Subchapter A. GENERAL PROVISIONS FOR MA
RESOURCES COMMON TO ALL CATEGORIES OF MA


GENERAL PROVISIONS FOR MA RESOURCES

Sec.


178.1.    General policy on MA resources common to all categories of MA.
178.2.    Definitions.
178.3.    Resource reporting and verification for all categories of MA.
178.3a.    Clarification of disclosure requirement on ownership of annuities—
statement of policy.

178.4.    Treatment of resources for all categories of MA.
178.5.    Treatment of irrevocable burial reserves for all categories of MA.
178.6.    Third-party liability for all categories of MA.
178.7.    Treatment of trust amounts for all categories of MA for trusts
established on or after July 30, 1994.

CATEGORIES OF MA


178.11.    Categories of NMP-MA.
178.12.    Categories of MNO-MA.

Cross References

   This subchapter cited in 55 Pa. Code §  140.241 (relating to items that are not counted as income); 55 Pa. Code §  140.273 (relating to unearned income exclusions); 55 Pa. Code §  140.291 (relating to treatment of lump sum payments); 55 Pa. Code §  140.301 (relating to resource eligibility limitations); and 55 Pa. Code §  178.121 (relating to general).

GENERAL PROVISIONS FOR MA RESOURCES


§ 178.1. General policy on MA resources common to all categories of MA.

 (a)  An applicant/recipient is resource eligible for MA if his total resources considered in determining resource eligibility do not exceed the MA resource limit in Appendix A for the appropriate MA Program. Revisions to the MA Resource limits will be published as a notice in the Pennsylvania Bulletin, recommended for codification in the Pennsylvania Code. The MA resource limits are based on the following:

   (1)  For aged, blind or disabled persons requesting NMP-MA, 42 CFR 435.721 (relating to general requirements) requires that the SSI resource limit at 20 CFR 416.1205 (relating to limitation on resources) be used.

   (2)  For children and their parents requesting NMP-MA, 42 CFR 435.711 (relating to general requirements) requires that the state’s AFDC resource limit at 45 CFR 233.20(a)(3)(i)(B) (relating to need and amount of assistance) be used.

   (3)  For individuals requesting NMP-MA who do not fall under the Federal categories, the GA resource limits at section 432.5 of the Public Welfare Code (62 P. S. §  432.5) are used.

   (4)  For persons requesting MNO-MA, 42 CFR 435.840 and 435.841 (relating to medically needy resource standards: General requirements; and medically needy resource standards: Reasonableness) require a reasonable standard approved by the Health Care Financing Administration.

 (b)  Resources are counted in determining resource eligibility for MA, unless specifically excluded in this chapter.

 (c)  An applicant/recipient is ineligible for MA on the date that his resources exceed the MA resource limit in Appendix A for the appropriate MA Program and he remains resource ineligible until his resources are equal to, or less than, the resource limit. The disposition of excess resources shall meet the fair consideration provisions for the appropriate program.

 (d)  Resources are considered at their equity value unless specified otherwise. The equity value of nonexcluded real property which is legally available to the applicant/recipient is a resource.

 (e)  A person receiving AFDC, GA, SBP or SSI and who is living in the household of a person applying for, or receiving, MA is not included in the determination of MA eligibility.

 (f)  Resources which are not excluded shall be reviewed to determine if they are actually available. Only those resources which are actually available are considered resources when determining MA eligibility.

 (g)  An applicant/recipient shall take reasonable steps to obtain and make available resources to which he is, or may be, entitled unless he can show good cause for not doing so.

 (h)  The reimbursement provisions of the cash assistance programs do not apply to MA.

 (i)  If an applicant/recipient converts or sells a resource, whether excluded or nonexcluded, the newly acquired cash or item is a resource and is subject to the appropriate resource criteria for continuing eligibility.

 (j)  Resources used by the applicant to pay for medical expenses during the retroactive eligibility period or the continuing eligibility period are not counted once the resources are used to pay the medical expenses.

Notes of Decisions

   Total Resources

   When real property is held by medical assistance recipient in joint-tenancy, each co-owner is entitled to an equal share of proceeds from sale of the real estate, regardless of who paid the mortgage, taxes, and all expenses. LaFond v. Department of Public Welfare, 933 A.2d 159, 163—164 (Pa. Cmwlth. 2007).

   Applicant was not entitled to medical assistance long-term care benefit, where applicant’s checking account, variable annuity, and excess burial reserve provided her with resources in excess of allowable limit. Debone v. Department of Public Welfare, 929 A.2d 1219, 1222 (Pa. Cmwlth. 2007).

