469 Neb. Admin. Code, ch. 2, § 009 - RESOURCES

The total equity value of available non-excluded resources of the individual or individual and responsible relative, or individual and essential person is determined and compared with the established maximum for available resources which the individual may own and still be considered eligible. If the total equity value of available non-excluded resources exceeds the established maximum, the individual is ineligible. The assets of each spouse are considered available to the other unless there is a divorce.

(A) Resource limits are:

(i) $2000 for a single individual; or

(ii) $3,000 for a couple.

009.01 COUNTED RESOURCES. For a listing of counted resources, please refer to the Guidance Document.

009.02 VERIFICATION OF RESOURCES. Before determining eligibility of an Assistance to the Aged, Blind, or Disabled or State Disability applicant who does not receive Supplemental Security Income, all individuals' resources must be verified and documented in the case record. Please refer to the Guidance Document for a listing of resources.

009.03 DEFINITION OF AVAILABLE RESOURCES. For the determination of eligibility, available resources include cash or other liquid assets or any type of real or personal property or interest in property that the applicant or recipient owns and may convert into cash to be used for support and maintenance.

009.03(A) UNAVAILABILITY OF RESOURCE. Regardless of the terms of ownership, if it can be documented in the case record that the resource is unavailable to the individual, the value of that resource is not used in determining eligibility.

009.03(B) EXCLUDED RESOURCES. Disregarded income is also disregarded as a resource unless there is regulation stating otherwise. Additionally, the following resources are excluded:

(i) Real property which the individual owns and occupies as a home;

(ii) Household goods and personal effects of a moderate value used in the home;

(iii) Cash surrender value of life insurance policies with combined face values of $1,500 or less per individual;

(iv) A specified maximum in proceeds from an insurance policy irrevocably assigned for the purpose of burial of the applicant or recipient;

(v) Irrevocable burial trusts up to the specified amount per individual and the interest if irrevocable;

(vi) Burial space items or a contract for the purchase of burial space items owned by an applicant or recipient or designated family member;

(vii) Burial space;

(viii) Up to $1,500 set aside for burial arrangements;

(ix) One motor vehicle if it is used for employment, medical transportation, or as the applicant or recipient's home. If the individual has more than one motor vehicle, the individual may designate the vehicle to be excluded;

(x) Certain trusts, including guardianships, where the person in whose behalf the trust is established may be ineligible but this may not affect eligibility of the other person in the household unit;

(xi) Certain life estates in real property;

(xii) Income received annually, semi-annually, or quarterly which is prorated on a monthly basis and included in the budget, during the period of time it is being considered as income;

(xiii) The unspent portion of any Retirement, Survivors, Disability Insurance or Supplemental Security Income retroactive payments for six months following the month of receipt;

(xiv) U.S. savings bonds, for the initial six-month mandatory retention period;

(xv) A resource used in the recipient's trade or business;

(xvi) A maximum of $6,000 equity value of nonbusiness property, real or personal, that is used to produce goods or services essential to daily activities;

(xvii) The unspent portion of an Aged, Blind, or Disabled or State Disability Program retroactive payment for six months following the month of receipt;

(xviii) Victims compensation payments, such as payments received from a state or local government to aid victims of crime. These are excluded for nine months beginning with the first month after receipt;

(xix) Payments received from a state or local government to assist in relocation, excluded for nine months beginning with the first month after receipt;

(xx) An unavailable job-related retirement account that is held by the employer;

(xxi) An Individual Development Account, set up for postsecondary education or purchase of an individual's first home;

(xxii) Medicare set-aside accounts that may be used only for payment of medical bills of Medicare beneficiaries; and

(xxiii) Funds held in an Achieving a Better Life Experience account, also known as an ABLE account.

009.04 DETERMINATION OF OWNERSHIP OF RESOURCES. A resource which appears on record in the name of an applicant or responsible relative is considered as belonging to the applicant.

009.04(A) JOINTLY OWNED RESOURCES. When an applicant has a jointly owned resource that is considered available, the following applies:

009.04(A)(i) RESOURCES OWNED WITH OTHER RECIPIENTS. If an applicant owns a resource with another individual who is on categorical assistance, the value of the resource will be divided by the number of owners, regardless of the terms of ownership.

009.05 CONSIDERATION OF RELATIVE RESPONSIBILITY. When the applicant has a relative responsibility for an individual in another assistance unit, and the responsible relative owns the resource, the value must be divided by the number of units to determine the amount to be counted to each. An Assistance to the Aged, Blind, or Disabled or State Disability Program Medical Assistance or State Disability Program Medical Assistance couple is considered one unit.

009.06 INHERITANCE. When an applicant receives an inheritance, verified payment of debts or obligations of the deceased are subtracted from the settlement.

009.07 VALUE AND EQUITY. Equity is the actual value of property or the price at which it could be sold, less the total of encumbrances against it such as the mortgages, mechanic's liens, other liens and taxes, and estimated selling expenses.

009.07(A) SECURED DEBTS. The total value of unpaid personal taxes and other personal debts secured by mortgages, liens, promissory notes, and judgments, other than those on which the statute of limitations applies, is subtracted from the gross value of the encumbered property to find the equity.

009.07(B) DETERMINATION OF VALUE. The use of public tax records may be used to determine the sale value of a resource.

