Bill Text: MN SF2333 | 2011-2012 | 87th Legislature | Introduced
Bill Title: Medical assistance (MA) assets transfer prohibition exception clarification
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-03-08 - Referred to Health and Human Services [SF2333 Detail]
Download: Minnesota-2011-SF2333-Introduced.html
1.2relating to human services; clarifying an exception to the transfer prohibition
1.3for medical assistance eligibility;amending Minnesota Statutes 2010, section
1.4256B.0595, subdivisions 1, 4; Laws 2009, chapter 173, article 1, section 17,
1.5as amended.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 256B.0595, subdivision 1, is amended to
1.8read:
1.9 Subdivision 1. Prohibited transfers. (a) For transfers of assets made on or before
1.10August 10, 1993, if an institutionalized person or the institutionalized person's spouse has
1.11given away, sold, or disposed of, for less than fair market value, any asset or interest
1.12therein, except assets other than the homestead that are excluded under the supplemental
1.13security program, within 30 months before or any time after the date of institutionalization
1.14if the person has been determined eligible for medical assistance, or within 30 months
1.15before or any time after the date of the first approved application for medical assistance
1.16if the person has not yet been determined eligible for medical assistance, the person is
1.17ineligible for long-term care services for the period of time determined under subdivision
1.182.
1.19 (b) Effective for transfers made after August 10, 1993, an institutionalized person, an
1.20institutionalized person's spouse, or any person, court, or administrative body with legal
1.21authority to act in place of, on behalf of, at the direction of, or upon the request of the
1.22institutionalized person or institutionalized person's spouse, may not give away, sell, or
1.23dispose of, for less than fair market value, any asset or interest therein, except assets other
1.24than the homestead that are excluded under the Supplemental Security Income program,
1.25for the purpose of establishing or maintaining medical assistance eligibility. This applies
2.1to all transfers, including those made by a community spouse after the month in which
2.2the institutionalized spouse is determined eligible for medical assistance. For purposes of
2.3determining eligibility for long-term care services, any transfer of such assets within 36
2.4months before or any time after an institutionalized person requests medical assistance
2.5payment of long-term care services, or 36 months before or any time after a medical
2.6assistance recipient becomes an institutionalized person, for less than fair market value
2.7may be considered. Any such transfer is presumed to have been made for the purpose
2.8of establishing or maintaining medical assistance eligibility and the institutionalized
2.9person is ineligible for long-term care services for the period of time determined under
2.10subdivision 2, unless the institutionalized person furnishes convincing evidence to
2.11establish that the transaction was exclusively for another purpose, or unless the transfer is
2.12permitted under subdivision 3 or 4. In the case of payments from a trust or portions of a
2.13trust that are considered transfers of assets under federal law, or in the case of any other
2.14disposal of assets made on or after February 8, 2006, any transfers made within 60 months
2.15before or any time after an institutionalized person requests medical assistance payment of
2.16long-term care services and within 60 months before or any time after a medical assistance
2.17recipient becomes an institutionalized person, may be considered.
2.18 (c) This section applies to transfers, for less than fair market value, of income
2.19or assets, including assets that are considered income in the month received, such as
2.20inheritances, court settlements, and retroactive benefit payments or income to which the
2.21institutionalized person or the institutionalized person's spouse is entitled but does not
2.22receive due to action by the institutionalized person, the institutionalized person's spouse,
2.23or any person, court, or administrative body with legal authority to act in place of, on
2.24behalf of, at the direction of, or upon the request of the institutionalized person or the
2.25institutionalized person's spouse.
2.26 (d) This section applies to payments for care or personal services provided by a
2.27relative, unless the compensation was stipulated in a notarized, written agreement which
2.28was in existence when the service was performed, the care or services directly benefited
2.29the person, and the payments made represented reasonable compensation for the care
2.30or services provided. A notarized written agreement is not required if payment for the
2.31services was made within 60 days after the service was provided.
