Adult Medicaid Manual MA-2240 TRANSFER OF ASSETS

XIII. REBUTTAL

A. General

Advise the a/r using the DMA-5161, Transfer of Asset Below Current Market Value, of the transfer(s) considered, the sanction period, the right to rebut the value of the asset transferred, the right to rebut the presumption or provide evidence to prove the transfer was made exclusively for a purpose other than establishing Medicaid eligibility, the right to prove the compensation received is greater than established, the right to prove the a/r has been defrauded, the right to prove the asset has been returned, or right to prove intent to dispose asset at current market value.

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(XIII.A.)

1. Also advise that he may:

a. Rebut the presumption that the asset was transferred to establish or retain Medicaid eligibility, or

b. All or a portion of the asset has been returned, or

c. After the date of transfer the money was spent for the benefit of the a/r or the a/r’s spouse.

Follow notification procedures in XIV.B. below.

2. The a/r or the a/r’s spouse must show by the greater weight of the evidence that:

a. The transferred asset is less than the value established by the county dss, or

b. The value of compensation received is greater than the value established, or

c. At least two attempts to dispose of the asset for current market value, or

d. All or a portion of the asset has been returned, or

e. The money has been spent for the benefit of the a/r or the a/r’s spouse, or

f. The asset was transferred solely for a purpose other than qualifying for Medicaid.

The evidence presented (written or oral) must be more persuasive than all evidence presented to the contrary.

The rebuttal evidence may include the a/r’s (spouse/legal representative) statement regarding the circumstances of the transfer, including the specific reason the asset(s) was transferred, the date of transfer, the name and relationship of the person(s) to whom the asset was transferred, and any compensation received. Examples of evidence are oral or written statements from persons knowledgeable about the situation, medical records, and bank records.

B. Rebutting the Value of the Transferred Asset and Amount of Compensation Received

1. To prove that the value of transferred asset is less than the value established by the county, the a/r or the a/r’s spouse must provide a signed written statement from a knowledgeable person located in the same geographic area in which the property is located. The knowledgeable person cannot be a family member, friend or someone who stands to gain from the transaction. The statement must include:

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(XIII.B.1.)

a. A description of the asset that clearly identifies the asset,

b. A specific statement as to the value of the asset and when the value was determined,

c. The reason for establishing the lesser value, and

d. The basis for the source’s knowledge of the value of the property.

A “knowledgeable person” is an individual involved in the sale or appraisal of the type of asset in question, involved in the financing of sales of the type of asset in question, an official of the local property tax jurisdiction, or other person who can establish in the written statement that he is knowledgeable of the value of the type of asset in question. The “same geographic area in which the asset was located” is the same area as covered by local radio, television, newspaper or other media.

2. If the evidence provided proves that the value of the transferred asset is less than the value established under policy, recalculate the uncompensated value using the lesser value.

a. If the a/r or the a/r’s spouse received no compensation for the transferred asset, shorten the sanction period according to the reduced value of the transferred asset.

b. If the a/r or the a/r’s spouse received compensation for the transferred asset with a fair market value that is at least equal to the reduced value of the transferred asset, do not impose a sanction period.

c. If the a/r or the a/r’s spouse received compensation for the transferred asset with a fair market value that is less than the reduced value of the transferred asset, shorten the sanction period according to the reduced uncompensated value of the transfer.

3. To prove that the value of compensation received in return for a transferred asset is greater than the value established under policy, the a/r or the a/r’s spouse must provide evidence of the greater value. Examples of evidence include cancelled checks, receipts, bills of sale, records of a bank or other financial institution that establishes the value of compensation received. For compensation received in the form of real or personal property, use the evidence listed in XIII.B. above.

If the evidence provided proves that the value of the compensation received for a transferred asset is greater than the value established by the county, recalculate the uncompensated value of the transfer based on the greater value of the compensation.

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(XIII.B.)

a. If the a/r or the a/r’s spouse received compensation for the transferred asset with a fair market value that is at least equal to the value of the transferred asset, do not impose a sanction.

b. If the a/r or the a/r’s spouse received compensation for the transferred asset with a fair market value that is less than the value of the transferred asset, shorten the sanction period to the reduced uncompensated value of the transfer.

4. To prove that all or a portion of a transferred asset has been returned, the a/r or the a/r’s spouse must provide evidence establishing the return of the asset. Examples of evidence includes property deeds, closing statements, property tax records, financial statements, records of banks or other financial institutions, deeds of trust, title transfer records, contracts and other legally binding agreements. The asset may be returned beyond the time required to provide evidence. Therefore, allow the a/r an additional 12 days in which to provide the evidence.

a. Do not apply a sanction when the entire transferred asset is returned.

b. When a portion of the transferred asset is returned, reduce the value of the transferred asset by the value of the asset returned. Recalculate the sanction period based on the reduced value of the transferred asset. See XII.E. above.