   Principal of discretionary support trust was available resource for purposes of determining applicant’s eligibility for medical assistance long-term care benefits; applicant was sole life beneficiary, was not receiving public assistance at time trust was created, trustees could use principal for applicant’s benefit, and division of assets between trust’s two funds appeared to have been controlled by federal estate tax considerations, not by any particular intent to preserve portion of principal for remaindermen. Debone v. Department of Public Welfare, 929 A.2d 1219, 1224 (Pa. Cmwlth. 2007).

   The Department properly terminated recipient’s Medical Assistance after she received disability insurance proceeds that caused her resources to exceed the applicable eligibility limit. Filoon v. Department of Public Welfare, 819 A.2d 188 (Pa. Cmwlth. 2003).

§ 178.2. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Annuity—An investment contract or policy which gives the right to receive fixed, periodic payments, either for life or a term of years.

   Applicant/recipient—A person who is applying for, or receiving, MA or a group of related persons who are living together and who choose to apply for, or receive, MA as one group.

   Assets—Income and resources of the individual and of the individual’s spouse, including income or resources which the individual or the individual’s spouse is entitled to but does not receive because of action by one of the following:

     (i)   The individual or the individual’s spouse.

     (ii)   A person or a court or administrative body with legal authority to act in place of, or on behalf of, the individual or the individual’s spouse.

     (iii)   A person or a court or administrative body acting at the direction or upon the request of the individual or the individual’s spouse.

   Burial reserve—Funds or other resources, whether revocable or irrevocable, held in trust or under contract with a financial institution or a funeral director and designated for burial expenses. The term may also be known as funeral reserves, funeral agreements, prepaid funeral agreements, burial funds, burial agreements or similar names.

   Burial space—Conventional grave sites, crypts, burial drawers, mausoleums, urns and other repositories customarily used to deposit the remains of deceased persons.

   Community spouse—The spouse living at home who has a spouse who had lived at home but is now an institutionalized spouse.

   Disposition of property—The transfer of ownership of, or an interest in, a property. This can be accomplished by the sale, exchange or transfer of the title, or by diminishing the value of an interest through the placing of an encumbrance or by adding a person to the title.

   Equity value—The FMV less legal encumbrances, including liens and mortgages.

   FMVFair Market Value—The price which property can be expected to sell for on the open market or would have been expected to sell for on the open market in the geographic area in which the property is located.

   Fair consideration—Compensation in cash or in kind which is approximately equal to the FMV of the transferred property.

   IRC—Internal Revenue Code (26 U.S.C.A. § §  1—1043).

   Immediate family—The child, the biological or adoptive parent of a child under 21 years of age, the spouse of the parent, and the brother, sister, stepbrother, step-sister, half-brother or half-sister who are under 21 years of age. The immediate family members must be living together.

   Institutionalized individual/person—An individual who is receiving nursing facility care.

   Institutionalized spouse—The spouse who is receiving skilled care, heavy care/intermediate services or intermediate care in a nursing facility or other medical institution, including services in an ICF/MR facility, for a period likely to last for at least 30 consecutive days.

   Irrevocable trust—A trust which cannot, in any way, be revoked by the grantor.


   Jointly-owned resources—Resources which have more than one owner.

   LRRLegally Responsible Relative—The spouse of a person, or the natural or adoptive parent of a child under the age of 21.

   Liquid resources—Resources that are in cash or financial instruments which can normally be converted to cash. The term includes cash on hand, savings and checking accounts, stocks, bonds, mutual fund shares, money certificates, promissory notes and mortgages.

   Look-back date/look-back period—The specified period of time immediately before the date of an institutionalized individual’s application for MA benefits which determines the earliest date on which a transfer of assets for less than FMV can result in ineligibility for MA.

   MCCA—The Medicare Catastrophic Coverage Act of 1988 (Pub. L. 100-360, 102 Stat. 683) (July 1, 1988).

   Motor vehicle—A passenger car, truck, motorcycle or other motor vehicle that can be used to transport persons or goods, and is of a type permitted to travel on highways of this Commonwealth.

   NFCNursing Facility Care—Skilled care, heavy care/intermediate services or intermediate care in a nursing facility or other medical institution.

   Nonliquid resources—Real or personal property not considered liquid resources.

   Nonresident property—Real property that is not used as the principal place of residence by the applicant/recipient, his spouse or his dependent minor or incompetent adult children.

   Parent—The natural or adoptive parent.

   Personal property—Privately owned possessions which are not real property. The term includes cash, bank accounts, stocks, bonds, mortgages, cash value of life insurance policies, household furnishings, personal effects, motor vehicles, boats and Federal, State and local tax refunds.

   Real property—Land, buildings, mobile homes and improvements thereto.

   Rebuttable presumption—A rule of evidence which permits the Department to assume that when certain facts are true, other facts are true, without having proof of those other facts. The presumption is automatic, and can be disproved or rebutted only by the applicant/recipient presenting evidence at a prehearing conference or a Departmental fair hearing. If the applicant/recipient presents no evidence at the prehearing conference or at the fair hearing to disprove the presumption, the presumption remains unrebutted and stands.

