Asset Transfers

(b) Pursuant to 42 USC 1396p(c)(2)(A)(iv), DHHS shall not penalize the transfer of an individual’s primary residence to his or her child if the child resided in the individual’s home for a period of at least 2 years immediately before the date the individual became an institutionalized individual, and the child provided care to such individual which permitted such individual to reside at home on a continuous basis rather than in such an institution or facility.

(c) The individual in paragraph (b) shall provide the following verifications:

(1) At least one letter signed by a medical professional who cared for the individual prior to admission to the medical institution stating that the child provided the kind and quality of care necessary to maintain the individual at home rather than in a medical institution for at least 2 years immediately before the individual’s admission to the medical institution;

(2) A statement from the child describing the type or level of care provided; and

(3) Medical records consistent with the information described in (b) above.

(d) Pursuant to RSA 167:4, I(b) and 42 USC 1396p(c)(1), a transfer of assets shall be considered to have been made if, within 60 months prior to the date of application or at any time while receiving NF medical assistance or any category of HCBC waiver services, the individual or the individual’s spouse:

(1) Takes action that reduces or eliminates an individual's ownership or control of such assets;

(2) Gives another person access to the asset through joint ownership and any action is taken, either by the individual or by any other person, that reduces or eliminates such individual's ownership;

(3) Executes an instrument to transfer title of an asset to another person at a future date and delivers the instrument to the person who is to receive title;

(4) Transfers title or ownership of the individual’s home, or its associated land, to another person or entity;

(5) Transfers title of real property, including income-producing real property;

(6) Transfers assets into an irrevocable trust or similar legal device, from which no payment could under any circumstances be made to the individual;

(7) Obtains a reverse mortgage, a home equity conversion mortgage, or a similar loan on any home or other real property and transfers the proceeds to another person;

(8) Is entitled to an asset but does not receive the asset because of action:

a. By the individual or the individual's spouse;

b. By a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or such individual's spouse; or

c. By any person, including any court or administrative body, acting at the direction or upon the request of the individual or such individual's spouse;

(9) Purchases a promissory note, loan, or mortgage, unless such note, loan, or mortgage:

a. Provides a repayment term that is actuarially sound pursuant to (j)(3) below;

b. Provides for payments to be made in equal amounts during the term of the loan with no deferral and no balloon payments; and

c. Prohibits the cancellation of the balance upon the death of the lender; or

(10) Purchases a life estate interest in another individual’s home, unless they have resided in the home for a period of at least one year after the date of the purchase.

(e) Actions by the individual or the individual’s spouse which would cause income or resources not to be received shall include but not be limited to:

(1) Irrevocably waiving pension income or any other form of income;

(2) Waiving an inheritance;

(3) Not accepting or accessing injury settlements, judgments, or court awards;

(4) Diverting of tort settlements by the defendant into a trust or similar device to be held for the benefit of the plaintiff; or

(5) Refusal to take legal action to obtain a court ordered payment that is not being paid, such as child support or alimony, unless the individual is being, has been, or is at risk of being, battered or subjected to extreme cruelty as described in 42 USC 608(a)(7)(c) and corroboration is provided by the documentation described below including a:

a. Court, medical, criminal, child protective services, psychological, or law enforcement record, or a statement from a social service provider;

b. Written statement from a social worker from a public or private social service agency; or

c. Sworn statements from an individual with knowledge of the circumstances.

(f) For individuals applying for or receiving medical assistance, the department of health and human services (DHHS) shall evaluate asset transfers to determine if the individual derived fair market value, as defined in He-W 820.02(b) above, from the transfer.

(g) DHHS shall evaluate the transfer to determine if the individual derived fair market value, as defined in He-W 820.02(b) above, whenever an individual applying for or receiving medical assistance has transferred, assigned or disposed of title or ownership of an otherwise excluded home to another individual or entity.

(h) Asset transfers from which the individual receives fair market value or other valuable consideration shall require no further evaluation for asset transfer.

( i ) A transfer of assets for love and consideration, or which is made for similar reasons, shall not be considered to be a transfer for fair market value.

(j) A transfer of assets to a relative for care provided in the past shall not be a transfer for fair market value. Although relatives may be legitimately paid for providing care, any services provided for free in the past shall be assumed to have been intended to have been provided without compensation unless it can be rebutted with tangible evidence that a compensation arrangement had been agreed to in writing at the time services were provided.