2.32 (e) This section applies to the portion of any asset or interest that an institutionalized
2.33person, an institutionalized person's spouse, or any person, court, or administrative body
2.34with legal authority to act in place of, on behalf of, at the direction of, or upon the request
2.35of the institutionalized person or the institutionalized person's spouse, transfers to any
2.36annuity that exceeds the value of the benefit likely to be returned to the institutionalized
3.1person or institutionalized person's spouse while alive, based on estimated life expectancy
3.2as determined according to the current actuarial tables published by the Office of the
3.3Chief Actuary of the Social Security Administration. The commissioner may adopt rules
3.4reducing life expectancies based on the need for long-term care. This section applies to an
3.5annuity purchased on or after March 1, 2002, that:
3.6 (1) is not purchased from an insurance company or financial institution that is
3.7subject to licensing or regulation by the Minnesota Department of Commerce or a similar
3.8regulatory agency of another state;
3.9 (2) does not pay out principal and interest in equal monthly installments; or
3.10 (3) does not begin payment at the earliest possible date after annuitization.
3.11 (f) Effective for transactions, including the purchase of an annuity, occurring on or
3.12after February 8, 2006, by or on behalf of an institutionalized person who has applied for
3.13or is receiving long-term care services or the institutionalized person's spouse shall be
3.14treated as the disposal of an asset for less than fair market value unless the department is
3.15named a preferred remainder beneficiary as described in section256B.056, subdivision
3.1611 . Any subsequent change to the designation of the department as a preferred remainder
3.17beneficiary shall result in the annuity being treated as a disposal of assets for less than
3.18fair market value. The amount of such transfer shall be the maximum amount the
3.19institutionalized person or the institutionalized person's spouse could receive from the
3.20annuity or similar financial instrument. Any change in the amount of the income or
3.21principal being withdrawn from the annuity or other similar financial instrument at the
3.22time of the most recent disclosure shall be deemed to be a transfer of assets for less than
3.23fair market value unless the institutionalized person or the institutionalized person's spouse
3.24demonstrates that the transaction was for fair market value. In the event a distribution
3.25of income or principal has been improperly distributed or disbursed from an annuity or
3.26other retirement planning instrument of an institutionalized person or the institutionalized
3.27person's spouse, a cause of action exists against the individual receiving the improper
3.28distribution for the cost of medical assistance services provided or the amount of the
3.29improper distribution, whichever is less.
3.30 (g) Effective for transactions, including the purchase of an annuity, occurring on
3.31or after February 8, 2006, by or on behalf of an institutionalized person applying for or
3.32receiving long-term care services shall be treated as a disposal of assets for less than fair
3.33market value unless it is:
3.34 (i) an annuity described in subsection (b) or (q) of section 408 of the Internal
3.35Revenue Code of 1986; or
3.36 (ii) purchased with proceeds from:
4.1 (A) an account or trust described in subsection (a), (c), or (p) of section 408 of the
4.2Internal Revenue Code;
4.3 (B) a simplified employee pension within the meaning of section 408(k) of the
4.4Internal Revenue Code; or
4.5 (C) a Roth IRA described in section 408A of the Internal Revenue Code; or
4.6 (iii) an annuity that is irrevocable and nonassignable; is actuarially sound as
4.7determined in accordance with actuarial publications of the Office of the Chief Actuary of
4.8the Social Security Administration; and provides for payments in equal amounts during
4.9the term of the annuity, with no deferral and no balloon payments made.
4.10 (h) For purposes of this section, long-term care services include services in a nursing
4.11facility, services that are eligible for payment according to section256B.0625, subdivision
4.122 , because they are provided in a swing bed, intermediate care facility for persons with
4.13developmental disabilities, and home and community-based services provided pursuant
4.14to sections256B.0915 ,
256B.092 , and
256B.49 . For purposes of this subdivision and
4.15subdivisions 2, 3, and 4, "institutionalized person" includes a person who is an inpatient
4.16in a nursing facility or in a swing bed, or intermediate care facility for persons with
4.17developmental disabilities or who is receiving home and community-based services under
4.18sections256B.0915 ,
256B.092 , and
256B.49 .
