(a) Eligibility Requirements. - (i) Aged, Blind, or Disabled. The applicant/client shall be:
- (A) Age sixty-five (65) or over;
- (B) Legally blind as certified by an optical professional or the Social Security Administration (SSA); or
- (C) An individual who is determined disabled by the SSA or the Department, as specified in Section 1614(a)(3) of the Social Security Act; 42 C.F.R. Chapter IV, Subchapter C, Part 435, Subpart F; and 20 C.F.R. Chapter III, Part 416, Subpart I.
(b) The following individuals are eligible for Medicaid: - (i) Individuals entitled to Supplemental Security Income (SSI), as specified in Section 1902(a)(10)(A)(i)(II) of the Social Security Act.
- (ii) Any aged, blind, or disabled individual who loses eligibility for Supplemental Security Income (SSI) benefits due to an increase in income, but who would be eligible for SSI if the Cost of Living Adjustments (COLA) received since the SSI termination were disregarded, as specified in 42 C.F.R. § 435.135.
- (iii) A child who was receiving SSI on the date of the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and lost SSI due to the new definition of disability, as determined by the SSA.
- (iv) Individuals who lose SSI benefits due to the entitlement of SSA widow/widower benefits, as specified in Section 1634(b) of the Social Security Act.
- (v) Individuals who are Aged, Blind or Disabled and reside in a medical institution, receive hospice services in accordance with a voluntary election, or receive Home and Community Based Services (HCBS) under a waiver pursuant to Section 1915(c) of the Social Security Act and have income at or below three hundred percent (300%) of the Supplemental Security Income (SSI) payment standard, as specified in 42 C.F.R. § 435.1005. Individuals shall reside in a medical institution for thirty (30) consecutive days or more, unless the individual is eligible for SSI or dies before completion of the thirty (30) consecutive days, as specified in Section 1902(a)(10)(A)(ii)(V) of the Social Security Act.
(c) Treatment of Income. - (i) Income of a spouse is available to the other spouse for individuals described in Section 8(a) above.
- (ii) A parent's income is available to a child until the month after the child attains age eighteen (18) if the child lives in the parent's home. A parent's income is not available to a child if the child is married, institutionalized for more than thirty (30) days, or if the child applies for assistance under a Home and Community Based Services waiver pursuant to Section 1915(c) of the Social Security Act or the Employed Individuals with Disabilities program.
- (iii) Income of a spouse is not deemed available to the other spouse when applying for Inpatient Hospital Care, Employed Individuals with Disabilities, Nursing Home, Hospice, or Home and Community Based Services under a waiver, pursuant to Section 1915(c) of the Social Security Act.
- (iv) To qualify for an Income Trust exception, as specified in Section 1917 of the Social Security Act and Wyoming Statute § 42-2-403:
- (A) The trust shall be irrevocable.
- (B) The trust shall be composed only of pension, Social Security, and other income to the individual and accumulated income in the trust;
- (C) The trust shall provide that the state will receive all amounts remaining in the trust upon the death of the individual up to an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.
- (D) The trust shall allow a monthly distribution of three hundred percent (300%) of the Supplemental Security Income Federal Payment, as prescribed in 42 C.F.R. § 435.1005, for programs with no patient contribution, reasonable costs of administering the trust, and a Community Spouse allowance according to Section 1924 of the Social Security Act.
- (E) The trust shall allow a monthly distribution to pay towards the cost of nursing facility services, less allowable deductions. Deductions shall be allocated, as specified in 42 C.F.R. § 435.725, except the trust may provide that the trustee pay any reasonable costs of administering the trust.
- (F) No portion of the principal shall be considered available to the individual.
- (G) Transfer Penalties. Penalties for transferred resources shall not apply to resources transferred into an Income Trust.
(d) Treatment of Resources. - (i) Resources shall be available to the applicant or client when the applicant or client has the legal right, authority, or power to make the resource available, as specified in 20 C.F.R. Chapter. III, Part 416, Subpart L.
- (ii) Resources shall be determined to be unavailable to the applicant or client when there is a legal impediment that precludes the disposal of the resource. The applicant or client shall pursue reasonable steps to overcome the legal impediment unless it is determined by the Department that the cost of pursuing legal action would exceed the resource value of the property or that it is unlikely the applicant or client would succeed in the legal action.
- (iii) Real property shall be determined to be unavailable if the property cannot be sold because the property is jointly owned and its sale would cause undue hardship through the loss of housing for the other owner or owners, or because reasonable efforts to sell the property have been unsuccessful.
- (iv) Medicaid may disregard any resources claimed by an applicant or client in an amount equal to or less than the benefits paid on behalf of the individual by a Qualified Long-Term Care Partnership Policy.
- (A) "Qualified Long-Term Care Partnership Policy" means a policy that meets all of the requirements as specified in Wyoming Statute § 42-7-102(a)(v).