009.08 TYPES OF RESOURCES. Resources can be divided into two categories: liquid and non-liquid.

009.08(A) LIQUID RESOURCES. Liquid resources are assets that are in cash or financial instruments which are convertible to cash. For a list of liquid resources, please refer to the Guidance Document.

009.08(A)(i) CASH, SAVINGS, INVESTMENTS, MONEY DUE. Cash on hand, cash in checking and savings accounts, salable stocks or bonds, certificates of deposit, promissory notes and other collectable unpaid notes or loans and other investments are available resources.

009.08(A)(i)(1) ABLE ACCOUNTS. In December 2014, the Achieving a Better Life Experience (ABLE) Act was signed into law authorizing individuals with disabilities to save more than the Social Security limit in assets ($2,000).

009.08(A)(ii) LAND CONTRACTS. A land contract, or real estate contract of sale, is considered a resource to the seller of the property if the contract can be sold.

009.08(A)(iii) FUNDS SET ASIDE FOR BURIAL. A specified maximum may be disregarded if it is set aside for the purpose of paying burial expenses. The individual may choose to put the money in one of the following:

(a) A pre-need burial trust. If the individual has an irrevocable burial trust for more than the specified maximum, the excess is considered an available resource;

(b) A policy of burial insurance. If the individual has irrevocably assigned more than the specified maximum in burial insurance, the excess is not an available resource; or

(c) A maximum of $1,500 designated for burial. These funds may be in an account or in an insurance policy.

009.08(A)(iii)(1) IRREVOCABLE BURIAL TRUSTS. If the money was put in an irrevocable burial trust on July 16, 1982, or later, it is not considered an available resource. According to Nebraska law, an individual is allowed to deposit funds up to the specified maximum in an irrevocable trust fund created for the purpose of a prearranged funeral plan.

009.08(A)(iii)(1)(a) INTEREST ON BURIAL TRUSTS. For irrevocable burial trusts contracted on December 31, 1986, or earlier, the individual was allowed to stipulate whether the interest, or dividends, accruing to the trust fund were irrevocable. If the interest, or dividends, are irrevocable, they are disregarded.

009.08(A)(iii)(2) BURIAL INSURANCE. Burial insurance is defined as insurance whose terms specifically require that the proceeds can be only be used to pay the burial expenses of the insured, or a life insurance policy that is irrevocably assigned for the specific purpose of burial. When the proceeds of a life insurance policy are irrevocably assigned for the purpose of burial, the cash value is not available and is disregarded as a resource.

009.08(A)(iii)(3) MONEY DESIGNATED FOR BURIAL. Up to $1,500 may be disregarded for each individual if it is set aside for the purpose of paying burial arrangements for the individual, or the individual's spouse. This exclusion is in addition to the burial space exclusion. This exclusion is not in addition to a burial trust or burial insurance that has been irrevocably assigned.

009.08(A)(iii)(4) BURIAL SPACES. The value of burial spaces held for the purpose of providing a place for the burial of the individual, their spouse, and members of the individual's immediate family are not counted as an available resource. The immediate family includes minor and adult children, including adopted children and stepchildren, brothers, sisters, parents, adoptive parents, and the spouses of these individuals. A burial space includes a crypt, mausoleum, urn, casket, marker, vault, or other repository for the remains of a deceased person. This exemption also applies to markers, vaults, and the charges for opening and closing the grave, but does not include services or burial fees. These items are exempt only if they are actually purchased. If the recipient has a life insurance policy for the purchase of burial items, the cash value is included in the specified maximum if the policy is irrevocably assigned.

009.08(A)(iii)(5) BURIAL SPACE ITEMS HELD IN A CONTRACT. Burial space items may be disregarded when they are held for an individual by way of a contract. To meet the requirement that the item is actually purchased, the contract must state that the individual has purchased a particular item for a specified price. Revocability is not an issue for burial space contracts as long as the agreement itself represents the individual's ownership.

009.08(A)(iv) LIFE INSURANCE TERMS. Definitions regarding life insurance that may be used in determining eligibility are:

(a) Cash surrender value is the amount the insurer will pay, usually to the owner, upon cancellation of the policy before death of the insured or before maturity of the policy.

(b) Face value is the basic death benefit of the policy exclusive of dividend additions or additional amounts payable because of accidental death or under other special provisions. In determining the face value of a policy, the original face value of the policy is used.

(c) Insured refers to the person whose life is insured.

(d) Insurer refers to the company that insures others.

(e) Owner refers to the person who has the right to change the policy.

009.08(A)(iv)(1) CASH SURRENDER VALUE. Using the following criteria, the cash surrender value of life insurance owned by the recipient is considered a resource. If the combined original face value of all the life insurance policies owned by the recipient exceeds $1,500, the cash surrender value of all the policies is considered a countable resource. Each person in the unit is allowed the $1,500 exemption for the face value of their life insurance.

009.08(A)(iv)(2) ADJUSTMENT. The recipient can usually adjust a large insurance policy to a smaller amount providing limited protection and allowing the individual to benefit from accumulated savings.

009.08(A)(iv)(3) INTEREST AND DIVIDENDS. Interest and dividends actually paid to the recipient from all life insurance policies are treated as income unless the total is less than $10 per individual.

