HAR §17-1725.1-17. Assets to be considered

The following assets shall be considered in the personal reserve of a MAGI-excepted individual or household and include, but are not limited to: (1) Cash on hand; (2) Cash in savings and checking accounts; (3) Value of stocks and bonds verified by a stock brokerage firm; (4) Value of time deposits and savings certificates verified by the financial institution where the funds are deposited; (5) State tax refunds, including state excise tax credits and state income tax credits; (6) Cash surrender value of a life insurance policy after the subtraction of outstanding loans or encumbrances from the cash value of the policy verified by the insurance company; (7) Value of governmental debenture bonds, such as U.S. savings bonds, treasury notes, or municipal bonds verified by the financial institutions or stock brokerage firms or issuers; (8) Value of mutual fund shares be verified by the stock brokerage firm; (9) Value of burial plots or burial vaults not exempt in section 17-1725.1-26(8) shall be UNOFFICIAL 1725.1-7 determined by subtracting all encumbrances from the market value verified by the purchasing cemetery; (10) Value of funeral plans not exempt in subsection 17-1725.1-26(9) shall be determined by subtracting all encumbrances from the original purchase price; (11) Equity in personal property, such as jewelry, watercrafts or air transportation vehicles not exempt in subsection 17-1725.1- 26(3); (12) Equity in real property, not used as the family home, that is not exempt in section 17-1725.1-35 or section 17-1725.1-36; (13) Moneys or assets in an irrevocable trust fund established on or before August 10, 1993 if there is the opportunity to remove legal impediments to gain access to the available assets of the trust. Proof of irrevocability of the trust or evidence of legal impediments to acquiring access to the assets of the trust fund must be provided. Medical assistance shall be provided to an otherwise eligible individual while legal or other impediments to the potential availability of the assets are being removed, or title is being cleared on the condition the individual submits a plan of action within thirty days of the date of application to remove such legal or other impediments to current availability. (A) Failure to meet the deadline shall disqualify the individual from receiving further medical assistance. Benefits received thereafter shall constitute an ineligible payment recoverable by the department; (B) The department shall periodically review the submitted plan of action or failure to take appropriate action shall disqualify the individual from further medical assistance; UNOFFICIAL 1725.1-8 For any Medicaid qualifying trust the maximum amount permitted to be distributed to the individual shall be counted regardless of whether the trust is irrevocable or established for purposes other than to qualify for medical assistance with the exception of a Medicaid qualifying trust or initial trust decree established prior to April 7, 1986, solely for the benefit of a developmentally disabled or intellectually disabled individual who resides in an intermediate care facility for the developmentally disabled or intellectually disabled individuals; (14) Payments made from protected retirement plans or annuities to include, but not be limited to, profit sharing plans, IRAs, or other retirement accounts, shall be considered an available asset if an individual has access to the distribution of funds; (15) Money received by the individual from the sale of assets; (16) Investments in diamonds, gold, silver, or other precious metals; (17) Equity in a business shall be determined as follows: (A) Subtract the current liabilities from the fair market value of the remaining assets. (B) Exempt the following assets that are essential to the production of goods or services in determining equity in a business, which includes, but are not limited to: (i) Stock and inventory; (ii) Tools and equipment; and (iii) Motor vehicles required for business use. (C) The remaining equity of all non-exempt assets, in part or in whole, shall be considered. UNOFFICIAL 1725.1-9 (18) Equity value of any assets not exempt under section 17-1725.1-26 verified by an appropriate entity; (19) Federal tax refunds unless otherwise exempted by the Federal government; (20) Cash dividends from stocks, life insurance, or other sources; (21) Refunds of utility and rental deposits not paid by the department; (22) Funds used to purchase an annuity that: (A) Is revocable and allows the annuitant access to the cash value of the annuity less early withdrawals and surrender fees; (B) Is assignable to allow the sale of the annuity on the open market; or (C) Does not address issues of revocability or assignability; (23) Value of the outstanding balance owed on a promissory note or a property agreement to the individual (creditor) who holds the promissory note or agreement of sale; (24) Entrance fees of an individual residing in a continuing care retirement community or life care community under the following conditions: (A) The entrance fee may be used to pay for care if the individual’s other resources or income is insufficient to pay for the care; (B) The entrance fee or any remaining portion is refundable when the individual dies or terminates the contract and leaves the continuing care retirement community or life care community; and (C) The entrance fee does not assign an ownership interest in the continuing care retirement community or life care community. [Eff 09/30/13] (Auth: HRS §§346-53, 346-71; 20 C.F.R. §416.1201, 42 C.F.R §§431.10, 435.601; UNOFFICIAL 1725.1-10 435.811, 435.840, 435.845; 45 C.F.R. §233.20; 42 U.S.C. §1396p) (Imp: HRS §§346-29, 346-53, 346-71; 20 C.F.R. §416.1201; 42 C.F.R. §§431.10, 435.601; 435.811, 435.840, 435.845; 45 C.F.R. §233.20; 42 U.S.C. §1396p) §17-1725.1-18 Treatment of trusts established after August 10, 1993. (a) An individual shall be considered to have established a trust if assets of the individual form all or part of the corpus of the trust and if the trust was formed other than by a will by any of the following: (1) The individual; (2) The individual's spouse; (3) A person, including a court or administrative body, with legal authority to act on behalf of the individual or the individual's spouse; or (4) A person, including a court or administrative body, acting at the direction of the individual or the individual's spouse. (b) If a trust contains assets of persons other than the individual, only the