- (v) Resources shall not exceed the SSI resource limits, as specified in 20 C.F.R. § 416.1205, except that individuals who are Aged, Blind or Disabled and reside in a medical institution, receive Hospice Services, or receive Home and Community Based Services under a waiver shall receive an additional Community Spouse allowance as specified in Section 1924 of the of the Social Security Act.
- (vi) Trusts.
- (A) Revocable Trusts. The principal of a revocable trust shall be an available resource when the applicant or client can revoke the trust and reclaim the trust resources.
- (B) Irrevocable Trusts.
- (I) The principal of an irrevocable trust shall be an available resource when:
- (1.) The resources of the individual or spouse were used to form all or part of the principal of the trust; and
- (2.) Payments from the trust could be made available to or for the benefit of the individual or spouse. The portion of the principal from which payments could be made available to or for the benefit of the individual or spouse shall be an available resource. If the terms of a trust provide for the support of the applicant or client, the refusal of a trustee to make a distribution from the trust does not render the trust an unavailable resource.
- (II) The principal of an irrevocable trust shall be determined to be unavailable when the resources of someone other than the individual or spouse (i.e., a third party) were used to form the principal of the irrevocable trust unless the terms of the trust permit the individual to require the trustee to distribute principal or income to the individual or spouse.
- (III) Payments made from the portion of the principal of an irrevocable trust to or for the benefit of the individual shall be income of the individual.
- (C) Special Needs Trusts shall be established in accordance with Wyoming Statute § 42-2-403(f)(i) and Section 1917 of the Social Security Act.
- (I) The Trustee shall obtain the consent of the Department prior to early termination of a Special Needs Trust pursuant to Wyoming Statute § 4-10-412. The Department shall consent to termination of a Special Needs Trust prior to the individual's death when a court order is entered providing that the Department shall be fully reimbursed from the Special Needs Trust
- (II) All Special Needs Trusts shall have a valid spendthrift provision that complies with the laws of every state in which the individual has received Medicaid benefits.
- (III) To qualify for a Special Needs Trust exception and exclude the resources within the trust, the Special Needs Trust shall:
- (2.) Be established for the sole benefit of an individual who is under age sixty-five (65) and disabled according to the criteria set forth in 42 U.S.C. § 1382c(a)(3);
- (3.) Contain only the assets of a disabled individual who is under age sixty-five (65) when the trust is established. Any assets placed in the trust after age sixty-five (65) are not subject to the exception;
- (4.) Be established by a parent, grandparent, legal guardian or a court consistent with Wyoming Statutes §§ 42-2-403(f), 4-10-401(a)(iv) and 3-3-607(a)(vi); and
- (5.) Provide that the state shall receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total amount of medical assistance paid on behalf of the individual.
- (IV) The Trustee shall obtain the consent of the Department prior to early termination of a Special Needs Trust pursuant to Wyoming Statute § 4-10-412, and the Department shall be joined as a party to any such proceedings and served with a copy of all pleadings.
- (V) The Department is a Qualified Beneficiary pursuant to Wyoming Statute § 4-10-103 and shall consent to termination of a Special Needs Trust pursuant to Wyoming Statutes §§ 4-10-412 and 4-10-415 prior to death when a court order is entered providing that the Department shall be fully reimbursed from the Special Needs Trust.
- (VI) Distributions.
- (1.) Distributions from the Special Needs Trust shall be for the sole benefit of the disabled individual and shall be used to provide for the individual's special needs.
- (2.) Distributions for funeral expenses shall not be paid after the beneficiary's death until the Department and all other state Medicaid agencies are fully reimbursed.
- (3.) Distribution for basic needs shall only be allowed when the Trustee has proven to the Department that the disabled individual's basic needs are not adequately being provided for by government assistance programs.
- (VII) Contributions. All contributions from third parties to the trust shall be deemed a completed gift to the disabled individual, and the third party may not obtain a refund, redirect resources transferred to the trust, or otherwise exert any interest or control over the resources in the trust.
- (VIII) Structured Settlements, Annuities. When the trust has been or will receive annuity payments, structured settlement payments, or any other periodic payments, the payments shall be titled in the name of the Special Needs Trust.
- (IX) Accountings. The trustee shall provide an annual accounting of the trust income and expenditures. The Department may request more frequent accountings at its discretion.
- (X) Income. All distributions to or for the benefit of the individual, unless paid directly to a third party, shall be income to the individual.
- (XI) Principal. No portion of the principal shall be available to the individual.
- (XII) Repayment to the Department and Final Accounting. When the individual beneficiary dies or the trust is terminated, the trustee shall notify the Department and provide a sworn affidavit and an accounting within two (2) months after the individual's death.
