Ch. 18, § 8. Aged, Blind or Disabled Eligibility

. (a) The following are Medicaid-eligible categories: (i) Age sixty-five (65) or over; (ii) Determined disabled according to Social Security guidelines by the SSA or the Department (iii) Entitled to or receiving SSI, or SSI-related programs; or (iv) Individuals who receive hospice services in accordance with a voluntary election, and provider statement of terminal condition when: (A) The individual has received hospice services, or resided in a medical institution, for thirty (30) or more consecutive days; or (B) The individual is not an SSI recipient and dies before completion of the thirty (30) consecutive days' requirement. (v) Individuals who qualify for Home and Community Based Services (HCBS) under a Medicaid waiver pursuant to Medicaid Rules Chapters 34 and 46. (b) In order to qualify for an Aged Blind or Disabled (ABD) program, the individual must also meet established level of care requirements, and income and resource guidelines applicable to the client's program as detailed in the Medicaid Eligibility Online Manual. (c) Treatment of Income. (i) Income of a spouse is not available to the other spouse when applying for Inpatient Hospital Care, the Employed Individuals with Disabilities (EID) program, Nursing Home Care, Hospice Care, or HCBS under a waiver, pursuant to Section 1915(c) of the Social Security Act. (ii) A parent's income is available to a child until the month after the child attains age eighteen (18) if the child lives in the parent's home. A parent's income is not available to a child if the child is married, institutionalized for more than thirty (30) consecutive days, or if the child applies for assistance under a HCBS waiver or the EID program. (iii) Income within a valid income trust may qualify for an income trust exemption, pursuant to Section 1917(d)(4)(B) of the Social Security Act. An income trust cannot be used to qualify an applicant/client for inpatient hospital or hospice Medicaid programs. Penalties for transferred resources shall not apply to resources transferred into an income trust. To qualify as a valid income trust, the trust must: (A) Be established using standards provided by the Department; (B) Be irrevocable; (C) Be composed only of pension, Social Security, and other income to the individual and accumulated income in the trust; (D) Provide that the Department will receive all amounts remaining in the trust upon the death of the individual up to the amount equal to the total amount of medical assistance paid on behalf of the beneficiary; (E) Allow a monthly distribution of three hundred percent (300%) of the SSI payment standard for programs with no patient contribution, reasonable costs of administering the trust, and a Community Spouse allowance; (F) Allow a monthly distribution to pay towards the cost of nursing facility services, less allowable deductions. Deductions shall be allocated as specified in 42 C.F.R. § 435.725, except the trust may provide that the trustee pay any reasonable costs of administering the trust; and (G) Prohibit any portion of the trust principal to be available to the beneficiary. (d) Treatment of Resources. (i) Resources belonging to an applicant or their spouse are considered available determining Medicaid eligibility if either has the legal right, authority, or power to liquidate them. At renewal, only resources available to the client are considered when redetermining eligibility as specified in 20 C.F.R. 416.1201 et seq. (ii) Resources belonging to an applicant or their spouse are considered unavailable when determining Medicaid eligibility if there is a legal barrier that prevents the access or right to dispose of the resource. The applicant/client shall pursue reasonable steps to overcome the legal barrier unless it is determined by the Department that the cost of pursuing legal action would exceed the value of the resource or that it is unlikely the legal action would be successful. (iii) A home, as defined by Chapter 1 of the Wyoming Medicaid Rules, is an excluded resource. If the applicant/client resides in an institution and does not have a community spouse, their intent to return home must be established by execution of the Department's intent to return home form. (iv) Real property shall be considered unavailable to the individual for purposes of determining resources when the individual has executed: (A) The Department's conditional benefits agreement form when the individual has been eligible for Medicaid for less than six (6) months; or (B) The Department's bona fide effort to sell agreement when the individual has been eligible for Medicaid for six (6) months or more. (v) Medicaid may disregard any resources claimed by an individual in an amount equal to or less than the benefits paid on behalf of the individual by a Qualified Long-Term Care Partnership Policy as defined by Wyo. Stat. § 42-7-102(a)(v). (vi) Resources shall not exceed the SSI resource limits, except as specified in 20 C.F.R. § 416.1205. Individuals who are ABD and reside in a medical institution, receive Hospice Services, or receive HCBS under a waiver shall receive an additional Community Spouse Resource Maintenance Allowance (CSRMA) as specified in Section 1924 of the of the Social Security Act. (e) Treatment of Trusts. (i) Revocable and irrevocable trusts shall be treated in accordance with Wyo. Stat. §§ 42-2-402, 42-2-403, and the Social Security Act, 42 U.S.C. 1396p. (ii) All trust distributions to or for the benefit of the beneficiary client, unless paid directly to a third party, shall be income to the client in the month received and a client resource the first of the month following. (iii) Special needs trusts established in accordance with Wyo. Stat. §§ 42-2-402, 42-2-403, and the Social Security Act, 42 U.S.C. 1396p shall be considered an excluded resource when the following conditions are met: (A) The individual trust account holder must be under age sixty-five (65) and determined disabled according to the criteria set forth in 42 U.S.C. § 1382(c)(a)(3) when the trust is established; (B) The trust is irrevocable; (C) The trust prohibits any portion of the principal to be available to the beneficiary; (D) Trust resources