   Resident property—Real property used as the principle place of residence by the applicant/recipient, his spouse or his dependent minor or incompetent adult children.

   Resource—Real or personal property which a person has or can make available for partial or total support, including equitable interests and partial interests. The term does not include credit.

   Revocable trust—A trust which can be revoked by the grantor, including a trust which provides that it can be modified or terminated only by a court, and a trust which is called irrevocable but will terminate if some action is taken by the grantor.

   SSISupplemental Security Income—The benefit amount paid to an eligible person or to an eligible person and his eligible spouse under Title XVI of the Social Security Act (42 U.S.C.A. § §  1381—1383d).

   Spouse—A person who is married to another by legal ceremony or by common-law.

   Trust—An arrangement in which a grantor transfers property to a trustee with the intention that it be held, managed or administered by the trustee for the benefit of the grantor or other designated individuals. The term also includes any legal instrument or device that is similar to a trust, but excludes trusts established by will, which are subject to §  178.4 (relating to treatment of resources for all categories of MA).

   Trustee—An individual or entity such as an insurance company or bank that manages a trust.

   UVUncompensated Value—The amount remaining after the FMV of a property at the time of transfer is reduced by the following amounts in the order listed:

     (i)   The cost of sale/transfer and encumbrances.

     (ii)   The amount of compensation received.

   Undue hardship—Exists when denial of MA would deprive the individual of medical care and endanger the individual’s health or life; also exists when the individual or a financially dependent family member would be deprived of food, clothing, shelter or other necessities of life.

Authority

   The provisions of this §  178.2 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § §  201(2) and 403(b)).

Source

   The provisions of this §  178.2 adopted August 26, 1988, effective November 1, 1988, 18 Pa.B. 3979; amended August 28, 1992, effective upon publication and apply retroactively to October 1, 1989, 22 Pa.B. 4432; amended December 23, 1994, effective December 24, 1994, and apply retroactively to January 4, 1991 and July 30, 1994, 24 Pa.B. 6423; amended June 15, 2001, effective June 16, 2001, 31 Pa.B. 3196. Immediately preceding text appears at serial pages (220367) to (220368) and (261249) to (261251).

Notes of Decisions

   Fair Consideration

   Nursing home resident’s act of ‘‘lending’’ available assets to a trust for less than fair consideration warranted denial of her application for Medical Assistance, where the resident was surrendering her principal for 4 years on unsecured loans for a sizeable amount of money and was receiving what amounted to a 2% monthly interest payment in return; thus, it was not apparent how the resident would receive any real benefit or consideration from the transaction (aside from the solace of transferring assets to her adult child, which is not of itself a protected transaction under the Medicaid law). Pyle v. Department of Public Welfare, 730 A.2d 1046 (Pa. Cmwlth. 1999).

   Reasonable Steps

   Election on behalf of an incapacitated husband against the provisions of his wife’s will was in husband’s best interests, where failure to take the election against the will could potentially compromise his entitlement to continued medical assistance in addition to denying him the benefit of the elective share. Estate of Wyinegar, 711 A.2d 492 (Pa. Super. 1998).

   The principal of a testamentary discretionary support trust was an available resource to be considered in determining the beneficiary’s eligibility for MA. Commonwealth Bank and Trust Company, N.A. v. Department of Public Welfare, 563 A.2d 1299 (Pa. Cmwlth. 1989), appeal granted, 569 A.2d 1370 (Pa. 1990); order affirmed 598 A.2d 1279 (Pa. 1991).

   The determination of whether a trust is an available resource for MA eligibility can only be made by evaluating each trust instrument and the circumstances surrounding its execution to determine the intent of the settlor. Snyder v. Department of Public Welfare, 556 A.2d 31 (Pa. Cmwlth. 1989); affirmed 598 A.2d 1283 (Pa. 1991).

Cross References

   This section cited in 55 Pa. Code §  178.71 (relating to burial spaces); 55 Pa. Code §  178.84 (relating to resources of children under 21 years of age and families with children under 21 years of age); 55 Pa. Code §  178.161 (relating to personal property exclusions); 55 Pa. Code §  178.163 (relating to resources of children under 21 years of age and families with children under 21 years of age); 55 Pa. Code §  178.101 (relating to disposition of property and fair consideration provisions for transfer during the period of January 4, 1991, through July 29, 1994); 55 Pa. Code §  178.104 (relating to disposition of assets and fair consideration provisions for transfers on or after July 30, 1994); 55 Pa. Code §  178.121 (relating to general); 55 Pa. Code §  178.124 (relating to resource eligibility for the institutionalized spouse); 55 Pa. Code §  178.161 (relating to personal property exclusions); 55 Pa. Code §  178.171 (relating to disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994); and 55 Pa. Code §  178.174 (relating to disposition of assets and fair consideration provisions for transfers on or after July 30, 1994).

