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

Revision 11-3; Effective September 1, 2011

There is no resource test for the Medicaid Buy-In for Children (MBIC) program. However, the income from income-producing resources is considered. See N-4200, Income.

F-1210 Definition

Revision 09-4; Effective December 1, 2009

Resources are cash, other liquid assets, or any real or personal property or other nonliquid assets that a person, a person’s spouse or parent could convert to cash to be used for his or her support and maintenance. Support and maintenance assistance not counted as income is not considered a resource.

F-1220 Ownership and Accessibility

Revision 09-4; Effective December 1, 2009

A person’s resource is property that:

• is owned, solely or in part, by the person; and
• is accessible to the person.

If the person has the right, authority or power to liquidate the property or his share of it, the property is a resource.

Federal guidelines do not provide any leeway for hardship cases in determining the availability of resources. Unless a court has judged a person to be incompetent and a guardian or other agent is appointed to act for the person, the person has access to resources he owns.

Questions concerning ownership and accessibility may arise with respect to co-owned resources. In certain proceedings, such as divorce, the community property owned by the applicant/recipient and spouse may be divided by the court and ownership awarded to one or the other of the spouses. If the court documents indicate that there is division of marital property, only consider the property awarded to the applicant/recipient as owned and accessible to the applicant/recipient.

When dealing with legal documents, such as deeds, wills or trusts, always consult with the regional attorney to determine the type of asset and therefore the appropriate treatment. See F-1230, Guardians, Fiduciaries and Other Agents.

F-1221 Co-owned Resources

Revision 11-4; Effective December 1, 2011

Treatment of co-owned resources differs depending on the person’s marital status, living arrangement and program requested.

For a person who has an ineligible community spouse and that person is in an institutional setting when determining eligibility for the institutional setting program, do not use the following policy. Instead, use the policy in Chapter J, Spousal Impoverishment.

For determination of Medicare Savings Programs (MSP) eligibility on these spousal institutional setting cases, the following does apply.

For an individual who has a co-owned resource with a sibling, parent, etc., and lives in an institution, the following does apply.

Note: Institutional settings are any Medicaid-certified long-term care facility or any §1915(c) waiver program.

For a person in a noninstitutional setting, co-owned resources may also be counted in certain situations, as follows:

• If a person's co-owned resource is available to him without obtaining the consent of the co-owner, the full value of the resource is counted.
• If a co-owner's consent is required for the resource to be available to the person, and if that co-owner gives the consent, the full value of the available resource is counted.
  • If a co-owner refuses to consent, the resource is neither considered available nor counted.
  • If, however, the co-owner who refuses to consent is an ineligible spouse living with the person, the resource is considered available to the person and is counted against the resource limit.
• If a person has partial ownership in undivided real property, the value of his interest in the property is counted because each co-owner usually has the right to sell his share with or without the co-owner's consent.

Texas law prohibits the sale of the Texas community homestead property without the consent of both spouses. If an ineligible spouse is unwilling to dispose of Texas community homestead property and the person does not live with the ineligible spouse, the Texas community homestead property is not an available resource for the person.

References:

• See F-4000, Liquid and Nonliquid Resources, for treatment of liquid resources including treatment of joint bank accounts.
• See F-5000, Potential Resource Exclusions, for treatment of nonliquid resources.
• See F-4330, Business Property, for treatment of business property.

F-1221.1 Co-owned Resource Examples

Revision 09-4; Effective December 1, 2009

• Co-owned liquid resource
  
  A joint bank account that requires both owners' signatures to withdraw funds is an example of a co-owned resource requiring the consent of the other co-owner before it is available to the person. These accounts are usually established as "Jean Brown and Doris Brown."
• Co-owned undivided real property:
  
  An example of co-owned, undivided real property is land acquired by heirs to an estate.

If a person has a co-owned resource, determine the amount of interest owned, accessibility and the value of the person's interest in the co-owned resource.

