|
U.S. Code as of:
01/19/04
Section 1396p. Liens, adjustments and recoveries, and transfers of assets
(a) Imposition of lien against property of an individual on account
of medical assistance rendered to him under a State plan
(1) No lien may be imposed against the property of any individual
prior to his death on account of medical assistance paid or to be
paid on his behalf under the State plan, except -
(A) pursuant to the judgment of a court on account of benefits
incorrectly paid on behalf of such individual, or
(B) in the case of the real property of an individual -
(i) who is an inpatient in a nursing facility, intermediate
care facility for the mentally retarded, or other medical
institution, if such individual is required, as a condition of
receiving services in such institution under the State plan, to
spend for costs of medical care all but a minimal amount of his
income required for personal needs, and
(ii) with respect to whom the State determines, after notice
and opportunity for a hearing (in accordance with procedures
established by the State), that he cannot reasonably be
expected to be discharged from the medical institution and to
return home,
except as provided in paragraph (2).
(2) No lien may be imposed under paragraph (1)(B) on such
individual's home if -
(A) the spouse of such individual,
(B) such individual's child who is under age 21, or (with
respect to States eligible to participate in the State program
established under subchapter XVI of this chapter) is blind or
permanently and totally disabled, or (with respect to States
which are not eligible to participate in such program) is blind
or disabled as defined in section 1382c of this title, or
(C) a sibling of such individual (who has an equity interest in
such home and who was residing in such individual's home for a
period of at least one year immediately before the date of the
individual's admission to the medical institution),
is lawfully residing in such home.
(3) Any lien imposed with respect to an individual pursuant to
paragraph (1)(B) shall dissolve upon that individual's discharge
from the medical institution and return home.
(b) Adjustment or recovery of medical assistance correctly paid
under a State plan
(1) No adjustment or recovery of any medical assistance correctly
paid on behalf of an individual under the State plan may be made,
except that the State shall seek adjustment or recovery of any
medical assistance correctly paid on behalf of an individual under
the State plan in the case of the following individuals:
(A) In the case of an individual described in subsection
(a)(1)(B) of this section, the State shall seek adjustment or
recovery from the individual's estate or upon sale of the
property subject to a lien imposed on account of medical
assistance paid on behalf of the individual.
(B) In the case of an individual who was 55 years of age or
older when the individual received such medical assistance, the
State shall seek adjustment or recovery from the individual's
estate, but only for medical assistance consisting of -
(i) nursing facility services, home and community-based
services, and related hospital and prescription drug services,
or
(ii) at the option of the State, any items or services under
the State plan.
(C)(i) In the case of an individual who has received (or is
entitled to receive) benefits under a long-term care insurance
policy in connection with which assets or resources are
disregarded in the manner described in clause (ii), except as
provided in such clause, the State shall seek adjustment or
recovery from the individual's estate on account of medical
assistance paid on behalf of the individual for nursing facility
and other long-term care services.
(ii) Clause (i) shall not apply in the case of an individual
who received medical assistance under a State plan of a State
which had a State plan amendment approved as of May 14, 1993,
which provided for the disregard of any assets or resources -
(I) to the extent that payments are made under a long-term
care insurance policy; or
(II) because an individual has received (or is entitled to
receive) benefits under a long-term care insurance policy.
(2) Any adjustment or recovery under paragraph (1) may be made
only after the death of the individual's surviving spouse, if any,
and only at a time -
(A) when he has no surviving child who is under age 21, or
(with respect to States eligible to participate in the State
program established under subchapter XVI of this chapter) is
blind or permanently and totally disabled, or (with respect to
States which are not eligible to participate in such program) is
blind or disabled as defined in section 1382c of this title; and
(B) in the case of a lien on an individual's home under
subsection (a)(1)(B) of this section, when -
(i) no sibling of the individual (who was residing in the
individual's home for a period of at least one year immediately
before the date of the individual's admission to the medical
institution), and
(ii) no son or daughter of the individual (who was residing
in the individual's home for a period of at least two years
immediately before the date of the individual's admission to
the medical institution, and who establishes to the
satisfaction of the State that he or she provided care to such
individual which permitted such individual to reside at home
rather than in an institution),
is lawfully residing in such home who has lawfully resided in
such home on a continuous basis since the date of the
individual's admission to the medical institution.