4.19 (i) This section applies to funds used to purchase a promissory note, loan, or
4.20mortgage unless the note, loan, or mortgage:
4.21 (1) has a repayment term that is actuarially sound;
4.22 (2) provides for payments to be made in equal amounts during the term of the loan,
4.23with no deferral and no balloon payments made; and
4.24 (3) prohibits the cancellation of the balance upon the death of the lender.
4.25 In the case of a promissory note, loan, or mortgage that does not meet an exception
4.26in clauses (1) to (3), the value of such note, loan, or mortgage shall be the outstanding
4.27balance due as of the date of the institutionalized person's request for medical assistance
4.28payment of long-term care services.
4.29 (j) This section applies to the purchase of a life estate interest in another person's
4.30home unless the purchaser resides in the home for a period of at least one year after the
4.31date of purchase.
4.32(k) This section applies to transfers into a pooled trust that qualifies under United
4.33States Code, title 42, section 1396p(d)(4)(C), by:
4.34(1) a person age 65 or older or the person's spouse; or
5.1(2) any person, court, or administrative body with legal authority to act in place
5.2of, on behalf of, at the direction of, or upon the request of a person age 65 or older or
5.3the person's spouse.
5.4 Sec. 2. Minnesota Statutes 2010, section 256B.0595, subdivision 4, is amended to read:
5.5 Subd. 4. Other exceptions to transfer prohibition. (a) An institutionalized person,
5.6as defined in subdivision 1, paragraph (h), who has made, or whose spouse has made a
5.7transfer prohibited by subdivision 1, is not ineligible for long-term care services if one of
5.8the following conditions applies:
5.9 (1) the assets were transferred to the individual's spouse or to another for the sole
5.10benefit of the spouse; or
5.11 (2) the institutionalized spouse, prior to being institutionalized, transferred assets
5.12to a spouse, provided that the spouse to whom the assets were transferred does not then
5.13transfer those assets to another person for less than fair market value. (At the time when
5.14one spouse is institutionalized, assets must be allocated between the spouses as provided
5.15under section256B.059 ); or
5.16 (3) the assets were transferred to the individual's child who is blind or permanently
5.17and totally disabled as determined in the supplemental security income program; or
5.18 (4) a satisfactory showing is made that the individual intended to dispose of the
5.19assets either at fair market value or for other valuable consideration; or
5.20 (5) the local agency determines that denial of eligibility for long-term care
5.21services would work an undue hardship and grants a waiver of a period of ineligibility
5.22resulting from a transfer for less than fair market value based on an imminent threat to
5.23the individual's health and well-being. Imminent threat to the individual's health and
5.24well-being means that imposing a period of ineligibility would endanger the individual's
5.25health or life or cause serious deprivation of food, clothing, or shelter. Whenever an
5.26applicant or recipient is denied eligibility because of a transfer for less than fair market
5.27value, the local agency shall notify the applicant or recipient that the applicant or recipient
5.28may request a waiver of the period of ineligibility if the denial of eligibility will cause
5.29undue hardship. With the written consent of the individual or the personal representative
5.30of the individual, a long-term care facility in which an individual is residing may file an
5.31undue hardship waiver request, on behalf of the individual who is denied eligibility for
5.32long-term care services on or after July 1, 2006, due to a period of ineligibility resulting
5.33from a transfer on or after February 8, 2006.
5.34(b) Subject to paragraph (c), when evaluating a hardship waiver, the local agency
5.35shall take into account whether the individual was the victim of financial exploitation,
6.1whether the individual has made reasonable efforts to recover the transferred property or
6.2resource, whether the individual has taken any action to prevent the designation of the
6.3department as a remainder beneficiary on an annuity as described in section256B.056 ,
6.4subdivision 11, and other factors relevant to a determination of hardship.