Determine accessibility according to whether the co-owner's consent is required for the person to dispose of his interest.

Verify and document ownership and the value of the resource according to the verification and documentation requirements for the type of resource involved.

After contacting a knowledgeable source to determine the equity value of an interest in property, provide the following information:

• Location and a description of the property.
• Percentage of the person's ownership interest in the total resource.
• Amount and a description of any debts, liens (including federal tax liens) or taxes.
• Explanation of factors that may affect the value of an ownership interest, such as need to partition.

Verify and document accessibility from:

• ownership papers or other legal documents; or
• statement from the co-owner, if his/her consent is required, indicating if he/she is planning to make the resource available to the person.

F-1230 Guardians, Fiduciaries and Other Agents

Revision 09-4; Effective December 1, 2009

F-1231 Guardians and Other Agents

Revision 16-3; Effective September 1, 2016

Guardian of the estate. Under Sections 1151.101 and 1151.151, Texas Estates Code, it is the duty of the guardian of the estate to take care of and manage the estate as a prudent individual would manage the individual's own property. The guardian of the estate collects all debts, rentals or claims due to the ward, enforces all obligations in favor of the ward, and brings and defends suits by or against the ward. Only the guardian of the estate can deal with resources.

Guardian of the person. Under Section 1151.051, Texas Estates Code, the guardian of the person has the:

• right to have physical possession of the ward;
• right to establish the ward's legal domicile;
• duty of care, control and protection of the ward;
• duty to provide the ward with clothing, food, medical care and shelter; and
• power to consent to medical, psychiatric and surgical treatment other than the in-patient psychiatric commitment of the ward.

For HHSC purposes, the guardian of the person can sign documents, represent the individual at hearings and deal with small amounts of money. The guardian of the person is like any other responsible party in that the guardian of the person has the authority to protect the interests of the ward.

Under Section 1151.004, Texas Estates Code, a court may appoint the same individual to be both guardian of the estate and guardian of the person. If there are two guardians, one of the estate and one of the person, then the eligibility specialist must examine the court orders establishing the guardianships to decide which is the most appropriate to represent the individual with HHSC.

Note: When a guardianship exists, only that person can act on the individual's behalf to sign applications and review forms.

An individual's resources are available to the individual if they are being managed by a legal guardian, representative payee, power of attorney or fiduciary agent. If, however, a court denies a guardian or agent access to the resources, HHSC does not consider the resources available to the individual.

If individual's guardianship papers do not show that the legal guardian is prohibited access, and if a court has not subsequently ruled a prohibition, the resources are considered available. A guardian's routine need to petition the court for permission to dispose of individual's resources is not a prohibition. When the court rules on a petition to dispose of individual's resources, resources are considered available only to the extent to which the court has made them available for the individual's benefit.

If a legal guardian exists, obtain a copy of the guardianship or power of attorney document.

F-1231.1 Examples of Treatment of Resources

Revision 09-4; Effective December 1, 2009

Situation 1: Louis Bennett has resources valued at $1,300, which are being managed by his son. The son claims that as the power-of-attorney he is the only one who has access to the funds.

Treatment 1: Because a power-of-attorney is given voluntarily, and management of the resources is with the person's consent and for his benefit, Louis Bennett's resources are available to him.

Situation 2: John Morgan's parents used their own funds to purchase a certificate of deposit (CD) for John. The CD was issued as "John Morgan, by Paul and Jean Morgan, Joint Representative Payees."

Treatment 2: The CD is an available resource to John Morgan because the designation indicates that the parents are acting in a fiduciary capacity in controlling funds belonging to John, regardless of the fact that Mr. and Mrs. Morgan paid the purchase price.

Situation 3: Amy Wilson recently left the hospital and entered a long-term care facility. She is in a coma, and there are no known living relatives or friends. After Ms. Wilson had a stroke, her landlady looked through Ms. Wilson's papers and found a $600 term life insurance policy and a checkbook showing a balance of $3,840.65. The bank balance verified by bank statements.