(k) When determining whether an individual has received fair market value for a transfer when a life estate has been established, DHHS shall:

(1) Determine what the fair market value of the asset was at the time of transfer;

(2) Take into account the individual’s age at the time of the transfer; and

(3) Calculate the value of the life estate using the life estate tables found in the Supplemental Security Income (SSI) Program Operations Manual System (POMS), section SI 01140.120 as follows:

a. The life estate value shall be established by multiplying the market value of the asset by the life estate factor that corresponds to the individual’s age at the time of the transfer;

b. The value of the life estate shall be subtracted from the value of the asset transferred; and

c. The difference between the value of the life estate and the amount the individual was reimbursed for the remainder interest shall be the portion of the asset transferred for less than fair market value.

(l) When determining whether an individual or spouse has received fair market value for a transfer of assets into an annuity, DHHS shall:

(1) Determine the fair market value of the asset at the time of transfer into the annuity;

(2) Determine if the expected return on the annuity is commensurate with a reasonable estimate of the life expectancy of the beneficiary to determine whether the annuity is actuarially sound;

(3) Use the life expectancy tables published by the office of the chief actuary of the social security administration, pursuant to 42 USC 1396p(c)(1)(G)(ii)(II);

(4) Determine that the individual has received fair market value for the annuity if the average number of years of expected life remaining for the individual coincides or exceeds the life of the annuity; and

(5) Determine that the individual did not receive fair market value for the annuity if the average number of years of expected life remaining for the individual is less than the life of the annuity.

(m) The background information of the asset transfer shall be evaluated further to determine if assets might have been transferred for purposes of qualifying for medical assistance if DHHS determines that the individual did not receive fair market value from the transfer.

(n) Factors to be evaluated in assessing asset transfers referred to in (l), shall include:

(1) Timeframes between the transfer of assets and the date of application;

(2) The individual's health at the time of the transfer; and

(3) The individual's economic situation at the time of the transfer.

(o) The transfer shall be considered questionable if the evaluation of background information of the transfer suggests that the individual transferred assets for purposes of qualifying for medical assistance or results in qualifying earlier than otherwise would have been possible if the individual had retained all of the asset(s).

(p) The individual shall provide additional information and documentation to DHHS upon request to demonstrate that assets were not transferred for purposes of qualifying for medical assistance, if the transfer is considered questionable.

(q) Reasons for transferring assets for purposes other than qualifying for medical assistance shall include:

(1) The individual transferred the asset to prevent foreclosure or sale of the asset by the lien holder, thus preventing total loss of the asset;

(2) The individual transferred the asset for self-support because the individual's income and resources were insufficient to meet basic needs or to maintain upkeep of the asset, such as taxes and repairs, and the individual's basic needs were provided for in return for the transfer, or the individual lived off the proceeds of the asset;

(3) The individual transferred the asset to meet the terms of a written agreement, including debts arising from such agreement;

(4) The individual transferred the asset to meet the terms of an oral agreement, including debts arising from such agreement;

(5) The individual is not able to afford to take the necessary action to obtain the asset or the cost of obtaining the asset is greater than the asset is worth, resulting in a case of failure to cause assets to be received; or

(6) The individual is being, has been, or is at risk of being battered or subjected to extreme cruelty as described in 42 USC 608(a)(7)(c) and as corroborated by the documentation described He-W 820.01(d)(5).

(r) The burden of proof for substantiating the fact that assets were not transferred for purposes of qualifying for medical assistance shall rest with the individual.

(s) If the individual refuses or fails to prove that assets were not transferred for purposes of qualifying for medical assistance, DHHS shall determine that the assets were transferred for the purposes of qualifying for medical assistance and the individual shall be ineligible pursuant to (s) below for the following institutionalized care:

(1) Nursing facility services;

(2) A level of care in any institution equivalent to that of nursing facility services; and

(3) HCBC furnished under a waiver granted under 42 USC 1396n(c).

