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317:35-5-41.8. Eligibility regarding long-term care services
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Revised 6-25-09
(a) Home Property. In determining eligibility for long-term care services for applications filed on or after January 1, 2006, home property is excluded from resources unless the individual's equity interest in his or her home exceeds $500,000.
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(1) Long-term care services include nursing facility services and other long-term care services. For purposes of this Section, other long-term care services include services detailed in (A) through (B) of this paragraph.
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(2) An individual whose equity interest exceeds $500,000 is not eligible for long-term care services unless one of the following circumstances applies:
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(A) The individual has a spouse who is lawfully residing in the individual's home;
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(B) The individual has a child under the age of twenty-one who is lawfully residing in the individual's home;
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(C) The individual has a child of any age who is blind or permanently and totally disabled who is lawfully residing in the individual's home; or
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(D) The denial would result in undue hardship. Undue hardship exists when denial of SoonerCare long-term care services based on an individual's home equity exceeding $500,000 would deprive the individual of medical care such that the individual's health or life would be endangered; or of food, clothing, shelter, or other necessities of life. • 1
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(3) Absence from home due to nursing facility care does not affect the home exclusion as long as the individual intends to return home within 12 months from the time he/she entered the facility. The OKDHS Form 08MA010E, Acknowledgment of Temporary Absence/Home Property Policy, is completed at the time of application for nursing facility care when the applicant has home property. After explanation of temporary absence, the member, guardian or responsible person indicates whether there is or is not intent to return to the home and signs the form.
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(A) If at the time of application the applicant states he/she does not have plans to return to the home, the home property is considered a countable resource. For members in nursing facilities, a lien may be filed in accordance with OAC 317:35-9-15 and OAC 317:35-19-4 on any real property owned by the member when it has been determined, after notice and opportunity for a hearing, that the member cannot reasonably be expected to be discharged and return home. However, a lien is not filed on the home property of the member while any of the persons described in OAC 317:35-9-15(b)(1) and OAC 317:35-19-4(b)(1) are lawfully residing in the home: -
(B) If the individual intends to return home, he/she is advised that:
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(C) "Intent" in regard to absence from the home is defined as a clear statement of plans in addition to other evidence and/or corroborative statements of others.
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(D) At the end of the 12-month period the home property becomes a countable resource unless medical evidence is provided to support the feasibility of the member to return to the home within a reasonable period of time (90 days). This 90-day period is allowed only if sufficient medical evidence is presented with an actual date for return to the home.
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(E) A member who leaves the nursing facility must remain in the home at least three months for the home exemption to apply if he/she has to re-enter the facility.
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(F) However, if the spouse, minor child(ren) under 18, or relative who is aged, blind or disabled or a recipient of TANF resides in the home during the individual's absence, the home continues to be exempt as a resource so long as the spouse or relative lives there (regardless of whether the absence is temporary).
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(G) For purpose of this reference a relative is defined as: son, daughter, grandson, granddaughter, stepson, stepdaughter, in-laws, mother, father, stepmother, stepfather, half-sister, half-brother, niece, nephew, grandmother, grandfather, aunt, uncle, sister, brother, stepbrother, or stepsister.
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(H) Once a lien has been filed against the property of an NF resident, the property is no longer considered as a countable resource. • 3
(b) Promissory notes, loans, or mortgages. The rules regarding the treatment of funds used to purchase a promissory note, loan, or mortgage on or after February 8, 2006, are found in (1) through (2) of this subsection.
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(1) Funds used to purchase a promissory note, loan, or mortgage on or after February 8, 2006, are treated as assets transferred for less than fair market value in the amount of the outstanding balance due on the note, loan, or mortgage as of the date of the individual's application for medical assistance unless the note, loan, or mortgage meets all of the conditions in paragraphs (A) through (C) of this paragraph.
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(A) The note, loan, or mortgage has a repayment term that is actuarially sound (as determined in accordance with actuarial publications of the Office of the Chief Actuary of the United States Social Security Administration). • 4 -
(B) The note, loan, or mortgage provides for payments to be made in equal amounts during the term of the loan, with no deferral and no balloon payments made.
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(C) The note, loan, or mortgage prohibits the cancellation of the balance upon the death of the lender.
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(2) Funds used to purchase a promissory note, loan, or mortgage for less than its fair market value are treated as assets transferred for less than fair market value regardless of whether:
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(A) The note, loan, or mortgage was purchased before February 8, 2006; or
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(B) The note, loan, or mortgage was purchased on or after February 8, 2006, and the conditions described in paragraph (1) of this subsection were met.
(c) Annuities. Treatment of annuities purchased on or after February 8, 2006.
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(1) The entire amount used to purchase an annuity on or after February 8, 2006, is treated as assets transferred for less than fair market value unless the annuity meets one of the conditions described in (A) through (C) of this paragraph.
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(2) In addition, the entire amount used to purchase an annuity on or after February 8, 2006, is treated as a transfer of assets unless the Oklahoma Health Care Authority is named as the remainder beneficiary either:
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(A) in the first position for at least the total amount of medical assistance paid on behalf of the institutionalized individual; or
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(B) in the second position after the community spouse, child under 21 years of age, or disabled child and in the first position if the spouse or a representative of the child disposes of any of the remainder for less than fair market value.
(d) Life Estates. This subsection pertains to the purchase of a life estate in another individual's home.
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(1) The entire amount used to purchase a life estate in another individual's home on or after February 8, 2006, is treated as assets transferred for less than fair market value, unless the purchaser resides in the home for at least one year after the date of the purchase.
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(2) Funds used to purchase a life estate in another individual's home for less than its fair market value are treated as assets transferred for less than fair market value regardless of whether:
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(A) The life estate was purchased before February 8, 2006; or
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(B) The life estate was purchased on or after February, 8, 2006, and the purchaser resided in the home for one year after the date of purchase.
INSTRUCTIONS TO STAFF
1. If the undue hardship exists because the applicant was exploited, legal action must be pursued before a hardship waiver will be granted. Pursuing legal action means an APS referral has been made to the district attorney's office or a lawsuit has been filed and is being pursued against the perpetrator. A memo requesting undue hardship should be sent to OKDHS, FSSD, Attn: HR&MS. A memo requesting undue hardship should be sent to OKDHS, FSSD, Attn: HR&MS.
2. The home is a countable resource and OKDHS Form 08MA025E, Medicaid Estate Recovery Lien Information, must be completed and sent to OHCA, Attn: TPL Unit.
(1) Client was admitted to the facility October of last year and applies for nursing home care in October of this year. The 12 month exclusion has already expired.
(2) Client is admitted to the nursing facility and applies for nursing home care beginning date of admission. The home is exempt for 12 months if the member has the intent to return home. After the 12 month exemption, a lien must be filed as described above.
3. Refer to OAC 317:35-19-4(b)(6) if the home property is sold.
4. Refer to ODKSH Appendix M-13, Medicaid Life Expectancy Table.
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