Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 15.
MEDICAID ELIGIBILITY
Subchapter D. RESOURCES
40 TAC §15.417
The Texas Department of Human Services (DHS) proposes to
amend §15.417, concerning trusts--August 11, 1993, and after, in its
Medicaid eligibility chapter.
The purpose of the amendment is to correctly reflect federal law that transfer
of assets provisions in the Omnibus Budget Reconciliation Act of 1993 (P.L.
103-66) do apply to pooled trusts established for individuals age 65 and over.
Eric M. Bost, commissioner, has determined that for the first five-year
period the proposed section will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be that the correction to transfer of assets will put DHS
in compliance with federal law (P.L. 103-66). There will be no effect on large,
small, or micro businesses as a result of enforcing or administrating the
section because it applies only to the client's financial eligibility for
Medicaid benefits, not to the operation of business. There is no anticipated
economic cost to persons who are required to comply with the proposed amendments.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Questions about the content of this proposal may be directed to Judy Coker
at (512) 438-3227 in DHS's Long Term Care section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-183, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 60 days of publication in the
Texas Register
.
The amendment is proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001 -
22.030 and §§32.001 - 32.042.
§15.417. Trusts--August 11, 1993, and After.
(a) - (e)
(No change.)
(f)
Exception trusts. The Omnibus Budget Reconciliation Act
of 1993 identifies three types of trusts which are exceptions to the trust
provisions stated in subsections (a) - (e) of this section. These exceptions
apply only to trusts established on or after August 11, 1993.
(1)
(No change.)
(2)
Pooled trust.
(A) - (C)
(No change.)
(D)
Transfer-of-assets provisions do not apply when [
(3)
(No change.)
(g)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 5, 2000.
TRD-200002448
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: June 20, 2000
For further information, please call: (512) 438-3108
40 TAC §15.430
The Texas Department of Human Services (DHS) proposes to
amend §15.430, concerning transfer of assets, in its Medicaid eligibility
chapter.
The purpose of the amendment is to expand and clarify long term care Medicaid
eligibility policy on the look-back period for transfers to revocable and
irrevocable trusts and distinguish between the applicability of 36-month and
60-month look-back periods.
Eric M. Bost, commissioner, has determined that for the first five-year
period the proposed section will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be to ensure that eligibility staff apply policy correctly
and consistently statewide. There will be no effect on large, small, or micro
businesses as a result of enforcing or administrating the section because
it applies only to the client's financial eligibility for Medicaid benefits,
not to the operation of business. There is no anticipated economic cost to
persons who are required to comply with the proposed amendments.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Questions about the content of this proposal may be directed to Judy Coker
at (512) 438-3227 in DHS's Long Term Care section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-193, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
The amendment is proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001 -
22.030 and §§32.001 - 32.042.
§15.430. Transfer of Assets.
(a) - (d)
(No change.)
(e)
Look-back period.
(1)
(No change.)
(2)
The law
prescribes
[
(A)
Revocable trusts.
[
(i)
Payments from a revocable
trust to or for the benefit of someone other than the client have a 60- month
look-back period.
(ii)
Making a revocable trust
irrevocable with payments from corpus/income foreclosed to the client is a
transfer of assets and has a 60-month look-back period.
(B)
Irrevocable trusts.
[
(i)
Payments from an irrevocable
trust (where trustee distributions are not foreclosed to the client) which
are made to (or for the benefit of) someone other than the client have a 36-month
look-back period.
(ii)
Creating an irrevocable trust
where trustee payments are foreclosed to the client is a transfer of assets
with a 60-month look-back period.
(iii)
Creating an irrevocable
trust where the trustee initially has discretion to make payments to the client
(or for his benefit), but where payments are foreclosed to the client at a
later date is a transfer of assets as of the date payments are foreclosed
to the client. The look-back period is 60 months.
(3) - (10)
(No change.)
(f) - (m)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 5, 2000.
TRD-200002449
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: May 21, 2000
For further information, please call: (512) 438-3108
such
] a
pooled
trust is established
for the benefit
of a client under age 65
. If
the client is age 65 or older, or
if
the client's portion of the assets in the trust are transferred to
another party, then the policy in §15.430 of this title (relating to
Transfer of Assets) applies.
provides for
] a 36-month look-back period for most uncompensated transfers [
of assets
]. However, there is a 60-month look-back period
for certain
transfers involving trusts. The look-back periods for trusts and distributions
from trusts are defined in subparagraphs (A) and (B) of this paragraph.
[
, except for exception trusts specified in §15.417(f) of this title
(relating to Trusts--August 11, 1993, and After) for:
]
any payment from the
corpus or income generated by the corpus of a revocable trust that is not
given to the client; and
]
an irrevocable trust,
for that portion of the corpus or income earned by the corpus, from which
no payment could be made to the client under any circumstance. The date of
the transfer of this type of trust is the later of the date the trust is established
or the date on which payment is foreclosed to the client.
]
Chapter 63.
REIMBURSEMENT THROUGH STATE LEGALIZATION IMPACT ASSISTANCE GRANT