42 U.S.C. § 1396p — Liens, adjustments and recoveries, and

Page 4254 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p Subsec. (c)(2)(B). Pub. L. 109–432, § 405(a)(2)(D), sub- stituted ‘‘not subject to cost sharing under subsection (a) due to the application of paragraph (1)(B)’’ for ‘‘oth- erwise not subject to cost sharing due to the applica- tion of subsection (b)(3)(B)’’. Subsec. (c)(2)(C). Pub. L. 109–432, § 405(a)(1)(D), in- serted ‘‘under subsection (a)(2)(B) or’’ after ‘‘cost shar- ing applied’’. Subsec. (e). Pub. L. 109–171, § 6043(a), added subsec. (e). Subsec. (e)(2)(A). Pub. L. 109–432, § 405(a)(2)(E), sub- stituted ‘‘Individuals with family income between 100 and 150 percent of the poverty line’’ for ‘‘For poorest beneficiaries’’ in heading and ‘‘under subsection (b)(1)(B)(ii)’’ for ‘‘under subsection (b)(1)’’ in text. Pub. L. 109–432, § 405(a)(1)(E), inserted ‘‘who is not de- scribed in subparagraph (B)’’ after ‘‘in subsection (b)(1)’’. Subsec. (e)(2)(B). Pub. L. 109–432, § 405(a)(2)(F), sub- stituted ‘‘described in subsection (a)(2)(A) or who is not subject to cost sharing under subsection (b)(3)(B) with respect to non-emergency services described in para- graph (1)’’ for ‘‘who is otherwise not subject to cost sharing under subsection (b)(3)’’. Subsec. (e)(2)(C). Pub. L. 109–432, § 405(a)(2)(G), in- serted ‘‘or section 1396o of this title’’ after ‘‘subsection (a)’’. Pub. L. 109–432, § 405(a)(1)(D), inserted ‘‘under sub- section (a)(2)(B) or’’ after ‘‘cost sharing applied’’. Subsec. (e)(4)(A). Pub. L. 109–432, § 405(a)(5), struck out ‘‘the physician determines’’ after ‘‘a hospital that’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Amendment by Pub. L. 117–169 effective on the 1st day of the 1st fiscal quarter that begins on or after the date that is 1 year after Aug. 16, 2022 and applicable to expenditures made under a State plan or waiver of such plan under title XIX of the Social Security Act or under a State child health plan or waiver of such plan under title XXI of such Act on or after such effective date, see section 11405(c) of Pub. L. 117–169, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–148, title II, § 2102(b), Mar. 23, 2010, 124 Stat. 289, provided that the amendment made by sec- tion 2102(b) is effective as if included in the enactment of section 5006(a) of division B of the American Recov- ery and Reinvestment Act of 2009 (Public Law 111–5). Amendment by section 4107(c)(2) of Pub. L. 111–148 ef- fective Oct. 1, 2010, see section 4107(d) of Pub. L. 111–148, set out as a note under section 1396d of this title. EFFECTIVE DATE OF 2009 AMENDMENT Amendment by Pub. L. 111–5 effective July 1, 2009, see section 5006(f) of Pub. L. 111–5, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–432, div. B, title IV, § 405(a)(6), Dec. 20, 2006, 120 Stat. 2998, provided that: ‘‘The amendments made by this subsection [amending this section] shall take effect as if included in the amendments made by sections [sic] 6041(a) of the Deficit Reduction Act of 2005 [Pub. L. 109–171], except that insofar as such amendments are to, or relate to, subsection (c) or (e) of section 1916A of the Social Security Act [42 U.S.C. 1396o–1], such amendments shall take effect as if in- cluded in the amendments made by section 6042 or 6043, respectively, of the Deficit Reduction Act of 2005 [Pub. L. 109–171].’’ Pub. L. 109–171, title VI, § 6042(b), Feb. 8, 2006, 120 Stat. 86, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to cost sharing imposed for items and services furnished on or after March 31, 2006.’’ Amendment by section 6043(a) of Pub. L. 109–171 ap- plicable to non-emergency services furnished on or after Jan. 1, 2007, see section 6043(c) of Pub. L. 109–171, set out as a note under section 1396b of this title. EFFECTIVE DATE Section applicable to cost sharing imposed for items and services furnished on or after Mar. 31, 2006, see sec- tion 6041(c) of Pub. L. 109–171, set out as an Effective Date of 2006 Amendment note under section 1396o of this title. APPLICABILITY OF 2020 AMENDMENT TO TERRITORIES Amendment by Pub. L. 116–127 applicable with re- spect to a State plan of a territory in the same manner as a State plan of one of the 50 States, see section 6004(a)(2)(C) of Pub. L. 116–127, set out as a note under section 1396o of this title. § 1396p. Liens, adjustments and recoveries, and transfers of assets (a) Imposition of lien against property of an indi- vidual on account of medical assistance ren- dered to him under a State plan (1) No lien may be imposed against the prop- erty of any individual prior to his death on ac- count of medical assistance paid or to be paid on his behalf under the State plan, except— (A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or (B) in the case of the real property of an in- dividual— (i) who is