Section 17-1725.1-56 - Transfer of assets that are not subject to the assessment of a penalty A penalty period shall not be applied when:
(1) The asset transferred was the individual's home property and title was transferred to the: (A) Spouse of such individual;(B) Child of such individual who is under age twenty-one years, or a blind or disabled child;(C) A sibling of such individual who has an equity interest in the home, and has resided in the home for at least one year immediately prior to the date the individual becomes an institutionalized individual; or(D) An adult child of such individual, other than a child described in paragraph (B), who has resided in the home with the individual for at least two years immediately prior to the date the individual becomes an institutionalized individual and who provided care which allowed the individual to reside at home.(2) The asset, other than a home, was transferred:(A) To the individual's community spouse or to another individual or entity for the sole benefit of the community spouse;(B) From the community spouse to another individual or entity for the sole benefit of the community spouse;(C) To the individual's child who is under age twenty-one years, a blind or disabled child, or to a trust established after August 10, 1993, for the child; or(D) To a trust established after August 10, 1993, solely for the benefit of an individual under age sixty-five years who is disabled as defined in section 17-1719-10.(3) The individual can substantiate that the individual intended to transfer the asset: (A) At either fair market value, or for other valuable consideration by providing substantiated evidence of attempts to dispose of the asset for fair market value, as well as evidence to support the value at which the asset was disposed; or(B) The asset was transferred exclusively for a purpose other than to qualify for medical assistance by providing convincing evidence as to the specific purpose for which the asset was transferred.(4) Circumstances that meet the requirements of this subsection include, but are not limited to: (A) The individual did not require long-term care services at the time of the transfer;(B) The individual was living independently at the time of the transfer;(C) The individual did not have a preexisting condition that could have led to the need for long-term care or assisted living services at the time of the transfer;(D) The transfer was not within the individual's control (e.g. court ordered); or(E) A diagnosis of a previously undetected disabling condition that led to the need for long-term care services occurred after the date of transfer.(5) The asset transferred for less than fair market value has been returned. (A) The returned asset must be evaluated for the impact on the individual's eligibility for Medicaid.(B) If the entire transferred asset has been returned, the penalty period is negated. Coverage of long-term care services shall be provided for any portion of a penalty period that was applied prior to the return of the asset.(C) If only a portion of the transferred asset has been returned, and the individual is eligible for coverage of long-term care services, the penalty period shall be recalculated based upon the balance of the unreturned asset.(i) The end date of the recalculated penalty period shall be applicable if it exceeds the amount of the penalty period already applied; and(ii) Coverage of long-term services shall be provided for the portion of the penalty period that exceeds the end date of the recalculated penalty period.Haw. Code R. § 17-1725.1-56
[Eff 09/30/13] (Auth: HRS § 346-14; 42 C.F.R. §431.10; 42 U.S.C. §1396 p(c)) (Imp: 42 C.F.R. §431.10; 42 U.S.C. §1396 p(c))