5722 Transfers of Specific Resources

Scheduled Receipt of Compensation After Date of Transfer - If the full value of a transferred resource is scheduled for receipt after the date of transfer, the transfer is considered an uncompensated transfer if adequate compensation is not expected to be received within the expected lifetime of the individual. Expected lifetime is determined at the time of the transfer, unless otherwise indicated. The T-4 , Life Expectancy Table , shall be used to determine life expectancy for any such transfers.

Trusts - Unless specifically exempt as per 5721 (4) , a transfer of real or personal property to an irrevocable trust or similar irrevocable legal device shall be considered a transfer without adequate compensation if the trust principal cannot be made available to the individual under any circumstances (see 5620). This provision is not applicable to exempt irrevocable burial trusts (see 5430 (2) and (10) ). This provision also applies to transfers of resources to a pooled trust described in 5621(2) where the individual establishing the trust is age 65 or older. The trust may be exempt as a resource, but the transfer to the trust is considered an uncompensated transfer unless there is a satisfactory showing the grantor/beneficiary will receive, or intended to receive, adequate consideration within his/her life expectancy. See 5621(2) , 5721(9) , 5722(1) , and 5723.2 .

Disclaimer of Inheritance and Spousal Elective Share - see Policy Memos, PM2002-12-02, Spousal Elective Share and PM2018-07-01, re: Spousal Elective Share Filing Requirement . If the individual or spouse disclaims or gives up his or her rights to an inheritance, the fair market value of the assets which would have been available to the individual are considered transferred without adequate compensation. When an inappropriate transfer for failure to pursue the spousal elective share as a potential resource has occurred, the following penalty start date applies: When the surviving spouse has waived or disclaimed his or her right to spousal elective share, the penalty begins the date of the decedent’s death. When the surviving spouse refuses to pursue his or her spousal elective share, the penalty begins with the date of refusal. When the surviving spouse fails to provide requested verification that he or she has filed or is taking positive action to file or is fully cooperating in the process after timely filing a claim for spousal elective share, the penalty begins the date verification was due but not provided. The penalty begins the day after the six-month spousal elective share filing deadline expires when the surviving spouse timely verified an intent to pursue but does not follow through and fails to timely file a claim. In addition, failure to take the full spousal elective share available following a spouse’s death shall also be considered an uncompensated transfer. The transfer disqualification is applicable following a confirmation that no further action can be taken to pursue the asset. Current recipients must pursue the full share as a potential resource per 2124.1(4) .

Annuities (see 5622 ) - If the LTC individual or spouse purchases or transfers assets into an annuity in which he or she retain ownership and the return is not commensurate with the individual’s life expectancy, an uncompensated transfer has occurred. For transfers into an annuity owned by another individual, the transfer is viewed as a gift for inadequate consideration. Specific treatment of the annuity is determined by the date the annuity was purchased. For transfer of property purposes, a purchase includes the initial acquisition of the annuity, as well as any substantial transactions. A substantial transaction is any action taken by the individual that substantially changes the course of payment to be made by the annuity or the treatment of the income or principal of the annuity. These actions include additions of principal, elective withdrawals, requests to change the distribution of the annuity, elections to annuitize the contract and similar actions taken by the individual. Use the later of the date the individual initially acquired the annuity or the date of the last substantial transaction to determine the date the annuity is purchased per the following (A) or (B). Annuities purchased before February 8, 2006 - The annuity is considered an uncompensated transfer if it is not actuarially sound. To be considered actuarially sound the annuity must be: Purchased from a life insurance company or other commercial company that sells annuities as part of its normal course of business. Provide substantially equal payments with no balloon, deferred or graduated payments, except for variations related to interest rate changes. Annuitized for the individual or spouse; and Be expected to return the full principal and interest within the annuitant’s life expectancy (See 5620 ). Annuities purchased on or after February 8, 2006 - The annuity is considered uncompensated unless Kansas Medicaid is named as the first remainder beneficiary of the annuity for the total of medical assistance paid by Medicaid. If the LTC individual has a spouse, minor child or disabled child (see 2662 (1) and (2) for definition of disabled child), Kansas Medicaid must be named as the next remainder beneficiary after these individuals. Failure to name Kansas Medicaid as the remainder beneficiary in the correct position results in an uncompensated transfer. NOTE : The individual can be approved for assistance without a transfer penalty if otherwise eligible since the process of naming the state of Kansas as the remainder beneficiary will be initiated automatically upon approval for long term care medical assistance. The I-013 (Annuity Referral) form shall be sent to the annuity company by the eligibility worker upon approval requesting the state be named the preferred remainder beneficiary. The form and verification of the change must be returned to the agency by the annuity company within 90 days. In addition to naming Kansas Medicaid as remainder beneficiary, any annuity purchased by or on behalf of the LTC individual only, not the community spouse, is considered uncompensated unless one of the following conditions are met: The annuity is considered either: An individual retirement annuity (according to Sec. 408(b)) of the Internal Revenue Code of 1986 (IRC), or A deemed individual Retirement Account (IRA) under a qualified employer plan (according to Sec. 408(q) of the IRC). The annuity is purchased with proceeds from one of the following: A traditional IRA (IRC Sec. 408(a)). An account or trust which is treated as a traditional IRA (IRC Sec. 408 (c)). A simplified retirement account (IRC Sec. 408 (p)). A simplified employee pension (IRC Sec. 408 (k)); or A Roth IRA (IRC Sec. 408A). Or The annuity meets all of the following requirements: The annuity is irrevocable and non-assignable. The annuity is actuarially sound; in that it is expected to return full principle and interest within the annuitant’s life expectancy; and The annuity provides payment is approximately equal amounts, with no deferred or balloon payments.

