16 Del. Admin. Code § 20000-20350
Transfer of assets occurs when an institutionalized individual, or the individual's spouse, has sold, given away (including establishment of a trust or contribution to a charity) or otherwise transferred any asset. Assets transferred by a parent, guardian, court or administrative body, or anyone acting in place of or on behalf of or at the request or direction of the individual or spouse, are considered to be transferred by the individual or spouse. Medicaid law provides for a period of ineligibility when an institutionalized individual or the individual's spouse disposes of assets for less than fair market value (FMV) on or after a specified look-back date.
Section 13611 of the Omnibus Budget Reconciliation Act of 1993 (P. L. 103-66) enacted 8/10/93, revised the rules on Transfer of Assets. The new rules are effective for long term care applications filed on or after 10/1/93 and assets transferred on or after 8/11/93. The new rules do not apply to assets transferred on or before 8/10/93.
An institutionalized individual is an individual who is:
- an inpatient in a nursing facility, or
- an inpatient in a medical institution with respect to whose eligibility is based on an appropriate level of care for that medical institution, or
- a home and community-based services recipient described in section 1902(a)(10)(A)(ii)(VI).
This is a person who is considered legally married to an individual under the laws of the State in which the individual is applying for or receiving Medicaid.
Assets include all income and resources of the individual or the individual's spouse. NOTE: PRIOR TO OBRA 93 THE DEFINITION OF ASSETS DID NOT INCLUDE INCOME.
Assets would also include assets that the individual or spouse is entitled to receive but does not because of an action taken by:
- the individual, or
- the individual's spouse, or
a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or spouse, or
- any person, including a court or administrative body, acting at the direction of or upon the request of the individual or such individual's spouse.
Examples of actions which would cause income or resources not to be received are:
irrevocably waiving pension income;
- waiving an inheritance;
- not accepting or accessing injury settlements;
- tort settlements which are diverted by the defendant into a trust or similar device to be held for the benefit of the plaintiff;
- refusal to take legal action to obtain a court ordered payment that is not being paid, such as alimony.
However, failure to cause assets to be received does not constitute a transfer of assets in all cases. For example, the individual may not be able to afford to take the necessary action to obtain the assets or the cost of obtaining the assets may be greater than the assets are worth. The specific circumstances of each case must be examined before making a decision whether an uncompensated asset transfer has occurred.
In the case of jointly owned assets (joint tenancy, tenancy in common, or similar arrangement) any action taken by the individual or by any other person that reduces or eliminates the individual's ownership or control of the asset will be penalized as an uncompensated transfer. See Section 20350.8 Treatment of jointly owned assets
The definition of a resource is the same definition as used by the SSI program, except that the home is NOT excluded for institutionalized individuals. In determining if a transfer of assets involves a SSI-countable resource, take into account those resource disregards used by the SSI program.
The definition of income is the same definition as used by the SSI program. In determining whether a transfer of assets involves SSI-countable income, take into account those income disregards used by the SSI program.
A transfer is considered to be for the sole benefit of a spouse, child who is blind or disabled, or an individual with a disability if the transfer is arranged in such a way that no individual or entity except that spouse, child who is blind or disabled, or an individual with a disability can benefit from the assets transferred in any way, whether at the time of the transfer or at any time in the future.
A transfer, transfer instrument, or trust that provides for funds or property to pass to a beneficiary who is not the spouse, child who is blind or disabled, or an individual with a disability is not considered to be established for the sole benefit of one of these individuals. In order for a transfer to be considered to be for the sole benefit of one of these individuals, the instrument document must provide for the spending of the funds involved for the benefit of the individual on a basis that is actuarially sound based on the life expectancy of the individual involved.
An exception to the "for the sole benefit of" requirement exists for certain trusts. Under these exceptions, the trust instrument must provide that any funds remaining in the trust upon the death of the individual must go to the State, up to the amount of Medicaid benefits paid on the individual's behalf. In these instances, it is a requirement that the State is also a beneficiary of the trust.
15 DE Reg. 202 (08/01/11)
Fair market value is an estimate of the value of an asset, if sold at the prevailing price at the time it was actually transferred. In order to appraise the value of an asset, use the same criteria and methods that are used when determining Medicaid eligibility.
