Exceptions to the Medicaid Transfer Penalty

Elder Law

What are the exceptions to the Medicaid transfer penalty?

We do a fair amount of asset protection for families with loved ones entering nursing homes and deal with medicaid transfers.  We almost always transfer assets out of the medically needy individual’s name. This generally allows for the preservation of a majority of the assets and allows the medically needy person to qualify for Medicaid.   Most of the time these transfers happen after the sick loved one has entered a nursing home.

The Five Year Look Back Rule imposes a disqualification calculated in months, on receiving Medicaid benefits against the person who owned the assets prior to the medicaid transfer.  The penalty is based upon dividing the assets transferred by a specified dollar amount that each state publishes once a year. That specified dollar amount is known as the Penalty Divisor.  The Penalty Divisor in Arkansas at the time of this article (2018) is $5,493. That means for every $5,493 transferred out of the Medicaid Applicant’s name in the 60 months prior to submitting a Medicaid Application, there is one month of disqualification from receiving Medicaid benefits once you’ve qualified for them.

As with most rules there are exceptions and that is what this article is about.  So, what are the exceptions? Here they are.

1. Medicaid Transfers to a Spouse

Assuming the Medicaid applicant (“the Institutionalized Spouse”) is married, the rules allow for the other spouse (“the Community Spouse”) to keep a minimum amount of the jointly owned assets.  The minimum amount the Community Spouse may retain is $24,720. So, if the couple only has $24,700 or less, all of it can be transferred into the Community Spouse’s name and the Institutionalized Spouse will be qualified for Medicaid.  

The Community Spouse may retain a maximum of $123,600 of the couples combined assets.  This only applies if the combined assets are no more than $247,200. If the combined assets are more than $24,720 but less than $247,200, the Community Spouse may retain half of whatever that amount may be.

2.  Transferring Assets into Certain Trusts

Transferring resources for less than fair market value does not apply to trusts if that trust is established for:

  1. The sole benefit of the Medicaid applicant’s blind or disabled child (the child can be any age). Sole benefit means that the trust document legally binds these assets to be used only for the “sole benefit of” the person indicated. The child’s blindness or disability must be verified; or
  2. The sole benefit of the Medicaid applicant him or herself, through a special needs trust if applicant is disabled and under age 65.

3. Transferring Exceptions Specifically Related to the Home

The Medicaid applicant’s home can be transferred to certain individuals as a gift within the look-back period without penalty, the list below outlines the medicaid exceptions:

  1. Spouse Exception:  Title to the Medicaid-applicant’s home may be deeded to their spouse.
  2. Child Under 21 Exception:  Title may be transferred to any child under the age of 21.
  3. Blind or Disabled Child Exception:  to any child of any age who is blind or disabled.  This exception applies to any assets not just the home.
  4. Sibling Home Transfer Exception:  The home may be given to the Medicaid-applicant’s sibling if the sibling was residing in the Medicaid applicant’s home for at least one year prior to the Medicaid-applicant’s institutionalization.
  5. Caregiving Child Exception to Home Transfer:  The Medicaid applicant’s home may be gifted to their son or daughter if the child was living in the home for two (2) years immediately prior to the Medicaid applicant becoming institutionalized AND the child, who is receiving title to the home, provided caregiving services that were necessary for the Medicaid applicant to avoid living in the nursing home for those two years.

4. Transferring Assets for Purposes Other than Obtaining SSI/Medicaid

If individuals can prove that they gave away resources for purposes other than qualifying for Medicaid benefits, then they may be able to avoid a Medicaid transfer penalty period of ineligibility.  

5. The Undue Hardship Exception

Medicaid transfers can be overlook under this exception. This is perhaps the most difficult exception to prove. Undue hardship means that the individual would be deprived of food and shelter if they were denied SSI payments.

6. Transfers to Pay Debt

Paying off debts during the Medicaid Look-back Period is also exempt from violation. For instance, paying off one’s mortgage or home equity line of credit is a great way to turn liquid assets into exempt assets. Medicaid transfer to get out of debt are a great way to help you spouse. 

We don’t expect you to know about these rules.  We know about them and we can help your family navigate through these difficult rules if you are facing institutionalization for a loved one. Applying for Medicaid can be a scary process and one that can easily be mishandled accidentally. The consequence for denial of a Medicaid application or for failing to properly transfer the applicant’s property can mean the difference of tens of thousands of dollars. At wh Law | We Help, we have literally decades of experience of dealing with DHS and the Medicaid process.  You don’t have to do this alone; give us a call today, and we can get started protecting the assets of your loved one who needs full-time assistance in their day to day living.

About the Author
North Little Rock Arkansas Bankruptcy Lawyer Brandon Haubert

Brandon M. Haubert – North Little Rock Arkansas Bankruptcy Lawyer

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Business Address: 1 Riverfront Pl STE 745, North Little Rock, AR 72114 Hours: Monday – Friday: 8:30AM – 5PM Phone: (501) 263-2422 North Little Rock Bankruptcy Attorney Brandon M. Haubert Brandon Haubert is a top-rated bankruptcy attorney here in North Little Rock (rated one of the Top 40 Under 40 by The National Advocates); he and the team at wh…

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