an inpatient in a nursing facil- ity, intermediate care facility for the men- tally retarded, or other medical institution, if such individual is required, as a condition of receiving services in such institution under the State plan, to spend for costs of medical care all but a minimal amount of his income required for personal needs, and (ii) with respect to whom the State deter- mines, after notice and opportunity for a hearing (in accordance with procedures es- tablished by the State), that he cannot rea- sonably be expected to be discharged from the medical institution and to return home, except as provided in paragraph (2). (2) No lien may be imposed under paragraph (1)(B) on such individual’s home if— (A) the spouse of such individual, (B) such individual’s child who is under age 21, or (with respect to States eligible to par- ticipate in the State program established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to States which are not eligible to participate in such program) is blind or disabled as defined in sec- tion 1382c of this title, or (C) a sibling of such individual (who has an equity interest in such home and who was re- siding in such individual’s home for a period of at least one year immediately before the date of the individual’s admission to the medical institution), is lawfully residing in such home. (3) Any lien imposed with respect to an indi- vidual pursuant to paragraph (1)(B) shall dis- solve upon that individual’s discharge from the medical institution and return home. (b) Adjustment or recovery of medical assistance correctly paid under a State plan (1) No adjustment or recovery of any medical assistance correctly paid on behalf of an indi- Page 4255 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p vidual under the State plan may be made, ex- cept that the State shall seek adjustment or re- covery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals: (A) In the case of an individual described in subsection (a)(1)(B), the State shall seek ad- justment or recovery from the individual’s es- tate or upon sale of the property subject to a lien imposed on account of medical assistance paid on behalf of the individual. (B) In the case of an individual who was 55 years of age or older when the individual re- ceived such medical assistance, the State shall seek adjustment or recovery from the individ- ual’s estate, but only for medical assistance consisting of— (i) nursing facility services, home and community-based services, and related hos- pital and prescription drug services, or (ii) at the option of the State, any items or services under the State plan (but not in- cluding medical assistance for medicare cost-sharing or for benefits described in sec- tion 1396a(a)(10)(E) of this title). (C)(i) In the case of an individual who has re- ceived (or is entitled to receive) benefits under a long-term care insurance policy in connec- tion with which assets or resources are dis- regarded in the manner described in clause (ii), except as provided in such clause, the State shall seek adjustment or recovery from the individual’s estate on account of medical assistance paid on behalf of the individual for nursing facility and other long-term care serv- ices. (ii) Clause (i) shall not apply in the case of an individual who received medical assistance under a State plan of a State which had a State plan amendment approved as of May 14, 1993, and which satisfies clause (iv), or which has a State plan amendment that provides for a qualified State long-term care insurance partnership (as defined in clause (iii)) which provided for the disregard of any assets or re- sources— (I) to the extent that payments are made under a long-term care insurance policy; or (II) because an individual has received (or is entitled to receive) benefits under a long- term care insurance policy. (iii) For purposes of this paragraph, the term ‘‘qualified State long-term care insurance partnership’’ means an approved State plan amendment under this subchapter that pro- vides for the disregard of any assets or re- sources in an amount equal to the insurance benefit payments that are made to or on be- half of an individual who is a beneficiary under a long-term care insurance policy if the following requirements are met: (I) The policy covers an insured who was a resident of such State when coverage first became effective under the policy. (II) The policy is a qualified long-term care insurance policy (as defined in section 7702B(b) of the Internal Revenue Code of 1986) issued not earlier than the effective date of the State plan amendment. (III) The policy meets the model regula- tions and the requirements of the model Act specified in paragraph (5). (IV) If the policy is sold to an individual who— (aa) has not attained age 61 as of the date of purchase, the