Treatment 3: Although court action to appoint a guardian would be necessary to allow disposal of Ms. Wilson's excess funds, the resources are available to her. Until a court judges Ms. Wilson to be incompetent and unable to handle her affairs, the eligibility specialist cannot assume that the court will prohibit an appointed guardian from disposing of any of the funds in the checking account. Ms. Wilson is ineligible because of excess resources.

F-1232 Fiduciary Agent

Revision 09-4; Effective December 1, 2009

A fiduciary agent is a person or organization acting on behalf of and/or with the authorization of another person. The term applies to anyone who acts in a financial capacity, whether formal or informal, regardless of title, such as representative payee, guardian or conservator. In the case of a trustee, refer to the trust instrument.

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

Assets held by a person in his/her capacity as fiduciary agent for someone else are not countable assets to the person. Assets held by a fiduciary agent for a person are considered as available to the person, unless otherwise excludable.

Identify a fiduciary relationship by the way in which a resource is styled. A bank account established in two names connected by "for" or "by" indicates a fiduciary relationship. Another indication is an account established in two names with the designation of "representative payee" next to one of the names, or an account with the designation "special."

A Medicaid recipient may receive a lump sum payment as the payee for an individual who is not a Medicaid recipient. Consider the Medicaid recipient a fiduciary agent for the individual. Do not consider the individual’s lump sum funds as an available countable asset to the Medicaid recipient when all of the following conditions are met:

• The individual has no bank account.
• The Medicaid recipient is acting as the fiduciary agent.
• Deposits of the lump sum funds are made into the Medicaid recipient’s bank account.

F-1232.1 Medicaid Recipient Responsibilities as Fiduciary Agent

Revision 09-4; Effective December 1, 2009

If the individual’s lump sum funds held in the Medicaid recipient’s bank account are not considered as an available asset to the Medicaid recipient, the Medicaid recipient, as fiduciary agent for the individual, must:

• indicate the current needs of the individual such as food, clothing, housing, medical care and other personal comfort items;
• indicate reasonably foreseeable needs of the individual;
• keep accounting records of how lump sum funds are spent for the individual; and
• establish a separate fiduciary account with the remaining lump sum funds for the individual allowing the person until the next annual redetermination.

Do not use Form H1299, Request for Joint Bank Account Information, when the individual's lump sum funds have been deposited into the Medicaid recipient's account and the Medicaid recipient is allowed time to separate the individual’s funds and deposit them into a separate fiduciary account.

F-1240 Ownership of Unknown Assets

Revision 09-4; Effective December 1, 2009

If a person is unaware that he/she owns an asset, the asset is not counted as a resource for the period during which he/she is unaware of his ownership. For example, he/she may inherit property and not know about the inheritance for some time.

The asset is counted as income in the month that the person discovers his/her ownership.

Begin counting the asset as a resource effective the first of the month after the month of discovery.

F-1250 Patrimonial Assets

Revision 09-4; Effective December 1, 2009

Patrimonial assets are assets irrevocably turned over to a religious order following a vow of poverty. The assets are not countable resources and the transfer of assets penalty does not apply.

F-1260 Conversion of Resources

Revision 09-4; Effective December 1, 2009

If a person converts one type of resource to another, HHSC considers the new resource according to the policy governing that type of resource.

Any cash received from the sale of a resource is considered a resource, not 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. There are two exceptions:

• The owner leases the land or resource rights. The income received from the lease is unearned income.
• The sale of the natural resource is part of the person's trade or business. The income received is self-employment income.

See E-3333, Mineral and Timber Rights.

See F-4000, Liquid and Nonliquid Resources, for nonliquid resources converted to cash.

F-1270 Replacement Value of Excluded Resources

Revision 09-4; Effective December 1, 2009

If an excluded resource is lost, damaged or stolen, the cash, including interest earned on the cash, or the in-kind replacement that the person receives from any source to repair or replace the resource, is excluded. This exclusion applies if the cash and the interest are used to repair or replace the excluded resource within nine months of the date the person received the cash.