§ 178.3. Resource reporting and verification for all categories of MA.

 Verification of ownership, the value of resources and the disposition of resources is required of an applicant/recipient or the person acting on his behalf including, but not limited to, guardians and trustees.

   (1)  An applicant/recipient shall report and provide verification of his resources including information about sources of third-party liability.

   (2)  A person who is applying on behalf of an applicant/recipient including a guardian and trustee shall report and provide verification of the applicant’s/recipient’s resources.

   (3)  An applicant/recipient shall report and provide verification, to the best of his ability, of resources of an LRR even if the LRR does not live in the household of the applicant/recipient.

   (4)  Parents and specified relatives shall report and provide verification, to the best of their ability, of resources for themselves and minor children and LRRs even if the LRR does not live in the household.

   (5)  Stepparents not applying for MA but living in the household are not required to report their resources when determining eligibility for their stepchildren.

   (6)  Failure to report resources may result in an overpayment of MA if the equity value of the resource would have caused ineligibility of the applicant/recipient.

   (7)  The value of personal property shall be verified by documentation appropriate for the type of property. Verification by documentation includes, but is not limited to:

     (i)   A written estimate of the FMV of a motor vehicle from a car dealer.

     (ii)   A statement from a representative of a cemetery or memorial garden verifying ownership of a burial resource, conditions of resale and value.

     (iii)   Titles of ownership.

     (iv)   Written statements from financial institutions.

   (8)  The cash value of a life insurance policy owned by applicants/recipients may be documented by presenting a policy which contains cash value charts or through a written statement from the insurance company.

     (i)   If a policy has a single cash value and insures the lives of more than one person, an equal share of the cash value is assigned to each insured person.

     (ii)   Money borrowed from the cash value of a life insurance policy is a resource only if it is retained as of the first of the month following the month of receipt.

   (9)  Documentation of the FMV of nonresident property includes estimates of value provided by a licensed real estate broker or a financial institution. Non-Departmental encumbrances are deducted when determining the equity value.

Cross References

   This section cited in 55 Pa. Code §  140.311 (relating to verification requirements).

§ 178.3a. Clarification of disclosure requirement on ownership of annuities—statement of policy.

 (a)  Consistent with section 1917(e) of the Social Security Act (42 U.S.C.A. §  1396p(e)), regarding liens, adjustments and recoveries, and transfers of assets, effective for an application made on or after March 3, 2007, the Department will require as a condition of eligibility for payment for long-term care services that an applicant or recipient or spouse of an applicant or recipient disclose any interest the applicant or recipient or spouse of the applicant or recipient has in an annuity or similar financial instrument.

 (b)  Consistent with section 1917(e) of the Social Security Act, effective for an application made on or after March 3, 2007, the Department will inform the applicant or recipient or spouse of the applicant or recipient that the Department shall be named as the remainder beneficiary in the first or second position under an annuity or similar financial instrument with a transaction date on or after February 8, 2006.

Source

   The provisions of this §  178.3a adopted March 2, 2007, effective March 3, 2007, 37 Pa.B. 1043.

§ 178.4. Treatment of resources for all categories of MA.

 (a)  Resources which are available to the applicant/recipient are applied against the MA resource limit in Appendix A for the appropriate MA Program. This includes resources in which the applicant/recipient has only a partial ownership interest.

 (b)  A resource in which the applicant/recipient has an equitable interest with the right to use the property is considered a resource.

 (c)  Resources held in a trust established prior to July 30, 1994, are considered resources to the applicant/recipient to the extent that the trust permits use of those resources for the applicant’s/recipient’s food, clothing, shelter or medical care, regardless of whether the trust is in fact used for food, clothing, shelter or medical care. Trusts established on or after July 30, 1994, are subject to §  178.7 (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994), except for trusts established by will which continue to be subject to this section.

 (d)  Establishing the type of ownership is required to determine the availability and the value of the applicant’s/recipient’s resources.

 (e)  The following rebuttable presumptions apply in determining the availability of both real and personal property resources:

   (1)  If an applicant/recipient is the sole owner, the resource is presumed available.

   (2)  If ownership is shared by persons who are applicants/recipients, the resource is presumed available.

   (3)  If ownership is shared by applicants/recipients and a person who is not an applicant/recipient and if the applicants/recipients have a separate legal interest which can be disposed of without the consent of the other owners, the applicants’/recipients’ share of the resource is presumed available.

   (4)  If ownership is shared by applicants/recipients and a person who is not an applicant/recipient and the applicants/recipients have a legal interest which can be disposed of only with the consent of the other owner and consent is not withheld, the applicants’/recipients’ share of the resource is presumed available.

