Revision 09-4; Effective December 1, 2009

The following is taken from Division 2, Resources, Subchapter C, Financial Requirements.

§358.321. General Treatment of Resources.

(a) The Texas Health and Human Services Commission (HHSC) follows §1613 of the Social Security Act (42 U.S.C. §1382b) and 20 CFR §416.1201 regarding the general treatment of resources.

(b) HHSC follows 20 CFR §416.1207 regarding the determination of resources. Resource determinations are made as of 12:01 a.m. on the first day of the month.

(c) If a person's countable resources exceed the resource limit as of 12:01 a.m. on the first day of the month, the person is not eligible for the entire month. Eligibility may be reestablished no sooner than the first day of the next month.

§358.322. Conversion of Resources.

If a person converts one type of resource to another, the new resource is counted according to the policy governing that type of resource. Cash received from the sale of a resource is counted as a resource, not as income. This includes proceeds from the sale of a natural resource, such as cutting timber from the person's home property and selling it as firewood, except as follows:

(1) If the owner leases the land or resource rights, the income received from the lease is unearned income.

(2) If the sale of the natural resource is part of the person's trade or business, the income received is self-employment income.

§358.323. Resource Limits.

A person or a couple meets resources eligibility criteria if the value of all countable resources does not exceed the resource limits in 20 CFR §416.1205.

(1) Individual resource limit. The individual resource limit applies to:

(A) an adult who is single, even if he or she lives with relatives;

(B) a child; and

(C) a person whose spouse lives in a different household.

(2) Couple resource limit. The couple resource limit applies to married adults who live in the same household.

§358.324. Deeming of Resources.

(a) The Texas Health and Human Services Commission (HHSC) follows deeming of countable resources in accordance with 20 CFR §416.1202.

(b) If a parent is a caretaker or a recipient in the Temporary Assistance for Needy Families Program, the parent's resources are not counted when considering deeming to a child.

(c) If a member of a household is temporarily absent as defined in 20 CFR §416.1167, HHSC continues to consider the absent person a member of the household for the purposes of deeming during a temporary absence, in accordance with 20 CFR §416.1167.

§358.325. Ownership Interest and Legal Right to Access a Resource.

The Texas Health and Human Services Commission (HHSC) follows 20 CFR §416.1201(a)(1) when considering whether a person has the right, authority, or power to liquidate a property or the person's share of the property.

§358.326. Unknown Assets.

If a person is unaware of the ownership of an asset, the asset is not counted as a resource for the period during which the person is unaware of the ownership. The asset is counted as income in the month that the person discovers the ownership. The asset is counted as a resource effective the first of the month after the month of discovery.

§358.327. Transactions Involving Agents.

(a) An action by a fiduciary agent is the same as an action by the person for whom the fiduciary agent acts.

(1) An asset held by a fiduciary agent for another person is not a countable asset to the fiduciary agent.

(2) An asset held by a fiduciary agent for another person is a countable asset to the person for whom the fiduciary agent acts, unless otherwise excludable.

(b) A person's resources are available if the resources are being managed by a legal guardian, representative payee, power of attorney, or fiduciary agent. If, however, a court denies a guardian or fiduciary agent access to the person's resources, the resources are not considered available to the person.

(1) If a person's guardianship papers do not show that a legal guardian is prohibited access, and if the court has not subsequently ruled a prohibition, the resources are considered available.

(2) A guardian's routine need to petition the court for permission to dispose of a person's resources is not a prohibition.

(3) When the court rules on a petition to dispose of a person's resources, resources are considered available only to the extent to which the court has made the resources available for the person's benefit.

§358.331. General Exclusions from Resources.

The Texas Health and Human Services Commission follows 20 CFR §416.1210 in determining what resources to exclude, and also excludes:

(1) patrimonial assets that are irrevocably turned over to a religious order following a vow of poverty, which are not considered a transfer of assets;

(2) reparation payments received under Sections 500 - 506 of the Austrian General Social Insurance Act;

(3) payments received under the Netherlands' Act on Benefits for Victims of Persecution 1940 - 1945; and

(4) payments made in the class settlement of the Susan Walker v. Bayer Corporation lawsuit.

§358.333. Treatment of Employment-and Retirement-Related Annuities.