6.5(c) In the case of an imminent threat to the individual's health and well-being, the
6.6local agency shall approve a hardship waiver of the portion of an individual's period of
6.7ineligibility resulting from a transfer of assets for less than fair market value by or to
6.8a person:
6.9(1) convicted of financial exploitation, fraud, or theft upon the individual for the
6.10transfer of assets; or
6.11(2) against whom a report of financial exploitation upon the individual has been
6.12substantiated. For purposes of this paragraph, "financial exploitation" and "substantiated"
6.13have the meanings given in section626.5572 .
6.14(d) The local agency shall make a determination within 30 days of the receipt of all
6.15necessary information needed to make such a determination. If the local agency does not
6.16approve a hardship waiver, the local agency shall issue a written notice to the individual
6.17stating the reasons for the denial and the process for appealing the local agency's decision.
6.18When a waiver is granted, a cause of action exists against the person to whom the assets
6.19were transferred for that portion of long-term care services provided within:
6.20 (1) 30 months of a transfer made on or before August 10, 1993;
6.21 (2) 60 months of a transfer if the assets were transferred after August 30, 1993, to a
6.22trust or portion of a trust that is considered a transfer of assets under federal law;
6.23 (3) 36 months of a transfer if transferred in any other manner after August 10, 1993,
6.24but prior to February 8, 2006; or
6.25 (4) 60 months of any transfer made on or after February 8, 2006,
6.26or the amount of the uncompensated transfer, whichever is less, together with the costs
6.27incurred due to the action; or
6.28 (5) for transfers occurring after August 10, 1993, the assets were transferred by
6.29the person or person's spouse: (i) into a trust established for the sole benefit of a son or
6.30daughter of any age who is blind or disabled as defined by the Supplemental Security
6.31Income program; or (ii) into a trust established for the sole benefit of an individual who is
6.32under 65 years of age who is disabled as defined by the Supplemental Security Income
6.33program.
6.34 "For the sole benefit of" has the meaning found in section256B.059, subdivision 1 .
6.35(e) A transfer of assets into a pooled trust as defined in section 256B.056,
6.36subdivision 3b, paragraph (c), shall be considered a transfer of assets for fair market value
7.1if the pooled trust is established according to the provisions listed in section 256B.056,
7.2subdivision 3b, paragraph (d).
7.3 Sec. 3. Laws 2009, chapter 173, article 1, section 17, the effective date, as amended by
7.4Laws 2010, First Special Session chapter 1, article 24, section 13, and Laws 2011, First
7.5Special Session chapter 9, article 6, section 88, is amended to read:
7.6EFFECTIVE DATE.This section is effective for pooled trust accounts established
7.7on or after January 1,2014 2011, or upon the date it is no longer subject to the maintenance
7.8of effort requirement in Public Law 111-148. The commissioner of human services shall
7.9notify the revisor of statutes of that date.
1.3for medical assistance eligibility;amending Minnesota Statutes 2010, section
1.4256B.0595, subdivisions 1, 4; Laws 2009, chapter 173, article 1, section 17,
1.5as amended.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 256B.0595, subdivision 1, is amended to
1.8read:
1.9 Subdivision 1. Prohibited transfers. (a) For transfers of assets made on or before
1.10August 10, 1993, if an institutionalized person or the institutionalized person's spouse has
1.11given away, sold, or disposed of, for less than fair market value, any asset or interest
1.12therein, except assets other than the homestead that are excluded under the supplemental
1.13security program, within 30 months before or any time after the date of institutionalization
1.14if the person has been determined eligible for medical assistance, or within 30 months
1.15before or any time after the date of the first approved application for medical assistance
1.16if the person has not yet been determined eligible for medical assistance, the person is
1.17ineligible for long-term care services for the period of time determined under subdivision
1.182.
