Texas Register, Volume 34, Number 33, Pages 5445-5614, August 14, 2009 Page: 5,512
5445-5614 p. ; 28 cm.View a full description of this periodical.
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(4) The situations in paragraphs (1) - (3) of this subsection
are the only situations in which an uncompensated transfer does not
result in a penalty for care in an institutional setting. Under the transfer
provisions of OBRA 1993, the home is not an excluded resource for
a person in an institutional setting. Therefore, if the home of a person
in an institutional setting is transferred, unless the transfer meets one
of the criteria in paragraphs (1) - (3) of this subsection, it could affect
payment for the person's care in an institutional setting.
(e) Look-back period.
(1) Penalties may be assessed for transfers occurring on or
after the look-back date. Penalties cannot be assessed for time frames
prior to the look-back period.
(2) The law prescribes a 36-month look-back period for
most uncompensated transfers. However, there is a 60-month look-
back period for certain transfers involving trusts. The look-back peri-
ods for trusts and distributions from trusts are defined in subparagraphs
(A) and (B) of this paragraph.
(A) Revocable trusts.
(i) Payments from a revocable trust to or for the ben-
efit of someone other than an applicant or recipient have a 60-month
look-back period.
(ii) Making a revocable trust irrevocable with pay-
ments from corpus/income foreclosed to the applicant or recipient is a
transfer of assets and has a 60-month look-back period.
(B) Irrevocable trusts.
(i) Payments from an irrevocable trust (where
trustee distributions are not foreclosed to the applicant or recipient)
which are made to (or for the benefit of) someone other than the
applicant or recipient have a 36-month look-back period.
(ii) Creating an irrevocable trust where trustee pay-
ments are foreclosed to the applicant or recipient is a transfer of assets
with a 60-month look-back period.
(iii) Creating an irrevocable trust where the trustee
initially has discretion to make payments to the applicant or recipient
(or for the applicant's or recipient's benefit), but where payments are
foreclosed to the applicant or recipient at a later date is a transfer of as-
sets as of the date payments are foreclosed to the applicant or recipient.
The look-back period is 60 months.
(3) The look-back period is 36 months (or 60 months) from
the later of the date of:
(A) institutionalization; or
(B) Medicaid application.
(4) When a person is already a Medicaid recipient before
entering an NF, an ICF/MR, a state supported living center, a state cen-
ter, or an IMD, the look-back period begins with institutional entry.
(5) When a person applies and is certified for Medicaid
more than once because of multiple institutional stays or periods of
ineligibility, the look-back date is based on the later of the earliest ap-
plication for Medicaid or the initial entry into the facility.
(6) When a person applies for a 1915(c) waiver program,
the look-back period is 36 months or 60 months from the later of the
date:
(A) of application for waiver services (completed,
signed application form is received in HHSC office); or
(B) after application that the person transfers assets.(7) When a person applies for services in an institutional
setting but is not certified and then reapplies, a new look-back period
is based on the latest application.
(8) When a person applies and is certified for a 1915(c)
waiver program, subsequently is denied, and reapplies for waiver ser-
vices, the initial look-back period is still in effect.
(9) When a look-back period is established, the person is
certified, and then moves from a Medicaid-certified long-term care fa-
cility to a 1915(c) waiver program or vice versa, the initial look-back
period is still in effect. This is true even when there is a gap in eligi-
bility periods.
(10) Any additional transfers of assets that occur after the
person is certified for Medicaid may be assessed a penalty.
(f) Calculation of penalty period.
(1) There is no limit to the penalty period under OBRA
1993. The penalty period is determined by dividing the uncompensated
value of all assets transferred by the average monthly cost of nursing
facility care for a private-pay patient.
(2) The penalty period calculation applies to the transfer of
both income and resources.
(3) The same penalty period calculation is used for a person
who applies for a 1915(c) waiver program. Penalty periods continue
to run if a person moves from a Medicaid-certified long-term care fa-
cility to a 1915(c) waiver program or vice versa.
(4) The penalty period begins the month of transfer. How-
ever, a new penalty period cannot be imposed while a previous penalty
period is still in effect. Therefore, the penalty periods assessed under
OBRA 1993 rules for multiple transfers that overlap run separately but
consecutively.
(5) If a penalty period ends and a subsequent transfer oc-
curs, a new penalty period is established effective the month of the
subsequent transfer. This means there may be a gap between penalty
periods.
(6) When multiple transfers occur during the look-back
period in such a way that the penalty periods for each overlap, the
transfers are treated as a single event. The uncompensated values
are lumped together and divided by the average monthly rate for a
private-pay patient in a nursing facility. If multiple transfers occur in
such a way that the penalty periods do not overlap, then the transfers
are treated as separate events and the penalty periods are calculated
separately.
(g) Apportioning penalty periods between spouses.
(1) When a person's spouse transfers an asset that results in
a penalty for the person, the penalty period must, in certain instances,
be apportioned between the spouses. Both spouses must be eligible
for Medicaid in an institutional setting during the same time period for
apportionment to occur. Apportionment occurs when:
(A) the spouse:
(i) is institutionalized and is Medicaid eligible; or
(ii) would be eligible for a 1915(c) waiver pro-
gram; and
(B) some portion of the penalty against the person re-
mains at the time the conditions in this paragraph are met.
(2) When one spouse is no longer subject to a penalty (for
example, the spouse is no longer in an institutional setting, or the34 TexReg 5512 August 14, 2009 Texas Register
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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/m1/65/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.