(a) In this section:

(1) an employment-related annuity means an annuity that provides a return on prior services, as part of or in a similar manner to a pension or retirement plan; and

(2) a retirement-related annuity means an annuity purchased by or on behalf of an annuitant in an institutional setting.

(b) An employment-related annuity or a retirement-related annuity established before February 8, 2006, is not a countable resource. Income from such an annuity is treated in accordance with 20 CFR §§416.1120 - 416.1124.

(c) An employment-related annuity established or having a transaction on or after February 8, 2006, is not a countable resource. Income from such an annuity is treated in accordance with 20 CFR §§416.1120 - 416.1124.

(d) A retirement-related annuity with a purchase or transaction date on or after February 8, 2006, is not a countable resource, if the annuitant's income eligibility is determined under the special income limit. Income from such an annuity is treated in accordance with 20 CFR §§416.1120 - 416.1124, if the annuity:

(1) is an annuity described in subsection (b) or (q) of §408 of the Internal Revenue Code of 1986; or

(2) is purchased with proceeds from:

(A) an account or trust described in subsection (a), (c), or (p) of §408 of the Internal Revenue Code of 1986;

(B) a simplified employee pension (within the meaning of §408(k) of the Internal Revenue Code of 1986; or

(C) a Roth IRA described in §408A of the Internal Revenue Code of 1986.

§358.334. Treatment of a Nonemployment-Related Annuity with a Purchase or Transaction Date before February 8, 2006.

(a) This section describes the Texas Health and Human Services Commission's (HHSC's) treatment of nonemployment-related annuities purchased or having a transaction date before February 8, 2006. In this section, a nonemployment-related annuity means a revocable or irrevocable annuity a person may purchase to provide income.

(b) A nonemployment-related annuity is not a countable resource if the annuity:

(1) is irrevocable;

(2) pays out principal in equal monthly installments and pays out interest in either equal monthly installments or in amounts that result in increases of the monthly installments at least annually;

(3) is guaranteed to return within the person's life expectancy at least the person's principal investment plus a reasonable amount of interest (based on prevailing market interest rates at the time of the annuity purchase, as determined by HHSC);

(4) names the state of Texas or HHSC as the residual beneficiary of amounts payable under the annuity contract, not to exceed any Medicaid funds expended on the person during the person's lifetime, except as described in subsection (c) of this section; and

(5) is issued by an insurance company licensed and approved to do business in the state of Texas.

(c) If a person in an institutional setting is married and the spousal impoverishment provisions of §358.413 of this subchapter (relating to Spousal Impoverishment Treatment of Income and Resources) apply, the requirement in subsection (b)(4) of this section does not apply to a nonemployment-related annuity purchased by or for a community spouse.

(d) A nonemployment-related annuity that does not meet the requirements of subsection (b) or (c) of this section is a countable resource.

(1) HHSC applies transfer-of-assets provisions in Division 4 of this subchapter (relating to Transfer of Assets) to an annuity that is a countable resource and does not meet the criterion in subsection (b)(3) of this section. The date of the transfer of assets is the date of the annuity purchase or, if applicable, the date the annuity contract was last amended in exchange for consideration. HHSC determines the amount of the transfer by assessing the difference between the life expectancy of the person and the number of years remaining until the annuity is paid out. The amount payable during that period is the amount of the transfer of assets.

(2) If the annuity is a countable resource and is revocable, HHSC:

(A) counts the amount refundable upon revocation of the annuity as the value of the resource; and

(B) applies transfer-of-assets provisions in Division 4 of this subchapter if the person sells the annuity for less than the amount refundable upon revocation.

(3) If the annuity is a countable resource and is irrevocable, HHSC:

(A) counts fair market value as the value of the resource and presumes fair market value is 80% of the annuity's total remaining payout;

(B) applies transfer-of-assets provisions in Division 4 of this subchapter if the annuity is sold for less than the purchase price minus the amount of principal already paid; and

(C) if the terms of the annuity contract are non-negotiable, applies transfer-of-assets provisions in Division 4 of this subchapter to the total remaining payout.

(e) Income from a nonemployment-related annuity that is not a countable resource under subsection (c) of this section is treated in accordance with 20 CFR §§416.1120 - 416.1124.

§358.335. Treatment of Annuities with a Purchase or Transaction Date on or after February 8, 2006.