1.19 (b) Effective for transfers made after August 10, 1993, an institutionalized person, an
1.20institutionalized person's spouse, or any person, court, or administrative body with legal
1.21authority to act in place of, on behalf of, at the direction of, or upon the request of the
1.22institutionalized person or institutionalized person's spouse, may not give away, sell, or
1.23dispose of, for less than fair market value, any asset or interest therein, except assets other
1.24than the homestead that are excluded under the Supplemental Security Income program,
1.25for the purpose of establishing or maintaining medical assistance eligibility. This applies
2.1to all transfers, including those made by a community spouse after the month in which
2.2the institutionalized spouse is determined eligible for medical assistance. For purposes of
2.3determining eligibility for long-term care services, any transfer of such assets within 36
2.4months before or any time after an institutionalized person requests medical assistance
2.5payment of long-term care services, or 36 months before or any time after a medical
2.6assistance recipient becomes an institutionalized person, for less than fair market value
2.7may be considered. Any such transfer is presumed to have been made for the purpose
2.8of establishing or maintaining medical assistance eligibility and the institutionalized
2.9person is ineligible for long-term care services for the period of time determined under
2.10subdivision 2, unless the institutionalized person furnishes convincing evidence to
2.11establish that the transaction was exclusively for another purpose, or unless the transfer is
2.12permitted under subdivision 3 or 4. In the case of payments from a trust or portions of a
2.13trust that are considered transfers of assets under federal law, or in the case of any other
2.14disposal of assets made on or after February 8, 2006, any transfers made within 60 months
2.15before or any time after an institutionalized person requests medical assistance payment of
2.16long-term care services and within 60 months before or any time after a medical assistance
2.17recipient becomes an institutionalized person, may be considered.
2.18 (c) This section applies to transfers, for less than fair market value, of income
2.19or assets, including assets that are considered income in the month received, such as
2.20inheritances, court settlements, and retroactive benefit payments or income to which the
2.21institutionalized person or the institutionalized person's spouse is entitled but does not
2.22receive due to action by the institutionalized person, the institutionalized person's spouse,
2.23or any person, court, or administrative body with legal authority to act in place of, on
2.24behalf of, at the direction of, or upon the request of the institutionalized person or the
2.25institutionalized person's spouse.
2.26 (d) This section applies to payments for care or personal services provided by a
2.27relative, unless the compensation was stipulated in a notarized, written agreement which
2.28was in existence when the service was performed, the care or services directly benefited
2.29the person, and the payments made represented reasonable compensation for the care
2.30or services provided. A notarized written agreement is not required if payment for the
2.31services was made within 60 days after the service was provided.
2.32 (e) This section applies to the portion of any asset or interest that an institutionalized
2.33person, an institutionalized person's spouse, or any person, court, or administrative body
2.34with legal authority to act in place of, on behalf of, at the direction of, or upon the request
2.35of the institutionalized person or the institutionalized person's spouse, transfers to any
2.36annuity that exceeds the value of the benefit likely to be returned to the institutionalized
3.1person or institutionalized person's spouse while alive, based on estimated life expectancy
3.2as determined according to the current actuarial tables published by the Office of the
3.3Chief Actuary of the Social Security Administration. The commissioner may adopt rules
3.4reducing life expectancies based on the need for long-term care. This section applies to an
3.5annuity purchased on or after March 1, 2002, that:
3.6 (1) is not purchased from an insurance company or financial institution that is
3.7subject to licensing or regulation by the Minnesota Department of Commerce or a similar
3.8regulatory agency of another state;
3.9 (2) does not pay out principal and interest in equal monthly installments; or
3.10 (3) does not begin payment at the earliest possible date after annuitization.
3.11 (f) Effective for transactions, including the purchase of an annuity, occurring on or
3.12after February 8, 2006, by or on behalf of an institutionalized person who has applied for
3.13or is receiving long-term care services or the institutionalized person's spouse shall be
3.14treated as the disposal of an asset for less than fair market value unless the department is
3.15named a preferred remainder beneficiary as described in section
3.1611
3.17beneficiary shall result in the annuity being treated as a disposal of assets for less than
3.18fair market value. The amount of such transfer shall be the maximum amount the
3.19institutionalized person or the institutionalized person's spouse could receive from the
3.20annuity or similar financial instrument. Any change in the amount of the income or
3.21principal being withdrawn from the annuity or other similar financial instrument at the
3.22time of the most recent disclosure shall be deemed to be a transfer of assets for less than
3.23fair market value unless the institutionalized person or the institutionalized person's spouse
3.24demonstrates that the transaction was for fair market value. In the event a distribution
3.25of income or principal has been improperly distributed or disbursed from an annuity or
3.26other retirement planning instrument of an institutionalized person or the institutionalized
3.27person's spouse, a cause of action exists against the individual receiving the improper
3.28distribution for the cost of medical assistance services provided or the amount of the
3.29improper distribution, whichever is less.
