Or. Admin. Code § 461-140-0242 - Disqualifying Transfer of Assets Including Home; OSIP and OSIPM
For an individual in a nonstandard living arrangement (see OAR 461-001-0000) in the Oregon Supplemental Income Program (OSIP) and Oregon Supplemental Income Program Medical (OSIPM) programs:
(1) For the
purposes of this rule:
(a) The definition of
"child" in OAR 461-001-0000 does not
apply.
(b) "Child" means a natural
or adoptive son or daughter who is:
(A) Under
age 21; or
(B) Any age and has been
determined to meet the blindness criteria of OAR
461-125-0330 or the disability
criteria of OAR 461-125-0370.
(c) "Home" is defined in OAR
461-145-0220.
(2) A transfer of an asset,
including a home (see section (1) of the rule), by an
individual or the spouse of the individual is a disqualifying transfer unless
the requirements of at least one of the following subsections are met:
(a) The transfer was made exclusively for
purposes other than establishing eligibility or maintaining benefits.
(b) The title to the asset was transferred to
the person's spouse, the person's child who is blind or has a disability under
the criteria of the Social Security Administration, or another for the sole
benefit of the spouse or a child who is blind or has a disability under the
criteria of the Social Security Administration, provided that the transfer is
arranged in such a way that no individual or entity except this spouse or child
can benefit from the asset transferred in any way, whether at the time of
transfer or any time in the future. A direct transfer, transfer instrument, or
trust that provides for funds or property to pass to a beneficiary who is not
the spouse or child who is blind or has a disability under the criteria of the
Social Security Administration is not considered to be established for the
benefit of one of those individuals. In order for a transfer or a trust to be
considered for the sole benefit of one of these individuals, the instrument or
document must provide for the spending of the funds involved for the benefit of
the individual based on the life expectancy of the individual.
(c) The transfer was made to a trust
described in OAR 461-145-0540(9),
except that a transfer to a trust under OAR
461-145-0540(9)(a)
is disqualifying if the individual is age 65 or older.
(d) The transfer was made to a trust
described in OAR 461-145-0540(10)
established solely for the benefit of an individual under 65 years of age who
has a disability that meets the criteria of the Social Security Administration,
except that a transfer to a trust under OAR
461-145-0540(10)
is disqualifying if the individual is age 65 or older. This subsection applies
to all transfers made on or after July 1, 2006.
(e) The transfer is a transfer described in
OAR 461-160-0580(3).
(f) The resource is transferred by the
community spouse after the Department has determined the community spouse's
resource allowance in accordance with OAR
461-160-0580 and the resource
has not been attributed to the institutionalized spouse. Notwithstanding this
subsection, a transfer of a resource by a community spouse who is receiving or
applying for benefits remains subject to all rules regarding the transfer of an
asset by an individual.
(3) Notwithstanding section (2)(a) of this
rule, a transfer of a home by an individual or the spouse of
the individual is a disqualifying transfer unless the title was transferred to
the individual's;
(a)
Child;
(b) Sibling
who has equity interest in the home and was residing in the
home for at least one year immediately before the individual's
admission to long-term care (see OAR
461-001-0000); or
(c) Natural or adoptive son or daughter who
meets the requirements of each of the following paragraphs:
(A) The son or daughter resided with the
individual in the individual's home continuously for at least
two years immediately prior to the individual's admission to long-term care
other than an absence from the home that is not intended to, and does not,
exceed 30 days.
(B) The son or
daughter provides convincing evidence that he or she provided services that
permitted the individual to reside at home for at least two
years rather than in an institution or long-term care facility.
(C) Without receiving payment from the
Department, the son or daughter must have directly provided the services
required by paragraph (B) of this subsection as described in both of the
following subparagraphs for a total of at least 20 hours per week.
(i) On a daily basis, one or a combination of
any of the following activities of daily living, as each sub-subparagraph is
further defined at OAR
411-015-0006:
(I) Eating.
(II) Dressing/Grooming.
(III) Bathing/Personal Hygiene.
(IV) Mobility.
(V) Elimination.
(VI) Cognition/Behavior.
(ii) One or a combination of any of the
following instrumental activities of daily living, as each sub-subparagraph is
further defined at OAR
411-015-0007:
(I) Housekeeping.
(II) Laundry.
(III) Meal Preparation.
(IV) Medication Management.
(V) Shopping.
(VI) Transportation.
(4) Except
for a transfer permitted under section (3) of this rule, each of the following
subsections applies in determining whether an asset is considered transferred
for fair market value:
(a) The compensation
received for the asset must be in a tangible form with intrinsic
value.
(b) The Department presumes
that services provided for free at the time were intended to be provided
without compensation, and that a transfer to an individual for services
provided for free in the past is a disqualifying transfer of assets. This
presumption is rebuttable with convincing evidence. This evidence must also
show that there was an express agreement to provide services for compensation
at the time the services were provided.
(c) Compensation for services is valued at
the average market rate at the time the services were provided, unless the
express agreement provides a lower rate.
(5) If a transfer is made for less than fair
market value and is not exempt from disqualification under this rule, there is
a rebuttable presumption that the asset was transferred for the purpose of
establishing or maintaining eligibility and is not exempt under subsection
(2)(a) of this rule.
(6) To rebut
the presumption in section (5) of this rule, the individual must present
evidence other than his or her own statement and must provide to the Department
the information it requests for the purpose of evaluating the purpose of the
transfer. To meet the burden, it is sufficient for the individual to show one
of the following:
(a) The decision to make the
transfer was not within the individual's control;
(b) At the time of transfer, the individual
could not reasonably have anticipated applying for medical
assistance;
(c) Unexpected loss of
resources or income occurred between the time of transfer and the application
for medical assistance;
(d) Because
of other, similarly convincing, circumstances, it appears more likely than not
that the transfer was not made, in whole or in part, for the purpose of
establishing or maintaining eligibility for benefits.
(7) The fact that a recipient was already
eligible for benefits is not sufficient to rebut the presumption in section (5)
of this rule because the asset may not always be excluded and if the individual
had received full compensation for the asset, the compensation received would
have been used to determine future eligibility.
Notes
Statutory/Other Authority: ORS 411.060 & 411.710
Statutes/Other Implemented: ORS 411.060, 411.710 & 414.042
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