009.08(A)(v) TRUST, GUARDIANSHIP, CONSERVATORSHIP, AND ANNUITY FUNDS. When a guardianship, conservatorship, annuity, or trust has been established on behalf of an individual and the individual who has applied has resources exceeding the total resource limit for an Aged, Blind, or Disabled Program grant program or State Disability Program grant or medical program, the trust, guardianship, conservatorship, or annuity will be verified if it is available to the applicant.

009.08(A)(v)(1) DEFINITIONS. For the purposes of these regulations, the following definitions apply.

(a) ANNUITY. A right to receive periodic payments, either for life or a term of years.

(b) BENEFICIARY. Any individual, or individuals, designated in the trust to receive any disbursal from the corpus of the trust, or from income generated by the trust, which benefits the party receiving it. A payment from a trust may include actual cash, as well as non-cash or property disbursements, such as the right to use and occupy real property.

(c) GRANTOR. Any individual who creates a trust. It includes the following:

(i) The recipient;

(ii) The recipient's spouse;

(iii) A person, including a court or administrative body, with legal authority to act in place of, or on behalf of, the individual or the individual's spouse or guardian or conservator; or

(iv) A person, including a court or administrative body, acting at the direction or upon the request of the recipient or the recipient's spouse.

(d) IRREVOCABLE TRUST. A trust which cannot, in any way, be revoked by the grantor.

(e) POOLED TRUST. A trust containing the assets of a disabled individual that is established and managed by a nonprofit association in a separate account solely for the benefit of a disabled individual.

(f) REVOCABLE TRUST. A trust which can be revoked by the grantor. A trust which provides that the trust can only be modified or terminated by a court is considered to be a revocable trust, since the grantor, or representative can petition the court to terminate the trust. A trust called irrevocable, but which will terminate if some action is taken by the grantor, is a revocable trust for purposes of these regulations.

(g) SPECIAL NEEDS TRUST. A trust containing the assets of an individual age 64, or younger, who is disabled and that is established for the sole benefit of that individual by a parent, grandparent, legal guardian, or a court.

(h) TESTAMENTARY TRUST. A trust established through a will.

(i) TRUST. For purposes of these regulations, a trust is any arrangement in which an individual, known as the grantor, transfers property to another person, known as the trustee, with the intention that it be held, managed, or administered by the trustee for the benefit of the grantor or certain designated beneficiaries. The trust must be valid under state law and manifested by a valid trust instrument of agreement. A trustee holds a fiduciary responsibility to manage the trust's corpus and income for the benefit of the beneficiaries.

009.08(A)(v)(2) TESTAMENTARY TRUSTS. Testamentary trusts may be excluded as resources, depending on the availability of the funds to the individual or their spouse as specified in the terms of the trust.

009.08(A)(v)(3) ANNUITIES.

009.08(A)(v)(3)(a). PURCHASED OR ANNUITIZED BEFORE FEBRUARY 8, 2006. Where the individual cannot assign or change the ownership or payee, the annuity is unavailable. A determination must then be made if a deprivation has occurred. If the expected return on the annuity is commensurate with the life expectancy of the individual, the annuity can be deemed actuarially sound and no deprivation has occurred.

009.08(A)(v)(3)(b). ANNUITY TRANSACTION ON OR AFTER FEBRUARY 8, 2006. Revocable and assignable annuities are a countable resource. A saleable annuity which has not been sold is a countable resource for the amount annuitized, less the payment amount already received. A saleable annuity which has been sold for a value consistent with the secondary market is a countable resource in the amount of the proceeds. If a saleable annuity is sold for less than a value consistent with the secondary market, it will be valued at the current secondary market amount.

009.08(A)(v)(3)(b)(i) ANNUITIES EXCLUDED FROM RESOURCES. An annuity which has been annuitized will be excluded from countable resources if it meets the following conditions:

(1) The annuity is considered either an individual retirement annuity according to Internal Revenue Code, or a deemed Individual Retirement Account under a qualified employer plan by Internal Revenue Code;

(2) The annuity is purchased with the proceeds from a simplified employee pension; and

(3) The annuity is irrevocable and non-assignable, the individual who owned the retirement account or plan is receiving equal monthly payments with no deferral or balloon payments, and the scheduled payout period is actuarially sound based on the individual's life expectancy. The applicant or recipient must verify that the annuity meets these requirements.

009.08(A)(v)(4) REVOCABLE TRUSTS. In the case of a revocable trust:

(a) The entire corpus of the trust is counted as an available resource to the applicant or recipient;

(b) Any payments from the trust made to or for the benefit of the applicant or recipient are counted as income;

(c) Any payments from the trust which are not made to, or on behalf of, the applicant or recipient are considered assets disposed of for less than fair market value; and

(d) If the applicant or recipient must go to court to access the funds, the individual or guardian or conservator of the individual is allowed 60 days to initiate court action. For the applicant, 60 days from the approval date is allowed; for the recipient, 60 days from the notification of the requirement to file for access is allowed.

009.08(A)(v)(5) GUARDIANSHIPS OR CONSERVATORSHIPS. When a fund is established in the process of the appointment of a guardianship or conservatorship, determine if the funds are available without court approval.

(a) The individual is ineligible for categorical assistance until the guardian gives the Department written notice of refusal to spend guardianship or conservatorship monies for the care and maintenance of the individual. In order to be considered current notice, it must be given within one year of its use in determining eligibility for categorical assistance.

