not disqualifying to the extent the income or assets were transferred:
  1. To the individual's spouse or to another for the sole benefit of the individual's spouse, except that transfer to a community spouse may not exceed the limits identified in section 05-65-15, Institutionalized Spouse or HCBS Spouse Asset Limit;
  2. From the individual's spouse to another for the sole benefit of the individual's spouse;
  3. To, or to a trust established solely for the benefit of, the individual's child who is blind or disabled; or
  4. To a trust established solely for the benefit of an individual under sixty-five years of age who is disabled.
  1. A transfer is not disqualifying to the extent the individual makes a satisfactory showing that:
  1. The individual intended to dispose of the income or assets, either at fair market value or other valuable consideration, and the individual had an objectively reasonable belief that fair market value or its equivalent was received;
  2. The income or assets were transferred exclusively for a purpose other than to qualify for Medicaid;
  3. The assets transferred by or on behalf of the individual, or individual's spouse, when added to the value of the individual's other countable assets would not exceed the asset limits of $3,000 for one person or $6,000 for two persons (including spousal impoverishment cases); or
  4. All income or assets transferred for less than market value have been returned to the individual.  If all of the income or assets of a particular transfer are returned at the time of application, and no periods of eligibility have been established for that transfer after the date of the original transfer, process the application as if the original transfer never occurred. If all of the income and assets of a particular transfer are returned after Medicaid eligibility has already been established (for a period after the date of the original transfer), the period of ineligibility for that transfer ends as of the date the income or assets are returned, but only if the returned assets do not cause the community spouse to have total countable assets in excess of the community spouse countable asset allowance allowed at the time the institutionalized or HCBS spouse became eligible. In establishing whether all of the income or assets have been returned, the income or assets transferred, or their equivalent value, must be returned.

A partial return of the income or assets transferred does not end or shorten the period of the ineligibility. The returned income or assets may cause ineligibility for Medicaid, and in any case, can be used to cover the individual’s medical needs for the remainder of the penalty period.

  1. A transfer is not disqualifying to the extent that the asset was used to acquire an annuity that is owned by a community spouse if:
  1. The annuity is irrevocable and cannot be assigned to another person;
  2. The annuity is purchased from an insurance company or other commercial company that sells annuities as part of the normal course of business;
  3. The annuity provides for level monthly payments;
  4. The annuity will return the full purchase price and interest within a reasonable estimate of the purchaser's life expectancy; and
  5. The monthly payments from the annuity do not exceed $2267 unless specifically ordered otherwise by a court of competent jurisdiction acting to increase the amount of spousal support paid on behalf of a community spouse by an institutionalized spouse or a home and community based services spouse.
  6. A transfer to meet the burial needs of an individual is not disqualifying to the extent the asset transferred meets the burial exclusion and to the extent the asset is considered available to the individual.

Example:  A Medicaid recipient without any other burial plan purchases a burial insurance policy for $10,000 and transfers ownership to someone outside of the Medicaid unit. The policy has a cash surrender value of $7500. The insurance policy is considered to be transferred in trust to meet the burial needs of the individual, so the $7500 cash surrender value is considered available to the individual, of which $3000 is excluded for burial ($4500 is a countable asset). The remaining $2500 of the amount that was transferred ($10,000 - $7500 = $2500) is a disqualifying transfer.