For an asset to be considered transferred for fair market value, or to be considered to be transferred for valuable consideration, the compensation received for the asset must be in a tangible form. A transfer for "love and consideration", for example, is not considered a transfer for fair market value. While relatives and family members legitimately can be paid for care they provide to the individual, it is presumed that services provided for free at the time were intended to be provided without compensation. Thus, a transfer to a relative for care provided for free in the past is considered a transfer of assets. However, an individual can rebut this presumption with tangible evidence that is acceptable to Medicaid.
Valuable consideration means that an individual receives in exchange for his or her right or interest in an asset some act, object, service, or other benefit which has a tangible value to the individual that is roughly equivalent to or greater than the value of the transferred asset.
The uncompensated value is the difference between the fair market value at the time of transfer (less any outstanding loans, mortgages or other encumbrances on the asset) and the compensation received for the asset.
Average monthly cost is the average cost to a private patient for a month of nursing facility services in Delaware at the time of application. The monthly rate is determined based on 365 days divided by 12 months or 30.42 days per month. This is not the average Medicaid per diem rate.
The look-back date is the earliest date on which a penalty for transferring assets for less than fair market value can be assessed. Penalties can be assessed for transfers which take place on or after the look-back date.
Penalties cannot be assessed for transfers which take place prior to the look-back date. See Section 20350.2.3 Look-back period for transfer of assets involving trusts
For long term care applications filed on or after 2/8/06 and assets transferred on or after 2/8/06, the look-back date is 60 months prior to the baseline date. The baseline date is the first date as of which the individual was:
institutionalized; AND
has applied for medical assistance under the state plan.
When an individual applies for Medicaid more than once (for example, he or she applies for Medicaid, is denied eligibility because of excess resources, and applies again 6 months later), the look-back date is 36 months prior to the baseline date. The baseline date is the first date (first time) the individual has applied for long term care Medicaid. Each individual has only one look-back date, regardless of the number of periods of institutionalization, applications for Medicaid, periods of eligibility, or transfers of assets. All transfers of assets after that date fall within the look-back period.
10 DE Reg. 1613 (04/01/07)
The look-back period is the period that begins with the look-back date and ends with the baseline date. It is the period of time prior to the baseline date (see above) during which a previous transfer of assets for less than fair market value can be penalized. It is important to remember that transfers which occur after the baseline date are also subject to penalty if they are made for less than fair market value.
Effective 2/8/06, the date of the Deficit Reduction Act of 2005 (DRA) enactment, the look-back period was extended from 36 months to 60 months. Any transfers that occur on or after 2/8/06 will be subject to a 60 month look-back period.
10 DE Reg. 1613 (04/01/07)
When an individual establishes a revocable trust and a portion is disbursed to someone else and not for the benefit of the grantor, that portion is treated as a transfer of assets. For a revocable trust, the transfer is considered to take place on the date upon which the payment to someone other than the grantor was made.
When an individual establishes an irrevocable trust in which all or a portion of the trust cannot be disbursed to or on behalf of the individual, that portion (the portion that is unavailable) is treated as a transfer of assets. For an irrevocable trust, the transfer is considered to have been made as of the date the trust was established or, if later, the date upon which payment to the grantor was foreclosed.
Whenever a portion of a trust is treated as a transfer (as described above), the look-back period is 60 months.
When a trust is irrevocable but some or all of the trust can be disbursed to or for the benefit of the individual (the portion that could be made available to the individual), the look-back period applying to disbursements made from this portion to another person is 60 months. Effective 2/8/06, the date of the DRA enactment, all trusts will be subject to a 60 month look-back period.
When an individual places assets into an irrevocable trust and can still benefit from those assets, the amount transferred is equal to any of those assets which are paid out for a purpose other than to or for the benefit of the individual. When an individual places assets in an irrevocable trust and can no longer benefit from some or all of those assets, that unavailable portion is considered as a transfer. The value of these assets is not reduced by any payments from the trust which may be made from these unavailable assets as a later date.