(b) After current notice has been given, the individual, if otherwise eligible, may receive benefits if all judicial remedies are pursued to determine the availability of the funds. This may include an appeal to the proper district court and, if necessary, to the Court of Appeals and the Nebraska Supreme Court.

(c) Certain guardianships and conservatorships are not reasonably available and judicial review may be waived; these include some guardianships or conservatorships where the guardian or conservator's discretion is limited and certain guardianships or conservatorships established from the proceeds of a personal injury case on behalf of a child.

(d) The child, guardian, or conservator must file a request for access to the funds in a court of competent jurisdiction within, for the applicant, 60 days from the approval date; for the recipient, 60 days from the notification of the requirement to file for access.

(e) If the petition or application has not been filed after 60 days, the individual is no longer eligible for Aged, Blind, or Disabled payment or State Disability Program.

009.08(A)(v)(6) IRREVOCABLE TRUSTS.

009.08(A)(v)(6)(a) TRUSTS ESTABLISHED BEFORE AUGUST 11, 1993. For a qualifying trust established before August 11, 1993, the maximum amount that could have been distributed from either the income or principal is considered an available resource. A qualifying trust is a trust, or similar legal device, that was established by an applicant or recipient, or their spouse, under which:

(1) The individual is the beneficiary of all or part of the payments from the trust; and

(2) The amount of the distribution is determined by one or more trustees who are permitted to exercise any discretion with respect to the amount to be distributed to the individual and the distributable amount from a qualifying trust has no use limitation.

009.08(A)(v)(6)(a)(i) A trust that was established by an individual's guardian or legal representative, acting on the individual's behalf, falls under the definition of a qualifying trust. If an individual is not legally competent, for example, a trust established by a legal guardian, including a parent, using the individual's assets, can be treated as having been established by the individual, since that individual could not establish the trust for himself or herself.

009.08(A)(v)(6)(b) TRUSTS ESTABLISHED ON OR AFTER AUGUST 11, 1993. In accordance with Sections 1917 (c) and (d) of the Social Security Act, the following regulations apply to all trusts created on or after August 11, 1993:

(i) These regulations apply to any recipient who establishes a trust, who is a beneficiary of a trust, and who is an applicant or recipient of the Aged, Blind, or Disabled, or State Disability Program. An individual is considered to have established a trust if their assets or assets of a spouse were used to form a part or the entire corpus of the trust other than by will. These include trusts established by:

(1) The individual;

(2) The individual's spouse;

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

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

(ii) Where a trust includes the assets of another person, as well as the assets of the applicant or recipient, or this individual's spouse, the rules in this section apply only to the portion of the trust attributable to the assets of the applicant or recipient and this individual's spouse.

009.08(A)(v)(6)(c) PAYMENT CAN BE MADE FROM TRUST. The following applies when payment may be made to the individual or the individual's spouse under the terms of the trust:

(1) Payments from income, or from the corpus, made to or for the benefit of the applicant or recipient or this individual's spouse are treated as income to the individual.

(2) If there are any circumstances under which payment from the trust corpus could be made to or for the benefit of the applicant or recipient, or this individual's spouse, the portion of the corpus from which payment to or for the benefit of the applicant or recipient, or this individual's spouse could be made must be considered a resource that is available to the individual.

(3) Any portion of the corpus that could be paid to or for the benefit of the applicant or recipient, or this individual's spouse is treated as an available resource.

(4) Payments from income or from the corpus that are not made to or for the benefit of the applicant or recipient, or this individual's spouse, are treated as transfers of assets for less than fair market value.

009.08(A)(v)(6)(c)(i) EXCEPTIONS. A trust is not considered available if it is established for a disabled recipient age 64 or younger, receiving or eligible to receive State Supplemental Income; Retirement, Survivors, Disability Insurance; or Aid to the Aged, Blind, or Disabled and is:

(1) A Special Needs Trust containing the assets of the applicant or recipient and established solely for the benefit of this individual by the individual's parent, grandparent, legal guardian, or a court if the State will receive all amounts remaining in the trust upon the death of the individual or upon termination of the trust up to the amount of total medical assistance paid on behalf of the individual; or

(2) A Pooled trust containing the assets of the applicant or recipient and is:

(a) Established and managed by a non-profit association; or

(b) A separate account maintained for each beneficiary of the trust, but, for purposes of investment and management of assets, the trust pools these accounts;

(c) Accounts in the trust that are established solely for the benefit of individuals who are blind or disabled receiving, or eligible to receive, Supplemental Security Income, Retirement, Survivors, Disability Insurance, or Aged, Blind, or Disabled; and

(d) A trust containing the provision that the State of Nebraska will receive all amounts remaining in the trust for the beneficiary upon the death of the applicant or recipient up to the amount of total medical assistance paid on behalf of the individual.

009.08(A)(v)(6)(d) PAYMENT CANNOT BE MADE FROM TRUST. When payments from some portion or all of the trust cannot under any circumstances be made to or for the benefit of the individual, or where there is some portion of the trust from which no payments can be made to or for the benefit of the individual, all of the corpus, or income on the corpus, which cannot be paid to the individual is considered a transfer of assets for less than fair market value.

009.08(A)(v)(6)(e) HARDSHIP PROCEDURES. A trust will not be considered available if denial of assistance would cause undue hardship.