- (D) Pooled Trusts shall be established in accordance with Wyoming Statute § 42-2-403(f)(iii) and Section 1917 of the Social Security Act.
- (I) To qualify for a Pooled Trust exception and exclude the resources, including the principal within the trust, the pooled trust shall:
- (2.) Be established for the sole benefit of an individual who is under age sixty-five (65) and disabled according to the criteria set forth in 42 U.S.C. § 1382c(a)(3), by the parent, grandparent, legal guardian of the disabled individual, by the disabled individual, or by a court;
- (3.) Be established and managed by a non-profit association;
- (4.) Maintain a separate account and Joinder Agreement for each beneficiary, but for the purposes of investment and management of funds, the accounts are pooled; and
- (5.) Provide that to the extent that amounts remaining in a beneficiary's account upon the death of the individual beneficiary are not retained by the trust, the trust pays to the state from the remaining amount in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.
- (II) Distributions. The pooled trust shall provide that all distributions shall be for the sole benefit of the disabled individual and shall be used to provide for the individual's special needs.
- (1.) Any distribution from the trust paid directly to the disabled individual shall be considered available income.
- (2.) Distributions for funeral expenses may not be paid after the beneficiary's death until the Department and all other state Medicaid agencies are fully reimbursed.
- (III) Transfer Penalties. Penalties for transferred resources shall not apply to resources transferred into a Pooled Trust, except that all amounts transferred to the Pooled Trust by an individual or his spouse after age sixty-five (65) shall be subject to a transfer penalty as specified in subsection (h) below.
(e) Special Circumstances. If an individual otherwise meets the criteria for the Comprehensive, Support or Acquired Brain Injury Waiver, but does not meet the income or resource requirements, the individual may retain waiver services through the Employed Individuals with Disabilities program. - (vii) Personal Care Contracts
- (A) A "Personal Care Contract" (PCC) is an agreement between a caregiver and an aged, blind or disabled individual to provide caregiver services for fair market value. Payments made to family members through a PCC to delay or prevent entrance into a long term care facility are considered transfers for fair market value only if the agreement meets the requirements in this Section and documentation is provided to the Department upon request.
- (B) The PCC shall be a detailed writing that includes:
- (I) The date the care begins,
- (II) A detailed description of the services to be provided,
- (III) How often services will be provided,
- (IV) How much the caregiver will be compensated,
- (IV) When the caregiver will be compensated,
- (V) How long the agreement is to be in effect,
- (VI) A statement that the terms of the agreement can be modified only by mutual agreement of the parties,
- (VII) The location where services will be provided, and
- (VIII) The notarized signature of both parties.
- (C) The following services may be provided through a PCC: preparing meals, shopping, medication management, transportation to medical appointments, paying bills, light housekeeping, and assistance with activities of daily living.
- (I) Duplication of Services. No services shall be provided under a PCC while an individual resides in a long term care facility or receives services under a Waiver program. A caregiver shall not duplicate services provided by a home health aide, nurse, medical professional, or other care provider hired to assist the applicant or client regardless of whether the individual resides in a long term care facility or receives services within their home.
- (II) "Advocating for services" shall not be an allowable service under a PCC.
- (D) The Department shall verify the fair market value of these services through the use of the U.S. Department of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook.
- (E) The applicant or client shall submit detailed logs to clearly identify the services provided under the PCC. The logs shall include the date, time, amount paid, and services provided.
- (F) Caregivers shall not receive payment in advance of services performed. Prepayments made to caregivers shall be considered a transfer for less than fair market value.
- (G) Caregivers receiving compensation under a PCC shall report compensation as income for tax purposes. Documentation of income reporting shall be provided to the Department upon request.
- (H) Retroactivity. A PCC shall not be retroactive and shall be considered a transfer for less than fair market value in accordance with subsection (h) of this Chapter.
(f) Patient Contribution. - (i) Deductions from the client's gross income shall be allowed in determining the amount of the client's monthly contribution to be paid toward the cost of care in a medical facility.
- (ii) Allowable deductions shall be applied in accordance with the Social Security Act, 42 C.F.R. Chapter IV, Subchapter C, Part 435, Subpart I and the Medicaid State Plan.
- (iii) An individual temporarily in an institution shall be allowed a maintenance deduction not to exceed one hundred fifty dollars ($150.00) per month for up to six (6) months to maintain the home, except:
- (A) The deduction is not allowed when a physician verifies the client will not be able to return to the home within six (6) months; and
- (B) The deduction is not allowed if the client has a spouse who is not institutionalized.
- (iv) Deductions for a community spouse who lives in the community when the married partner lives in a medical institution, receives services under a Home & Community Based Services Waiver, or Hospice Care, shall be applied in the manner prescribed in Title XIX of the Social Security Act, 42 C.F.R. Chapter IV, Subchapter. C, Part 435, Subpart I and the Medicaid State Plan.
