Exceptions to New York State Medicaid Asset Transfer Rules
There are certain exceptions to the Transfer of Assets Rules. Set forth below is a section of the Regulations of the State of New York which explains some of these exceptions.
(ii) General rule. In determining the MA eligibility of an institutionalized individual, any transfer of assets for less than fair market value made by the individual or the individual’s spouse within or after the look_back period will render the individual ineligible for nursing facility services, as explained in subparagraph (iv) of this paragraph.
(iii) Exceptions. An individual will not be ineligible for MA as a result of a transfer described in subparagraph (ii) of this paragraph if:
(a) the asset transferred was a disregarded or exempt asset under sections 360-4.4(d), 360-4.6 and 360-4.7 of this Subpart, other than a homestead; or
(b) the asset transferred was a homestead, as defined in section 360_1.4(f) of this Part, and title to the homestead was transferred to:
(1) the spouse of the individual; or
(2) a child of the individual who is blind, disabled, or under the age of 21; or
(3) a sibling of the individual who has an equity interest in such homestead and who was residing in such homestead for a period of at least one year immediately before the date the individual became an institutionalized individual; or
(4) a child of such individual who was residing in such homestead for a period of at least two years immediately before the date the individual became an institutionalized individual, and who provided care, as defined in section 311.4(a)(1) of this Title, to such individual which permitted such individual to reside at home rather than in an institution or facility; or
(c) (1) the asset was transferred:
(i) to the individual’s spouse or to another for the sole benefit of the individual’s spouse; or
(ii) from the individual’s spouse to another for the sole benefit of the individual’s spouse; or
(iii) to the individual’s child who is blind or disabled, or to a trust established solely for the benefit of such child; or
(iv) to a trust established solely for the benefit of an individual under 65 years of age who is disabled;
(d) (1) a satisfactory showing is made that:
(i) the individual or the individual’s spouse intended to dispose of the asset either at fair market value, or for other valuable consideration; or
(ii) the asset was transferred exclusively for a purpose other than to qualify for MA; or
(iii) all assets transferred for less than fair market value have been returned to the individual; or
(e) it is determined that the denial of eligibility will result in an undue hardship. Denial of eligibility will result in an undue hardship if:
(1) the institutionalized individual is otherwise eligible for MA;
(2) the institutionalized individual is unable to obtain appropriate medical care without the provision of MA; and
(3) despite his or her best efforts, the institutionalized individual or the individual’s spouse is unable to have the transferred asset returned or to receive fair market value for the asset. Best efforts include cooperating, as deemed appropriate by the commissioner of the social services district, in efforts to seek the return of the asset.
JAY J. SANGERMAN, ESQ.