DISPOSITION OF PROPERTY AND FAIR
CONSIDERATION PROVISIONS FOR THE AGED,
BLIND AND DISABLED CATEGORIES OF MA
§ 178.101. Disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994.
(a) If property was disposed of during the period of January 4, 1991, through July 29, 1994, § § 178.102 and 178.103 (relating to presumption of disposition of property to qualify for MA for transfers during the period of January 4, 1991, through July 29, 1994; and reestablishment of MA eligibility after transfers made during the period of January 4, 1991, through July 29, 1994) and this section apply to an applicant/recipient who is applying for or receiving NFC as defined in § 178.2 (relating to definitions), including services in an ICF/MR facility, if the property was transferred for less than FMV.
(b) An institutionalized applicant/recipient who transferred property for less than FMV is ineligible only for NFC for a period not to exceed 30 months from the date of the transfer. The person continues to be eligible for other MA services.
(c) A transfer of property by the community spouse to a person other than the institutionalized spouse is treated, and affects the eligibility of the institutionalized spouse, the same as transfers by the institutionalized spouse.
(d) The CAO shall evaluate a transfer completed during or after the 30-month period immediately before the date:
(1) The person is institutionalized, if the person was MA eligible on that date.
(2) The person applies for MA while institutionalized.
(e) The transfer of excluded personal property is not subject to the fair consideration provisions. The applicant/recipient shall promptly report the transfer and the compensation received shall be verified and treated as a resource subject to other resource requirements in this chapter.
(f) The transfer of the resident property is subject to the fair consideration provisions. The institutionalized person does not lose eligibility for payment of nursing facility services or ICF/MR services because of the transfer of the resident property if the resident property was transferred to:
(1) The spouse.
(2) A child who is under 21 years of age or a child who is blind or permanently and totally disabled regardless of age.
(3) A sibling who has equity interest in the resident property and who resided in the resident property for at least 1 year immediately before the person was admitted to the nursing facility or ICF/MR.
(4) A son or daughter, other than those described in paragraph (2), who resided in the resident property for at least 2 years immediately before the parent’s admission to a nursing facility and who provided care during the 2-year period which permitted the parent to stay in the resident property rather than be admitted to the nursing facility or ICF/MR.
(i) Sufficient evidence shall be presented by the child and the parent, or the parent’s representative, for the Department to determine if the conditions are met.
(ii) Otherwise, a written statement from the parent’s physician, a visiting nurse or other health professional familiar with the case is needed to determine if the conditions are met.
(g) An institutionalized person does not lose eligibility for payment of nursing facility or ICF/MR services because of a transfer of resources for less than fair consideration if one of the following applies:
(1) The transfer was to, or for the benefit of, the community spouse, or to a child who is blind or permanently and totally disabled regardless of age, or to another person for the sole benefit of the person’s spouse if the spouse does not transfer the resource to another person other than the institutionalized spouse for less than fair consideration.
(2) The person, a family member or someone else acting on behalf of the person can show that:
(i) The transfer was with the intention of receiving FMV or other valuable consideration.
(ii) The transfer was exclusively for a purpose other than to qualify for MA.
(3) The Department determines that the denial would cause undue hardship.
(h) The period of ineligibility for MA nursing facility services begins with the month of transfer and is the lesser of:
(1) Thirty months.
(2) The number of months, rounded to the next lowest whole month, arrived at by dividing the UV by the average monthly cost of private NFC in this Commonwealth. The average monthly private rate for nursing facility services is available upon request at the CAOs.
(i) During the period of ineligibility for MA nursing facility services, the nursing facility may charge the private pay rate.
Authority The provisions of this § 178.101 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § § 201(2) and 403(b)).
Source The provisions of this § 178.101 adopted August 26, 1988, effective November 1, 1988, 18 Pa.B. 3979; amended August 28, 1992, effective upon publication and apply retroactively to October 1, 1989, 22 Pa.B. 4432; amended December 23, 1994, effective December 24, 1994, and apply retroactively to January 4, 1991, 24 Pa.B. 6423. Immediately preceding text appears at serial pages (171817) to (171818).
Cross References This section cited in 55 Pa. Code § 178.5 (relating to treatment of irrevocable burial reserves for all categories of MA); 55 Pa. Code § 178.103 (relating to reestablishment of MA eligibility after transfers made during the period of January 4, 1991, through July 29, 1994); 55 Pa. Code § 178.121 (relating to general); and 55 Pa. Code § 178.125 (relating to transfer of resources from the institutionalized spouse to the community spouse).
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