317:35-5-41.8. Eligibility regarding long-term care services
(a) Home Property. In determining eligibility for long-term care services for applications filed on or after January 1, 2006, home property is excluded from resources unless the individual's equity interest in his or her home exceeds the amount at Oklahoma Department of Human Services (DHS) Appendix C-1, Schedule VIII(D)(2). • 1
(1) Long-term care services include nursing facility (NF) services and other long-term care services. For purposes of this Section, other long-term care services include:
(A) A level of care in any institution equivalent to nursing facility services; and
(B) Home and community-based services furnished under a waiver.
(2) An individual whose equity interest exceeds the amount at DHS Appendix C-1, Schedule VIII(D)(2) is not eligible for long-term care services unless one of the following circumstances applies:
(A) The individual has a spouse who is lawfully residing in the individual's home;
(B) The individual has a child under the age of twenty-one (21) who is lawfully residing in the individual's home;
(C) The individual has a child of any age who is blind or permanently and totally disabled who is lawfully residing in the individual's home; or
(D) The denial would result in undue hardship. Undue hardship exists when denial of SoonerCare long-term care services based on an individual's home equity exceeding the amount at DHS Appendix C-1, Schedule VIII(D)(2) would deprive the individual of medical care such that the individual's health or life would be endangered; or of food, clothing, shelter, or other necessities of life. • 2
(E) An individual may reduce their total equity interest in the home through the use of a reverse mortgage or home equity loan.
(3) Absence from home due to NF care does not affect the home exclusion as long as the individual intends to return home within twelve (12) months from the time he/she entered the facility. The DHS Form 08MA010E, Acknowledgment of Temporary Absence/Home Property Policy, is completed at the time of application for NF care when the applicant has home property. After an explanation of temporary absence, the member, guardian, or responsible person indicates whether there is or is not intent to return to the home and signs the form. • 3
(A) If at the time of application the applicant states he/she does not have plans to return to the home, the home property is considered a countable resource. For members in nursing facilities, a lien may be filed in accordance with Oklahoma Administrative Code (OAC) 317:35-9-15 and OAC 317:35-19-4 on any real property owned by the member when it has been determined, after notice and opportunity for a hearing, that the member cannot reasonably be expected to be discharged and return home. However, a lien is not filed on the home property of the member while any of the persons described in OAC 317:35-9-15(b)(1) and OAC 317:35-19-4(b)(1) are lawfully residing in the home: • 4
(B) If the individual intends to return home, he/she is advised that:
(i) the twelve (12) months of home exemption begins effective with the date of entry into the NF regardless of when application is made for SoonerCare benefits, and
(ii) after twelve (12) months of nursing care, it is assumed there is no reasonable expectation the member will be discharged from the facility and return home and a lien may be filed against real property owned by the member for the cost of medical services received. • 5
(C) "Intent" in regard to absence from the home is defined as a clear statement of plans in addition to other evidence and/or corroborative statements of others.
(D) At the end of the twelve-month (12-month) period the home property becomes a countable resource unless medical evidence is provided to support the feasibility of the member to return to the home within a reasonable period of time (ninety (90) days). This ninety-day (90-day) period is allowed only if sufficient medical evidence is presented with an actual date for return to the home.
(E) A member who leaves the NF must remain in the home at least three (3) months for the home exemption to apply if he/she has to re-enter the facility.
(F) However, if the spouse,minor child under twenty-one (21), or child who is blind or permanently disabled resides in the home during the individual's absence, the home continues to be exempt as a resource so long as the spouse, minor child, or child who is blind or permanently disabled lives there (regardless of whether the absence is temporary).
(G) Once a lien has been filed against the property of an NF resident, the property is no longer considered as a countable resource. • 6
(b) Promissory notes, loans, or mortgages. The rules regarding the treatment of funds used to purchase a promissory note, loan, or mortgage on or after February 8, 2006, are found in (1) through (2) of this subsection.
(1) Funds used to purchase a promissory note, loan, or mortgage on or after February 8, 2006, are treated as assets transferred, and the value of such note, loan, or mortgage shall be the amount of the outstanding balance due on the note, loan, or mortgage as of the date of the individual's application for medical assistance unless the note, loan, or mortgage meets all of the conditions in paragraphs (A) through (C) of this paragraph.