   (5)  If consent to dispose of resources is needed but withheld by a nonapplicant/nonrecipient, assume that the resource is not available. The shared ownership and the nonapplicant’s/nonrecipient’s refusal to dispose of the resource shall be verified. The unavailability of resources is verified at application and no less often than at each reapplication.

 (f)  Entireties property, which is property jointly owned by a husband and wife, is treated as follows:

   (1)  If the applicant/recipient is a person for whom only the husband or the wife is legally responsible and neither the husband nor the wife receive assistance benefits—AFDC, GA, SSI or MA—property owned by the entireties cannot be considered available without the consent of the spouse who is not an LRR. One spouse cannot, without his spouse’s consent, liquidate the property to support children for whom both persons are not legally responsible. If the caretaker relative has remarried and his spouse has not adopted the caretaker’s children, the CAO is required to first determine if a particular resource is held by the caretaker and his spouse as entireties property before considering it available.

   (2)  A bank account owned jointly by a husband and wife is not entireties property unless a contrary intent is clearly shown or the account predates September 1, 1976. A bank account may be held in many forms. The legal rights of the parties are not wholly determined by the title of the account. The account title or caption determines the rights of the account in relation to the bank and not their rights in relation to each other. The CAO shall apply the following rebuttable presumptions to determine the availability of bank accounts:

     (i)   The person whose name appears on the account title is the owner.

     (ii)   Persons who own an account jointly—for example, ‘‘and,’’ ‘‘or,’’ ‘‘and/or’’—own the account in proportion to their contributions.

     (iii)   If contributions cannot be determined, each owner of a joint account owns an equal share.

     (iv)   If an account is titled ‘‘in trust for,’’ the account is a tentative trust, unless a written trust document exists. A tentative trust is owned by the trustee, and the beneficiary has no legal rights before the death of the trustee.

 (g)  Lump sum payments, whether received as a result of earned income, unearned income, personal damage award, inheritance or another source, are counted as resources, as of the date received unless one of the following applies:

   (1)  It is excluded by other provisions.

   (2)  It is more helpful to the applicant/recipient to have the lump sum treated as income under §  181.31 (relating to treatment of lump sum).

Authority

   The provisions of this §  178.4 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § §  201(2) and 403(b)).

Source

   The provisions of this §  178.4 amended December 23, 1994, effective December 24, 1994, and apply retroactively to July 30, 1994, 24 Pa.B. 6423. Immediately preceding text appears at serial pages (171797) to (171799).

Notes of Decisions

   Commercial Paper

   Department of Public Welfare did not err in determining that a petitioner failed to rebut the presumption of ineligibility for Medical Assistance/nursing home care benefits for her mother, where all available evidence suggested that petitioiner’s cashing in of her mother’s certificates of deposit constituted a transfer of available resources for the purpose of qualifying for assistance. Breitkrentz v. Department of Public Welfare, 699 A.2d 1378, (Pa. Cmwlth. 1997).

   Joint Tenancy Property

   It is well established that a joint tenancy in real estate with the right of survivorship, unlike a tenancy by the entireties, is severable by the action, voluntary or involuntary, of either of the tenants. The deceased’s interest in the property, therefore, was a resource as defined by this regulation. Moreover, this resource was presumed available pursuant to 55 Pa. Code §  178.4 because, as a joint tenant, the deceased did not need the cotenant’s consent to alienate deceased’s interest. Thus, the hearing officer was correct in determining that the deceased’s resources exceeded Medical Assistance limits. McArthur v. Department of Public Welfare, 674 A.2d 779 (Pa. Cmwlth. 1996).

   Trust Property

   Principal of discretionary support trust was available resource for purposes of determining applicant’s eligibility for medical assistance long-term care benefits; applicant was sole life beneficiary, was not receiving public assistance at time trust was created, trustees could use principal for applicant’s benefit, and division of assets between trust’s two funds appeared to have been controlled by federal estate tax considerations, not by any particular intent to preserve portion of principal for remaindermen. Debone v. Department of Public Welfare, 929 A.2d 1219, 1224 (Pa. Cmwlth. 2007).

   The proceeds from the sale of a farm held in a joint account which were then placed in a trust account administered by the petitioner’s son did not divest the petitioner of an interest in the proceeds in that such transfers were made and the funds were held by the petitioner’s attorney-in-fact. The funds were properly considered in determining her eligibility for MA. Park v. Department of Public Welfare, 582 A.2d 1138 (Pa. Cmwlth. 1990).

Cross References

   This section cited in 55 Pa. Code §  178.2 (relating to definitions); 55 Pa. Code §  178.7 (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994); and 55 Pa. Code §  181.31 (relating to treatment of lump sum).

§ 178.5. Treatment of irrevocable burial reserves for all categories of MA.