(a) This section describes the Texas Health and Human Services Commission's (HHSC's) treatment of nonemployment-related annuities purchased or having a transaction date on or after February 8, 2006. In this section, a nonemployment-related annuity means a revocable or irrevocable annuity a person may purchase to provide income.

(b) A nonemployment-related annuity is not a countable resource if the annuity:

(1) is irrevocable;

(2) is nonassignable;

(3) provides for payments in equal amounts during the term of the annuity, with no deferral and no balloon payments made;

(4) is guaranteed to return within the person's life expectancy at least the person's principal investment (that is, it is actuarially sound, as determined in accordance with actuarial publications of the Office of the Chief Actuary of the United States Department of Health and Human Services); and

(5) names the state of Texas as the remainder beneficiary in the first position for at least the total amount of Medicaid paid on behalf of a person in an institutionalized setting.

(c) If a person in an institutionalized setting is married and the spousal impoverishment provisions of §358.413 of this subchapter (relating to Spousal Impoverishment Treatment of Income and Resources) apply, a nonemployment-related annuity is not a countable resource if the annuity meets the requirements of subsection (b)(1) - (4) of this section and the annuity:

(1) names the state of Texas as the remainder beneficiary in the first position for at least the total amount of Medicaid paid on behalf of the person in an institutional setting; or

(2) names the state of Texas in the second position if the community spouse or a minor or disabled child is named in the first position.

(d) A nonemployment-related annuity that is revocable is a countable resource. For a revocable nonemployment-related annuity, HHSC:

(1) uses fair market value to determine the value of the resource; and

(2) applies transfer-of-assets provisions in Division 4 of this subchapter (relating to Transfer of Assets) based on the amount already paid out of the annuity.

(e) A nonemployment-related annuity that is irrevocable is not a countable resource. For an irrevocable nonemployment-related annuity, HHSC:

(1) applies transfer-of-assets provisions in Division 4 of this subchapter to the purchase price of the annuity; and

(2) for a transaction involving an existing annuity, applies transfer-of-assets provisions to the remaining payout value at the time of the transaction.

(f) Income from an annuity that is not a countable resource is treated in accordance with 20 CFR §§416.1120 - 416.1124.

§358.336. Treatment of Testamentary or Inter Vivos Trusts.

(a) In this section, the following words have the following meanings, unless the context clearly indicates otherwise.

(1) Testamentary trust--A trust established by will.

(2) Inter vivos trust--A trust established while the person creating the trust is still living.

(b) Resources in a testamentary or inter vivos trust are countable to a person if the person is the trustee and has the legal right to revoke the trust and use the money for the person's own benefit.

(1) If a person does not have access to the trust, then the trust is not counted as a resource.

(2) If a person's access to a trust is restricted (that is, only the trustee (other than the person) or the court may withdraw the principal), then the value of the trust as a resource is not counted, even if:

(A) the person's legal guardian is the trustee;

(B) the trust provides a regular, specified payment to the person; or

(C) the trust provides for discretionary withdrawals by the trustee.

(3) If a trust is not counted as a resource, payments from the trust made to or for the benefit of the person may be counted as income only if the payments would ordinarily be counted as income in accordance with 20 CFR §416.1102.

§358.337. Treatment of a Medicaid-qualifying Trust.

(a) A Medicaid-qualifying trust (MQT) is a trust that a recipient, the recipient's spouse or guardian, or anyone holding the recipient's power of attorney establishes using the recipient's money. The recipient is the beneficiary of an MQT. A trust meeting this definition that was established between June 1, 1986, and August 10, 1993, is an MQT. A trust meeting this definition that was established before June 1, 1986, is treated as a standard inter vivos trust.

(b) Except as described in §358.338 of this division (relating to Treatment of a Trust Established with Zebley v. Sullivan Settlement Funds), the Texas Health and Human Services Commission (HHSC) counts potential distributions from an MQT as resources available to a person, whether or not distributions are actually made.

(1) The amount available to the person is the maximum amount the trustee could distribute under the terms of the trust.

(2) If distribution is not made, the maximum amount the trustee may distribute under terms of the trust is considered an available resource.

(3) If a trust does not specify an amount for distribution, and if the trustee has access to and use of the principal, then HHSC counts:

(A) the corpus of the trust as a resource; and

(B) payments from the trust to or for the benefit of the person as income only if the payments would ordinarily be counted as income in accordance with 20 CFR §416.1102.