Any of the cash or interest that is not used to repair or replace the excluded resource is counted as a resource beginning with the month after the nine-month period expires.

The initial nine-month time period can be extended for a reasonable period up to an additional nine months when the person has good cause for not replacing or repairing the resource. Good cause exists when circumstances beyond the person's control prevent the repair or replacement or the contracting for the repair or replacement of the resource. The nine-month extension can only be granted if the person intends to use the cash or in-kind replacement items to repair or replace the lost, stolen or damaged excluded resource and has good cause for not having done so. If good cause is found, any unused cash and interest are counted as a resource beginning with the month after the good cause extension period expires.

When the president of the United States declares a catastrophe to be a major disaster, the extension period described above can be extended for a reasonable period up to an additional 12 months if:

• the excluded resource is geographically located within the disaster area as defined by the presidential order;
• the person intends to repair or replace the excluded resource; and
• the person demonstrates good cause when he has not been able to repair or replace the excluded resource within the 18-month period.

If an extension of the time period is made for good cause and the person changes his/her intent to repair or replace the excluded resources, funds previously held for replacement or repair are counted as a resource effective with the month that the person reports this change of intent.

Determine the amount of the payment and the date of receipt. Schedule a special review to monitor for replacement or repair within the period allowed.

Sources for verifying the amount of money received are:

• statement from the payment source;
• copy of the person's check; and
• bank deposit slip.

Sources for verifying replacement or repair of the excluded resources are:

• receipt; or
• repair bill.

Revision 11-4; Effective December 1, 2011

A person or a couple meet resources criteria if the value of all countable resources does not exceed the appropriate established limit.

Individual limit. This limit applies to adults who are single, even if the person lives with relatives. The individual limit also applies to children and to adults whose spouses live in different households. The individual limit also applies to the institutional spouse in spousal impoverishment policy. Use the individual limit for the following:

• An adult person who is not married, even if the person lives with relatives. Consider only the person's own resources.
• A person with a spouse not living in the same household. If the spouse is eligible, consider the person's own resources, plus half the resources owned jointly by the person and spouse. If the spouse is not eligible, consider the person's own resources, plus any jointly owned resources available to the person.
• A child. Consider the child's own resources, plus certain deemed resources of the parents with whom the child lives.
• An institutional spouse using policy in Chapter J, Spousal Impoverishment.

Couple limit. This limit applies to married adults who live in the same household with their spouses, even if the spouses are ineligible. Consider the combined resources of the person and spouse. Use the couple limit for the following:

• A married person living in the same household with his spouse, when both spouses are eligible.
• A married person living in the same household with his spouse, when the spouse is ineligible.

The value of all countable resources must not exceed the following limits:

Year	Individual	Couple
1989 through present	$2000	$3000
1988	$1900	$2850
1987	$1800	$2700
1986	$1700	$2550
1985	$1600	$2400
1984	$1500	$2250

See Section Q-2000, Qualified Medicare Beneficiaries (QMB) – MC-QMB, Medicare Savings Programs (MSP), where the resource limit is higher for certain MSP programs.

If the countable resources are within $100 of the resource limit, set a special review to monitor eligibility. See Section B-8430, Special Reviews.

F-1310 Points in Time for Establishing Resource Values

Revision 22-2; Effective June 1, 2022

Determine the value of an applicant’s or recipient’s resources as of 12:01 a.m. on the first day of a calendar month. Any changes in the value of a resource is considered in the resource determination for the month following the change.

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

For programs that require full verification, verify resources as of 12:01 a.m. on the first day of the month of application for ongoing eligibility. For prior coverage, verify resources as of 12:01 a.m. on the first day of the month for each of the three preceding months.