009.08(B) NON-LIQUID RESOURCES. Non-liquid resources are tangible properties which need to be sold if they are to be used for the maintenance of the recipient. They include all properties not classified as liquid resources. For a listing of the non-liquid resource refer to the Guidance Document.

009.08(B)(i) EXEMPTION OF HOME. The Aged, Blind, or Disabled Payment or State Disability Program applicant or recipient's home is exempt from consideration as an available resource, with the following limitations.

009.08(B)(i)(1) DEFINITION OF HOME. A home is defined as any shelter which the individual owns and uses as the principal place of residence. The home includes any land on which the house is located and any related outbuildings necessary to the operation of the home.

009.08(B)(i)(2) ADJACENT LOTS. Lots adjacent to the home are considered available if they can be sold separately from the home. If it is determined and documented in the case record that the lots adjacent to the home cannot be sold or are not saleable due to the location or condition of the property, the adjacent lots are also exempt.

009.08(B)(i)(3) HOME EQUITY VALUE. For applications on January 1, 2006, or later, the individual is not eligible for any long-term care services if the equity value interest in the home exceeds the specified amount.

009.08(B)(ii) REMOVAL FROM HOME. If the individual moves away from the home and does not plan, or is unable, to return to it, the Department determines when the home becomes an available resource in accordance with the following provisions:

(a) The home continues to be exempt as a resource while it is actually occupied by the individual's spouse or dependent relative. A dependent relative includes the individual's:

(i) Child, stepchild, or grandchild age 17 or younger;

(ii) Child, stepchild, or grandchild age 18 or older if aged, blind, or disabled and receiving, or eligible to receive, Supplemental Security Income; Aged, Blind, or Disabled payment; State Disability Program; and, other categorical assistance; or

(iii) Brother, sister, stepbrother, stepsister, half-brother, half-sister, parent, stepparent, grandparent, aunt, uncle, niece, nephew, or the spouse of any persons previously named, even after the marriage has been terminated by death or divorce who is receiving, or who would be eligible for, categorical assistance except for income and resources, and who lived in the home at any time one year before the recipient moved away from the home.

(b) When the individual moves to a nursing home, or to an assisted living facility, and is receiving Aged or Disabled waiver services, and it is not possible to determine immediately if the individual will be able to return home, a maximum of six months may be allowed to make that determination. Unless the individual or the individual's representative signs a statement that the individual will not return to the home, or the home is already listed for sale, it is not possible to determine immediately if the individual will return home.

(c) After a maximum of six months, the home may no longer be considered the individual's principal place of residence and must be considered an available resource. However, the individual is allowed time to liquidate the property before it affects eligibility. The six months begin with the first full month following the month of admission.

(d) After the individual is admitted, if the home is exempt because it is occupied by one or more of the relatives identified previously, the six months begin with the first full month following the month that the home is no longer allowed the exemption for occupation.

009.08(B)(ii)(1) LIQUIDATION OF HOME. As soon as the determination is made that the recipient will not be able to return home, time must be allowed for the individual to liquidate the property. The recipient is also allowed time for liquidation if the home if left for a reason other than entering a medical institution.

009.08(B)(iii) SALE OF HOME. If the Aged, Blind, or Disabled payment or State Disability Program individual sells his or her home, the net proceeds become an available resource unless reinvested immediately in another home. In order to be allowed time to reinvest the proceeds, the individual must be residing in the home at the time of the sale and move directly to the new home. Net proceeds are the remainder after payment of the mortgage, realtor's fees, legal fees, and any other sales-related costs. Any deductions must be verified.

009.08(B)(iv) LIQUIDATION OF REAL PROPERTY. When an individual has excess resources because of real property, the individual may be eligible to receive an Aged, Blind, or Disabled grant or the State Disability Program pending liquidation of the resource in some instances. Eligibility does not apply when the excess resources are because of real property other than the home, until the month the Agreement to Sell Real Property and Repay Assistance has been signed. This instances that allow eligibility during the liquidation period are according to the following regulations:

009.08(B)(iv)(1) DEFINITION OF REAL PROPERTY. Real property is defined as land, houses, or buildings.

009.08(B)(iv)(2) TIME LIMITS FOR LIQUIDATION. Exclude real property which the recipient is making a good faith effort to sell.

009.08(B)(iv)(3) EXTENSION OF TIME LIMIT. If the individual is unable to liquidate the property in six calendar months, the Department may authorize an additional three calendar months. In determining whether to allow a three-calendar-month extension, the Department considers:

(a) If the property has been placed on the market with a real estate licensee or;

(b) If the individual is asking a fair price for the property;

(c) If the asking price has been reduced;

(d) If the individual understands the requirement for liquidation of the property;

(e) If the recipient has not refused a reasonable offer to purchase, which if there is not a better offer, a reasonable offer is defined as at least two-thirds of either the estimated current market value or the proven actual value;

(f) The economic conditions in the area and if real estate is selling; and,

(g) The three calendar months are counted whether or not the individual is receiving assistance. If the individual moves back to the home during the three-month period and subsequently moves out again, only the months remaining in the three months are allowed.

009.08(B)(iv)(4) JOINT OWNERSHIP. Real property that is jointly owned is excluded if sale of the property would cause the other owner, whether the other owner receives assistance or not, undue hardship. However, if undue hardship ceases to exist, the property is included in countable resources and handled according to the following regulations:

(a) If the individual owns the property with other persons who are not receiving assistance, and the real property is not the principal place of residence of the other owner, the other owner shall be contacted to determine if they are willing to liquidate their interest in the property. If all parties are willing to liquidate, proceed with the liquidation process.