from a third party are considered an irrevocable gift. The third party shall not be able to redirect resources transferred to the trust, or otherwise exert any interest or control over the resources in the trust; (E) The trust includes a valid "spendthrift clause" that complies with the laws of every state in which the individual has received Medicaid benefits; (F) The trust lists the Department as a Qualified Beneficiary as defined in Wyo. Stat. § 4-10-103(a)(xv)(E); (G) Trust distributions shall be for the sole benefit of the disabled beneficiary and shall be used to provide for the beneficiary's special needs; and (H) Trust distributions shall be allowed for the beneficiary's basic needs only when the trustee has proven to the Department that the beneficiary's basic needs are not adequately met by government assistance programs. (iv) Administrative requirements for a special needs trust are as follows: (A) When a special needs trust has or will receive annuity payments, structured settlement payments, or any other periodic payments, the payments shall be titled in the name of the trust. (B) The trustee shall provide an annual accounting of the trust income and expenditures to the Department. The Department may request more frequent accountings at its discretion. (C) Trust distributions for funeral expenses shall not be paid after the beneficiary's death until the Department and all other state Medicaid agencies are fully reimbursed; (D) The trustee shall obtain the consent of the Department prior to early termination of a special needs trust pursuant to Wyo. Stat. § 4-10-412. The Department shall consent to termination of a special needs trust prior to the beneficiary's death when a court order is entered providing that the Department shall be fully reimbursed from the trust. The Department shall be joined as a party to any such proceedings and served with a copy of all pleadings; and (E) When the beneficiary dies or the trust is terminated, the trustee shall notify the Department and provide a sworn affidavit with an accounting within sixty (60) days after the beneficiary's death. (v) Assets of an individual deposited into a Department-approved pooled trust account established in accordance with Wyo. Stat. § 42-2-403(f)(iii) and 42 U.S.C. § 1396p shall be considered an excluded resource when the following conditions are met: (A) The individual trust account holder must be determined disabled according to the criteria set forth in 42 U.S.C. § 1382(c)(a)(3) when the account is established; (B) The trust is established and managed by a nonprofit association; (C) A separate account is maintained for each beneficiary of the trust but is pooled for the purposes of investment and management of funds; (D) Accounts in the trust are established solely for the benefit of disabled individuals as defined by 42 U.S.C. § 1382(c)(a)(3), by the disabled individual, parent, grandparent, legal guardian, or by a court; and (E) Pooled trust distributions shall be for the sole benefit of the disabled beneficiary and shall be used to provide for the beneficiary's special needs. (vi) Administrative requirements for a pooled trust are as follows: (A) Any distribution from the trust paid directly to the beneficiary shall be considered income available to the beneficiary in the month received and a resource the first of the month following; (B) The trustee shall obtain the consent of the Department prior to early termination of a special needs trust pursuant to Wyo. Stat. § 4-10-412. The Department shall consent to termination of a special needs trust prior to the beneficiary's death when a court order is entered providing that the Department shall be fully reimbursed from the trust. The Department shall be joined as a party to any such proceedings and served with a copy of all pleadings; (C) When the beneficiary dies or the trust is terminated, the trustee shall notify the Department and provide a sworn affidavit with an accounting within sixty (60) days after the beneficiary's death; (D) To the extent that amounts remaining in the beneficiary's account upon the death of the beneficiary, or termination of the pooled trust, are not retained by the trust, the trust pays to the state from the remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary, except for reasonable administrative fees and expenses agreed upon by the Department; (E) Distributions for funeral expenses shall not be paid after the beneficiary's death until the Department and all other Medicaid agencies in other states are fully reimbursed; (f) Personal Care Contracts (i) Payments made to family members through a personal care contract (PCC) to delay or prevent Medicaid long term services or support are authorized, but shall be considered a transfer of resources for less than fair market value unless the agreement meets the requirements in this Section and documentation is provided to the Department upon request. (ii) The PCC shall be in writing and must include: (A) The date the care begins; (B) A detailed description of the services to be provided; (C) How often services will be provided; (D) How much the caregiver will be compensated; (E) When the caregiver will be compensated; (F) How long the agreement is to be in effect; (G) A statement that the terms of the agreement can be modified only by mutual agreement of the parties and approved by the Department; (H) The location where services will be provided; and (I) The notarized signature of both parties. (iii) The following services may be provided under a PCC when the individual is receiving unduplicated services at home and are not in a facility: preparing meals, shopping, medication management, transportation to medical appointments, paying bills, light housekeeping, and assistance with activities of daily living. (iv) No services shall be provided under a PCC while an individual resides in a long term care facility or receives services under a waiver program. A caregiver shall not duplicate services provided by a home health aide, nurse, medical professional, or other care provider hired to assist the individual regardless of whether the individual resides in a long term care facility or receives services within their home. (v) "Advocating