§358.338. Treatment of a Trust Established with Zebley v. Sullivan Settlement Funds.

(a) The Texas Health and Human Services Commission excludes a Medicaid-qualifying trust established for a minor child using a lump sum payment received in the settlement of Zebley v. Sullivan from countable resources under undue hardship provisions. Undue hardship exists because the minor child would otherwise be forced to spend the settlement funds on services now covered by Medicaid when the funds will be needed once the minor child reaches majority.

(b) A trust established using Zebley v. Sullivan settlement funds is excluded under undue hardship policy, even when the trust is set up on or after August 11, 1993.

§358.339. Treatment of Trusts on and after August 11, 1993.

(a) Introduction. The Texas Health and Human Services Commission (HHSC) follows §1917(d) of the Social Security Act (42 U.S.C. §1396p(d)) regarding the treatment of trusts established on or after August 11, 1993, using a person's assets. The trust provisions apply to a person receiving benefits under a Medicaid-funded program for the elderly and people with disabilities (MEPD), whether the person is in an institutional or a noninstitutional setting. However, transfer-of-assets provisions apply only to a person in an institutional setting.

(b) Limited partnerships.

(1) A limited partnership is a "similar legal device" to a trust. In accordance with the definition of a trust in §1917(d)(6) of the Social Security Act (42 U.S.C. §1396p(d)(6)), HHSC treats a limited partnership as a trust and applies the provisions of this section to a limited partnership. The general partners of a limited partnership act as trustee, and the limited partners are the equivalent of beneficiaries of an irrevocable trust. To the extent that the general partners can make each limited partner's ownership interest available to him, that interest is a countable resource and not a transfer of assets. However, a transfer of assets has occurred to the extent that:

(A) the value of the share of ownership purchased by the limited partner is less than the amount the limited partner invested; and

(B) the general partners cannot make the limited partner's share available to the limited partner.

(2) If transfer-of-assets provisions apply, a limited partnership is not considered a trust instrument when determining the look-back period.

(c) Qualified income trust (QIT).

(1) A QIT is an irrevocable trust established for the benefit of a person or the person's spouse, or both, the corpus of which is composed only of the person's or the couple's income (including accumulated income). The trust must include a provision that the State is designated as the residuary beneficiary to receive, at the person's death, funds remaining in the trust equal to the total amount of Medicaid paid on the person's behalf.

(2) Characteristics of a QIT are as follows:

(A) The trust must be irrevocable.

(B) The trust must contain only the person's income. If resources are placed in the trust, it is not a QIT. However, some banks may require nominal deposits to establish a financial account to fund the trust. Nominal amounts of the person's resources, or another party's funds, may be used to establish the account without invalidating the trust or being counted as gift income to the person. Once the trust account is established, however, only the person's income should be directed to the trust account.

(C) The person's income does not have to be directly deposited into the trust. However, the income for which the trust is established must be deposited into the trust during the month it is received by the person.

(D) A QIT may be established with any or all sources of a person's income, but the income source must be identified and the entire income source must be deposited. For example, the trust may be established for a person's private pension income, but not the person's Social Security income. If a trust is established with only half of the pension income, it is not a QIT.

(3) A QIT is not counted as a resource.

(4) Income directed to a QIT is not counted when testing eligibility for services in an institutional setting.

(A) Income must be directed to the trust account during the calendar month in which it is received. Any source of nonexempt or nonexcludable income that is not directed to the QIT account during the calendar month of receipt is countable income for that month. If countable income exceeds the income limit, the person is income-ineligible for the month. An applicant may not be certified for any calendar month in which the applicant is income-ineligible. For a recipient, HHSC requests restitution in the amount of the provider payment for any calendar month in which the person is income-ineligible.

(B) Income directed to the trust is counted in determining eligibility for a person in a noninstitutional setting and for a person applying for or receiving benefits from a Medicare Savings Program as described in Chapter 359 of this title (relating to Medicare Savings Program).

(C) Income paid from the trust for an institutional setting co-payment or to purchase other medical services for the person is not countable income for eligibility purposes. Income paid from the trust directly to the person or otherwise spent for the person's benefit is countable income for eligibility purposes.

(D) A person cannot use income from a QIT to purchase eligibility for a §1915(c) waiver program.