10 DE Reg. 1613 (04/01/07)
The penalty period is a period of ineligibility for long term care Medicaid services that is imposed when an individual makes a transfer of assets for less than fair market value. Under OBRA 93 there is no maximum limit on the penalty period for assets transferred after 8/10/93. The length of the penalty period is based on the value of the assets transferred and the cost of nursing facility care. The penalty period cannot exceed 30 months for assets transferred on or before 8/10/93.
The penalty date is the beginning date of each penalty period that is imposed for an uncompensated transfer. The penalty date for all individuals who transfer assets is the first day of the month in which the asset was transferred, provided that date does not occur during an existing penalty period. When a transfer takes place during an existing penalty period, whether imposed under the pre-OBRA 93 or post-OBRA 93 rules, a new penalty period cannot begin until the existing penalty period has expired.
The penalty period for an institutionalized individual is equal to:
- the total, cumulative uncompensated value of all assets transferred by the individual or spouse on or after the look-back date
divided by
- the average monthly cost to a private patient for nursing facility services at the time of application.
The resulting figure is the number of months the applicant will be ineligible for Medicaid.
In figuring periods of ineligibility, count full months only, regardless of the date in a month a transfer actually occurs. A full month is counted at the beginning of a period of ineligibility. That is, a period of ineligibility begins with the first day of the month in which a transfer has occurred. For example, if an individual has made a transfer on September 28, the period of ineligibility begins on September 1. If a calculation of the penalty period results in a partial month, round the days down to the end of the preceding month. For example, from a September 28 transfer, round down to make August the last month in the period. However, do not round a month up to the end of the month in which the transfer occurred. For example, do not round September 28 up to include the whole month of September.
Section 6011(b) for the Deficit Reduction Act amends section 1917(c)(1)(D) of the Act to change the start date of the penalty period, which is the period during which an individual is ineligible for Medicaid payment for long term care services because of a transfer of assets for less than fair market value.
The ineligibility period will begin with the LATER of:
The month during which assets have been transferred for less than fair market value; or
The date on which the individual is eligible for medical assistance under the State plan and is receiving institutional level of care services (based on an approved application for such services) that, were it not for the imposition of the penalty period, would be covered by Medicaid.
The penalty period cannot begin until the expiration of any existing period of ineligibility. The penalty period will continue to run for the number of days determined by dividing the total value of assets transferred within the look back period by the State's average daily cost to a private patient of a nursing facility services in the State. Once the penalty period is imposed, it will not be interrupted, but will continue to run even if the individual stops receiving institutional level of care.
For non-institutionalized individuals, the penalty date will not begin until the individual is receiving an institutional level of care.
Upon imposition of a period of ineligibility for long-term care level services because of an asset transfer, applicants/ recipients will be notified of the right to request an undue hardship waiver. In addition, long-term care providers may file an undue hardship waiver on behalf of the individual with the consent of the individual or the personal representative of the individual. See DSSM 20400.1.12.1.
10 DE Reg. 1613 (04/01/07)
OBRA 93 provides that the penalty period will be based on the total, cumulative uncompensated value of the assets transferred. When a single asset is transferred, or a number of assets are transferred, the penalty period is calculated using the total value of the asset(s). When assets are transferred at different times, use the following methods for calculating the penalty periods. This policy applies to assets that were transferred on or after 2/8/06 and applications that were filed on or after 4/1/06.
10 DE Reg. 1439 (03/01/07)
When assets have been transferred in amounts and/or frequency that would make the calculated penalty periods overlap, add together the value of all assets transferred to calculate a single penalty period. Fractional periods of ineligibility shall not be rounded down or otherwise disregarded when determining the penalty for a transfer of assets.
10 DE Reg. 1439 (03/01/07)
Repealed
10 DE Reg. 1439 (03/01/07)
The penalty period can be shortened to account for assets that are returned. If all assets transferred are returned to the individual, no penalty for transferring assets is assessed. Where a penalty has been imposed and eligibility has been denied, a return of the assets requires a retroactive adjustment back to the beginning of the penalty period. However, the assets that are returned must be counted in determining eligibility and may result in the individual being ineligible for Medicaid because of excess income/resources.