for services" shall not be an allowable service under a PCC. (vi) The Department shall verify the fair market value of these services through the use of the U.S. Department of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook see https://www.bls.gov/ooh/healthcare/home-health-aides-and-personal-care-aides.htm?view_full. (vii) Caregivers shall not receive payment in advance of services performed. Prepayments made to caregivers shall be considered a transfer for less than fair market value. (viii) A retroactive PCC shall be considered a transfer for less than fair market value in accordance with subsection (i) of this Section. (g) Patient Contribution for Institutional Care. (i) The patient contribution is the monthly amount a Medicaid eligible individual must pay toward their cost of care or services and is based upon their gross income. (ii) Deductions from the individual's gross income shall be allowed in determining the amount of the individual's monthly patient contribution to be paid toward the cost of care in a medical facility. (iii) Allowable deductions shall be applied in accordance with Title XIX of the Social Security Act, 42 C.F.R. § 435.725 and the Wyoming Medicaid State Plan. (iv) Deductions for a spouse who lives in the community when the married client lives in a medical institution, shall be applied in accordance with Title XIX of the Social Security Act, 42 C.F.R. § 435.725 and the Wyoming Medicaid State Plan. (v) An individual temporarily in an institution shall be allowed a maintenance deduction, not to exceed one hundred fifty dollars ($150.00) per month for up to six (6) months, to maintain their home as defined in Medicaid Rules Chapter 1, when: (A) A physician verifies the individual can return to their home within six (6) months; and (B) The client's spouse is not institutionalized. (h) Medicaid benefits are authorized: (i) After completion of thirty (30) consecutive days in a medical institution, thirty (30) days after a hospice election, or upon the client's death in the facility or while receiving services under a hospice election before the thirty (30) consecutive days has been met. (ii) The first day of the month during which all eligibility requirements are met and the client's individual plan of care is approved by the Department for an HCBS waiver program. (i) Transfer of Resources: (i) It is presumed that a transfer of an individual's resource for less than fair market value was made for the purpose of qualifying for Medicaid. Unless convincing evidence is submitted to the Department that the resource was transferred exclusively for some other reason. The burden of rebutting the presumption that a resource was transferred to establish Medicaid eligibility rests with the individual. (ii) The fair market value of real property shall be based on an appraisal or a comparative market analysis of the property at the time of the sale or transfer of the property. The individual has the obligation to provide the Department with an appraisal or comparative market analysis. Failure to provide the requested documentation shall result in a denial of eligibility. (iii) For a resource to be considered transferred for fair market value or to be considered to be transferred for valuable consideration, the compensation received for the resource shall be in a tangible form with intrinsic value. A transfer for love and consideration is not considered a transfer at fair market value. (iv) Services provided for free at the time performed were intended to be provided without compensation. A retroactive transfer of a resource for care provided in the past without compensation is presumed a transfer for less than fair market value. An individual can rebut this presumption with tangible evidence that is acceptable to the Department as described in subsection (e) of this Section. Such evidence shall be in writing at the time services were provided to be considered by the Department. (v) A transfer penalty shall not be imposed if the transferred resource is returned to the individual. A one-time return, or one-time partial return, of the transferred resource, can be made to the individual or paid directly to a provider during the transfer penalty period in order to reduce or eliminate the transfer penalty. The value of returned resources shall be determined using fair market value. (A) A return of resources to pay for attorney's fees during a contested case shall not reduce the penalty period for the individual. Attorney's fees are the sole responsibility of the individual. (vi) The Department shall waive a transfer penalty if imposing the penalty would result in undue hardship as determined by the Department. The Department shall consider a waiver of the transfer penalty for undue hardship when requested by an individual using the Department's hardship request form with supporting documentation and a physician statement, as applicable. (A) Undue hardship exists when a transfer penalty would deprive the individual of food, clothing, shelter, or other necessities of life, or deprive the individual of medical care such that the individual's health or life would be endangered and one of the following: (I) It is determined that the person who received the transferred resource cannot be located by the individual, the individual's spouse, the individual's fiduciary, or an agent of the nursing facility, after all attempts to locate the person have been exhausted; or (II) The resource transferred was due to theft, fraud, or financial exploitation of the individual or their spouse, which has been reported and pursued through Adult Protective Services or law enforcement; or (III) The individual or their fiduciary has exhausted all reasonable legal means to recover or regain possession or obtain fair market value of the transferred resource or income. "Exhausting all reasonable legal means to recover" may include seeking the advice of an attorney and pursuing legal or equitable remedies, such as asset freezing, assignment, or injunction; seeking modification, avoidance, or nullification of a financial instrument, promissory note, mortgage, or other transfer agreement; cooperating with any attempt to recover the transferred asset.