(E) If the trustee directs to the trust account different sources of income than those identified in the QIT, but directs entire sources and countable income remains within the special income limit, eligibility is not affected.

(5) If the trust instrument requires that the income placed in the trust must be paid out of the trust for the person's care in an institutional setting, transfer-of-assets provisions do not apply because the person receives fair market value for the income that was placed into the trust. However, if there is no such requirement or the income is not used for the person's care, transfer-of-assets provisions apply. The income must be paid out by the end of the month after the month funds were placed in the trust to avoid application of the transfer-of-assets provisions. Transfer-of-assets provisions do not apply when the QIT provisions allow payments to or for the benefit of the person's spouse.

(6) The institutional setting co-payment amount is based on the person's total income (income directed to the trust as well as income not directed to the trust), minus the standard co-payment deductions. Costs of trust administration are not budgeted in the co-payment calculation. Transfer-of-assets provisions do not apply when legal and accounting fees necessary to maintain the trust are paid from the trust.

(7) HHSC disregards the income placed in a QIT for eligibility purposes for the first month that the person has a valid signed trust and enough income is placed in the account to reduce the remaining income below the special income limit.

(d) Undue hardship.

(1) As provided under §1917(d) of the Social Security Act (42 U.S.C. §1396p(d)(5)), this section does not apply if application of the trust provisions in this section would work an undue hardship on the person. Undue hardship exists if application of the trust provisions would:

(A) deprive the person of medical care so that the person's health or his life would be endangered; or

(B) deprive the person of food, shelter, or other necessities of life.

(2) Undue hardship does not exist if a person is inconvenienced or must restrict his or her lifestyle but is not at risk of serious deprivation. Undue hardship relates to hardship to the person, not to relatives or authorized representatives of the person.

(3) Before requesting a waiver of the trust provisions on the grounds of undue hardship, a person must make reasonable efforts to recover assets placed in a trust, such as petitioning the court to dissolve the trust. HHSC determines undue hardship after receiving a request for a waiver of the trust provisions on the grounds of undue hardship. The person has the right to appeal HHSC's determination on undue hardship.

§358.345. Entrance Fees for Continuous Care Retirement Communities.

The Texas Health and Human Services Commission follows §1917(g) of the Social Security Act (42 U.S.C. §1396p(g)) regarding the treatment of entrance fees of a person residing in a continuous care retirement community.

§358.346. Funds Held in Financial Institution Accounts.

The Texas Health and Human Services Commission follows 20 CFR §416.1208 regarding the treatment of funds held in financial institution accounts, except the balance of funds in a financial institution account as of 12:01 a.m. on the first day of the month is reduced by the amount of any funds encumbered before that time, including any checks written, that have not yet been processed by the financial institution.

§358.347. Nonliquid Resources.

The Texas Health and Human Services Commission follows 20 CFR §416.1201(c) regarding the definition and treatment of nonliquid resources, except with regard to the treatment of an automobile as described in §358.354 of this division (relating to Automobiles).

§358.348. Exclusion of a Home.

(a) The Texas Health and Human Services Commission follows 20 CFR §416.1212 regarding the treatment of a home, except HHSC does not count the equity value of a home that is the principal place of residence of an applicant or recipient or the applicant's or recipient's spouse:

(1) if the home is in Texas, and the applicant or recipient occupies or intends to return to the home; or

(2) if the home meets the criteria in §358.415(b) of this subchapter (relating to Calculation of the Spousal Protected Resource Amount).

(b) For a person or couple living in an institutional setting, if the person or couple transfers ownership of the home for less than market value while the home is excluded, the transfer automatically nullifies the exclusion.

§358.349. Exceptions to Treatment of Excess Real Property.

(a) The Texas Health and Human Services Commission (HHSC) follows 20 CFR §416.1245 regarding the treatment of excess real property, except the property continues to be excluded for as long as:

(1) the person continues to make reasonable efforts to sell it; and

(2) including the property as a countable resource would result in a determination of excess resources.

(b) Once the property is sold, the equity value received is a countable resource in the month following the month of sale. If the sale was for less than the fair market value or current market value, the sale of the property is subject to the transfer-of-assets provisions in Division 4 of this subchapter (relating to Transfer of Assets).

§358.350. Life Estates and Remainder Interest.

