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09.26.17   |   Insights

Transfer of the Home to a Child – Elder Law and Medicaid Planning

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The Ohio Department of Medicaid issued new agency rulings effective September 1, 2017 which include the documentation required to exempt a transfer of an applicant’s home to a child who was caring for the applicant.

Generally, a transfer of the home by a Medicaid applicant, for less than fair market value in return, is an impermissible transfer. Such a transfer would cause the applicant to incur a restricted coverage period whereby the applicant would not qualify for Medicaid.

However, there are exceptions to such rule. One of the exceptions involves a transfer of the home to a child who was living with the applicant for at least two years prior to the applicant being admitted to a long term care facility. Furthermore, that child provided care to the applicant that permitted the applicant to reside in the home for the previous two years rather than in a long term care facility. The newly implemented Ohio Administrative Code section 5160:1-6-06 addresses the documentation required to have the transfer of the home fall under this exception to the transfer rules.

The child must (1) submit a written statement of the date that he or she moved into the applicant’s home; (2) a level of care assessment showing that the applicant would have become institutionalized earlier without care provided by the child; (3) a written statement from the applicant’s attending physician stating the kind and duration of care that was required to delay the individual’s institutionalization; and (4) documentation of the care that delayed the applicant’s institutionalization and the role the child played in that care. The documentation for this fourth item may include (but is not limited to) one or more of the following:

“(a) A written statement of the number of hours per day during which the child provided personal care, specifying the extent and type of care provided;

(b) A written statement of any part-time or full-time jobs performed by the child, and any schools or other similar institutions attended by the child while providing care; or

(c) Written documentation from a service agency which provided care to the individual, the dates on which care was provided, and the extent and type of care provided.”

Specific guidance is always welcome to determine what is needed to comply with a specific statute. However, questions still remain regarding what each county’s Department of Job and Family Service caseworker will require since the regulations delineate items that the applicant’s child “may” provide. In addition, the designated items that “may” be provided are not limited to only those items. Therefore, the question remains regarding whether the county agencies will require additional documentation, and if so, what that documentation is.

Furthermore, there is concern about the practicality of whether the required statements can be obtained from the applicant’s physician. In the past, the county agencies have required the level of care assessment to be signed by a physician stating the applicant’s level of care that was needed two years prior to the application date. Physicians have been reluctant to make such statements based on the applicant’s care from two years prior. The new regulations further require the physician to state the kind and duration of care that was required to delay the individual’s institutionalization. This may cause more reluctance on the part of the physician to be involved in such a process.

While guidance is always welcome, it appears there are still many questions about what is required to meet this exception to the transfer of the home to a child.

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