 Irrevocable burial reserves are considered as follows:

   (1)  To be considered irrevocable, the burial reserve funds shall be deposited with a financial institution or a funeral director under a written agreement which provides that the funds cannot be withdrawn before the death of the named beneficiary.

   (2)  Interest earned on the burial reserve is counted as income if it can be and is withdrawn before the death of the applicant/recipient.

   (3)  If a burial reserve is in an irrevocable form, it is not a countable resource. For the aged, blind and disabled categories of MA it shall be considered under §  178.73(2)(ii) (relating to revocable burial reserve).

   (4)  Excess funds remaining from the irrevocable burial reserve after the burial expenses become a part of the deceased recipient’s estate.

   (5)  The resource that was used to establish the irrevocable burial reserve, usually cash, is not excluded. The transaction establishing the irrevocable burial reserve shall be reviewed to determine if the disposition of property and fair consideration requirements at §  178.101 or §  178.171 (relating to disposition of property and fair consideration provisions for transfers during the period of January 4, 1991, through July 29, 1994) or the requirements in §  178.104 or §  178.174 (relating to the disposition of assets and fair consideration provisions for transfers on or after July 30, 1994) are met.

     (i)   Fair consideration is established if the irrevocable burial reserve is not exorbitant in relation to the average cost of burial in the locality where the person lives. To allow for future increases in the cost of burial, an irrevocable burial reserve is not considered exorbitant if it does not exceed the average local costs by more than 25%.

     (ii)   Fair consideration for amounts above those in subparagraph (i) shall be documented, and if determined by the Department to be reasonable, the creation of the irrevocable burial reserve may meet the fair consideration requirements. The documentation shall demonstrate that the amount is not exorbitant for the person’s situation and the higher amount is needed for things such as:

       (A)   The cost of transport of the body because burial is to be in a community many miles away.

       (B)   The person arranged for a priest, minister or rabbi who is a close friend or relative and lives some miles away to conduct the memorial services with the cost of travel, food, lodging and honorarium to be paid from the irrevocable burial reserve.

       (C)   Arrangements include a reasonable gift to the church or synagogue for the use of the facilities for the services.

     (iii)   If fair consideration is not established, the difference between the cost of the burial arrangements and the amount of the burial reserve and if applicable, the 25% factor in subparagraph (i), shall be counted as UV in accordance with §  178.101(h) and §  178.104(d) for the SSI-related categories or §  178.171(h) and §  178.174(d) for the AFDC-related/GA-related categories. If the application of the transfer of resources requirements at §  178.101, 178.104, 178.171 or 178.174 to an irrevocable burial reserve creates ineligibility, the person who created the irrevocable burial reserve or trust may be able to reform or revoke the reserve or trust.

Authority

   The provisions of this §  178.5 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § §  201(2) and 403(b)).

Source

   The provisions of this §  178.5 amended December 23, 1994, effective December 24, 1994, and apply retroactively to January 4, 1991, 24 Pa.B. 6423. Immediately preceding text appears at serial page (171799).

Cross References

   This section cited in 55 Pa. Code §  178.72 (relating to irrevocable burial reserve); and 55 Pa. Code §  178.161 (relating to personal property exclusions).

§ 178.6. Third-party liability for all categories of MA.

 (a)  An applicant/recipient may have sources other than MA that cover the cost of his medical services and care. The third-party liability sources which are available to pay for medical services and care shall be identified and used to the fullest extent possible before payment is made by MA. The Department is the payer of last resort.

 (b)  Third-party resources include, but are not limited to:

   (1)  Blue Cross and commercial hospital insurance.

   (2)  Health insurance benefits-Medicare.

     (i)   Hospital insurance.

       (A)   Inpatient hospital care.

       (B)   Skilled nursing care after hospitalization.

       (C)   Home health benefits after hospitalization.

     (ii)   Medical insurance.

   (3)  Other hospital insurance paid to the person.

   (4)  Medical insurance included as part of a support agreement.

   (5)  Civilian Health and Medical Program of the Uniformed Services (CHAMPUS).

   (6)  Workers compensation.

   (7)  Negligence action or other tort.

   (8)  Institutional care contracts. This includes a contract between a person and a facility which gives the person the right to receive care at zero or reduced cost at the facility.

   (9)  Payments made toward the cost of medical service by an LRR or other person.

   (10)  LRRs, including spouses and parents of unemancipated minor children.

   (11)  Long term care/nursing home care insurance.

§ 178.7. Treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994.

 (a)  Trusts established on or after July 30, 1994, except for trusts established by will, are subject to this section. Trusts established by will or established prior to July 30, 1994, are treated as set forth at §  178.4(c) (relating to treatment of resources for all categories of MA).

