42-2-402. Transfers of assets affecting eligibility; exceptions; disclosures by applicants.

(a) If an institutionalized individual or the individual's spouse has disposed of, for less than fair market value, any asset or interest therein within sixty (60) months before or any time after the first date the individual has both applied for medical assistance and been institutionalized, the individual is ineligible for medical assistance for long-term care services for the period of time determined under subsection (b) of this section.

(b) For a transfer within the provisions of subsection (a) of this section, the number of months of ineligibility for long-term care services shall be the total, cumulative uncompensated value of all assets transferred within the sixty (60) month period, divided by the average monthly cost to a private patient for nursing facility services on the date of application. The period of ineligibility begins with the later of:

(i) The first day of the first month in which the assets were transferred and which does not occur in any other period of ineligibility;

(ii) The date on which the individual is eligible for medical assistance under the state plan and would otherwise be receiving institutional level care, but for the application of the penalty period, and which does not occur during any other period of ineligibility under this section.

(c) In the case of a transfer by the spouse of an individual which results in a period of ineligibility for medical assistance under this section for the individual, the department shall, using a reasonable methodology as specified by the secretary of health and human services, apportion the period of ineligibility for any portion of the period, among the individual and the individual's spouse if the spouse otherwise becomes eligible for medical assistance under chapter 4 of this title.

(d) An institutionalized individual is not rendered ineligible for long-term care services due to a transfer within the provisions of subsection (a) of this section if the asset transferred was a home and:

(i) Title to the home was transferred to the individual's:

(A) Spouse;

(B) Child who is under age twenty-one (21);

(C) Blind or disabled child as defined in 42 U.S.C. 1382c;

(D) Sibling who has equity interest in the home and who was residing in the home for a period of at least one (1) year immediately before the date the individual became an institutionalized individual; or

(E) Child who was residing in the home for a period of at least two (2) years immediately before the date the individual became an institutionalized individual, and who provided care to the individual which permitted the individual to reside at home rather than in an institution or facility.

(e) An institutionalized individual is not rendered ineligible for long-term care services due to a transfer within the provisions of subsection (a) of this section if the department determines:

(i) The individual intended to dispose of the asset at fair market value or for other valuable consideration;

(ii) The asset was transferred exclusively for a purpose other than to qualify for medical assistance;

(iii) That to the extent assets were transferred for less than fair market value, that the assets or their fair market equivalent have been returned to the individual; or

(iv) To grant a waiver of the excess resources created by the uncompensated transfer because denial of eligibility would cause undue hardship for the individual, based on criteria established by the secretary of health and human services.

(f) An institutionalized person who has made or whose spouse has made a transfer within the provisions of subsection (a) of this section is not ineligible for long-term care services if the asset was transferred:

(i) To the individual's spouse or to another individual for the sole benefit of the individual's spouse;

(ii) From the individual's spouse to another individual for the sole benefit of the individual's spouse;

(iii) To the individual's child who is blind or disabled, as defined by 42 U.S.C. 1382c, or to a trust established solely for the benefit of the child;

(iv) To a trust established solely for the benefit of an individual under sixty-five (65) years of age who is disabled as defined by 42 U.S.C. 1382c(a)(3).

(g) An applicant for long-term care services shall disclose any interest the applicant, or the applicant's spouse who is not residing in long-term care, has in an annuity or similar financial instrument, regardless of whether the annuity or instrument is irrevocable or is treated as an asset. For purposes of subsection (a) of this section, the purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless:

(i) The state is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the annuitant under this article; or

(ii) The state is named as the remainder beneficiary in the second position after the spouse or minor or disabled child and is named 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.