policy provides com- pound annual inflation protection; (bb) has attained age 61 but has not at- tained age 76 as of such date, the policy provides some level of inflation protection; and (cc) has attained age 76 as of such date, the policy may (but is not required to) pro- vide some level of inflation protection. (V) The State Medicaid agency under sec- tion 1396a(a)(5) of this title provides infor- mation and technical assistance to the State insurance department on the insurance de- partment’s role of assuring that any indi- vidual who sells a long-term care insurance policy under the partnership receives train- ing and demonstrates evidence of an under- standing of such policies and how they relate to other public and private coverage of long- term care. (VI) The issuer of the policy provides reg- ular reports to the Secretary, in accordance with regulations of the Secretary, that in- clude notification regarding when benefits provided under the policy have been paid and the amount of such benefits paid, notifica- tion regarding when the policy otherwise terminates, and such other information as the Secretary determines may be appro- priate to the administration of such partner- ships. (VII) The State does not impose any re- quirement affecting the terms or benefits of such a policy unless the State imposes such requirement on long-term care insurance policies without regard to whether the pol- icy is covered under the partnership or is of- fered in connection with such a partnership. In the case of a long-term care insurance pol- icy which is exchanged for another such pol- icy, subclause (I) shall be applied based on the coverage of the first such policy that was ex- changed. For purposes of this clause and para- graph (5), the term ‘‘long-term care insurance policy’’ includes a certificate issued under a group insurance contract. (iv) With respect to a State which had a State plan amendment approved as of May 14, 1993, such a State satisfies this clause for pur- poses of clause (ii) if the Secretary determines that the State plan amendment provides for consumer protection standards which are no less stringent than the consumer protection standards which applied under such State plan amendment as of December 31, 2005. (v) The regulations of the Secretary required under clause (iii)(VI) shall be promulgated after consultation with the National Associa- tion of Insurance Commissioners, issuers of long-term care insurance policies, States with experience with long-term care insurance partnership plans, other States, and represent- atives of consumers of long-term care insur- ance policies, and shall specify the type and format of the data and information to be re- ported and the frequency with which such re- ports are to be made. The Secretary, as appro- Page 4256 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p priate, shall provide copies of the reports pro- vided in accordance with that clause to the State involved. (vi) The Secretary, in consultation with other appropriate Federal agencies, issuers of long-term care insurance, the National Asso- ciation of Insurance Commissioners, State in- surance commissioners, States with experi- ence with long-term care insurance partner- ship plans, other States, and representatives of consumers of long-term care insurance poli- cies, shall develop recommendations for Con- gress to authorize and fund a uniform min- imum data set to be reported electronically by all issuers of long-term care insurance policies under qualified State long-term care insurance partnerships to a secure, centralized elec- tronic query and report-generating mechanism that the State, the Secretary, and other Fed- eral agencies can access. (2) Any adjustment or recovery under para- graph (1) may be made only after the death of the individual’s surviving spouse, if any, and only at a time— (A) when he has no surviving child who is under age 21, or (with respect to States eligi- ble to participate in the State program estab- lished under subchapter XVI) is blind or per- manently and totally disabled, or (with re- spect to States which are not eligible to par- ticipate in such program) is blind or disabled as defined in section 1382c of this title; and (B) in the case of a lien on an individual’s home under subsection (a)(1)(B), when— (i) no sibling of the individual (who was re- siding in the individual’s home for a period of at least one year immediately before the date of the individual’s admission to the medical institution), and (ii) no son or daughter of the individual (who was residing in the individual’s home for a period of at least two years imme- diately before the date of the individual’s admission to the medical institution, and who establishes to the satisfaction of the State that he or she provided care to such individual