For programs that allow for client statement as an acceptable verification source, verify resources as of 12:01 a.m. on the first day of the month of application or any month through the month of certification. Verification of resources is not required for all months between the month of application and certification unless the applicant reports a change in the total resources.

For redeterminations, verify resources as of 12:01 a.m. on the first day of:

• the month the redetermination form was received;
• either of the two months before the redetermination form was received; or
• any month between the month the redetermination was received and the month the redetermination is completed.

Verify all resources as of 12:01 a.m. on the first day of the same month.

Related Policy

Applications, B-3000
Eligibility Determination, B-6000
Redeterminations, B-8000
Prior Coverage, G-7000
Documentation and Verification Guide, Appendix XVI

F-1311 Encumbered Funds

Revision 19-1; Effective March 1, 2019

When determining countable resources, a bank account balance may be reduced by the amount of funds encumbered (legally obligated) before 12:01 a.m. on the first day of the month.

Encumbered funds should be explored if the case is going to be denied due to excess resources. The account balance as of 12:01 a.m. on the first day of the month should be reduced by the amount of any outstanding checks that have not been processed by the financial institution.

Eligibility staff must:

• not deny the case before determining if excess resources can be reduced;
• pend using Form H1020, Request for Information or Action, to request verification of any encumbered funds that may reduce the account balance; and
• determine the purpose of the payments for which the checks were written in advance and explore the potential for a transfer of assets.

Payments for legally owed debts, such as health care expenses, or credit card charges and recurring monthly expenses consistent with routine banking activity are not a transfer of resources.

Payments made to reduce the 12:01 a.m. balance for items or services for which a person may not receive compensation, may be a transfer of assets. For example, an institution makes advance payments for future housing expenses made by a person in a nursing facility who is unlikely to return home during that time.  

Related Policy

Missing Information Due Dates, B-6420
Failure to Furnish Missing Information, B-6510
Refunds for Payments Before Medicaid Eligibility Approval, F-1312.2
Compensation, I-4100

F-1312 Nursing Facility Payments and Refunds

Revision 16-4; Effective December 1, 2016

Following an individual's approval for Medicaid, a Medicaid-contracted, long-term services and supports facility, such as a nursing facility, must refund any advance payments that exceed an individual's co-payment amount for periods covered by Medicaid. This refund policy also applies to advance payments made to home health agencies for Community Attendant Services recipients.

A Medicaid-contracted, long-term services and supports provider may charge a private pay rate that is different from the Medicaid rate, when Medicaid is not the payer of the bill. This private arrangement may occur:

• during a transfer of assets penalty;
• during a substantial home equity penalty; or
• before Medicaid eligibility is approved.

A Medicaid-contracted, long-term services and supports facility may allow a resident's family or friends to use personal funds to pay an agreed-upon amount, in addition to the Medicaid rate, in order to have a private room. These payments in excess of an individual's co-payment do not need to be refunded. However, for Medicaid eligibility purposes, if the family or friends pay the difference, consider how it is being paid:

• If the money is given directly to the individual to pay the difference between the Medicaid rate and a private room rate, that amount is considered income to the individual.
• If the family or friends pay the facility directly, do not consider the amount paid as income to the individual.

F-1312.1 Payment During a Penalty

Revision 16-4; Effective December 1, 2016

During a transfer of assets or substantial home equity penalty, Medicaid does not pay the long-term services and supports provider. Payments for long-term services and supports are a private arrangement between the recipient and the provider. Private pay rates may be collected during a penalty. In these situations, the individual is not owed a refund when the transfer of assets penalty period ends or there is no longer a substantial home equity penalty.

F-1312.2 Refunds for Payments Before Medicaid Eligibility Approval

Revision 19-1; Effective March 1, 2019

If a person paid a provider private pay rates or a deposit that exceeded the person's co-payment amount, once Medicaid eligibility is approved, and there is no penalty from a transfer of assets or substantial home equity, the excess amount must be refunded for those months Medicaid eligibility is established.