3.30 (g) Effective for transactions, including the purchase of an annuity, occurring on
3.31or after February 8, 2006, by or on behalf of an institutionalized person applying for or
3.32receiving long-term care services shall be treated as a disposal of assets for less than fair
3.33market value unless it is:
3.34 (i) an annuity described in subsection (b) or (q) of section 408 of the Internal
3.35Revenue Code of 1986; or
3.36 (ii) purchased with proceeds from:
4.1 (A) an account or trust described in subsection (a), (c), or (p) of section 408 of the
4.2Internal Revenue Code;
4.3 (B) a simplified employee pension within the meaning of section 408(k) of the
4.4Internal Revenue Code; or
4.5 (C) a Roth IRA described in section 408A of the Internal Revenue Code; or
4.6 (iii) an annuity that is irrevocable and nonassignable; is actuarially sound as
4.7determined in accordance with actuarial publications of the Office of the Chief Actuary of
4.8the Social Security Administration; and provides for payments in equal amounts during
4.9the term of the annuity, with no deferral and no balloon payments made.
4.10 (h) For purposes of this section, long-term care services include services in a nursing
4.11facility, services that are eligible for payment according to section
4.122
4.13developmental disabilities, and home and community-based services provided pursuant
4.14to sections
4.15subdivisions 2, 3, and 4, "institutionalized person" includes a person who is an inpatient
4.16in a nursing facility or in a swing bed, or intermediate care facility for persons with
4.17developmental disabilities or who is receiving home and community-based services under
4.18sections
4.19 (i) This section applies to funds used to purchase a promissory note, loan, or
4.20mortgage unless the note, loan, or mortgage:
4.21 (1) has a repayment term that is actuarially sound;
4.22 (2) provides for payments to be made in equal amounts during the term of the loan,
4.23with no deferral and no balloon payments made; and
4.24 (3) prohibits the cancellation of the balance upon the death of the lender.
4.25 In the case of a promissory note, loan, or mortgage that does not meet an exception
4.26in clauses (1) to (3), the value of such note, loan, or mortgage shall be the outstanding
4.27balance due as of the date of the institutionalized person's request for medical assistance
4.28payment of long-term care services.
4.29 (j) This section applies to the purchase of a life estate interest in another person's
4.30home unless the purchaser resides in the home for a period of at least one year after the
4.31date of purchase.
4.32
4.33
4.34
5.1
5.2
5.3
5.4 Sec. 2. Minnesota Statutes 2010, section 256B.0595, subdivision 4, is amended to read:
5.5 Subd. 4. Other exceptions to transfer prohibition. (a) An institutionalized person,
5.6as defined in subdivision 1, paragraph (h), who has made, or whose spouse has made a
5.7transfer prohibited by subdivision 1, is not ineligible for long-term care services if one of
5.8the following conditions applies:
5.9 (1) the assets were transferred to the individual's spouse or to another for the sole
5.10benefit of the spouse; or
5.11 (2) the institutionalized spouse, prior to being institutionalized, transferred assets
5.12to a spouse, provided that the spouse to whom the assets were transferred does not then
5.13transfer those assets to another person for less than fair market value. (At the time when
5.14one spouse is institutionalized, assets must be allocated between the spouses as provided
5.15under section
5.16 (3) the assets were transferred to the individual's child who is blind or permanently
5.17and totally disabled as determined in the supplemental security income program; or
5.18 (4) a satisfactory showing is made that the individual intended to dispose of the
5.19assets either at fair market value or for other valuable consideration; or
5.20 (5) the local agency determines that denial of eligibility for long-term care
5.21services would work an undue hardship and grants a waiver of a period of ineligibility
5.22resulting from a transfer for less than fair market value based on an imminent threat to
5.23the individual's health and well-being. Imminent threat to the individual's health and
5.24well-being means that imposing a period of ineligibility would endanger the individual's
5.25health or life or cause serious deprivation of food, clothing, or shelter. Whenever an
5.26applicant or recipient is denied eligibility because of a transfer for less than fair market
5.27value, the local agency shall notify the applicant or recipient that the applicant or recipient
5.28may request a waiver of the period of ineligibility if the denial of eligibility will cause
5.29undue hardship. With the written consent of the individual or the personal representative
5.30of the individual, a long-term care facility in which an individual is residing may file an
5.31undue hardship waiver request, on behalf of the individual who is denied eligibility for
5.32long-term care services on or after July 1, 2006, due to a period of ineligibility resulting
5.33from a transfer on or after February 8, 2006.