5. To prove that money has been spent for the benefit of the a/r or the a/r’s spouse after the date of the transfer, the a/r or the a/r’s spouse must present the following documents: cancelled checks, receipts, bills of sale, bank or other financial institution records, or other records that prove the amount of money spent, the date on which it was spent, any goods or services purchased for the a/r or the a/r’s spouse and that the a/r or the a/r’s spouse was the recipient of the benefit from these expenditures. The asset may be returned beyond the time required to provide evidence. Therefore, allow the a/r an additional 12 days in which to provide the evidence.

a. Do not impose a sanction when the amount of money spent for the benefit of the a/r or the a/r’s spouse after the date of the transfer is at least equal to the uncompensated value of the transfer.

b. When the amount of money spent for the benefit of the a/r or the a/r’s spouse after the date of the transfer is less than the value of the transferred asset, reduce the uncompensated value of the transfer by the amount of money spent after the date of the transfer. Shorten the sanction period according to the reduced uncompensated value of the transfer.

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(XIII.)

C. Establishing That a Transfer of Assets Was for a Reason Solely Other Than to Become Eligible for Medicaid

Do not impose a sanction when an asset was transferred solely for a reason other than to become eligible for Medicaid. The following situations establish that an asset was transferred solely for a reason other than to become eligible for Medicaid:

1. The asset was stolen. The a/r or the a/r’s spouse must provide greater weight of evidence which may include but is not limited to a report to law enforcement officials.

2. The a/r has been defrauded.

a. Refer the case to protective services and/or if there is a legal representative, the clerk of court, to pursue possible reversal of the action and return of the asset to the a/r.

b. Do not apply a transfer sanction when Adult Protective Services investigates and determines that the a/r is a victim of fraud and did not take the action with the intent of becoming eligible for Medicaid.

c. The a/r or the a/r’s spouse must provide greater weight of evidence which may include but is not limited to a report to law enforcement officials.

3. The a/r or the a/r’s spouse is a victim of exploitation. The a/r or the a/r’s spouse must provide through the greater weight of evidence which may include:

a. Proof that includes substantial evidence that the a/r or the a/r’s spouse is a victim of exploitation due to the illegal or improper use of a disabled adult or his assets for another’s profit or advantage.

b. Proof of a request to the county department of social services for adult protective services for the a/r or the a/r’s spouse.

c. The a/r or the a/r’s spouse must provide greater weight of evidence which may include but is not limited to a report to law enforcement officials.

4. The a/r or the a/r’s spouse is a victim of actual or threatened abuse. The a/r or the a/r’s spouse must provide through the greater weight of evidence:

a. Proof that includes greater evidence that the a/r or the a/r’s spouse is a victim of actual or threatened abuse due to the willful infliction of physical pain, injury or mental anguish, unreasonable confinement, or the willful deprivation by a caretaker of services which are necessary to maintain mental and physical health, and

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(XIII.C.4.)

b. Proof of a request to the county department of social services for adult protective services for the a/r or the a/r’s spouse.

c. The a/r or the a/r’s spouse must provide greater weight of evidence which may include but is not limited to a report to law enforcement officials.

5. The transfer of assets occurred as part of a regular, in frequency and amount, pattern of giving. The greater weight of evidence must include written records that clearly document the pattern of giving. Such records include, but are not limited to bank account records and property transfer records.

6. In situations other than those noted in XIII.C. 1. through 5. above, when an a/r or an a/r’s spouse alleges that the transfer of assets was made solely for a reason other than to become eligible for Medicaid, evaluate the evidence presented. The evidence might establish another reason for the transfer. However, if establishing Medicaid eligibility for institutional services or in-home health services and supplies after receiving institutional services was also considered, the transfer was not exclusively for a purpose other than to establish or retain Medicaid eligibility.

a. In making the determination, consider the following:

(1) The a/r’s or the a/r’s spouses’ age, general health, living arrangement, and amount of assets retained to meet future needs at the time of the transfer;

(2) How the a/r expected to meet his medical and other living expenses without the transferred asset;

(3) Whether the case record documents any inquiry by the a/r, the a/r’s spouse, representative, or other interested party about asset limits for Medicaid, or other eligibility requirements for Medicaid;

(4) Whether the a/r or the a/r’s spouse, representative, or other interested party consulted or hired an attorney for estate planning purposes;

(5) Whether the individuals who provided the knowledgeable statements concerning the circumstances of the transfer stand to gain in any way from the transfer;

(6) Whether the transfer is a one-time gift by the a/r or the a/r’s spouse to a charity, religious organization, or family member made when the a/r or the a/r’s spouse did not anticipate needing long term medical care.

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(XIII.C.6.)

b. Document the response provided to the considerations listed in XIII.C.6.a. above. The a/r or the a/r’s spouse or the a/r’s or the a/r’s spouse’s legal representative must also provide a complete written accounting of the transfer, including all relevant documentation that shows the following:

(1) The a/r or the a/r’s spouse’s purpose for transferring the asset;

(2) The a/r or the a/r’s spouse’s attempts to dispose of the asset at fair market value;

(3) The a/r or the a/r’s spouse’s reasons for accepting less than fair market value such as:

(a) A forced sale was done under reasonable circumstances;

(b) Little or no market demand exists for the type of asset transferred; or

(c) The asset was transferred to settle a legal debt approximately equal to the fair market value of the transferred assets; and

(4) The a/r or the a/r’s spouse’s relationship, if any, to the persons to whom the asset was transferred.

c. In addition to the written evidence provided in XIII.C.6.b. above, evidence from other sources may be considered. Examples of other sources include but are not limited to bank records, medical records or oral or written statements from persons knowledgeable about the a/r’s or the a/r’s situation and the transfer of assets.