Consider the advance payment as encumbered funds in the resource test for the initial eligibility determination.

Do not consider the refund as income in the month of receipt.

Consider the refund or any remaining part of the refund as a resource as of 12:01 a.m. on the first day of the month after the month of receipt of the refund.

Related Policy

Encumbered Funds, F-1311
Special Reviews, B-8430

Revision 09-4; Effective December 1, 2009

The word "deeming," as used in this handbook, means counting all or part of the income or resources of another person (parent or spouse) as income or resources available to the person.

HHSC does not deem income or resources from an alien's sponsor.

F-1410 Deeming for Spouses

Revision 11-4; Effective December 1, 2011

HHSC deems spouse's resources as follows:

• If a married person lives in the same household with an ineligible spouse, HHSC counts both the ineligible spouse's and the person's resources and applies the couple resource limit to the combined countable resources. The spouse's resources are counted even if they are not available to the person. 
  
  Note: Pension funds owned by an ineligible spouse or parent are excluded from resources for deeming purposes. If the ineligible spouse is a TANF caretaker, his resources are not counted. Pension funds are monies held in a retirement fund under a plan administrated by an employer or union, or an individual retirement account (IRA) or Keogh account as described in the Internal Revenue Code.
• An ineligible spouse or parent who is absent from a deeming household solely because of an active duty military assignment continues to be considered a member of the household for resources deeming purposes. If the absent service member's intent to continue living in the household changes, deeming stops beginning with the month following the month in which the intent changed.

If the person does not live in the same household as his ineligible spouse, HHSC does not apply deeming policies. In situations where an institutionalized person has an ineligible spouse also living in a facility, only the person's resources are counted against the individual resource limit. HHSC includes in the person's resources the total amount of checking and savings accounts to which he has access.

Note: Follow joint bank account policy and exclude any separate resources of the ineligible spouse.

Example: Wayne and Ethel Thomas live together in their own home. Wayne was receiving SSI and RSDI as a disabled person. His most recent cost-of-living increase in RSDI benefits made him ineligible for SSI.

The eligibility specialist received Mr. Thomas' application for ME-Pickle. The reported and verified resources were:

Description	Amount
joint checking account with a balance of	$410.00
ownership of the home in which the couple lives	Excluded
1975 automobile	Excluded
savings account in Wayne's name with a balance of	$700.00
savings account in Ethel's name with a balance of	$576.00
The countable resources for Wayne Thomas are less than the couple's resource limit.	$1,686.00

F-1420 Deeming for Children

Revision 11-3; Effective September 1, 2011

Note: Deeming from parents does not apply in certain §1915(c) waiver programs.

Deeming of resources does not apply to Medicaid Buy-In for Children (MBIC). There is no resource test for MBIC.

Regarding deeming for children, HHSC requirements are as follows:

If a disabled child under 18 lives with his parents in the same household, HHSC must deem to the child certain resources of the parents. If a parent is a TANF caretaker or a recipient, his resources are not counted.

An ineligible spouse or parent who is absent from a deeming household solely because of an active duty military assignment continues to be considered a member of the household for resources deeming purposes. If the absent service member's intent to continue living in the household changes, deeming stops beginning with the month following the month in which the intent changed.

To determine the amount of resources deemed to an eligible child, HHSC:

• applies any appropriate resource exclusions to the resources of the parents to determine countable resources. Pension funds owned by a parent are excluded from resources for deeming purposes. See note in F-1410, Deeming for Spouses;
• deems to the child any resources in excess of the individual resource limit for one parent or the couple resource limit for two parents. If more than one child is potentially eligible for an SSI-related Medicaid program, the amount to be deemed is equally divided among the otherwise eligible children. None of the parents' resources are deemed to ineligible children; and
• excludes from deeming gifts from tax-exempt organizations to a parent for the benefit of a child with a life-threatening condition, per Public Law 105-306.

A parent is defined as a child's natural or adoptive parent or the spouse of the natural or adoptive parent.