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TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE 53 - transfer of assets for less than fair market value NOTE: AVOID IMPOSING A PENALTY FOR BOTH THE TRANSFER OF ASSETS INTO A TRUST AND THE APPLICATION OF THE TRUST PROVISIONS. THIS COULD RESULT IN THE INDIVIDUAL BEING PENALIZED TWICE FOR ACTIONS INVOLVING THE SAME ASSET. 20400.9 Exceptions to the Trust Eligibility Policy Two exceptions to the trust eligibility policy are Special Needs Trusts and Pooled Trusts for disabled individuals. 20400.9.1 Special Needs Trusts A special needs trust contains the assets of an individual under age 65 who is disabled. It is established for the benefit of the individual by a parent, grandparent, legal guardian of the individual or a court. Special Needs Trusts created on or after December 13, 2016 by an individual with a disability under age 65 for his or her own benefit can qualify as a special needs trust, conferring the same benefits as a special needs trust set up by a parent, grandparent, legal guardian or court. The trust may also contain the assets of other individuals. 21 DE Reg. 566 (01/01/18) 20400.9.1.1 Treatment of Special Needs Trusts For individuals under age 65 the exceptions to the Medicaid eligibility rules continue even after the individual becomes age 65. No additional assets may be added to the trust after the individual reaches age 65. If assets are added they will not be exempted and are subject to penalties. To qualify as a special needs trust, the following conditions must exist: The trust must be established solely for the needs of an individual with a disability who is under age 65. The individual is disabled as defined by the SSI program in 1614(a)(3) of the Act. The trust must be established by the parent(s), grandparent(s), legal guardian(s) of an individual with disabilities or a court. For trusts created on or after 12/13/2016: The trust must be established by the disabled individual under age 65 for his or her own benefit, the disabled individual's parent, grandparent, legal guardian or court. In addition to the above criteria, the trust must state that upon the individual's death all remaining assets and funds should be paid to the State agency up to the amount paid in Medicaid benefits on the individual's behalf. 10 DE Reg. 1302 (02/01/07) 15 DE Reg. 202 (08/01/11) 21 DE Reg. 566 (01/01/18) 20400.9.2 Pooled Trusts for Individuals with Disabilities A pooled trust contains the assets of an individual with disabilities as defined by the Supplemental Security Income (SSI) Program and meets the following conditions: The trust is established and managed by a non-profit association A separate account is maintained for each beneficiary of the trust; for purposes of investment and management of funds, the trust pools the funds in these accounts. Accounts in the trust are established solely for the benefit of the individual with disabilities, by the parent, grandparent, legal guardian of the individual, or by the court. To the extent that the amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust, the trust pays to the State the amount remaining in the account up to an amount equal to the total amount of medical assistance paid on behalf of the beneficiary. The trust must include a provision specifically providing for such payment to the State. 15 DE Reg. 202 (08/01/11) 20400.9.2.1 Conditions to Qualify as Exempted Pooled Trust a. The trust account must be established for an individual with disabilities. b. The individual is receiving either Title II or SSI benefits as an individual with disabilities. (In this case we would accept the disability determination made for those programs.) c. The Medical Review Team (See Section 20102.2.2) has determined that the individual is disabled using the State of Delaware's Determination of Disability for Medicaid procedure.