OAR 461-140-0242
Disqualifying Transfer of Assets Including Home; OSIP and OSIPM
(1)
For the purposes of this rule:(a)
The definition of “child” in OAR 461-001-0000 (Definitions for Chapter 461) 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 (Blindness as the Basis of Need) or the disability criteria of OAR 461-125-0370 (Disability as the Basis of Need).(2)
A transfer of an asset (including a home) 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 (Trusts)(10), except that a transfer to a trust under OAR 461-145-0540 (Trusts)(10)(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 (Trusts)(11) 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 (Trusts)(11) 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 (Excluded Resource; Community Spouse Provision (OSIPM except OSIPM-EPD))(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 (Excluded Resource; Community Spouse Provision (OSIPM except OSIPM-EPD)) 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.(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 (Definitions for Chapter 461)); 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 (Activities of Daily Living (ADL)):(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 (Instrumental Activities of Daily Living):(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.
Source:
Rule 461-140-0242 — Disqualifying Transfer of Assets Including Home; OSIP and OSIPM, https://secure.sos.state.or.us/oard/view.action?ruleNumber=461-140-0242.