(t) To determine the number of months of ineligibility for the services described in (r) above for an individual who has transferred property for purposes of qualifying for medical assistance the following methodologies shall be used:

(1) The penalty period start date for all individuals who transfer assets for less than fair market value to make themselves eligible for medical assistance as of February 8, 2006, shall be whichever is later:

a. The first day the individual met all other eligibility criteria and would be eligible but for the transfer, provided that the date does not occur during an existing penalty period as described in (4) below; or

b. The first day of a month after which assets have been transferred provided that the date does not occur during an existing penalty period as described in (4) below;

(2) When an individual or an individual’s spouse makes multiple fractional transfers of assets in more than one month for less than fair market value, the penalty shall be based on the total cumulative uncompensated value of all such transfers, pursuant to 42 USC 1396p(c)(1);

(3) The penalty period shall be based solely on the value of the assets transferred;

(4) When a countable transfer takes place during an existing penalty period, a new penalty period shall not begin until the existing penalty period has expired;

(5) When an individual makes a series of transfers within one month, the total value of the individual transfers for the month shall be used to calculate the penalty;

(6) The penalty period shall be the number of months equal to:

a. The uncompensated value of assets transferred by the individual, divided by the average statewide monthly nursing facility private rate; and

b. The average statewide daily nursing facility rate shall be established by dividing the average statewide monthly nursing facility private rate, as determined and updated annually by the division's bureau of audits and rate setting, by 30.42;

(7) When the penalty period consists of any number of full months and a partial month, the partial month penalty period shall apply in accordance with (9) below;

(8) When the amount of the transfer is less than the average statewide monthly nursing facility private rate, a partial month penalty shall apply;

(9) To determine the number of days the partial month penalty shall be in effect, the uncompensated value of assets transferred by the individual shall be divided by the average daily nursing facility rate described in (6)b. above;

(10) When assets have been transferred so that the penalty periods overlap, the individual penalty periods shall be calculated and imposed sequentially;

(11) When multiple transfers are made in such a way that the penalty period for each transfer will not overlap, each transfer shall be treated as a separate event, each with its own penalty period;

(12) When a spouse of an individual transfers an asset that results in a penalty for the individual, the penalty period shall be apportioned between the spouses when:

a. The spouse either is, or becomes, eligible for medical assistance;

b. A penalty could be assessed against the spouse; and

c. Some portion of the penalty against the individual remains at the time the above conditions are met;

(13) When the penalty period for an individual is interrupted due to the death of the individual or the individual’s discharge from institutionalized care, the remaining penalty period in (12) above, which is applicable to both spouses shall be served by the remaining spouse; and

(14) A penalty period imposed for a transfer of assets shall run continuously from the first date of the penalty period, regardless of whether the individual remains institutionalized.

(u) A penalty shall not be assessed for transfers of assets for less than fair market value under any of the following circumstances:

(1) The individual intended, and attempted to dispose of the asset either at fair market value or for other valuable consideration, and circumstances caused the individual to transfer the asset for less than fair market value;

(2) The individual transferred the assets for a purpose other than to qualify for medical assistance; or

(3) All of the assets transferred for less than fair market value have been returned to the individual.

(w) Individuals claiming that circumstances caused the asset to be transferred for less than fair market value pursuant to (u)(1) above, shall provide documentation of:

(1) The individual’s attempt to dispose of the asset at fair market value, or for other valuable consideration; and

(2) The value at which the asset was disposed.

(x) Individuals claiming that assets were transferred for a purpose other than to qualify for medical assistance pursuant to (u)(2) above, shall provide documentation of:

(1) The specific purpose for which the asset was transferred; and

(2) The reason it was necessary to transfer the asset for less than fair market value or other valuable consideration.

(y) If a penalty was assessed for transferring an asset for less than fair market value or other valuable consideration and the asset was returned to the individual, then DHHS shall:

(1) Generate a retroactive adjustment back to the beginning of the penalty period if the individual met all other eligibility criteria; or

(2) Redetermine the penalty period pursuant to (s) above, when only part of an asset, or its equivalent value, has been returned.

(z) Asset transfer penalties shall not be imposed due to undue hardship pursuant to RSA 167:4, III-a and 42 USC 1396p(c)(2)(D).

Source. #12217, eff 6-22-17

PART He-W 821 TECHNICAL REQUIREMENTS FOR NURSING FACILITY (NF) AND HOME AND COMMUNITY BASED CARE (HCBC) SERVICES

Revision Note :

Document #12217, effective 6-22-17, readopted with amendments He-W 621 titled “Technical Requirements for Nursing Facilities (NF) and Home and Community Based Care (HCHC) Services” and renumbered the rule as He-W 821 titled “Technical Requirements for Nursing Facility (NF) and Home and Community Based Care (HCHC) Services”. The source note information for the rules He-W 821.01 through He-W 821.03 in He-W 821 prior to Document #12217 includes the documents filed under He-W 621.01 through He-W 621.03, respectively.