In order to void the penalty, all of the asset or its fair market equivalent must be returned. If, for example, the asset was sold by the individual who received it, the full market value of the asset must be returned to the transferor, either in cash or another equivalent value. If only part of an asset or its equivalent value is returned, the penalty period can be modified, but not eliminated.
When a spouse transfers an asset that results in a penalty for the individual (applicant) and then the spouse also applies for Medicaid and is otherwise eligible, the penalty period is apportioned between the spouses. The total penalty imposed on both spouses must not exceed the length of the penalty originally imposed on the individual.
A penalty period imposed for a transfer of assets runs continuously from the first date of the penalty period (the penalty date), regardless of whether the individual remains in or leaves the institution (or waiver program). If the individual leaves the institution, the penalty period continues to run until the end of the calculated period. If the individual is readmitted, the remaining penalty period (if any) must be imposed.
Where an asset is held by an individual in common with another person, or persons, via joint tenancy, tenancy in common, joint ownership, or similar arrangement, the asset is considered transferred by the individual when any action is taken, either by the individual or any other person, that reduces or eliminates the individual's ownership or control of the asset.
Under this provision, merely placing another person's name on an account or asset as a joint owner might not constitute a transfer of assets depending upon the specific circumstances of the situation. The individual may still possess ownership rights to the account or asset and therefore have the right to withdraw all of the funds in the account or possess the asset at any time. The account or asset is still be considered to belong to the individual. However, actual withdrawal of funds from the account, or removal of the asset, by the other person removes the funds or property from the control of the individual and this constitutes a transfer of assets. Although the withdrawal of funds is subject to the transfer of assets provision, the individual is provided an opportunity to rebut the presumption.
Also, if placing another person's name on the account or asset actually limits the individual's right to sell or dispose of the asset, this would constitute a transfer of assets. In other words, by adding another person's name the individual cannot sell or dispose of the asset without the other person's consent. For example, an individual has sole ownership of real property and adds another person's name as joint tenancy. He can no longer dispose of the property by himself. He has to have the other person's consent to do so.
Under OBRA 93, income, in addition to resources, is defined as an asset for transfer (and trust) purposes. Where an individual's income is given or assigned in some manner to another person, this is considered a transfer of assets for less than fair market value.
In determining whether income has been transferred, do not scrutinize an individual's spending habits during the 60 month look-back period. Absent evidence to the contrary, assume that ordinary household income was legitimately spent on the normal costs of daily living.
Attempt to determine whether the individual has transferred lump sum payments actually received in a month. Such payments, while counted as income in the month received for eligibility purposes, are counted as resources in the following month if they are retained. Therefore, disposal of such lump sum payments before they can be counted as resources could constitute an uncompensated transfer of assets.
Also, attempt to determine whether amounts of regularly scheduled income have been transferred. Normally, such a transfer takes the form of a transfer of the right to receive income. For example, a private pension may be diverted to a trust, and no longer be paid to the individual. An exception to the transfer of assets penalty for diverted income is a transfer into a Miller trust.
Explore the possibility of a transfer of income based on information given on the Medicaid application and through active questioning of the individual concerning sources of income, income levels in the past versus present, direct questions about giving income to others, etc.
When an individual has transferred income, or the right to income, a penalty for that transfer must be imposed. If a single lump sum is transferred (for example, a stock dividend check is given to another person in the month in which it is received by the individual), the penalty period is calculated on the basis of the value of the lump sum payment.
When a stream of income, or the right to a stream of income (such as a pension) is transferred, calculate the penalty period based on a determination of the total amount of income expected to be transferred during the individual's life based on an actuarial projection of the individual's life expectancy. Calculate the penalty period on the basis of the projected total income.
To make this determination, use the life expectancy tables, compiled from information published by the Office of the Actuary of the Social Security Administration.
See 20350.9 Life Expectancy Tables.