which permitted such individual to reside at home rather than in an institu- tion), is lawfully residing in such home who has law- fully resided in such home on a continuous basis since the date of the individual’s admis- sion to the medical institution. (3)(A) The State agency shall establish proce- dures (in accordance with standards specified by the Secretary) under which the agency shall waive the application of this subsection (other than paragraph (1)(C)) if such application would work an undue hardship as determined on the basis of criteria established by the Secretary. (B) The standards specified by the Secretary under subparagraph (A) shall require that the procedures established by the State agency under subparagraph (A) exempt income, re- sources, and property that are exempt from the application of this subsection as of April 1, 2003, under manual instructions issued to carry out this subsection (as in effect on such date) be- cause of the Federal responsibility for Indian Tribes and Alaska Native Villages. Nothing in this subparagraph shall be construed as pre- venting the Secretary from providing additional estate recovery exemptions under this sub- chapter for Indians. (4) For purposes of this subsection, the term ‘‘estate’’, with respect to a deceased individual— (A) shall include all real and personal prop- erty and other assets included within the indi- vidual’s estate, as defined for purposes of State probate law; and (B) may include, at the option of the State (and shall include, in the case of an individual to whom paragraph (1)(C)(i) applies), any other real and personal property and other assets in which the individual had any legal title or in- terest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement. (5)(A) For purposes of clause (iii)(III), the model regulations and the requirements of the model Act specified in this paragraph are: (i) In the case of the model regulation, the following requirements: (I) Section 6A (relating to guaranteed re- newal or noncancellability), other than paragraph (5) thereof, and the requirements of section 6B of the model Act relating to such section 6A. (II) Section 6B (relating to prohibitions on limitations and exclusions) other than para- graph (7) thereof. (III) Section 6C (relating to extension of benefits). (IV) Section 6D (relating to continuation or conversion of coverage). (V) Section 6E (relating to discontinuance and replacement of policies). (VI) Section 7 (relating to unintentional lapse). (VII) Section 8 (relating to disclosure), other than sections 8F, 8G, 8H, and 8I there- of. (VIII) Section 9 (relating to required dis- closure of rating practices to consumer). (IX) Section 11 (relating to prohibitions against post-claims underwriting). (X) Section 12 (relating to minimum stand- ards). (XI) Section 14 (relating to application forms and replacement coverage). (XII) Section 15 (relating to reporting re- quirements). (XIII) Section 22 (relating to filing require- ments for marketing). (XIV) Section 23 (relating to standards for marketing), including inaccurate comple- tion of medical histories, other than para- graphs (1), (6), and (9) of section 23C. (XV) Section 24 (relating to suitability). (XVI) Section 25 (relating to prohibition against preexisting conditions and proba- tionary periods in replacement policies or certificates). (XVII) The provisions of section 26 relating to contingent nonforfeiture benefits, if the policyholder declines the offer of a nonfor- feiture provision described in paragraph (4). (XVIII) Section 29 (relating to standard format outline of coverage). Page 4257 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p (XIX) Section 30 (relating to requirement to deliver shopper’s guide). (ii) In the case of the model Act, the fol- lowing: (I) Section 6C (relating to preexisting con- ditions). (II) Section 6D (relating to prior hos- pitalization). (III) The provisions of section 8 relating to contingent nonforfeiture benefits. (IV) Section 6F (relating to right to re- turn). (V) Section 6G (relating to outline of cov- erage). (VI) Section 6H (relating to requirements for certificates under group plans). (VII) Section 6J (relating to policy sum- mary). (VIII) Section 6K (relating to monthly re- ports on accelerated death benefits). (IX) Section 7 (relating to incontestability period). (B) For purposes of this paragraph and para- graph (1)(C)— (i) the terms ‘‘model regulation’’ and ‘‘model Act’’ mean the long-term care insurance model regulation, and the long-term care in- surance model Act, respectively, promulgated by the National Association of Insurance Com- missioners (as adopted as of October 2000); (ii) any provision of the model regulation or model Act listed under subparagraph (A) shall be treated as including any other provision of such regulation or Act