 (b)  A trust is established if the assets of the individual were used to form all or part of the corpus of the trust and one or more of the following persons establish the trust other than by a will:

   (1)  The individual.

   (2)  The spouse of the individual.

   (3)  A person or a court or administrative body with legal authority to act in place of, or on behalf of, the individual or the spouse of the individual.

   (4)  A person or a court or administrative body acting at the direction, or upon the request of the individual or the spouse of the individual.

 (c)  When the corpus of the trust includes the assets of an individual, and the assets of other persons, the requirements of this section apply only to that portion of the trust attributable to the assets of the individual.

 (d)  Unless the trust meets the requirements described in subsection (f), this section applies to all trusts without regard to the following:

   (1)  The purpose for which a trust is established.

   (2)  Whether the trustees have or exercise discretion under the trust.

   (3)  Restrictions on when or whether distributions are made from the trust.

   (4)  Restrictions on the use of distributions from the trust.

 (e)  Whether, and to what extent, a trust is considered in an MA eligibility determination depends upon the specific characteristics of the trust. In determining eligibility for MA, the CAO shall apply the following:

   (1)  In the case of a revocable trust:

     (i)   The corpus of the trust shall be considered as a resource available to the individual.

     (ii)   Payments from the trust to or for the benefit of the individual shall be considered as income of the individual.

     (iii)   Other payments from the trust shall be considered as assets disposed of by the individual which are subject to a determination by the Department as to whether the disposition was for less than FMV on or after the look-back date specified in §  178.104(c) (relating to disposition of assets and fair consideration provisions for transfers on or after July 30, 1994).

   (2)  In the case of an irrevocable trust:

     (i)   If there are circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income to or for the benefit of the individual shall be considered income of the individual, and for other purposes shall be considered a transfer of assets by the individual which is subject to a determination by the Department as to whether the transfer was for less than FMV on or after the look-back date specified in §  178.104(c).

     (ii)   Any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust or, if later, the date on which payment to the individual was foreclosed, to be assets disposed of by the individual subject to a determination by the Department as to whether the disposition was for less than FMV on or after the look-back date specified in §  178.104(c), and the value of the trust shall be determined by including the amount of payments made from any portion of the trust or income on the corpus after the date the trust was established or payment from the trust was foreclosed.

 (f)  The trust requirements of this section do not apply to the following:

   (1)  A trust containing the assets of an individual under 65 years of age who is disabled as defined by the SSI criteria in 42 U.S.C.A. §  1382c(a)(3), if the trust was established for the benefit of the individual by a parent, grandparent, legal guardian of the individual, or a court and the trust contains a provision that the Commonwealth will receive the amounts remaining in the trust upon the death of the individual, up to an amount equal to the total of MA benefits paid on behalf of the individual.

   (2)  A trust containing the assets of an individual who is disabled as defined by the SSI criteria in 42 U.S.C.A. §  1382c(a)(3) if the trust meets the following conditions:

     (i)   The trust is established and managed by a nonprofit association.

     (ii)   A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds the trust pools these accounts.

     (iii)   Accounts in the trust are established solely for the benefit of individuals who are disabled based on the SSI criteria in 42 U.S.C.A. §  1382c(a)(3) by the parent, grandparent or legal guardian of the individual, by the individual, or by a court.

     (iv)   To the extent that amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust pays to the Commonwealth from the amounts remaining in the account an amount equal to the amount of MA benefits paid on behalf of the beneficiary.

 (g)  The Commonwealth will waive the requirements of this section with respect to an individual if the individual establishes that application of these requirements would cause undue hardship for the individual.

Authority

   The provisions of this §  178.7 issued under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § §  201(2) and 403(b)).

Source

   The provisions of this §  178.7 adopted December 23, 1994, effective December 24, 1994, and apply retroactively to July 30, 1994, 24 Pa.B. 6423.

Cross References

   This section cited in 55 Pa. Code §  178.4 (relating to treatment of resources for all categories of MA); 55 Pa. Code §  178.104 (relating to deposition of assets and fair consideration provisions for transfers on or after July 30, 1994); 55 Pa. Code §  178.174 (relating to disposition of assets and fair consideration provisions for transfers on or after July 30, 1994); and 55 Pa. Code §  258.3 (relating to property liable to repay the Department).

CATEGORIES OF MA


§ 178.11. Categories of NMP-MA.

 NMP-MA applicants or recipients shall meet the resource requirements of the category of NMP-MA for which they are eligible. The following explains the different NMP-MA categories:

   (1)  The PA category designates an NMP person who is 65 years of age or older. This category is an SSI-related category.

   (2)  The PJ category designates an NMP person who meets the eligibility conditions as a disabled person. This category is an SSI-related category.

   (3)  The PM category designates an NMP person who meets the eligibility conditions as a blind person. This category is an SSI-related category.