(b) If one or more of the parties do not wish to liquidate, the individual must take legal action to force a sale of the property.

009.08(B)(iv)(5) ADDITIONAL PIECES OF REAL PROPERTY. In computing the amount of the unit's total available resources, the potential sales value of all real property, other than the allowed exemption for the home, is determined and used.

009.08(B)(iv)(6) MOTOR VEHICLES. One Motor vehicle is disregarded regardless of its value as long as it is necessary for the recipient or a member of their household for employment, medical treatment, or is used as the home. If the individual has more than one motor vehicle, the vehicle with the greatest equity is excluded.

(a) Any other motor vehicles are treated as non-liquid resources and the equity is counted in the resource limit. The individual's verbal statement that the motor vehicle is used for employment or medical treatment is sufficient.

(b) A recipient in a nursing home or receiving services through an Assisted Living Waiver is not allowed the disregard of any motor vehicles because medical transportation is included in the payment to the facility.

009.08(B)(iv)(7) DETERMINATION OF FAIR MARKET VALUE. For motor vehicles that are counted in the resource total, the Department uses the fair market value. Cars, trucks, SUVs, vans, motorcycles, recreational vehicles, motorboats and watercraft, and planes are included in the category of motor vehicles.

009.08(B)(iv)(8) LIFE ESTATES. The owner of a life estate in real property is generally unable to sell the property. The Department, includes the net income from the life estate in the budget rather than considering the life estate as an available resource. If the owner of a life estate transfers it to another individual, it must be determined if it is deprivation of a resource. If the life estate is sold, the proceeds are counted as a resource. It is a disposal of assets to purchase a life estate interest in another individual's home unless the purchaser resides in the home for at least 12 months after the date of purchase.

009.08(B)(iv)(9) HOUSEHOLD GOODS AND PERSONAL EFFECTS. Household goods and personal effects of moderate value used in the home are exempt. Household goods are defined as including household furniture, furnishings and equipment used in the operation, maintenance, and occupancy of the home or in the functions and activities of the home and family life, as well as those items which are for comfort and accommodation. Personal effects include clothing, jewelry, items of personal care, and other similar items.

009.08(B)(iv)(10) LOANS. A bona fide loan to a recipient or financially responsible relative is disregarded as a resource. A bona fide loan is defined as one that must be repaid. The agreement for repayment may be verbal or written and the loan may be owed to an individual or to an organization or agency. Using prudent person principle, the individual's statement is adequate verification that the loan must be repaid.

009.08(B)(iv)(11) ESSENTIAL PROPERTY. If the individual owns a resource that is used in a trade or business, the resource is disregarded, regardless of the value. This includes real property such as land, houses, or buildings as well as personal property such as farm machinery, business equipment, livestock, poultry, crops, tools, safety equipment, or business bank accounts as long as the funds are separated from other liquid resources. The individual or a responsible relative, such as a spouse or parent, must be actively involved in the day-to-day operation of the trade or business as a primary means of earning a livelihood. If the individual or responsible relative is not actively involved in the trade or business, it must be due to circumstances that are beyond the individual's control, such as illness, and there must be a reasonable expectation that the use will resume.

009.08(B)(iv)(11)(a) NONBUSINESS PROPERTY. A maximum of $6,000 equity value of nonbusiness property, real or personal, that is used to produce goods or services essential to daily activities is excluded from resources. For instance, an individual may maintain livestock for consumption in his or her own household.

(i) The property must be in current use or there is the reasonable expectation that use will resume.

(ii) A vehicle such as a garden tractor may qualify for this exemption; an automobile does not qualify.

(iii) Any equity in excess of $6,000 is counted as a resource. If the excess resource is real property, see the regulations on liquidating real property.

009.08(B)(iv)(12) TRAILER HOUSES AND OTHER PORTABLE HOUSING UNITS. If an individual occupies a trailer house, or other portable housing unit as his or her home, the property is allowed the resource exemption for a home. If the recipient enters a nursing home, the allowed the exemption of a home for up to six months applies.

(a) If the trailer house, or other portable housing unit, is used for the recipient's trade or business, it may qualify as essential property regarding an exemption.

(b) If it is used to produce goods for the individual's own consumption or use, it may qualify as nonbusiness property regarding an exemption.

009.08(B)(iv)(13) FARM EQUIPMENT. If the farm equipment is used for the individual's trade or business, see Essential Property in this section. If it is used to produce goods for the individual's own consumption or use, see nonbusiness property in this section.

009.08(B)(iv)(14) BUSINESS EQUIPMENT, FIXTURES, AND MACHINERY. If business equipment is used for the individual's trade or business, see essential property in this section. If it is used to produce goods for the individual's own consumption or use, see nonbusiness property in this section.

009.08(B)(iv)(15) LIVESTOCK, POULTRY, CROPS THAT ARE GROWING AND ON HAND. If the livestock, poultry, and crops are grown for the individual's trade or business, see essential property in this section. If they are grown for the individual's own consumption or use, see nonbusiness property in this section.

