Ill. Admin. Code tit. 89, § 120.387 - Property Transfers Occurring On or After August 11, 1993 and Before January 1, 2007
a) The
provisions for the transfer of assets listed in subsection (e) only apply to
institutionalized persons when the transfer occurs on or after August 11, 1993
and before January 1, 2007 or to persons who applied for or whose application
for long term care assistance was filed or approved prior to January 1, 2012.
An institutionalized person is defined as a resident of a long term care
facility, including a resident who was living in the community at the time of
the transfer, and to individuals who but for the provision of home and
community-based services under Section 4.02 of the Illinois Act on the Aging
would require the level of care in a long term care facility. An
institutionalized person also includes an individual receiving home and
community-based services under Section 4.02 of the Illinois Act on the Aging
who was not receiving these services at the time of the transfer.
b) The provisions for the transfer of
property (e.g., assets) listed in subsection (e) apply to the transfer of
property by the institutionalized person's spouse in the same manner as if the
institutionalized person transferred the property.
c) Transfers of property disregarded as a
result of payments made by a Long Term Care Partnership Insurance Policy (as
described in 50 Ill. Adm. Code 2018) are not subject to the provisions of this
Section.
d) A transfer of assets
occurs when an institutionalized person or an institutionalized person's spouse
buys, sells or gives away real or personal property or changes (for example,
change from joint tenancy to tenancy in common) the way property is held.
Changing ownership of property to a life estate interest is an asset transfer
(the value of the life estate and remainder interest is determined as described
at Section
120.380 and 89 Ill.
Adm. Code
113.140 ). For assets held
in joint tenancy, tenancy in common or similar arrangement, a transfer occurs
when an action by any person reduces or eliminates the person's ownership or
control of the asset. A transfer occurs when an action or actions are taken
that would cause an asset or assets not to be received (e.g., waiving the right
to receive an inheritance).
e) A
transfer is allowable if:
1) depending on the
property transferred, the transfer occurred more than either 60 or 36 months
before the date of application, or more than either 60 or 36 months before
entry into a long term care facility or more than either 60 or 36 months before
receipt of services provided by the Illinois Department on Aging under the
In-Home Care Program (as described in 89 Ill. Adm. Code
140.643 );
A) the 60 month period applies to payments
from a revocable trust that are not treated as income (as described in Section
120.347
) and to portions of an irrevocable trust from which no payments could be made
(as described in Section 120.347);
B) the 36 month period applies to payments
from an irrevocable trust that are not treated as income (as described in
Section 120.347) and to any other property transfers not identified in this
subsection;
2) a fair
market value was received. Fair market value is the price that an article or
piece of property might be expected to bring if offered for sale in a fair
market. Fair market value is determined by statements obtained from
institutions, community members, etc. (e.g., bankers, jewelers, reputable
realtors, etc.) recognized as having knowledge of property values;
3) homestead property was transferred to:
A) a spouse;
B) the person's child who is under age
21;
C) the person's child who is
blind (as described in Section
120.313 ) or disabled (as
described in Section
120.314 );
D) the person's brother or sister who has an
equity interest in the homestead property and who was residing in the home for
at least one year immediately prior to the date the person became
institutionalized; or
E) the
person's child who provided care for the person and who was residing in the
homestead property for two years immediately prior to the date the person
became institutionalized;
4) the transfer by the institutionalized
person was to the community spouse or to another person for the sole benefit of
the community spouse;
5) the
transfer from the community spouse was to another person for the sole benefit
of the community spouse;
6) the
transfer was to the person's child or to a trust established solely for the
benefit of the person's child who is blind (as described in Section 120.313) or
disabled (as described in Section 120.314) or to another person for the sole
benefit of the person's child;
7)
the transfer was to a trust established solely for the benefit of a person
under age 65 who is disabled (as described in Section 120.314);
8) the person intended to transfer the assets
for fair market value;
9) it is
determined that denial of assistance would create an undue hardship. Examples
of undue hardship include, but are not limited to, situations in which:
A) the individual is mentally unable to
explain how the assets were transferred;
B) the denial of assistance would force the
resident to move from the long term care facility; or
C) the individual would be prohibited from
joining a spouse in a facility or would prohibit the individual from entering a
facility that is within close proximity to his or her family;
10) the transfer was made
exclusively for a reason other than to qualify for assistance. A transfer for
less than fair market value is presumed to have been made to qualify for
assistance unless a satisfactory showing is made to the Department that the
client or spouse transferred the asset exclusively for a reason other than to
qualify for assistance;
11) the
transfer by the client was to the community spouse and was the result of a
court order;
12) the assets
transferred for less than fair market value have been returned to the person;
or
13) the transfer was to an
annuity, the expected return on the annuity is commensurate with the estimated
life expectancy of the person, and the annuity pays benefits in approximately
equal periodic payments. In determining the estimated life expectancy of the
person, the Department shall use the current actuarial tables published by the
Office of the Chief Actuary of the Social Security Administration
http://www.ssa.gov/OACT/STATS/table4c6.html.
f) If a transfer or
transfers do not meet the provisions of subsection (e), the client is subject
to a period of ineligibility for long term care services and for services
provided by the Illinois Department on Aging under the In-Home Care Program (as
described in Section 140.643). The penalty period is determined in accordance
with subsection (g) of this Section. If otherwise eligible, clients remain
entitled to other covered medical services.
g) A separate penalty period is determined
for each month in which a transfer or transfers do not meet the provisions of
subsection (e) of this Section. Each penalty period is the number of months
equal to the total uncompensated amount of assets transferred during a month
divided by the monthly cost of long term care at the private rate.
h) The penalty period begins with the month
of the transfer or transfers unless the transfer or transfers occurred during a
previous penalty period. If so, the penalty period begins with the month
following the month the previous penalty period ends.
i) For transfers by the community spouse that
result in a penalty period as described in subsection (g) of this Section and
the community spouse becomes an institutionalized person and is otherwise
eligible for assistance, the Department shall divide any remaining penalty
period equally between the spouses.
Notes
Amended at 35 Ill. Reg. 18645, effective January 1, 2012
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