   (4)  The PC category is a TANF-related category and designates an NMP individual who is one of the following:

     (i)   A person under 21 years of age, regardless of school attendance, emancipation or marital status.

     (ii)   An individual 21 years of age or older and under 65 years of age who meets the requirements of a specified relative under §  151.42 (relating to definitions) and is responsible for the care and control of a dependent child. For purposes of determining if the individual 21 years of age or older and under 65 years of age is a specified relative, a dependent child, including the child who is receiving SSI, is a child under 18 years of age or under 19 years of age if the child is a full-time student in secondary school or the equivalent level of a vocational or technical school and who meets the deprivation of support conditions under §  153.43(a)—(c) (relating to TANF deprivation of support or care requirements).

     (iii)   A pregnant woman 21 years of age or older who is a member of a two parent household which does not meet the unemployed principal wage earner definition in §  153.44(d) (relating to procedures).

   (5)  The PU category is an TANF-related category and designates an NMP person who is one of the following:

     (i)   The parents in a two parent household that includes a dependent child as defined in paragraph (4) and an unemployed principal wage earner as defined in §  153.44(d).

     (ii)   A pregnant woman with no other children and the father of her unborn child, who constitute a two parent household with an unemployed principal wage earner, as defined in §  153.44(d).

   (6)  The PD category is a GA-related category and designates an NMP person who is 21 years of age or older and under 65 years of age, who meets the eligibility requirements for GA and who chooses to receive only MA.

Authority

   The provisions of this §  178.11 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § §  201(2) and 403(b)); Titles I and III of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193) (PRWORA), creating the Temporary Assistance for Needy Families (TANF) Program, and amending 42 U.S.C.A. § §  601—619, 651—669(b) and 1396u-1; section 1902(a)(10)(A) of the Social Security Act (42 U.S.C.A. §  1396a(a)(10)(A); and the Federal TANF regulations in 45 CFR 260.10—265.10.

Source

   The provisions of this §  178.11 amended July 28, 2000, the provisions under Act 49 effective September 1, 1994, the provisions under Act 20 effective July 1, 1995, 30 Pa.B. 3779; amended September 13, 2002, effective retroactively to March 3, 1997, 32 Pa.B. 4435. Immediately preceding text appears at serial pages (268345) to (268346).

§ 178.12. Categories of MNO-MA.

 MNO-MA applicants or recipients shall meet the resource requirements of the category of MNO-MA for which they are eligible. The following explains the different MNO-MA categories:

   (1)  The TA category designates an MNO person who is 65 years of age or older. This category is an SSI-related category.

   (2)  The TJ category designates an MNO person who meets the eligibility conditions as a disabled person. This category is an SSI-related category.

   (3)  The TM category designates an MNO person who meets the eligibility conditions as a blind person. This category is an SSI-related category.

   (4)  The TB category designates an MNO person who receives a SBP.

   (5)  The TC category is a TANF-related category and designates an MNO individual who is one of the following:

     (i)   A person under 21 years of age, regardless of school attendance, emancipation or marital status.

     (ii)   An individual 21 years of age or older and under 65 years of age who meets the requirements of a specified relative under §  151.42 (relating to definitions) and is responsible for the care and control of a dependent child. For purposes of determining if the individual 21 years of age or older and under 65 years of age is a specified relative, a dependent child, including the child who is receiving SSI, is a child under 18 years of age or under 19 years of age if the child is a full-time student in secondary school or the equivalent level of a vocational or technical school and who meets the deprivation of support conditions under §  153.43(a)—(c) (relating to TANF deprivation of support or care requirements).

     (iii)   A pregnant woman 21 years of age or older who is a member of a two parent household which does not meet the unemployed principal wage earner definition in §  153.44(d) (relating to procedures).

   (6)  The TU category is a TANF-related category and designates an MNO person who is one of the following:

     (i)   The parents in a two parent household that includes a dependent child as defined in paragraph (5)(ii) and an unemployed principal wage earner as defined in §  153.44(d).

     (ii)   A pregnant woman who is 21 years of age or older, with no other children, in a two parent household with an unemployed principal wage earner as defined in §  153.44(d).

   (7)  The TD category is a GA-related category and designates an MNO person who does not meet the requirements for another category of MNO.

Authority

   The provisions of this §  178.12 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § §  201(2) and 403(b)); and section 1902(a)(10)(A) of the Social Security Act (42 U.S.C.A. §  1396a(a)(10)(A)).

Source

   The provisions of this §  178.12 amended July 28, 2000, the provisions under Act 49 effective retroactive to September 1, 1994, the provisions under Act 20 effective retroactive to July 1, 1995, 30 Pa.B. 3779; amended September 13, 2002, effective retroactively to March 3, 1997, 32 Pa.B. 4435. Immediately preceding text appears at serial pages (268346) and (279709).



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