1. (a) Resources which are available to the applicant/recipient are applied against the MA resource limit in Appendix A for the appropriate MA Program. This includes resources in which the applicant/recipient has only a partial ownership interest.
2. (b) A resource in which the applicant/recipient has an equitable interest with the right to use the property is considered a resource.
3. (c) Resources held in a trust established prior to July 30, 1994, are considered resources to the applicant/recipient to the extent that the trust permits use of those resources for the applicant’s/recipient’s food, clothing, shelter or medical care, regardless of whether the trust is in fact used for food, clothing, shelter or medical care. Trusts established on or after July 30, 1994, are subject to § 178.7 (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994), except for trusts established by will which continue to be subject to this section.
4. (d) Establishing the type of ownership is required to determine the availability and the value of the applicant’s/recipient’s resources.

5. (e) The following rebuttable presumptions apply in determining the availability of both real and personal property resources:

   1. (1) If an applicant/recipient is the sole owner, the resource is presumed available.
   2. (2) If ownership is shared by persons who are applicants/recipients, the resource is presumed available.
   3. (3) If ownership is shared by applicants/recipients and a person who is not an applicant/recipient and if the applicants/recipients have a separate legal interest which can be disposed of without the consent of the other owners, the applicants’/recipients’ share of the resource is presumed available.
   4. (4) If ownership is shared by applicants/recipients and a person who is not an applicant/recipient and the applicants/recipients have a legal interest which can be disposed of only with the consent of the other owner and consent is not withheld, the applicants’/recipients’ share of the resource is presumed available.
   5. (5) If consent to dispose of resources is needed but withheld by a nonapplicant/nonrecipient, assume that the resource is not available. The shared ownership and the nonapplicant’s/nonrecipient’s refusal to dispose of the resource shall be verified. The unavailability of resources is verified at application and no less often than at each reapplication.

6. (f) Entireties property, which is property jointly owned by a husband and wife, is treated as follows:

   1. (1) If the applicant/recipient is a person for whom only the husband or the wife is legally responsible and neither the husband nor the wife receive assistance benefits—AFDC, GA, SSI or MA—property owned by the entireties cannot be considered available without the consent of the spouse who is not an LRR. One spouse cannot, without his spouse’s consent, liquidate the property to support children for whom both persons are not legally responsible. If the caretaker relative has remarried and his spouse has not adopted the caretaker’s children, the CAO is required to first determine if a particular resource is held by the caretaker and his spouse as entireties property before considering it available.

   2. (2) A bank account owned jointly by a husband and wife is not entireties property unless a contrary intent is clearly shown or the account predates September 1, 1976. A bank account may be held in many forms. The legal rights of the parties are not wholly determined by the title of the account. The account title or caption determines the rights of the account in relation to the bank and not their rights in relation to each other. The CAO shall apply the following rebuttable presumptions to determine the availability of bank accounts:

      1. (i) The person whose name appears on the account title is the owner.
      2. (ii) Persons who own an account jointly—for example, ‘‘and,’’ ‘‘or,’’ ‘‘and/or’’—own the account in proportion to their contributions.
      3. (iii) If contributions cannot be determined, each owner of a joint account owns an equal share.
      4. (iv) If an account is titled ‘‘in trust for,’’ the account is a tentative trust, unless a written trust document exists. A tentative trust is owned by the trustee, and the beneficiary has no legal rights before the death of the trustee.

7. (g) Lump sum payments, whether received as a result of earned income, unearned income, personal damage award, inheritance or another source, are counted as resources, as of the date received unless one of the following applies:

   1. (1) It is excluded by other provisions.
   2. (2) It is more helpful to the applicant/recipient to have the lump sum treated as income under § 181.31 (relating to treatment of lump sum).

Authority

The provisions of this § 178.4 amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § § 201(2) and 403(b)).

Source

The provisions of this § 178.4 amended December 23, 1994, effective December 24, 1994, and apply retroactively to July 30, 1994, 24 Pa.B. 6423. Immediately preceding text appears at serial pages (171797) to (171799).

Notes of Decisions

Commercial Paper

Department of Public Welfare did not err in determining that a petitioner failed to rebut the presumption of ineligibility for Medical Assistance/nursing home care benefits for her mother, where all available evidence suggested that petitioiner’s cashing in of her mother’s certificates of deposit constituted a transfer of available resources for the purpose of qualifying for assistance. Breitkrentz v. Department of Public Welfare, 699 A.2d 1378, (Pa. Cmwlth. 1997).

Joint Tenancy Property

It is well established that a joint tenancy in real estate with the right of survivorship, unlike a tenancy by the entireties, is severable by the action, voluntary or involuntary, of either of the tenants. The deceased’s interest in the property, therefore, was a resource as defined by this regulation. Moreover, this resource was presumed available pursuant to 55 Pa. Code § 178.4 because, as a joint tenant, the deceased did not need the cotenant’s consent to alienate deceased’s interest. Thus, the hearing officer was correct in determining that the deceased’s resources exceeded Medical Assistance limits. McArthur v. Department of Public Welfare, 674 A.2d 779 (Pa. Cmwlth. 1996).

Trust Property

Principal of discretionary support trust was available resource for purposes of determining applicant’s eligibility for medical assistance long-term care benefits; applicant was sole life beneficiary, was not receiving public assistance at time trust was created, trustees could use principal for applicant’s benefit, and division of assets between trust’s two funds appeared to have been controlled by federal estate tax considerations, not by any particular intent to preserve portion of principal for remaindermen. Debone v. Department of Public Welfare, 929 A.2d 1219, 1224 (Pa. Cmwlth. 2007).

The proceeds from the sale of a farm held in a joint account which were then placed in a trust account administered by the petitioner’s son did not divest the petitioner of an interest in the proceeds in that such transfers were made and the funds were held by the petitioner’s attorney-in-fact. The funds were properly considered in determining her eligibility for MA. Park v. Department of Public Welfare, 582 A.2d 1138 (Pa. Cmwlth. 1990).

Cross References

This section cited in 55 Pa. Code § 178.2 (relating to definitions); 55 Pa. Code § 178.7 (relating to treatment of trust amounts for all categories of MA for trusts established on or after July 30, 1994); and 55 Pa. Code § 181.31 (relating to treatment of lump sum).