Probate & Trust Law Section Conference Manual ... - Minnesota CLE

1. Prior to February 8, 2006, the penalty period for an uncompensated
transfer began on the first day of the month after the month in which the
transfer occurred. Minn. Stat. § 256B.0595, Subd. 2.
2. For uncompensated transfers made on or after February 8, 2006, the
penalty period does not start until the later to occur of the first day of the
month in which the transfer was made, or on the date on which an
individual (a) has applied for medical assistance; (b) is eligible for medical
assistance benefits without regard to the uncompensated transfers; and (c)
is receiving institutional level of care, either through home- or communitybased
programs or in a nursing home. 33
3. In some counties, there continues to be a problem getting the correct start
date of the penalty period when an individual applies for Elderly Waiver
(EW) benefits after making an uncompensated transfer. In these counties,
the county refuses to open the case and start the penalty period if the
applicant is disqualified from receipt of home- or community-based
services because of an uncompensated transfer. A penalty period
disqualifies the applicant from receipt of LTC benefits. LTC benefits are
benefits for nursing home care or home- or community-based services.
The Elderly Waiver program pays for home- or community-based services.
These counties take the position that if the applicant cannot receive
benefits, they cannot open the case or start the penalty period. This
practice is wrong. It clearly violates the provisions of 42 U.S.C. §
1396p(c) after amendment by DRA '05. The Agency Decision in the
Appeal of D.E. for Medical Assistance Long-term Care, cited above, also
discusses the start date of a penalty period when the applicant made an
uncompensated transfer in the same month as application. In that case, the
applicant gave $34,000 to her son by a check which cleared her bank on
November 12, 2008. The application was submitted on November 12,
2008. After the check cleared, the applicant's available assets were reduced
to the $3,000 asset eligibility limit. The county imposed a penalty
period for this gift and the gifting to family members in prior months, to
start on the first day of the month following the start date of medical
assistance eligibility. The Agency Decision reversed the county's start day
and ordered that the penalty begin on the first day of the month of application
on the grounds that the applicant met all eligibility criteria in the
month of November without regard to the uncompensated transfers.
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Institutional level of care is care delivered in a nursing facility or care delivered through
home or community-based waivered services, such as services eligible for payment through the
Alternative Care (AC) program or the Elderly Waiver (EW) program.
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