(3) The State agency shall establish procedures (in accordance
with standards specified by the Secretary) under which the agency
shall waive the application of this subsection (other than
paragraph (1)(C)) if such application would work an undue hardship
as determined on the basis of criteria established by the
Secretary.
(4) For purposes of this subsection, the term "estate", with
respect to a deceased individual -
(A) shall include all real and personal property and other
assets included within the individual's estate, as defined for
purposes of State probate law; and
(B) may include, at the option of the State (and shall include,
in the case of an individual to whom paragraph (1)(C)(i)
applies), any other real and personal property and other assets
in which the individual had any legal title or interest at the
time of death (to the extent of such interest), including such
assets conveyed to a survivor, heir, or assign of the deceased
individual through joint tenancy, tenancy in common,
survivorship, life estate, living trust, or other arrangement.
(c) Taking into account certain transfers of assets
(1)(A) In order to meet the requirements of this subsection for
purposes of section 1396a(a)(18) of this title, the State plan must
provide that if an institutionalized individual or the spouse of
such an individual (or, at the option of a State, a
noninstitutionalized individual or the spouse of such an
individual) disposes of assets for less than fair market value on
or after the look-back date specified in subparagraph (B)(i), the
individual is ineligible for medical assistance for services
described in subparagraph (C)(i) (or, in the case of a
noninstitutionalized individual, for the services described in
subparagraph (C)(ii)) during the period beginning on the date
specified in subparagraph (D) and equal to the number of months
specified in subparagraph (E).
(B)(i) The look-back date specified in this subparagraph is a
date that is 36 months (or, in the case of payments from a trust or
portions of a trust that are treated as assets disposed of by the
individual pursuant to paragraph (3)(A)(iii) or (3)(B)(ii) of
subsection (d) of this section, 60 months) before the date
specified in clause (ii).
(ii) The date specified in this clause, with respect to -
(I) an institutionalized individual is the first date as of
which the individual both is an institutionalized individual and
has applied for medical assistance under the State plan, or
(II) a noninstitutionalized individual is the date on which the
individual applies for medical assistance under the State plan
or, if later, the date on which the individual disposes of assets
for less than fair market value.
(C)(i) The services described in this subparagraph with respect
to an institutionalized individual are the following:
(I) Nursing facility services.
(II) A level of care in any institution equivalent to that of
nursing facility services.
(III) Home or community-based services furnished under a waiver
granted under subsection (c) or (d) of section 1396n of this
title.
(ii) The services described in this subparagraph with respect to
a noninstitutionalized individual are services (not including any
services described in clause (i)) that are described in paragraph
(7), (22), or (24) of section 1396d(a) of this title, and, at the
option of a State, other long-term care services for which medical
assistance is otherwise available under the State plan to
individuals requiring long-term care.
(D) The date specified in this subparagraph is the first day of
the first month during or after which assets have been transferred
for less than fair market value and which does not occur in any
other periods of ineligibility under this subsection.
(E)(i) With respect to an institutionalized individual, the
number of months of ineligibility under this subparagraph for an
individual shall be equal to -
(I) the total, cumulative uncompensated value of all assets
transferred by the individual (or individual's spouse) on or
after the look-back date specified in subparagraph (B)(i),
divided by
(II) the average monthly cost to a private patient of nursing
facility services in the State (or, at the option of the State,
in the community in which the individual is institutionalized) at
the time of application.
(ii) With respect to a noninstitutionalized individual, the
number of months of ineligibility under this subparagraph for an
individual shall not be greater than a number equal to -
(I) the total, cumulative uncompensated value of all assets
transferred by the individual (or individual's spouse) on or
after the look-back date specified in subparagraph (B)(i),
divided by
(II) the average monthly cost to a private patient of nursing
facility services in the State (or, at the option of the State,
in the community in which the individual is institutionalized) at
the time of application.
(iii) The number of months of ineligibility otherwise determined
under clause (i) or (ii) with respect to the disposal of an asset
shall be reduced -
(I) in the case of periods of ineligibility determined under
clause (i), by the number of months of ineligibility applicable
to the individual under clause (ii) as a result of such disposal,
and
(II) in the case of periods of ineligibility determined under
clause (ii), by the number of months of ineligibility applicable
to the individual under clause (i) as a result of such disposal.