The Texas Health and Human Services Commission (HHSC) counts both a life estate and a remainder interest in property as resources, except as described in paragraph (3) of this section.

(1) Life estates. A life estate provides a person, for the person's lifetime, certain rights in a property, while transferring ownership of the property to another person. The duration of a life estate is measured by the lifetime of the owner of the life estate, or by the occurrence of some event. The contract establishing a life estate, however, may restrict one or more rights of the owner of the life estate. The owner of a life estate does not have fee simple title to the property nor the right to sell the entire property. In most situations, the owner of a life estate has the right to:

(A) possess the property;

(B) use the property;

(C) get profits from the property; and

(D) sell his or her life estate interest.

(2) Remainder interest. A remainder interest, which is created when a life estate is established, gives a person owning a remainder interest the right to ownership of the property upon the death of the owner of the life estate. A person owning a remainder interest in the property has the right to sell his or her remainder interest unless the person is prohibited from doing so by a legal restriction.

(3) Exclusion for life estates and remainder interests. Life estates and remainder interests are not counted as resources if:

(A) the property is the person's home and can be excluded under §358.348 of this division (relating to Exclusion of a Home);

(B) a contract restriction prevents the person from disposing of the person's interest;

(C) the property is producing income and may be excluded under 20 CFR §§416.1220, 416.1222, and 416.1224; or

(D) the property is placed for sale and the person is in an institutional setting.

(4) Determination of value. If a person has a life estate or remainder interest that is not excludable under paragraph (3) of this section, HHSC determines the value of the resource according to the age of the owner of the life estate and the equity value of the property. The person has the right to rebut HHSC's determination of the value of the resource. To do so, the person must present a statement from a knowledgeable source.

(5) A purchase of a life estate before April 1, 2006, is not considered a transfer of assets, unless the purchase price of the life estate exceeds the fair market value (FMV) of the life estate. If the purchase price of the life estate exceeds the FMV of the life estate, the transfer-of-assets provisions in Division 4 of this subchapter (relating to Transfer of Assets) apply.

(6) A purchase of a life estate on or after April 1, 2006, is a transfer of assets, subject to the transfer-of-assets provisions in Division 4 of this subchapter, unless the person purchasing a life estate in another person's home resides in the home and continues to reside in the home for at least one year after the date of purchase.

§358.351. Mineral Rights.

(a) The Texas Health and Human Services Commission counts the equity value of a person's ownership of or interest in mineral rights as a resource, unless the mineral rights are:

(1) connected with property excluded as a home; or

(2) excluded as property essential to self-support under 20 CFR §§416.1220, 416.1222, and 416.1224.

(b) Ownership of mineral rights may or may not be associated with ownership of land. Surface rights are ownership interests in the exterior or upper boundary of land. Ownership of mineral rights does not automatically indicate ownership of surface rights.

§358.352. Burial Spaces.

The Texas Health and Human Services Commission follows 20 CFR §416.1231 regarding the definition, treatment, and exclusion of burial spaces, except that a burial space purchased by a person is:

(1) excluded from countable resources if it is held for the person, the person's spouse, or anyone of the person's choosing; and

(2) counted as a resource if the purchase was made for investment purposes.

§358.353. Term and Burial Insurance.

The Texas Health and Human Services Commission does not count term insurance or burial insurance as a resource, except as described in paragraphs (3) and (4) of this section.

(1) Term insurance is a contract of temporary protection. The insured pays relatively small premiums for a limited number of years, and the company agrees to pay the face amount of the policy only if the insured dies within the time specified in the policy. It has no cash surrender value.

(2) Burial insurance is a form of term insurance. By its terms, burial insurance can only be used to pay the burial expenses of the insured.

(3) If a term insurance policy has been purchased by a life insurance company and premiums are used to purchase separate whole life coverage, the whole life coverage is subject to the provisions of 20 CFR §416.1230.

(4) If a term insurance policy is a participating life insurance policy, any dividend accumulation at interest is a countable resource.

§358.354. Automobiles.

(a) The Texas Health and Human Services Commission (HHSC) follows 20 CFR §416.1218 regarding the definition, treatment, and exclusion of automobiles.

