2005 Connecticut Code - Sec. 17b-261a. Long-term care under the Medicaid program. Federal waiver re imposition of penalty period for transfer of assets for less than fair market value.

      Sec. 17b-261a. Long-term care under the Medicaid program. Federal waiver re imposition of penalty period for transfer of assets for less than fair market value. (a) The Commissioner of Social Services shall seek a waiver of federal law for the purpose of establishing that the penalty period during which an applicant for or recipient of assistance for long-term care under the Medicaid program is ineligible for Medicaid-funded services due to a transfer of assets for less than fair market value shall begin in the month the applicant is found otherwise eligible for Medicaid coverage of services rather than in the month of the transfer of assets. This section shall only apply to transfers that occur on or after the effective date of the waiver. The provisions of section 17b-8 shall apply to this section.

      (b) Any transfer or assignment of assets resulting in the imposition of a penalty period shall be presumed to be made with the intent, on the part of the transferor or the transferee, to enable the transferor to obtain or maintain eligibility for medical assistance. This presumption may be rebutted only by clear and convincing evidence that the transferor's eligibility or potential eligibility for medical assistance was not a basis for the transfer or assignment.

      (c) Any transfer or assignment of assets resulting in the establishment or imposition of a penalty period shall create a debt, as defined in section 36a-645, that shall be due and owing by the transferor or transferee to the Department of Social Services in an amount equal to the amount of the medical assistance provided to or on behalf of the transferor on or after the date of the transfer of assets, but said amount shall not exceed the fair market value of the assets at the time of transfer. The Commissioner of Social Services, the Commissioner of Administrative Services and the Attorney General shall have the power or authority to seek administrative, legal or equitable relief as provided by other statutes or by common law.

      (d) The Commissioner of Social Services, upon the request of a nursing facility, may grant financial relief to a nursing facility if the nursing facility establishes that (1) it is experiencing severe financial hardship due to the transfer of asset penalty period beginning in the month the applicant is found otherwise eligible for Medicaid coverage of services rather than in the month of the transfer of assets; and (2) it has made every effort permissible under state and federal law to recover the funds that are due to it for caring for the individual. No request for financial relief may be made by a nursing facility unless the individual who is the subject of the imposition of the penalty period has resided in the nursing facility for at least ninety days with no payment having been made on the individual's behalf during that period. If the department agrees to grant financial relief to the nursing facility in the form of providing Medicaid payment to the facility, the department shall seek recoupment of said payment from the individual and the transferee by pursuing all means available to it under state and federal law.

      (e) The Commissioner of Social Services may waive the imposition of a penalty period when the transferor (1) suffers from dementia at the time of application for medical assistance and cannot explain transfers that would otherwise result in the imposition of a penalty period; or (2) suffered from dementia at the time of the transfer; or (3) was exploited into making such a transfer. Waiver of the imposition of a penalty period does not prohibit the establishment of a debt in accordance with subsection (c) of this section.

      (f) In reviewing transfers of assets for purposes of determining eligibility for medical assistance, the department shall consider those transfers of assets involving real property that occurred within sixty months preceding the date on which an institutionalized individual has applied for medical assistance under the Medicaid state plan, except transfers of real property that are exempt under department regulations. Transfers of assets that do not involve real property remain subject to the look-back provisions contained in federal law.

      (g) The Commissioner of Social Services may establish threshold limits, which shall be the cumulative amount of transfers that may be made within any year of the look-back period without resulting in the imposition of a transfer of assets penalty.

      (h) The Commissioner of Social Services, pursuant to section 17b-10, shall implement the policies and procedures necessary to carry out the provisions of this section while in the process of adopting such policies and procedures in regulation form, provided notice of intent to adopt regulations is published in the Connecticut Law Journal not later than twenty days after implementation. Such policies and procedures shall be valid until the time final regulations are effective.

      (June Sp. Sess. P.A. 01-2, S. 4, 69; June Sp. Sess. P.A. 01-9, S. 129, 131; June 30 Sp. Sess. P.A. 03-3, S. 62; P.A. 04-16, S. 7.)

      History: June Sp. Sess. P.A. 01-2 effective July 1, 2001; June Sp. Sess. P.A. 01-9 revised effective date of June Sp. Sess. P.A. 01-2 but without affecting this section; June 30 Sp. Sess. P.A. 03-3 designated existing provisions as Subsec. (a), added Subsec. (b) providing that transfer of assets resulting in imposition of a penalty period is presumed to be made with intent of allowing transferor to remain eligible for medical assistance, added Subsec. (c) re transfers resulting in imposition of a penalty period creating a debt due and owing to the department, added Subsec. (d) permitting commissioner to grant financial relief to nursing facility that demonstrates severe financial hardship due to imposition of transfer of assets penalties, added Subsec. (e) permitting commissioner to waive transfer of assets penalty period when transferor suffers from dementia or was exploited into making transfer, added Subsec. (f) providing that department, when determining medical assistance eligibility, shall review transfers of assets involving real property occurring in the sixty months preceding the date the individual applied for medical assistance and that federal law governs transfers of assets not involving real property, added Subsec. (g) permitting commissioner to establish threshold limits re annual asset transfers not subject to penalty and added Subsec. (h) requiring commissioner to implement policies and procedures necessary to carry out purposes of section while in the process of adopting regulations, effective August 20, 2003; P.A. 04-16 made technical changes in Subsec. (h).