(2) An individual shall not be ineligible for medical assistance
by reason of paragraph (1) to the extent that -
(A) the assets transferred were a home and title to the home
was transferred to -
(i) the spouse of such individual;
(ii) a child of such individual who (I) is under age 21, or
(II) (with respect to States eligible to participate in the
State program established under subchapter XVI of this chapter)
is blind or permanently and totally disabled, or (with respect
to States which are not eligible to participate in such
program) is blind or disabled as defined in section 1382c of
this title;
(iii) a sibling of such individual who has an equity interest
in such home and who was residing in such individual's home for
a period of at least one year immediately before the date the
individual becomes an institutionalized individual; or
(iv) a son or daughter of such individual (other than a child
described in clause (ii)) who was residing in such individual's
home for a period of at least two years immediately before the
date the individual becomes an institutionalized individual,
and who (as determined by the State) provided care to such
individual which permitted such individual to reside at home
rather than in such an institution or facility;
(B) the assets -
(i) were transferred to the individual's spouse or to another
for the sole benefit of the individual's spouse,
(ii) were transferred from the individual's spouse to another
for the sole benefit of the individual's spouse,
(iii) were transferred to, or to a trust (including a trust
described in subsection (d)(4) of this section) established
solely for the benefit of, the individual's child described in
subparagraph (A)(ii)(II), or
(iv) were transferred to a trust (including a trust described
in subsection (d)(4) of this section) established solely for
the benefit of an individual under 65 years of age who is
disabled (as defined in section 1382c(a)(3) of this title);
(C) a satisfactory showing is made to the State (in accordance
with regulations promulgated by the Secretary) that (i) the
individual intended to dispose of the assets either at fair
market value, or for other valuable consideration, (ii) the
assets were transferred exclusively for a purpose other than to
qualify for medical assistance, or (iii) all assets transferred
for less than fair market value have been returned to the
individual; or
(D) the State determines, under procedures established by the
State (in accordance with standards specified by the Secretary),
that the denial of eligibility would work an undue hardship as
determined on the basis of criteria established by the Secretary;
)1(!
(3) For purposes of this subsection, in the case of an asset held
by an individual in common with another person or persons in a
joint tenancy, tenancy in common, or similar arrangement, the asset
(or the affected portion of such asset) shall be considered to be
transferred by such individual when any action is taken, either by
such individual or by any other person, that reduces or eliminates
such individual's ownership or control of such asset.
(4) A State (including a State which has elected treatment under
section 1396a(f) of this title) may not provide for any period of
ineligibility for an individual due to transfer of resources for
less than fair market value except in accordance with this
subsection. In the case of a transfer by the spouse of an
individual which results in a period of ineligibility for medical
assistance under a State plan for such individual, a State shall,
using a reasonable methodology (as specified by the Secretary),
apportion such period of ineligibility (or any portion of such
period) among the individual and the individual's spouse if the
spouse otherwise becomes eligible for medical assistance under the
State plan.
(5) In this subsection, the term "resources" has the meaning
given such term in section 1382b of this title, without regard to
the exclusion described in subsection (a)(1) thereof.
(d) Treatment of trust amounts
(1) For purposes of determining an individual's eligibility for,
or amount of, benefits under a State plan under this subchapter,
subject to paragraph (4), the rules specified in paragraph (3)
shall apply to a trust established by such individual.
(2)(A) For purposes of this subsection, an individual shall be
considered to have established a trust if assets of the individual
were used to form all or part of the corpus of the trust and if any
of the following individuals established such trust other than by
will:
(i) The individual.
(ii) The individual's spouse.
(iii) A person, including a court or administrative body, with
legal authority to act in place of or on behalf of the individual
or the individual's spouse.
(iv) A person, including any court or administrative body,
acting at the direction or upon the request of the individual or
the individual's spouse.
(B) In the case of a trust the corpus of which includes assets of
an individual (as determined under subparagraph (A)) and assets of
any other person or persons, the provisions of this subsection
shall apply to the portion of the trust attributable to the assets
of the individual.
(C) Subject to paragraph (4), this subsection shall apply without
regard to -
(i) the purposes for which a trust is established,
(ii) whether the trustees have or exercise any discretion under
the trust,
(iii) any restrictions on when or whether distributions may be
made from the trust, or
(iv) any restrictions on the use of distributions from the
trust.
(3)(A) In the case of a revocable trust -
(i) the corpus of the trust shall be considered resources
available to the individual,
(ii) payments from the trust to or for the benefit of the
individual shall be considered income of the individual, and
(iii) any other payments from the trust shall be considered
assets disposed of by the individual for purposes of subsection
(c) of this section.