Tables
| Age | Life Expectancy | |
| 1 | 78.42 | |
| 2 | 77.48 | |
| 3 | 76.51 | |
| 4 | 75.54 | |
| 5 | 74.56 | |
| 6 | 73.57 | |
| 7 | 72.59 | |
| 8 | 71.60 | |
| 9 | 70.61 | |
| 10 | 69.62 | |
| 11 | 68.63 | |
| 12 | 67.64 | |
| 13 | 66.65 | |
| 14 | 65.67 | |
| 15 | 64.68 | |
| 16 | 63.71 | |
| 17 | 62.74 | |
| 18 | 61.77 | |
| 19 | 60.80 | |
| 20 | 59.83 | |
| 21 | 58.86 | |
| 22 | 57.89 | |
| 23 | 56.92 | |
| 24 | 55.95 | |
| 25 | 54.98 | |
| 26 | 54.02 | |
| 27 | 53.05 | |
| 28 | 52.08 | |
| 29 | 51.12 | |
| 30 | 50.15 | |
| 31 | 49.19 | |
| 32 | 48.23 | |
| 33 | 47.27 | |
| 34 | 46.31 | |
| 35 | 45.35 | |
| 36 | 44.40 | |
| 37 | 43.45 | |
| 38 | 42.50 | |
| 39 | 41.55 | |
| 40 | 40.61 | |
| 41 | 39.66 | |
| 42 | 38.72 | |
| 43 | 37.72 | |
| 44 | 36.85 | |
| 45 | 35.92 | |
| 46 | 35.00 | |
| 47 | 34.08 | |
| 48 | 33.17 | |
| 49 | 32.27 | |
| 50 | 31.37 | |
| 51 | 30.48 | |
| 52 | 29.60 | |
| 53 | 28.72 | |
| 54 | 27.86 | |
| 55 | 27.00 | |
| 56 | 26.15 | |
| 57 | 25.31 | |
| 58 | 24.48 | |
| 59 | 23.67 | |
| 60 | 22.86 | |
| 61 | 22.06 | |
| 62 | 21.27 | |
| 63 | 20.49 | |
| 64 | 19.72 | |
| 65 | 18.96 | |
| 66 | 18.21 | |
| 67 | 17.48 | |
| 68 | 16.76 | |
| 69 | 16.04 | |
| 70 | 15.35 | |
| 71 | 14.66 | |
| 72 | 13.99 | |
| 73 | 13.33 | |
| 74 | 12.68 | |
| 75 | 12.05 | |
| 76 | 11.43 | |
| 77 | 10.83 | |
| 78 | 10.24 | |
| 79 | 9.67 | |
| 80 | 9.11 | |
| 81 | 8.58 | |
| 82 | 8.06 | |
| 83 | 7.56 | |
| 84 | 7.08 | |
| 85 | 6.63 | |
| 86 | 6.20 | |
| 87 | 5.79 | |
| 88 | 5.41 | |
| 89 | 5.05 | |
| 90 | 4.71 | |
| 91 | 4.40 | |
| 92 | 4.11 | |
| 93 | 3.84 | |
| 94 | 3.59 | |
| 95 | 3.36 | |
| 96 | 3.16 | |
| 97 | 2.97 | |
| 98 | 2.80 | |
| 99 | 2.64 | |
| 100 | 2.48 | |
| 101 | 2.34 | |
| 102 | 2.20 | |
| 103 | 2.06 | |
| 104 | 1.93 | |
| 105 | 1.81 | |
| 106 | 1.69 | |
| 107 | 1.58 | |
| 108 | 1.48 | |
| 109 | 1.38 | |
| 110 | 1.28 | |
| 111 | 1.19 | |
| 112 | 1.10 | |
| 113 | 1.02 | |
| 114 | 0.96 | |
| 115 | 0.89 | |
| 116 | 0.83 | |
| 117 | 0.77 | |
| 118 | 0.71 | |
| 119 | 0.66 | |
| Age | Life Expectancy | |
| 1 | 71.53 | |
| 2 | 70.58 | |
| 3 | 69.62 | |
| 4 | 68.65 | |
| 5 | 67.67 | |
| 6 | 66.69 | |
| 7 | 65.71 | |
| 8 | 64.73 | |
| 9 | 63.74 | |
| 10 | 62.75 | |
| 11 | 61.76 | |
| 12 | 60.78 | |
| 13 | 59.79 | |
| 14 | 58.82 | |
| 15 | 57.85 | |
| 16 | 56.91 | |
| 17 | 55.97 | |
| 18 | 55.05 | |
| 19 | 54.13 | |
| 20 | 53.21 | |
| 21 | 52.29 | |
| 22 | 51.38 | |
| 23 | 50.46 | |
| 24 | 49.55 | |
| 25 | 48.63 | |
| 26 | 47.72 | |