(b) In addition to the one automobile HHSC excludes regardless of value, HHSC excludes a second automobile, in accordance with 20 CFR §416.1218(b)(1), if:

(1) the automobile has been modified to accommodate a person with a disability, and there is a household member (other than the applicant or recipient) who has a disability and must use the automobile; or

(2) the household is made up of more than one person and:

(A) a household member (other than the applicant or recipient) requires an additional automobile for transportation to and from work; and

(B) the applicant or recipient requires one automobile available for medical use at all times.

§358.355. Qualified Long-Term Care Partnership Program Insurance Policies.

(a) This section describes the Long-Term Care Partnership Program under which a person's resources are disregarded in the eligibility determination equal to the amount of benefits paid to or on behalf of a person by a Long-Term Care Partnership policy.

(b) The Texas Health and Human Services Commission (HHSC) administers the Long-Term Care Partnership Program.

(c) In this section, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(1) "Long-Term Care Partnership Program" means the program established under the Texas Human Resources Code, Chapter 32, Subchapter C.

(2) "Qualified plan holder" means the beneficiary of a qualified long-term care benefit plan that meets the requirements set forth in subsection (d) of this section.

(3) "Resource disregard" means the total equity value of resources not exempt under rules governing Medicaid eligibility that are disregarded in determining eligibility for Medicaid.

(4) "Resource protection" means the extension to a plan holder of an approved plan of a dollar-for-dollar resource disregard in determining Medicaid eligibility.

(5) "Dollar-for-dollar resource disregard" means a resource disregard in which the amount of the disregard is equal to the sum of benefit payments made on behalf of the approved plan holder.

(d) A Long-Term Care Partnership Program policy is one that meets all of the following requirements:

(1) On the date the policy was issued, the state in which the insured resided had in place an approved Medicaid state plan amendment under 42 U.S.C. §1396p(b).

(2) The policy meets the requirements set forth by the Texas Department of Insurance under Title 28, Part 1, Chapter 3 of the Texas Administrative Code (relating to Life, Accident and Health Insurance and Annuities).

(e) At application for long-term care services, the qualified plan holder receives a dollar-for-dollar disregard of his or her resources.

(1) HHSC determines Medicaid eligibility in accordance with this chapter.

(2) A person may apply for Medicaid before exhausting the benefits of a Long-Term Care Partnership Program policy. If a person applies for and is eligible to receive Medicaid before the Long-Term Care Partnership Program policy is exhausted, the Long-Term Care Partnership Program insurer must make payment for medical assistance to the maximum extent of its liability before Medicaid funds may be used to pay providers for covered services as established in this chapter.

(3) If a person has applied for and been found eligible to receive Medicaid and subsequently receives additional resources, the person continues to be eligible for Medicaid if the total resources do not exceed the individual resource limit after applying the dollar-for-dollar resource disregard.

(f) If the Long-Term Care Partnership Program is discontinued, a person who purchased a Long-Term Care Partnership Program policy before the date the program is discontinued remains eligible to receive the dollar-for-dollar resource exclusion.

§358.371. Treatment of Other Resources.

The Texas Health and Human Services Commission follows the federal regulations indicated in the table in this section regarding the treatment of resources not otherwise described in this division:

Type of Resource	Section(s) in 20 CFR:
Assistance received due to a major disaster	416.1237
Certain housing assistance	416.1238
Crime-related compensation	416.1229
Earned income tax credit	416.1235
Funds in a dedicated account in a financial institution established and maintained in accordance with 20 CFR §416.640(e)	416.1247
Funds set aside for burial expenses for an applicant or recipient and the applicant's or recipient's spouse	416.1231(b)
Gifts from a nonprofit organization to a child with life-threatening conditions	416.1248
Grants, scholarships, fellowships, and gifts	416.1250
Household goods and personal effects	416.1216
Indian lands	416.1234
Life insurance	416.1230
Liquid resources	416.1201(b)
Property essential to self-support	416.1220, 416.1222, 416.1224
Payments or benefits provided under a federal statute, other than Title XVI of the Social Security Act, if required by federal statute	416.1210(j), 416.1236
Relocation assistance from a state or local government	416.1239
Replacement value of lost, damaged, or stolen excluded resources	416.1232
Resources in an approved plan to achieve self-support (PASS) for a person who is blind or disabled	416.1225-416.1227
Restitution for misuse of benefits for Title II, Title VIII, or Title XVI benefits by a representative payee	416.1249
Title II or Title XVI retroactive payments	416.1233