Texas Register, Volume 34, Number 33, Pages 5445-5614, August 14, 2009 Page: 5,509
5445-5614 p. ; 28 cm.View a full description of this periodical.
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(G) Annuity exceptions. With respect to a transfer of
assets, the term "assets" includes an annuity purchased on or after Feb-
ruary 8, 2006, the date of enactment of the Deficit Reduction Act of
2005, by or on behalf of an annuitant who has applied for medical as-
sistance with respect to services in an institutional setting unless:
(i) the annuity is:
(I) an annuity described in subsection (b) or (q)
of section 408 of the Internal Revenue Code of 1986; or
(II) purchased with proceeds from:
(-a-) an account or trust described in subsec-
tion (a), (c), or (p) of section 408 of such Code;
(-b-) a simplified employee pension (within
the meaning of section 408(k) of such Code); or
(-c-) a Roth IRA described in section 408A of
such Code; or
(ii) the annuity:
(I) is irrevocable and nonassignable;
(II) is actuarially sound (as determined in accor-
dance with actuarial publications of the Office of the Chief Actuary of
the United States Department of Health and Human Services); and
(III) provides for payments in equal amounts
during the term of the annuity, with no deferral and no balloon
payments made.
(H) Promissory note, loan, or mortgage. In the case of
a promissory note, loan, or mortgage that does not satisfy the require-
ments of clauses (i) through (iii) of this subparagraph, the value of such
note, loan, or mortgage is the outstanding balance due as of the date of
the person's application for medical assistance for services described
in subparagraph (C) of this paragraph and this amount would be used
to determine the length of ineligibility. For purposes of this paragraph
with respect to a transfer of assets, the term "assets" includes funds
used to purchase, on or after April 1, 2006, a promissory note, loan, or
mortgage unless such note, loan, or mortgage:
(i) has a repayment term that is actuarially sound (as
determined in accordance with actuarial publications of the Office of
the Chief Actuary of the Social Security Administration);
(ii) provides for payments to be made in equal
amounts during the term of the loan, with no deferral and no balloon
payments made; and
(iii) prohibits the cancellation of the balance upon
the death of the lender.
(I) Life estate. For purposes of this paragraph with re-
spect to a transfer of assets, the term "assets" includes the purchase of a
life estate interest in another individual's home made on or after April
1, 2006, unless the purchaser resides in the home for a period of at least
one year after the date of the purchase.
(2) HHSC allows exceptions to transfers of assets under
the provisions of 1917(c)(2) of the Social Security Act (42 U.S.C.
1396p(c)(2), if:
(A) the assets transferred were a home, and title to the
home was transferred to:
(i) the spouse of such person;
(ii) a child of such person who:
(I) is under 21 years of age; or(II) is blind or disabled as defined in 1614 of the
Social Security Act (42 U.S.C. 1382c);
(iii) a sibling of such person who has an equity in-
terest in such home and who was residing in such person's home for at
least one year immediately before the date the person transferred to an
institutional setting; or
(iv) a son or daughter of such person (other than a
child described in clause (ii) of this subparagraph) who was residing in
such person's home for a period of at least two years immediately be-
fore the date the person transferred to an institutional setting and who,
as determined by the State, provided care to such person which permit-
ted such person to reside at home rather than in such an institution or
facility;
(B) the assets:
(i) were transferred to the person's spouse or to an-
other for the sole benefit of the person's spouse;
(ii) were transferred from the person's spouse to an-
other for the sole benefit of the person's spouse;
(iii) were transferred to a trust (including a trust de-
scribed in 358.402(e)(2) of this division) established solely for the
benefit of the person's child described in subparagraph (A)(ii)(II) of
this paragraph; or
(iv) were transferred to a trust (including a trust de-
scribed in 358.402(e)(2) of this division) established solely for the
benefit of a person under 65 years of age who is disabled as defined in
1614(a)(3) of the Social Security Act (42 U.S.C. 1382c(a)(3));
(C) a satisfactory showing is made to the State that:
(i) the person intended to dispose of the assets either
at fair market value, or for other valuable consideration;
(ii) the assets were transferred exclusively for a pur-
pose other than to qualify for medical assistance; or
(iii) all assets transferred for less than fair market
value have been returned to the person; or
(D) HHSC:
(i) determines that the denial of eligibility would
work an undue hardship when application of the transfer of assets
provision would deprive the person:
(I) of medical care such that the person's health
or life would be endangered; or
(II) of food, clothing, shelter, or other necessities
of life; and
(ii) provides for:
(I) notice to recipients that an undue hardship ex-
ception exists;
(II) a timely process for determining whether an
undue hardship waiver will be granted; and
(III) a process under which an adverse determi-
nation can be appealed.
(3) Under paragraph (2)(D) of this subsection, a facility in
which the person in an institutional setting is residing may file an undue
hardship waiver application on behalf of the person with the consent of
the person or the person's authorized representative.
(4) For purposes of this subsection effective on or after
February 8, 2006, the date of enactment of the Deficit Reduction ActADOPTED RULES August 14, 2009 34 TexReg 5509
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Texas. Secretary of State. Texas Register, Volume 34, Number 33, Pages 5445-5614, August 14, 2009, periodical, August 14, 2009; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth90865/m1/62/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.