Minnesota Session Laws - 2004, Regular Session

                            CHAPTER 266-S.F.No. 2112 
                  An act relating to human services; authorizing an 
                  exception to the prohibition on asset transfers for 
                  certain charitable gifts; amending Minnesota Statutes 
                  2003 Supplement, section 256B.0595, subdivision 1b. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 2003 Supplement, section 
        256B.0595, subdivision 1b, is amended to read: 
           Subd. 1b.  [PROHIBITED TRANSFERS.] (a) Notwithstanding any 
        contrary provisions of this section, this subdivision applies to 
        transfers involving recipients of medical assistance that are 
        made on or after July 1, 2003, and to all transfers involving 
        persons who apply for medical assistance on or after July 1, 
        2003, if the transfer occurred within 72 months before the 
        person applies for medical assistance, except that this 
        subdivision does not apply to transfers made prior to July 1, 
        2003.  A person, a person's spouse, or any person, court, or 
        administrative body with legal authority to act in place of, on 
        behalf of, at the direction of, or upon the request of the 
        person or the person's spouse, may not give away, sell, dispose 
        of, or reduce ownership or control of any income, asset, or 
        interest therein for less than fair market value for the purpose 
        of establishing or maintaining medical assistance eligibility.  
        This applies to all transfers, including those made by a 
        community spouse after the month in which the institutionalized 
        spouse is determined eligible for medical assistance.  For 
        purposes of determining eligibility for medical assistance 
        services, any transfer of such income or assets for less than 
        fair market value within 72 months before or any time after a 
        person applies for medical assistance may be considered.  Any 
        such transfer is presumed to have been made for the purpose of 
        establishing or maintaining medical assistance eligibility, and 
        the person is ineligible for medical assistance services for the 
        period of time determined under subdivision 2b, unless the 
        person furnishes convincing evidence to establish that the 
        transaction was exclusively for another purpose or unless the 
        transfer is permitted under subdivision 3b or 4b. 
           Convincing evidence of any one of the following facts shall 
        establish that a gift that is a charitable contribution to an 
        organization described in section 170(c) of the Internal Revenue 
        Code of 1986, as amended, was made exclusively for a purpose 
        other than establishing or maintaining medical assistance 
        eligibility, unless at the time of the gift the donor or donor's 
        spouse was receiving long-term care services, was advised by a 
        medical professional of the need for long-term care services, or 
        was a medical assistance applicant or recipient: 
           (1) the donor made one or more gifts to the same donee 
        organization more than 180 days prior to the date of the gift in 
        question; or 
           (2) the gift was made to an organization for which the 
        donor had provided volunteer services, acknowledged in writing 
        by the organization, prior to the date of the gift.  
        A person may alternatively establish with other convincing 
        evidence that a charitable gift was made exclusively for a 
        purpose other than establishing or maintaining medical 
        assistance eligibility. 
           (b) This section applies to transfers to trusts.  The 
        commissioner shall determine valid trust purposes under this 
        section.  Assets placed into a trust that is not for a valid 
        purpose shall always be considered available for the purposes of 
        medical assistance eligibility, regardless of when the trust is 
        established. 
           (c) This section applies to transfers of income or assets 
        for less than fair market value, including assets that are 
        considered income in the month received, such as inheritances, 
        court settlements, and retroactive benefit payments or income to 
        which the person or the person's spouse is entitled but does not 
        receive due to action by the person, the person's spouse, or any 
        person, court, or administrative body with legal authority to 
        act in place of, on behalf of, at the direction of, or upon the 
        request of the person or the person's spouse. 
           (d) This section applies to payments for care or personal 
        services provided by a relative, unless the compensation was 
        stipulated in a notarized written agreement that was in 
        existence when the service was performed, the care or services 
        directly benefited the person, and the payments made represented 
        reasonable compensation for the care or services provided.  A 
        notarized written agreement is not required if payment for the 
        services was made within 60 days after the service was provided. 
           (e) This section applies to the portion of any income, 
        asset, or interest therein that a person, a person's spouse, or 
        any person, court, or administrative body with legal authority 
        to act in place of, on behalf of, at the direction of, or upon 
        the request of the person or the person's spouse, transfers to 
        any annuity that exceeds the value of the benefit likely to be 
        returned to the person or the person's spouse while alive, based 
        on estimated life expectancy, using the life expectancy tables 
        employed by the supplemental security income program, or based 
        on a shorter life expectancy if the annuitant had a medical 
        condition that would shorten the annuitant's life expectancy and 
        that was diagnosed before funds were placed into the annuity.  
        The agency may request and receive a physician's statement to 
        determine if the annuitant had a diagnosed medical condition 
        that would shorten the annuitant's life expectancy.  If so, the 
        agency shall determine the expected value of the benefits based 
        upon the physician's statement instead of using a life 
        expectancy table.  This section applies to an annuity described 
        in this paragraph purchased on or after March 1, 2002, that: 
           (1) is not purchased from an insurance company or financial 
        institution that is subject to licensing or regulation by the 
        Minnesota Department of Commerce or a similar regulatory agency 
        of another state; 
           (2) does not pay out principal and interest in equal 
        monthly installments; or 
           (3) does not begin payment at the earliest possible date 
        after annuitization. 
           (f) Transfers under this section shall affect 
        determinations of eligibility for all medical assistance 
        services or long-term care services, whichever receives federal 
        approval. 
           [EFFECTIVE DATE.] This section is effective upon 
        publication of a notice in the State Register of receipt of 
        federal approval for the 72-month lookback period described in 
        paragraph (a). 
           Presented to the governor May 18, 2004 
           Signed by the governor May 28, 2004, 4:50 p.m.