| 27 | 46.80 | |
| 28 | 45.88 | |
| 29 | 44.97 | |
| 30 | 44.06 | |
| 31 | 43.15 | |
| 32 | 42.24 | |
| 33 | 41.33 | |
| 34 | 40.23 | |
| 35 | 39.52 | |
| 36 | 38.62 | |
| 37 | 37.73 | |
| 38 | 36.83 | |
| 39 | 35.94 | |
| 40 | 35.05 | |
| 41 | 34.15 | |
| 42 | 33.26 | |
| 43 | 32.37 | |
| 44 | 31.49 | |
| 45 | 30.61 | |
| 46 | 29.74 | |
| 47 | 28.88 | |
| 48 | 28.02 | |
| 49 | 27.17 | |
| 50 | 26.32 | |
| 51 | 25.48 | |
| 52 | 24.65 | |
| 53 | 23.82 | |
| 54 | 23.01 | |
| 55 | 22.21 | |
| 56 | 21.43 | |
| 57 | 20.66 | |
| 58 | 19.90 | |
| 59 | 19.15 | |
| 60 | 18.42 | |
| 61 | 17.70 | |
| 62 | 16.99 | |
| 63 | 16.30 | |
| 64 | 15.62 | |
| 65 | 14.96 | |
| 66 | 14.32 | |
| 67 | 13.70 | |
| 68 | 13.09 | |
| 69 | 12.50 | |
| 70 | 11.92 | |
| 71 | 11.35 | |
| 72 | 10.80 | |
| 73 | 10.27 | |
| 74 | 9.27 | |
| 75 | 9.24 | |
| 76 | 8.76 | |
| 77 | 8.29 | |
| 78 | 7.83 | |
| 79 | 7.40 | |
| 80 | 6.98 | |
| 81 | 6.59 | |
| 82 | 6.21 | |
| 83 | 5.58 | |
| 84 | 5.51 | |
| 85 | 5.19 | |
| 86 | 4.89 | |
| 87 | 4.61 | |
| 88 | 4.34 | |
| 89 | 4.09 | |
| 90 | 3.86 | |
| 91 | 3.64 | |
| 92 | 3.43 | |
| 93 | 3.24 | |
| 94 | 3.06 | |
| 95 | 2.90 | |
| 96 | 2.74 | |
| 97 | 2.60 | |
| 98 | 2.47 | |
| 99 | 2.34 | |
| 100 | 2.22 | |
| 101 | 2.11 | |
| 102 | 1.99 | |
| 103 | 1.89 | |
| 104 | 1.78 | |
| 105 | 1.68 | |
| 106 | 1.59 | |
| 107 | 1.50 | |
| 108 | 1.41 | |
| 109 | 1.33 | |
| 110 | 1.25 | |
| 111 | 1.17 | |
| 112 | 1.10 | |
| 113 | 1.02 | |
| 114 | 0.96 | |
| 115 | 0.89 | |
| 116 | 0.83 | |
| 117 | 0.77 | |
| 118 | 0.71 | |
| 119 | 0.66 |
Life Estate And Remainder Interest Table
| Age | Life Estate | Remainder |
| 0 | .97188 | .02812 |
| 1 | .98988 | .01012 |
| 2 | .99017 | .00983 |
| 3 | .99008 | .00992 |
| 4 | .98981 | .01019 |
| 5 | .98938 | .01062 |
| 6 | .98884 | .01116 |
| 7 | .98822 | .01178 |
| 8 | .98748 | .01252 |
| 9 | .98663 | .01337 |
| 10 | .98565 | .01435 |
| 11 | .98453 | .01547 |
| 12 | .98329 | .01671 |
| 13 | .98198 | .01802 |
| 14 | .98066 | .01934 |
| 15 | .97937 | .02063 |
| 16 | .97815 | .02185 |
| 17 | .97700 | .02300 |
| 18 | .97590 | .02410 |
| 19 | .97480 | .02520 |
| 20 | .97365 | .02635 |
| 21 | .97245 | .02755 |
| 22 | .97120 | .02880 |
| 23 | .96986 | .03014 |
| 24 | .96841 | .03014 |
| 25 | .96678 | .03322 |
| 26 | .96495 | .03505 |
| 27 | .96290 | .03710 |
| 28 | .96062 | .03938 |
| 29 | .95813 | .04187 |
| 30 | .95543 | .04457 |
| 31 | .95254 | .04746 |
| 32 | .94942 | .05058 |
| 33 | .94608 | .05392 |