009.09(C) MAXIMUM AVAILABLE RESOURCE LEVELS FOR GRANT ELIGIBILITY. The established maximum for available resources which an individual, or an individual and responsible relative or essential person may own and still be considered eligible for a grant, according to unit size, are as follows:

(i) One member unit - applicant or recipient only: $2000

(1) If there is an eligible spouse and an ineligible spouse, the resource level for the eligible spouse is $2,000; or

(2) If the ineligible spouse later becomes eligible, each spouse is allowed $2,000.

(ii) Two member unit: $3000

(1) Individual and eligible spouse;

(2) Individual and ineligible spouse;

(3) Individual and ineligible spouse who have designated resources but the individual returns home or no longer is eligible for waiver services; or

(4) Recipient and other essential person. This may be a disabled minor child and one parent if that parent is considered an essential person; and

(iii) Three or more member unit: $3000 plus $25 for each additional essential person

(1) Recipient and spouse; or

(2) Recipient and other essential person; and

(3) Additional essential persons.

009.09(D) RESOURCES OF A SPOUSE, PARENT, OR OTHER ESSENTIAL PERSON. All resources of an individual and spouse or other essential person who is included in the budget and who share the same home are considered available for the support of both unless one spouse is eligible for or receiving waiver services. Relative responsibility includes eligible spouse for spouse, whether the spouse is eligible or ineligible, and parents for children who are age 17, or younger, and still considered part of their household.

009.09(E) DEEMING OF RESOURCES OF A PARENT. In considering the resources of a parent who is not considered an Essential Person towards an eligible child age 17, or younger, and living in the parent's household, the following resources are considered to the child whether or not they are actually made available:

(i) All resources exceeding $2,000 in the case of one parent; or

(ii) All resources exceeding $3,000 in the case of:

(1) Two parents;

(2) One parent and spouse of the parent; or

(3) One parent and one minor sibling; and

(iii) $25 for each additional minor sibling in the parents' household.

009.09(F) DEPRIVATION OF RESOURCES. Any action taken by the individual, or any other person or entity, that reduces or eliminates the individual's, or spouse's, recorded ownership or control of the asset for less than fair market value is a deprivation of resources. This includes:

(1) Recorded transfer of ownership of real property;

(2) Not receiving the spousal share of an augmented estate;

(3) Purchase of a life estate in another individual's home without meeting the 12-month requirement to reside there;

(4) Promissory notes, loans, mortgages, and contract sales for less than fair market value and not enforced;

(5) Purchase of an irrevocable, non-assignable annuity if State Disability Program is not the preferred beneficiary and the annuity is issued on February 8, 2006, or later;

(6) Any transfer above the protected spousal reserved amount to a community spouse; and

(7) Purchase of any contract or financial instrument, including an endowment or insurance, where the criteria for fair market value are not met.

009.09(F)(i) The criteria for fair market value are not met when:

(1) The term of the instrument exceeds the life expectancy of the applicable individual;

(2) The instrument does not provide for equal monthly or annual payments commencing immediately during the term of the contract;

(3) The instrument does not provide for the recovery of assets in the event of default; or

(4) The instrument contains exculpatory or cancellation terms of balance due.

009.09(F)(ii) A service given for free at the time cannot later be claimed as an amount owed.

009.09(F)(iii) When an asset is placed in an annuity on February 8, 2006 or later, the annuity regulations apply.

009.09(F)(iv) Trust regulations may take precedence over deprivation when an asset is placed in a trust.

009.09(F)(v) When real property in which the individual has a life estate is sold, the individual or spouse must receive, as a lump sum, their life estate interest from the net proceeds, or the entire net proceeds invested and the individual who has the life estate receives all the income.

009.09(F)(vi) DEPRIVATION OF RESOURCES FOR A GRANT. The Department investigates for deprivation of a resource if an individual, or an individual's spouse, applies for, or becomes eligible for, a grant.

009.09(F)(vi)(1) LOOK-BACK PERIOD. If it is determined that an individual disposed of a resource in order to qualify for an Aged, Blind, or Disabled payment, look back 36 months from when the individual applies for Aged, Blind, or Disabled grant assistance or, if later, the date on which the individual or spouse disposes of resources for less than fair market value. The look-back period for grant is always 36 months.

009.09(F)(vi)(2) PERIOD OF INELIGIBILITY FOR A GRANT. If it is determined that an individual disposed of a resource, the applicant or recipient is ineligible for a grant for the number of months calculated by dividing the uncompensated value of the resources disposed of, by the maximum Aged, Blind, or Disabled payment to the individual. The number of months the individual is ineligible for a grant must not exceed 36. If the applicant or recipient is eligible for Supplemental Security Income but for a period of ineligibility due to a disposal, the Aged, Blind, or Disabled grant period of ineligibility is the same as the Supplemental Security Income period of ineligibility. Ineligibility for a grant begins with the month of transfer. Receipt of any grant during the period of ineligibility results in an overpayment and recoupment procedures apply.

009.09(F)(vii) DEPRIVATION OF RESOURCES FOR STATE DISABILITY PROGRAM MEDICAL ASSISTANCE. Investigate for deprivation of a resource only if an individual, or an individual's spouse, resides in a specified living arrangement which is defined as:

(a) Residing in a nursing home;

(b) Receiving the skilled level of care in a hospital, such as swing bed services;

(c) Requesting or Receiving Home and Community Based Services including an Assisted Living waiver, home health care, or personal care services; or

(d) Residing in an Intermediate Care Facility for Persons with Developmental Disabilities.