5.34(b) Subject to paragraph (c), when evaluating a hardship waiver, the local agency
5.35shall take into account whether the individual was the victim of financial exploitation,
6.1whether the individual has made reasonable efforts to recover the transferred property or
6.2resource, whether the individual has taken any action to prevent the designation of the
6.3department as a remainder beneficiary on an annuity as described in section
6.4subdivision 11, and other factors relevant to a determination of hardship.
6.5(c) In the case of an imminent threat to the individual's health and well-being, the
6.6local agency shall approve a hardship waiver of the portion of an individual's period of
6.7ineligibility resulting from a transfer of assets for less than fair market value by or to
6.8a person:
6.9(1) convicted of financial exploitation, fraud, or theft upon the individual for the
6.10transfer of assets; or
6.11(2) against whom a report of financial exploitation upon the individual has been
6.12substantiated. For purposes of this paragraph, "financial exploitation" and "substantiated"
6.13have the meanings given in section
6.14(d) The local agency shall make a determination within 30 days of the receipt of all
6.15necessary information needed to make such a determination. If the local agency does not
6.16approve a hardship waiver, the local agency shall issue a written notice to the individual
6.17stating the reasons for the denial and the process for appealing the local agency's decision.
6.18When a waiver is granted, a cause of action exists against the person to whom the assets
6.19were transferred for that portion of long-term care services provided within:
6.20 (1) 30 months of a transfer made on or before August 10, 1993;
6.21 (2) 60 months of a transfer if the assets were transferred after August 30, 1993, to a
6.22trust or portion of a trust that is considered a transfer of assets under federal law;
6.23 (3) 36 months of a transfer if transferred in any other manner after August 10, 1993,
6.24but prior to February 8, 2006; or
6.25 (4) 60 months of any transfer made on or after February 8, 2006,
6.26or the amount of the uncompensated transfer, whichever is less, together with the costs
6.27incurred due to the action; or
6.28 (5) for transfers occurring after August 10, 1993, the assets were transferred by
6.29the person or person's spouse: (i) into a trust established for the sole benefit of a son or
6.30daughter of any age who is blind or disabled as defined by the Supplemental Security
6.31Income program; or (ii) into a trust established for the sole benefit of an individual who is
6.32under 65 years of age who is disabled as defined by the Supplemental Security Income
6.33program.
6.34 "For the sole benefit of" has the meaning found in section
6.35(e) A transfer of assets into a pooled trust as defined in section 256B.056,
6.36subdivision 3b, paragraph (c), shall be considered a transfer of assets for fair market value
7.1if the pooled trust is established according to the provisions listed in section 256B.056,
7.2subdivision 3b, paragraph (d).
7.3 Sec. 3. Laws 2009, chapter 173, article 1, section 17, the effective date, as amended by
7.4Laws 2010, First Special Session chapter 1, article 24, section 13, and Laws 2011, First
7.5Special Session chapter 9, article 6, section 88, is amended to read:
7.6EFFECTIVE DATE.This section is effective for pooled trust accounts established
7.7on or after January 1,
7.8of effort requirement in Public Law 111-148. The commissioner of human services shall
7.9notify the revisor of statutes of that date.