(B) In the case of an irrevocable trust -
(i) if there are any circumstances under which payment from the
trust could be made to or for the benefit of the individual, the
portion of the corpus from which, or the income on the corpus
from which, payment to the individual could be made shall be
considered resources available to the individual, and payments
from that portion of the corpus or income -
(I) to or for the benefit of the individual, shall be
considered income of the individual, and
(II) for any other purpose, shall be considered a transfer of
assets by the individual subject to subsection (c) of this
section; and
(ii) any portion of the trust from which, or any income on the
corpus from which, no payment could under any circumstances be
made to the individual shall be considered, as of the date of
establishment of the trust (or, if later, the date on which
payment to the individual was foreclosed) to be assets disposed
by the individual for purposes of subsection (c) of this section,
and the value of the trust shall be determined for purposes of
such subsection by including the amount of any payments made from
such portion of the trust after such date.
(4) This subsection shall not apply to any of the following
trusts:
(A) A trust containing the assets of an individual under age 65
who is disabled (as defined in section 1382c(a)(3) of this title)
and which is established for the benefit of such individual by a
parent, grandparent, legal guardian of the individual, or a court
if the State will receive all amounts remaining in the trust upon
the death of such individual up to an amount equal to the total
medical assistance paid on behalf of the individual under a State
plan under this subchapter.
(B) A trust established in a State for the benefit of an
individual if -
(i) the trust is composed only of pension, Social Security,
and other income to the individual (and accumulated income in
the trust),
(ii) the State will receive all amounts remaining in the
trust upon the death of such individual up to an amount equal
to the total medical assistance paid on behalf of the
individual under a State plan under this subchapter; and
(iii) the State makes medical assistance available to
individuals described in section 1396a(a)(10)(A)(ii)(V) of this
title, but does not make such assistance available to
individuals for nursing facility services under section
1396a(a)(10)(C) of this title.
(C) A trust containing the assets of an individual who is
disabled (as defined in section 1382c(a)(3) of this title) that
meets the following conditions:
(i) The trust is established and managed by a non-profit
association.
(ii) A separate account is maintained for each beneficiary of
the trust, but, for purposes of investment and management of
funds, the trust pools these accounts.
(iii) Accounts in the trust are established solely for the
benefit of individuals who are disabled (as defined in section
1382c(a)(3) of this title) by the parent, grandparent, or legal
guardian of such individuals, by such individuals, or by a
court.
(iv) To the extent that amounts remaining in the
beneficiary's account upon the death of the beneficiary are not
retained by the trust, the trust pays to the State from such
remaining amounts in the account an amount equal to the total
amount of medical assistance paid on behalf of the beneficiary
under the State plan under this subchapter.
(5) The State agency shall establish procedures (in accordance
with standards specified by the Secretary) under which the agency
waives the application of this subsection with respect to an
individual if the individual establishes that such application
would work an undue hardship on the individual as determined on the
basis of criteria established by the Secretary.
(6) The term "trust" includes any legal instrument or device that
is similar to a trust but includes an annuity only to such extent
and in such manner as the Secretary specifies.
(e) Definitions
In this section, the following definitions shall apply:
(1) The term "assets", with respect to an individual, includes
all income and resources of the individual and of the
individual's spouse, including any income or resources which the
individual or such individual's spouse is entitled to but does
not receive because of action -
(A) by the individual or such individual's spouse,
(B) by a person, including a court or administrative body,
with legal authority to act in place of or on behalf of the
individual or such individual's spouse, or
(C) by any person, including any court or administrative
body, acting at the direction or upon the request of the
individual or such individual's spouse.
(2) The term "income" has the meaning given such term in
section 1382a of this title.
(3) The term "institutionalized individual" means an individual
who is an inpatient in a nursing facility, who is an inpatient in
a medical institution and with respect to whom payment is made
based on a level of care provided in a nursing facility, or who
is described in section 1396a(a)(10)(A)(ii)(VI) of this title.
(4) The term "noninstitutionalized individual" means an
individual receiving any of the services specified in subsection
(c)(1)(C)(ii) of this section.
(5) The term "resources" has the meaning given such term in
section 1382b of this title, without regard (in the case of an
institutionalized individual) to the exclusion described in
subsection (a)(1) of such section.
|
|