portion of the trust that contains the assets of the individual will be considered in this section. (c) The treatment of trusts in this section will be made without regard to: (1) The purpose for which the trust was established; (2) Whether the trustees have or exercise any discretion under the trust; (3) Any restrictions on when or whether distributions can be made from the trust; or (4) Any restrictions on the use of distributions from the trust. (d) In the case of a revocable trust the following shall apply: (1) The corpus of the trust is considered an available asset; UNOFFICIAL 1725.1-11 (2) Payments from the trust to or for the benefit of the individual shall be considered income of the individual; and (3) Any other payments from the trust shall be considered assets disposed and subject to the provisions of subchapter 7. (e) In the case of irrevocable trusts the following apply: (1) If payments could be made to or for the benefit of the individual, the portion of the corpus from which the payment could be made is considered an available asset; (2) If payments could be made to or for the benefit of the individual, the income on the corpus from which the payment could be made is considered an available asset; (3) The payments in paragraphs (1) and (2) from the corpus or from the income on the corpus is considered income to the individual; and (4) The portion of the corpus from which no payments could be made to or on behalf of the individual is considered assets disposed and subject to the provisions of subchapter 7. [Eff 09/30/13] (Auth: HRS §346-53; 20 C.F.R. §416.1201; 42 C.F.R. §431.10; 45 C.F.R. §233.20; 42 U.S.C. §1396p) (Imp: HRS §346-29; 20 C.F.R. §416.1201; 42 C.F.R. §431.10; 45 C.F.R. §233.20; 42 U.S.C. §1396p) §17-1725.1-19 Assets of the sponsor of a non- citizen. (a) The sponsor of a non-citizen who executed an affidavit of support pursuant to section 213A of the INA on or after December 19, 1997, shall have their assets and their spouse's assets deemed as available to a non-citizen requesting medical assistance. (b) The assets of a non-citizen's sponsor and the sponsor’s spouse shall be deemed available to the non-citizen until such time as the non-citizen: UNOFFICIAL 1725.1-12 (1) Achieves U.S. citizenship through naturalization pursuant to chapter 2 of Title III of the INA; or (2) Has worked forty qualifying quarters of coverage as defined under Title II of the Social Security Act or can be credited with such qualifying quarters as provided under 8 U.S.C. §1645. In the case of any such qualifying quarter beginning after December 31, 1996, the non-citizen must not have received any Federal means-tested public benefit during any such period. (c) The non-citizen's failure to provide information and verification regarding the assets of their sponsor and the sponsor’s spouse as applicable shall disqualify the non-citizen from receiving medical assistance. (d) The assets of a non-citizen's sponsor and the sponsor’s spouse shall not be deemed available to a non-citizen for coverage of emergency medical assistance as described in chapter 17-1723.1. (e) Special provisions shall apply in the case of an indigent non-citizen. The deeming of assets in subsection (a) shall not be applicable for a twelve- month period from the date a non-citizen is determined to be indigent. (1) The department may determine a non-citizen to be indigent when the non-citizen is unable to obtain food and shelter because the non-citizen's own assets plus assets provided by other individuals, including the sponsor and the sponsor's spouse, does not exceed one hundred per cent of the asset retention limit for the non-citizen’s household size; (2) The department will only consider the actual amount contributed by the sponsor and sponsor’s spouse for a twelve month period, which begins on the date of such determination and ends twelve months after such date; UNOFFICIAL 1725.1-13 (3) Each period of indigence is renewable for additional twelve month periods; and (4) The department must notify the federal Attorney General of each such determination, including the names of the sponsor and the sponsored non-citizen involved. (f) Special provisions for a battered spouse and child who are non-citizens. The assets of the sponsor and the sponsor's spouse described in subsection (a) shall not be deemed when the sponsor and the sponsor's spouse are the batterer and the spouse of the batterer, and only for the period the non-citizen is not residing in the residence of the batterer: (1) This provision applies to: (A) A non-citizen who was battered or subjected to extreme cruelty in the U.S. by the non-citizen’s spouse or parent, or by a member of the spouse's or parent's family residing in the same residence as the non-citizen and the spouse or parent consented to or acquiesced to such battery or cruelty; (B) A non-citizen whose child was battered or subjected to extreme cruelty in the U.S. by the spouse or parent of the non-citizen who did not actively participate in such battery or cruelty or by a member of the spouse's or parent's family residing in the same residence and the spouse or the parent consented to or acquiesced to such battery or cruelty; or (C) A non-citizen child who was residing with the parent who was battered or subjected to extreme cruelty in the U.S. by that parent's spouse or by a member of the spouse's family residing in the same residence as the parent and the spouse consented to or acquiesced to such battery or cruelty described in any of the paragraphs under this subsection; UNOFFICIAL 1725.1-14 (2) The department shall determine whether the battery or cruelty is substantially connected to the need for public benefits which means that without the support of the batterer, the non-citizen is unable to obtain food and shelter because the non- citizen's own assets, or other assets provided by other individuals, including the sponsor and the sponsor's spouse, does not exceed one hundred per cent of the asset retention limit for the non-citizen's household size; and (3) After the twelve month period ends, the department shall continue to exempt the batterer's assets when the battery or cruelty is recognized in an order of a judge or administrative law judge or a prior determination of the USCIS and the department determines that such battery or cruelty still has a substantial connection to the non-citizen’s need for benefits. [Eff 09/30/13] (Auth: HRS §346-14; 20 C.F.R. §416.1204; 8 U.S.C. §§1631, 1632) (Imp: 20 C.F.R. §416.1204; 8 U.S.C. §§1631, 1632) §