HAR §17-1725.1-49. Purpose

The purpose of this subchapter is to establish the requirements for the treatment of assets for an individual who requests coverage of long-term care services. [Eff 09/30/13] (Auth: HRS §346-14; 42 C.F.R. §431.10; 42 U.S.C. §1396p(c)) (Imp: 42 U.S.C. §1396p(c)) §17-1725.1-50 Determination of the community spouse resource allowance. (a) At the time of initial eligibility determination, the community spouse of an institutionalized individual who received long-term care services on or after September 30, 1989, shall be allowed to maintain countable assets up to the maximum allowed by federal statutes or regulations with provisions for increase, as allowed by the Secretary of Health and Human Services by means of indexing, court order, or fair hearing. (b) At the time of initial eligibility determination of an institutionalized individual, the total value of assets of both spouses, regardless of how they are held, shall be considered available to the institutionalized individual, except for the community spouse resource allowance, as defined by subsection (a). UNOFFICIAL 1725.1-33 (c) The assets retained by the community spouse, as allowed by subsection (a), shall not jeopardize the eligibility of the institutionalized individual. After the initial eligibility of the institutionalized individual is established, any assets of the community spouse, which do not include the institutionalized individual as a co-owner, shall not be considered during the continuous period of both eligibility and institutionalization of the institutionalized individual. (d) The post-eligibility interspousal transfer of assets shall be allowed for the legal transfer of assets from the institutionalized individual to the community spouse. After a protected period of ninety days from the date eligibility is determined, which may be extended if there are legal reasons or extenuating circumstances that delay such a transfer,any assets still legally available to the institutionalized individual shall be considered in the determination of continued eligibility of the institutionalized individual. (e) The provisions of subsections (a) through (d) apply to an institutionalized individual who qualifies for long-term care services. [Eff 09/30/13] (Auth: HRS §346-14; 42 C.F.R §431.10, 435.217; 42 U.S.C. §§1315, 1396r-5) (Imp: HRS §346- 29; 42 C.F.R. §435.217; 42 U.S.C. §§1315, 1396r-5) §17-1725.1-51 Penalty period for the transfer of an asset for less than fair market value. (a) An individual who requests medical assistance for coverage of long-term care services shall be assessed a penalty period for coverage of these services if the individual or the individual’s spouse, transferred an asset for less than fair market value within the applicable look-back period. The length of the look- back period shall be sixty months for an asset transferred on or after February 8, 2006. UNOFFICIAL 1725.1-34 (b) An asset that was transferred on or after the date of application shall be considered as follows: (1) A penalty period shall be assessed if an individual transfers an asset after being determined eligible for coverage of long- term care services. (2) A penalty period shall not be assessed for the transfer of an asset owned by the community spouse made after the individual has been determined eligible for coverage of long-term care services with the exception of subsection (d). (c) The transfer provision shall apply to an asset held by the individual and the individual’s spouse when any action is taken that reduces or eliminates such individual’s ownership or control of such asset. (d) The transfer provision shall apply to countable assets under this chapter owned by the individual or the individual’s community spouse or both and to the following exempt assets in subchapters 4 and 5: (1) The home property; (2) The value of basic maintenance items essential for day-to-day living including but not limited to clothing, furniture, and appliances; (3) All motor vehicles with the exception of watercrafts or air transportation vehicles, including but not limited to cars, trucks, vans, or motorcycles; (4) The equity value of a bona fide funeral or burial plan or agreement; and (5) The burial space (including plots, vaults, and niches) including those designated for immediate family members. (e) The transfer provision shall apply to the transfer of income of the individual and the individual’s spouse, or their right to receive income, either as a single payment or a stream of income that UNOFFICIAL 1725.1-35 is countable in determining Medicaid eligibility under chapter 17-1724.1. (f) The unpaid portion of long-term care expenses incurred during a penalty period shall not be deducted in post-eligibility as an incurred medical expense when a penalized individual becomes eligible for coverage of long-term care services. [Eff 09/30/13] (Auth: HRS §346-14; 42 C.F.R. §431.10; 42 U.S.C. §§1382b(a), (c) and (d), and 1396p(c)) (Imp: 42 U.S.C. §§1382b(a), (c) and (d), and 1396p(c))