(A) The note, loan, or mortgage has a repayment term that is actuarially sound (as determined in accordance with actuarial publications of the Office of the Chief Actuary of the United States Social Security Administration). • 7
(B) The note, loan, or mortgage provides for payments to be made in equal amounts during the term of the loan, with no deferral and no balloon payments made.
(C) The note, loan, or mortgage prohibits the cancellation of the balance upon the death of the lender.
(2) Funds used to purchase a promissory note, loan, or mortgage for less than its fair market value are treated as assets transferred for less than fair market value regardless of whether:
(A) The note, loan, or mortgage was purchased before February 8, 2006; or
(B) The note, loan, or mortgage was purchased on or after February 8, 2006, and the conditions described in paragraph (1) of this subsection were met.
(c) Annuities. Treatment of annuities purchased on or after February 8, 2006.
(1) The purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless the Oklahoma Health Care Authority is named as the remainder beneficiary:
(A) In the first position for at least the total amount of medical assistance paid on behalf of the institutionalized individual; or
(B) In the second position after the community spouse, child under twenty-one (21) years of age, or disabled child and is named in the first position if the spouse or a representative of the child disposes of any such remainder for less than fair market value.
(2) For purposes of determining financial eligibility for long-term care services under this chapter, the term "assets" shall include an annuity purchased by or on behalf of an annuitant who has applied for SoonerCare NF services or other long-term care services unless the annuity meets one (1) of the following conditions.
(A) The annuity is an annuity described in subsection (b) or (q) of Section 408 of the United States Internal Revenue Code of 1986; or
(B) The annuity is purchased with proceeds from:
(i) An account or trust described in subsection (a), (c), or (p) of Section 408 of the United States Internal Revenue Code of 1986;
(ii) A simplified employee pension as defined in Section 408(k) of the United States Internal Revenue Service Code of 1986; and/or
(iii) A Roth IRA described in Section408A of the United States Internal Revenue Service Code of 1986; or
(C) The annuity:
(i) is irrevocable and nonassignable;
(ii) is actuarially sound as determined in accordance with actuarial publications of the Office of the Chief Actuary of the United States Social Security Administration; and
(iii) provides for payments in equal amounts during the term of the annuity, with no deferral and no balloon payments made.
(d) Life Estates. This subsection pertains to the purchase of a life estate in another individual's home.
(1) The entire amount used to purchase a life estate in another individual's home on or after February 8, 2006, is treated as assets transferred for less than fair market value, unless the purchaser resides in the home for at least one (1) year after the date of the purchase.
(2) Funds used to purchase a life estate in another individual's home for less than its fair market value are treated as assets transferred for less than fair market value regardless of whether:
(A) The life estate was purchased before February 8, 2006; or
(B) The life estate was purchased on or after February, 8, 2006, and the purchaser resided in the home for one (1) year after the date of purchase.
(e) Oklahoma Long-Term Care Partnership (LTCP) Program. This subsection pertains to individuals with Oklahoma Long-Term Care Partnership policies. The Oklahoma Insurance Department approves long-term care insurance policies as Long-term Care Partnership Program policies. The face page of the policy document will indicate if the insurance qualifies as a Long-Term Care Partnership Program policy.
(1) Benefits from the LTCP policy must be exhausted before the individual can be eligible for long-term care under the SoonerCare program.
(2) Assets in an amount equal to the amount paid out under the LTCP policy can be protected for the insured individual once the LTCP policy benefits are exhausted. Protected assets are disregarded when determining eligibility for the SoonerCare program per OAC 317:35-5-41.9(b)(26). A record of the amount paid on behalf of the policy holder is available through the Oklahoma Health Care Authority or insurance company holding the LTCP policy.
(A) At the time of application for SoonerCare the individual must determine the asset(s) to be protected. The protected asset(s) cannot be changed. If the value of the protected asset(s) decreases, the individual does not have the option to select additional assets to bring the total up to the protected amount.