009.09(F)(vii)(1) EXCEPTIONS TO DEPRIVATION RULE. An exception may be made when a transfer was made for less than fair market value, but the individual can verify that the intent was to dispose of the resource for fair market value, or for other valuable consideration, that the transfer was not made to qualify for assistance, or that denial of assistance would cause undue hardship. For all disposals of assets, regardless of date, an exception may be made if:

(a) A satisfactory showing is made to the State that the individual intended to dispose of the assets either at fair market value or for other valuable consideration;

(b) The assets were transferred exclusively for a purpose other than to qualify for State Disability Program medical assistance; or

(c) All assets transferred for less than fair market value have been returned to the individual.

009.09(F)(vii)(2) Disposal or Transfer of Resources:

009.09(F)(vii)(2)(a) LOOK-BACK PERIOD. If it is determined that an individual disposed of a resource to qualify for medical assistance, look back 60 months before the month of application.

(i) For State Disability Program Medical, the look-back is triggered when the individual first applies for Medicaid and is in a specified living arrangement, or is on State Disability Program Medical and enters a specified living arrangement. When an individual applies for State Disability Program Medical more than once, the look back period is based on the first date the individual meets both requirements.

(ii) To determine the countable value disposed of:

(1) Take the equity in the resource, which is the fair market value minus encumbrances;

(2) Subtract any compensation received by the individual; and

(3) Subtract the allowable resource level from the result of step 2 if this is the first disposal.

009.09(F)(vii)(3) PERIOD OF INELIGIBILITY FOR STATE DISABILITY PROGRAM MEDICAL. If it is determined that an individual disposed of a resource, the applicant or recipient is ineligible for State Disability Program Medical for the number of months determined by dividing the countable value of the resource, by the actual monthly cost of care in the specified living arrangement at the current private pay rate. If the period of ineligibility is longer than 12 months, the State Disability Program case is closed or denied and the recipient will need to apply for Medicaid. If the period of ineligibility is less than 12 months, the period of ineligibility begins:

(a) If the individual is on State Disability Program Medical, with the month of entry into a specified living arrangement; or

(b) If the individual is not on State Disability Program Medical, the month of application if in a specified living arrangement.

(c) If the individual is eligible for State Disability Program Medical, except for the deprivation of resources, in the month of application. It does not apply to an application month in which the individual is ineligible because of excess resources or other eligibility criteria.

(d) If the division results in a fraction, the fraction is converted to a dollar amount and includes that amount as unearned income for the applicable month.

009.09(F)(vii)(4) AVAILABILITY OF HARDSHIP WAIVER PROCESS. The individual may request in writing, to the Department, a hardship waiver exception when an imposed period of ineligibility for a transfer of assets would deprive the individual of medical care so that their health or life would be endangered. A notice of discharge from the facility is not necessary to demonstrate that health or life would be endangered. Undue hardship also exists when the imposed period of ineligibility for a transfer of assets would deprive the individual of food, clothing, shelter, or other necessities of life.

009.09(F)(vii)(5) TRANSFERS NOT CONSIDERED DEPRIVATION FOR GRANT. It is not considered a deprivation if:

(a) An applicant or recipient transferred a resource to his or her spouse or to an individual with power of attorney or a guardian or conservator for the sole benefit of the applicant or recipient's spouse;

(b) An applicant or a recipient's spouse transferred a resource to an individual with power of attorney or a guardian or conservator for the sole benefit of the applicant or recipient's spouse;

(c) A resource was transferred to a trust established solely for the benefit of the individual's son or daughter who is blind or disabled and who is receiving, or eligible to receive, Supplemental Security Income; Retirement, Survivors, Disability Insurance; Aged, Blind, or Disabled payment, or Medicaid;

(d) A resource was transferred to the individual's son or daughter who is blind or disabled, who is receiving, or eligible to receive, Supplemental Security Income; Retirement, Survivors, Disability Insurance; Aged, Blind, or Disabled; or, Medicaid;

(e) A resource was transferred to a trust established solely for the benefit of an individual age 64 or younger who is disabled, receiving or eligible to receive Supplemental Security Income; Retirement, Survivors, Disability Insurance; Aged, Blind, or Disabled payment, or Medicaid.

009.09(F)(vii)(6) TRANSFER OF A HOME. It is not considered a deprivation of a resource if a home is transferred by an applicant or recipient to:

(a) Spouse;

(b) Son or daughter who:

(i) Is age 20 or younger;

(ii) Is blind or disabled receiving, or eligible to receive, Supplemental Security Income; Retirement, Survivors, Disability Insurance, Aged, Blind, or Disabled payment or Medicaid based on blindness or disability; or,

(iii) Was residing in the home for at least two years before assistance was requested for the parent, or entered an alternate living arrangement and that individual provided care, which permitted the parent to reside at home rather than be institutionalized or receive Home and Community-Based Waiver Services; or

(c) Sibling who has an equity interest in the home, and who was residing in the home for at least one year immediately before assistance was requested for a sibling or an alternate living arrangement was needed.

009.09(G) REDUCTION OF RESOURCES. The applicant or recipient may reduce available resources to the allowable limit if the case record contains documentation that the resources have been reduced and the unit is within the allowable resource limits.

Notes

469 Neb. Admin. Code, ch. 2, § 009

Amended effective 6/6/2022