| 34 | .94250 | .05750 |
| 35 | .93868 | .06132 |
| 36 | .93460 | .06540 |
| 37 | .93026 | .06974 |
| 38 | .92567 | .07433 |
| 39 | .92083 | .07917 |
| 40 | .91571 | .08429 |
| 41 | .91030 | .08970 |
| 42 | .90457 | .09543 |
| 43 | .89855 | .10145 |
| 44 | .89221 | .10779 |
| 45 | .88558 | .11442 |
| 46 | .87863 | .12137 |
| 47 | .87137 | .12863 |
| 48 | .86374 | .13626 |
| 49 | .85578 | .14422 |
| 50 | .84743 | .15257 |
| 51 | .83674 | .16126 |
| 52 | .82969 | .17031 |
| 53 | .82028 | .17972 |
| 54 | .81054 | .18946 |
| 55 | .80046 | .19954 |
| 56 | .79006 | .20994 |
| 57 | .77931 | .22069 |
| 58 | .76822 | .23178 |
| 59 | .75675 | .24325 |
| 60 | .74491 | .25509 |
| 61 | .73267 | .26733 |
| 62 | .72002 | .27998 |
| 63 | .70696 | .29304 |
| 64 | .69352 | .30648 |
| 65 | .67970 | .32030 |
| 66 | .66551 | .33449 |
| 67 | .65098 | .34902 |
| 68 | .63610 | .36390 |
| 69 | .62086 | .37914 |
| 70 | .60522 | .39478 |
| 71 | .58914 | .41086 |
| 72 | .57261 | .42739 |
| 73 | .55571 | .44429 |
| 74 | .53862 | .46138 |
| 75 | .52149 | .47851 |
| 76 | .50441 | .49559 |
| 77 | .48742 | .51258 |
| 78 | .47049 | .52951 |
| 79 | .45357 | .54643 |
| 80 | .43659 | .56341 |
| 81 | .41967 | .58033 |
| 82 | .40295 | .59705 |
| 83 | .38642 | .61358 |
| 84 | .36998 | .63002 |
| 85 | .35359 | .64641 |
| 86 | .33764 | .66236 |
| 87 | .32262 | .67738 |
| 88 | .30859 | .69141 |
| 89 | .29526 | .70474 |
| 90 | .28221 | .71779 |
| 91 | .26955 | .73045 |
| 92 | .25771 | .74229 |
| 93 | .24692 | .75308 |
| 94 | .23728 | .76272 |
| 95 | .22887 | .77113 |
| 96 | .22181 | .77819 |
| 97 | .21550 | .78450 |
| 98 | .21000 | .79000 |
| 99 | .20486 | .79514 |
| 100 | .19975 | .80025 |
| 101 | .19532 | .80468 |
| 102 | .19054 | .80946 |
| 103 | .18437 | .81563 |
| 104 | .17856 | .82144 |
| 105 | .16962 | .83038 |
| 106 | .15488 | .84512 |
| 107 | .13409 | .86591 |
| 108 | .10068 | .89932 |
| 109 | .04545 | .95455 |
The transfer provision does not apply to the HOME and title to the home transferred to:
In items d. and e. above the property cannot be excluded unless and until the assets are actually transferred. Also verification for this would consist of a written statement from the parent indicating that this situation existed. If the parent is not capable, a statement from an adult child or sibling and statements from two other adults indicating that the situation existed would suffice. Statements must specify the number of years spent in the home and the exact nature of the care provided.