(g) Benefits. Benefits begin: - (i) After completion of thirty (30) consecutive days in a medical institution or thirty (30) days after a hospice election. Benefits begin the first day of the month of entry into the medical institution when all eligibility requirements are met.
- (ii) Home and Community Based Services begin on the first day of the month during which the plan of care is approved by the Department.
(h) Transfer penalties are imposed as follows: - (i) A transfer penalty shall be imposed for nursing facility or home and community based services when an individual or the individual's spouse disposes of income or resources for less than fair market value on or after the look-back period, as prescribed in Section 1917(c) of the Social Security Act, 42 U.S.C. § 1396p(c), and Wyoming Statute § 42-2-402.
- (A) Fair Market Value means an estimate of the value of a resource if sold at the prevailing price at the time it was actually transferred.
- (I) When determining the value of real property, fair market value shall be based on an appraisal or market analysis of the resource at the time of the sale or transfer of the property. The applicant or recipient has the obligation to provide the Department with an appraisal or market analysis. Failure to provide the requested documentation shall result in a denial of eligibility in accordance with Section 4(c)(iii) of this Chapter.
- (II) For a resource to be considered transferred for fair market value or to be considered to be transferred for valuable consideration, the compensation received for the resource shall be in a tangible form with intrinsic value. A transfer for love and consideration is not considered a transfer at fair market value. Services provided for free at the time were intended to be provided without compensation.
- (1.) A transfer to a relative for care provided for free in the past is a transfer for less than fair market value. An individual can rebut this presumption with tangible evidence that is acceptable to the Department. Such evidence shall be in writing at the time services were provided to be considered by the Department.
- (ii) A transfer penalty shall be reduced in the amount of returned resources to the applicant or recipient. The amount of returned resources shall be determined using Fair Market Value, as defined in (h) of this Section.
- (A) A return of resources to pay for attorney fees during a contested case shall not reduce the penalty period for the applicant or recipient. Attorney fees are the sole responsibility of the contestant under Chapter 4.
- (iii) Undue hardship, as specified in Section 1917(c) of the Social Security Act, shall apply to transfer of resource penalties. Any request for an undue hardship shall be made in writing and include documentation to support and demonstrate an undue hardship in accordance with this Section.
- (A.) It is presumed that a transfer for less than fair market value was made for the purpose of qualifying for Medicaid in the following circumstances.
- (I) An inquiry about Medicaid benefits was made, by or on behalf of the individual, to any person before the date of the transfer, or
- (II) A transfer was made by the individual or on the individual's behalf to a relative of the individual, a relative of the individual's spouse, or to the individual's fiduciary.
- (1.) "Relative" means a parent, child, stepchild, grandparent, grandchild, brother, sister, stepbrother, stepsister, aunt, uncle, niece, nephew, whether by birth or adoption, and whether by whole or half-blood, of the individual or the individual's current or former spouse.
- (2.) "Fiduciary" means an individual's attorney-in-fact, guardian, conservator, legal custodian, caretaker, trustee, attorney, accountant, or agent."
- (B) Undue hardship will be considered if the transfer penalty would deprive the individual of food, clothing, shelter, or other necessities of life or medical care such that the individual's health or life would be endangered and one of the following has occurred:
- (I) It is determined that the receiving party cannot be located by the individual, the individual's spouse, the individual's fiduciary, or an agent of the nursing facility, after all attempts to locate the receiving party have been exhausted; or
- (II) The resource transferred was due to theft, fraud, or financial exploitation of the individual or their spouse, which has been reported and pursued through Adult Protective Services or law enforcement; or
- (III) The individual or their fiduciary has exhausted all reasonable legal means to recover or regain possession or obtain fair market value of the transferred resource or income.
- (1.) "Exhausting all reasonable legal means to recover" may include seeking the advice of an attorney and pursuing legal or equitable remedies, such as asset freezing, assignment, or injunction; seeking modification, avoidance, or nullification of a financial instrument, promissory note, mortgage, or other transfer agreement; cooperating with any attempt to recover the transferred asset; making a referral to Adult Protective Services; filing a police report; and seeking recovery through the court.
- (C) Undue hardship does not exist when:
- (I) The applicant or client transferred the resource in order to qualify for Medicaid;
- (II) The imposition of the transfer penalty is only an inconvenience or may restrict the applicant's lifestyle;
- (III) The undoing of a transfer would cause adverse tax consequences, interest charges, or other contract damages;
- (IV) The undoing of a transfer would cause hardship to an individual who is not the applicant or client; or
- (V) The applicant or client does not meet the criteria as set forth in Subsection (B).
(i) Reporting Changes. Clients shall be responsible for reporting to the Department any changes in the following: - (iv) Health insurance; and
048-18 Wyo. Code R. § 18-8