(B) If the protected asset(s) are income-producing, the income earned while on SoonerCare is counted in accordance with 317:35-5-42.
(C) The individual can choose to transfer the protected asset without incurring a transfer of assets penalty.
(D) When determining resource eligibility for a couple when one of them enters the nursing home or applies for a HCBS waiver, the LTCP protected asset(s) are disregarded in determining the total amount of the couple's resources.
INSTRUCTIONS TO STAFF
1.Refer to Schedule VIII.D(2) of Oklahoma Department of Human Services (DHS) Appendix C-1 for the home property standard.
2.The worker requests an undue hardship by sending a memo and documentation to Adult and Family Services Health Related and Medical Services staff for approval.
(1) When the undue hardship exists because the client was placed in the nursing facility due to a life or death situation, the memo includes information about the situation and the SoonerCare (Medicaid) application date.A statement from a medical professional verifying the life-threatening situation must be attached.
(2) When the undue hardship exists because the applicant was exploited, the alleged perpetrator's access to the client's income and resources must end and legal action must be pursued.
(A) The memo requesting undue hardship must include:
(i) the SoonerCare (Medicaid) application date;
(ii) what actions were taken to stop the exploitation and what legal action is or was pursued;
(iii) the date the alleged perpetrator's access to the client's income and resources ended;
(iv) the date the client is otherwise eligible if not for the resource transfer; and
(v) the name or names of persons that have current access to the client's income and resources and the date access was requested and received.
(B) The worker attaches proof that legal action is being pursued against the alleged perpetrator.Pursuing legal action means an Adult Protective Services (APS) referral was made to the district attorney's office or a lawsuit was filed against the alleged perpetrator. Proof may include, but is not limited to, providing:
(i) a copy of a signed and completed APS investigation report showing a substantiated finding of exploitation or other confirmation from APS;
(ii) correspondence from the client's or his or her representative's attorney confirming how legal action is being pursued;
(iv) court document showing current guardianship or power-of-attorney information;
(v) court petitions or orders; or
(E) police reports.
3.Effective September 1, 2016, home property in a revocable trust is considered an available resource.When a client's home property is in a revocable trust, the worker informs the client or his or her representative that the home property exemption does not apply unless the property is removed from the revocable trust.The worker provides the client or his or her representative with Form 08AD092E, Client Contact and Information Request, giving the client 10-calendar days to provide proof the property was removed from the trust.When the client does not remove the property from the trust and the value exceeds the resource limit per Schedule VIII.D of the Oklahoma Department of Human Services Appendix C-1, Maximum Income, Resource, and Payment Standards, the worker denies or closes the SoonerCare (Medicaid) benefit.
4.When the home is put on the market for sale, it indicates the individual does not plan to return home.The worker submits lien paperwork to the Oklahoma Heath Care Authority (OHCA), Third Party Liability (TPL) Unit.Lien paperwork includes:
(1) a completed Form 08MA025E, Medicaid Estate Recovery Lien;
(2) a completed Form 08MA024E, Acknowledgement of Intent to Return Home;
(3) a copy of the property deed; and
(4) proof the property is on the market for sale.
5.The home is a countable resource and lien paperwork must be completed and sent to the OHCA, TPL Unit.Lien paperwork includes a completed Form 08MA024E and Form 08MA025E and a copy of the property deed.For example, when the client:
(1) was admitted to the facility in October of last year and applies for nursing home care in October of this year, the 12-month home property exclusion has expired.The worker and the client or client representative complete Form 08MA024E at application and the worker submits Form 08MA024E, Form 08MA025E, and a copy of the property deed to OHCA, TPL Unit upon certification.
(2) is admitted to the nursing facility and applies for nursing home care beginning the date of admission, the home is exempt for 12 months when the client intends to return home.Lien paperwork is completed and submitted to OHCA no later than the 11th month of the exemption period to allow time for the lien to be filed before the 12 month exemption period expires.
6.When the home property is sold after the lien is filed, refer to OAC 317:35-19-4(b)(6) for information on dissolving the lien.
7.Refer to DHS Appendix M-13, Medicaid Life Expectancy Table.