The transfer provision does not apply to ANY asset transferred:
A transfer of assets or an establishment of a trust is considered to be for the sole benefit of a spouse, child with a disability, or individual under age 65, if the transfer is arranged in such a way that no individual except the spouse, child or individual can benefit from the assets in any way, either at the time of the transfer, or at any time in the future. If a beneficiary is named to receive the asset at the time of the individual's death, the transfer or trust will nevertheless be considered to have been made for the sole benefit of the individual if Medicaid is named as the primary beneficiary of the asset, up to the amount paid for services provided to the individual.
To determine whether an asset was transferred for the sole benefit of a spouse, child, or individual with a disability, obtain a legally binding, written document (such as a trust document). The document must clearly define the conditions under which the transfer was made, as well as who can benefit from the transfer. A transfer without such a document cannot be said to have been made for the sole benefit of the spouse, child, or individual with a disability, since there is no way to establish, without a document, that only the individual will benefit from the transfer.
Where it is alleged that an asset was transferred to or for the benefit of an individual who is blind or totally and permanently disabled, a determination must be made that the individual in fact meets the definition of blindness or disability used by the SSI program. If the individual is receiving either SSI or Title II benefits, accept the disability determination made for those programs. If the individual is not receiving those benefits, a separate disability determination must be made. The individual who is claiming the disability must submit acceptable medical evidence he has been determined disabled according to the standards used by the SSI program (Title XVI). The individual will be given a reasonable amount of time to provide the medical evidence.
10 DE Reg. 558 (09/01/06)
15 DE Reg. 202 (08/01/11)
A transfer of assets is exempt from consideration if the penalty would cause undue hardship. Undue hardship exists when application of the transfer of assets provisions would deprive the individual of medical care such that his/her life would be endangered. Undue hardship also exists when application of the transfer of assets provisions would deprive the individual of food, clothing, shelter or other necessities of life.
If an individual and/or couple alleges selling, giving away or otherwise transferring any non-excluded assets within the 60 months preceding the date of application, take the following steps:
If the asset was transferred at FMV, process the application as usual.
If the asset was transferred at less than FMV, explain to the applicant that an amendment to the Social Security Act requires that DSS presume, when assets are sold or given away at less than FMV, that the transaction was made for the purpose of establishing Medicaid eligibility. The difference between the amount received for the transfer and the FMV is counted as being available to meet the needs of the individual for a period after the date of disposal.
Explain that the law requires that DSS presume the transfer to be for the purpose of establishing Medicaid eligibility unless the individual can demonstrate that:
If the applicant does not wish to rebut the presumption, she/he will be ineligible for Medicaid for a specified period.
In all cases where any amount of uncompensated value is established, the applicant must be advised of the fact before the application is allowed or denied. The applicant should be given written notice that it was determined that she/he transferred an asset for less than fair market value and that this amount must be counted for eligibility purposes unless the individual wishes to rebut the presumption.
If an applicant wishes to rebut the presumption, the burden of proof rests with the applicant. The intent to rebut the presumption must be received in the DSS/Medicaid office within 15 days of the date of the notice. The following information should be obtained from the applicant and placed in the file:
Verbal statements that the individual intended to dispose of the asset at fair market value or that the individual transferred the asset for a purpose other than to qualify for Medicaid are not sufficient evidence. Convincing evidence must be presented as to the specific purpose for which the asset was transferred, as well as to the reason why the individual chose to transfer the asset. The validity of the individual's rebuttal must be determined on a case-by-case basis, based on the individual's specific circumstances.
The presence of one or more of the following factors, while not conclusive, may indicate that assets were transferred exclusively for some purpose other than establishing Medicaid eligibility. This list is not all-inclusive.
The presumption that an asset was transferred to establish Medicaid eligibility is successfully rebutted only if the applicant demonstrates that the asset was transferred exclusively for some other purpose. If the claimant had some other purpose for transferring the asset, and establishing Medicaid eligibility seems to have also been a factor in the decision to transfer, the presumption is not rebutted.
The decision should be documented in the case record. It should be signed by the social worker and countersigned by the supervisor. If the transfer has been proven to be exclusively for some purpose other than establishing Medicaid eligibility, the transfer has no effect on eligibility. The uncompensated value is not counted toward the resource limit.
16 Del. Admin. Code § 20000-20350