75-02-10-08. Disqualifying transfers.

1. a. Except as provided in subsection 2, an individual is ineligible for benefits under this chapter if the individual or the spouse of the individual disposes of assets or income for less than fair market value on or after the look-back date specified in subdivision b. b. The look-back date specified in this subdivision is a date that is thirty-six months, or, in the case of payments from a trust or portions of a trust that are treated as income or assets disposed of by an individual, sixty months, before the date on which the individual has applied for benefits under this chapter.

2. An individual is not ineligible for benefits under this chapter by reason of subsection 1 to the extent that: a. The assets transferred were a home, and title to the home was transferred to:

1. (1) The individual's spouse; or
2. (2) The individual's son or daughter who is under age twenty-one, blind, or disabled;b. The income or assets:- (1) Were transferred to the individual's spouse or to another for the sole benefit of the individual's spouse; or
3. (2) Were transferred from the individual's spouse to another for the sole benefit of the individual's spouse;c. The individual makes a satisfactory showing that:- (1) The individual intended to dispose of the income or assets, either at fair market value or other valuable consideration, and the individual had an objectively reasonable belief that fair market value or its equivalent was received;
4. (2) The income or assets were transferred exclusively for a purpose other than to qualify for Medicaid or benefits under this chapter; or
5. (3) For periods after the return, all income or assets transferred for less than fair market value have been returned to the individual; andd. The individual shows that the total cumulative uncompensated value of all income and assets transferred for less than fair market value by the individual or the individual's spouse is less than the actual cost of services of a type provided as benefits under this chapter, provided after the transfer was made, for which payment has not been made and which are not subject to payment by any third party, provided that such a showing may only be made with respect to periods when the individual is otherwise eligible for benefits under this chapter.3. There is a presumption that a transfer for less than fair market value was made for purposes, including the purpose of qualifying for benefits under this chapter:- a. In any case in which the individual's assets and the assets of the individual's spouse remaining after the transfer produce income which, when added to other income available to the individual and to the individual's spouse totals an amount insufficient to meet all living expenses and medical costs reasonably anticipated to be incurred by the individual and by the individual's spouse in the month of transfer and in the thirty-five months, or fifty-nine months in the case of a transfer to a trust, following the month of transfer;
6. b. In any case in which an inquiry about Medicaid benefits or benefits under this chapter was made, by or on behalf of the individual to any other individual, before the date of the transfer;
7. c. In any case in which the individual or the individual's spouse was an applicant for or recipient of Medicaid or benefits under this chapter before the date of transfer;
8. d. In any case in which a transfer is made by or on behalf of the individual's spouse, if the value of the transferred income or asset, when added to the value of the individual's other assets, would exceed asset limits; or
9. e. In any case in which the transfer was made, on behalf of the individual or the individual's spouse, by a guardian, conservator, or attorney in fact, to the guardian, conservator, or attorney in fact or to any spouse, child, grandchild, brother, sister, niece, nephew, parent,

or grandparent, by birth, adoption, or marriage, of the guardian, conservator, or attorney in fact.

4. An applicant or recipient who claims that income or assets were transferred exclusively for a purpose other than to qualify for Medicaid or benefits under this chapter must show that a desire to receive Medicaid or benefits under this chapter played no part in the decision to make the transfer and must rebut any presumption arising under subsection 3. The fact, if it is a fact, that the individual would be eligible for Medicaid or benefits under this chapter had the individual's spouse not transferred income or assets for less than fair market value, is not evidence that the income or assets were transferred exclusively for a purpose other than to qualify for Medicaid or benefits under this chapter.

5. If the transferee of any income or asset is the child, grandchild, brother, sister, niece, nephew, parent, or grandparent of the individual or the individual's spouse, services or assistance furnished by the transferee to the individual or the individual's spouse may not be treated as consideration for the transferred income or asset unless the transfer is made pursuant to a valid written contract entered into prior to rendering the services.

6. A transfer is complete when the individual, or the individual's spouse, making the transfer has no lawful means of undoing the transfer or requiring a restoration of ownership.

7. For purposes of this section: a. Fair market value is received: (1) In the case of an asset not subject to reasonable dispute concerning its value, such as cash, bank deposits, stocks, and fungible commodities, when one hundred percent of apparent fair market value is received; (2) In the case of an asset subject to reasonable dispute concerning its value, when seventy-five percent of estimated fair market value is received; and (3) In the case of income, when one hundred percent of apparent fair market value is received. b. "Uncompensated value" means the difference between fair market value and the value of any consideration received.

8. This section is applicable to all transfers whenever made.

History: Effective May 1, 1995; amended effective June 1, 2002.

General Authority: NDCC 50-06-16, 50-24.5-02(8)

Law Implemented: NDCC 50-24.5