Life Estate - If an individual or spouse purchases a life interest in the home of another or transfers either a life or remainder interest in his or her own property an inadequate transfer has been made if the individual did not receive fair market value for the transfer. For transfers of a life or remainder interest in his or her own home, the fair market value of the life estate, as determined in 5333 , must be established, considering the ownership portion retained by the LTC individual or spouse. Failure to receive the fair market value results in an inadequate transfer. For a purchase in the life interest of another’s home, in addition to receiving fair market value for the transfer as described in item (a), the individual must reside continually in the home for a period of at least one year after the date of purchase. This requirement is applicable only to purchases on or after February 8, 2006.

Promissory Notes, Loans, Contract Sales, Mortgages - If the LTC individual or spouse purchases a promissory note, mortgage, or loan in exchange for the transfer of an asset, the repayment terms of the agreement must be actuarially sound, or the transaction is considered an uncompensated transfer. For this provision a purchase includes a direct transfer of personal or real property in exchange for a repayment agreement or contract. These provisions also apply to contract sales of property. See 5430 (7) Absent a repayment agreement, the entire amount used to purchase the note, loan or mortgage is considered a gift and subject to transfer of property provisions. The following repayment terms must be met to be considered an actuarially sound transfer: the full value must be realized within the individual’s life expectancy as per 5722 (1) . provides payment in equal amounts during the term of the loan, with no deferred or balloon payments; and prohibits the cancellation of the balance upon the death of the lender. If the note does not meet the above conditions, it is a transfer for inadequate consideration.

Transfers in Exchange for Services - If an LTC individual or spouse transfers money in exchange for services, the payments must be made under the terms of a contract, as specified in this section, or the transfer is considered a transfer for inadequate consideration. Services provided by family members - There is a general presumption that family members who perform personal services for other family members do so without any expectation of reimbursement. In the event payment was expected, a written contract must be executed prior to service delivery. The contract must include the specific services to be provided, the reimbursement rate and the form of reimbursement to be delivered. The contracted amount must be consistent with the market rate for such services. If there is no established rate, the federal minimum wage shall be used. Transfers made outside of a contracted agreement, or which do not meet these terms are considered inadequate. NOTE : Reimbursement for items and supplies purchased for the benefit of the individual by another family member do not require a contract to be considered a valid transfer. For example: building materials, such as lumber and shingles for home repair; tools and plumbing supplies to repair a leaky faucet; groceries to be consumed by the individual. The actual services provided by the family member (fixing the roof, repairing the faucet, cooking the meal) require a contract while the items and supplies required to provide those services do not. Services Provided by Non-Family Members - Payments for services provided outside of a contracted agreement in accordance with 5430 (6) are considered a transfer without adequate consideration.

Transfers of Income - A transfer of a lump sum or ongoing source of income is considered an uncompensated transfer if the action to refuse the income was initially taken during the appropriate look-back period.

Exempt Assets - A constructive or step transaction transfer of an otherwise exempt resource is considered an uncompensated transfer if adequate consideration is not received. Constructive Transfer – An uncompensated transfer will be deemed to have occurred where the individual uses countable resources to purchase an exempt resource and retains legal title to the resource but allows another individual the full use, enjoyment, and possession of the resource. Example : An individual purchases a new vehicle in their own name for $20,000 and immediately gives possession of the vehicle to another family member for their exclusive use. Even though the individual still retains legal title to the vehicle, an uncompensated transfer has occurred. Step Transaction – An uncompensated transfer will be deemed to have occurred where a countable resource was used to purchase an exempt resource that is then transferred to another individual. The steps in the transfer process are ignored to look at the ultimate outcome of the transaction. Example : An individual uses $20,000 in savings to purchase a new vehicle in their own name and then immediately transfers title to the vehicle to another family member. A $20,000 uncompensated transfer will be deemed to have occurred because the ultimate outcome of the transaction was that $20,000 in savings was gifted away.

Property Settlement – If the property settlement in a divorce proceeding is not fair, equitable, or conscionable, an uncompensated transfer has occurred. A fair and equitable settlement is one in which there is an adversarial claim by each spouse to the marital assets. The property settlement is considered suspect whenever the value of assets retained by each spouse is not equal. When the property settlement is not equal: Verification – The applicant/recipient shall verify that he/she was adequately represented by legal counsel in the divorce proceeding and that the settlement was fair and equitable based on the circumstances of the marriage and the divorce. Absent verification, the settlement shall be considered an uncompensated transfer subject to penalty. Valuation – The value of the uncompensated transfer is the difference between the value of half of the total marital assets and the value of the amount awarded in the settlement agreement. If the value of property received equals or exceeds half of the total, an uncompensated transfer has not occurred. NOTE : For penalty purposes, the date of the uncompensated transfer is the date the divorce became final. Even though the property settlement may pre-date finalization of the divorce, the assets are not legally transferred until the divorce is final.