Page 91

(b) A portion of the trust from which, or any income on the corpus from which, a payment could not, under any circumstances, be made to the individual shall be considered to be assets disposed of by the individual, as of the date of establishment of the trust or, if later, the date on which payment to the individual was foreclosed. The value of the trust shall be determined, for purposes of evaluating the disposal, by including the amount of any payments made from that portion of the trust after the date of establishment or foreclosure.

(6) The following trusts may not be counted in determining eligibility for Medical Assistance: (a) Special needs trusts as defined in §C of this regulation; and (b) A trust containing the assets of an individual who is disabled, and which meets all of the following conditions:

(i) The trust is established and managed by a nonprofit association,

(ii) A separate account is maintained for each beneficiary of the trust but, for purposes of investment and management of funds, the trust pools these accounts,

(iii) Accounts in the trust are established solely for the benefit of disabled individuals by the parent, grandparent, or legal guardian of the individuals, by the individuals, or by a court, and

(iv) To the extent that amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust, the trust pays to the Department from the amounts remaining in the account an amount equal to the total amount of Medical Assistance paid on behalf of the beneficiary.

C. Special Needs Trust. The following criteria shall define a special needs trust: (1) The trust is irrevocable; (2) The trust states that the beneficiary is disabled under Regulation .05E of this chapter; (3) The beneficiary of the trust is younger than 65 years old; (4) The trust has been established by the beneficiary's parent, grandparent, legal guardian, or a court;

(5) The trust does not contain provisions that conflict with the policies set forth under this regulation;

(6) The trust provides that the Department shall receive all amounts remaining in the trust upon the death of the beneficiary, or upon termination of the trust for any other reason, up to an amount equal to the total Medical Assistance benefits paid on behalf of the beneficiary;