necessary to imple- ment the provision; and (iii) with respect to a long-term care insur- ance policy issued in a State, the policy shall be deemed to meet applicable requirements of the model regulation or the model Act if the State plan amendment under paragraph (1)(C)(iii) provides that the State insurance commissioner for the State certifies (in a manner satisfactory to the Secretary) that the policy meets such requirements. (C) Not later than 12 months after the Na- tional Association of Insurance Commissioners issues a revision, update, or other modification of a model regulation or model Act provision specified in subparagraph (A), or of any provi- sion of such regulation or Act that is sub- stantively related to a provision specified in such subparagraph, the Secretary shall review the changes made to the provision, determine whether incorporating such changes into the corresponding provision specified in such sub- paragraph would improve qualified State long- term care insurance partnerships, and if so, shall incorporate the changes into such provi- sion. (c) Taking into account certain transfers of as- sets (1)(A) In order to meet the requirements of this subsection for purposes of section 1396a(a)(18) of this title, the State plan must provide that if an institutionalized individual or the spouse of such an individual (or, at the op- tion of a State, a noninstitutionalized individual or the spouse of such an individual) disposes of assets for less than fair market value on or after the look-back date specified in subparagraph (B)(i), the individual is ineligible for medical as- sistance for services described in subparagraph (C)(i) (or, in the case of a noninstitutionalized individual, for the services described in subpara- graph (C)(ii)) during the period beginning on the date specified in subparagraph (D) and equal to the number of months specified in subparagraph (E). (B)(i) The look-back date specified in this sub- paragraph is a date that is 36 months (or, in the case of payments from a trust or portions of a trust that are treated as assets disposed of by the individual pursuant to paragraph (3)(A)(iii) or (3)(B)(ii) of subsection (d) or in the case of any other disposal of assets made on or after February 8, 2006, 60 months) before the date specified in clause (ii). (ii) The date specified in this clause, with re- spect to— (I) an institutionalized individual is the first date as of which the individual both is an in- stitutionalized individual and has applied for medical assistance under the State plan, or (II) a noninstitutionalized individual is the date on which the individual applies for med- ical assistance under the State plan or, if later, the date on which the individual dis- poses of assets for less than fair market value. (C)(i) The services described in this subpara- graph with respect to an institutionalized indi- vidual are the following: (I) Nursing facility services. (II) A level of care in any institution equiva- lent to that of nursing facility services. (III) Home or community-based services fur- nished under a waiver granted under sub- section (c) or (d) of section 1396n of this title. (ii) The services described in this subpara- graph with respect to a noninstitutionalized in- dividual are services (not including any services described in clause (i)) that are described in paragraph (7), (22), or (24) of section 1396d(a) of this title, and, at the option of a State, other long-term care services for which medical as- sistance is otherwise available under the State plan to individuals requiring long-term care. (D)(i) In the case of a transfer of asset made before February 8, 2006, the date specified in this subparagraph is the first day of the first month during or after which assets have been trans- ferred for less than fair market value and which does not occur in any other periods of ineligi- bility under this subsection. (ii) In the case of a transfer of asset made on or after February 8, 2006, the date specified in this subparagraph is the first day of a month during or after which assets have been trans- ferred for less than fair market value, or the date on which the individual is eligible for med- ical assistance under the State plan and would otherwise be receiving institutional level care described in subparagraph (C) based on an ap- proved application for such care but for the ap- plication of the penalty period, whichever is later, and which does not occur during any other period of ineligibility under this subsection. (E)(i) With respect to an institutionalized indi- vidual, the number of months of ineligibility under this subparagraph for an individual shall be equal to— Page 4258 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p (I) the total, cumulative uncompensated value of all assets transferred by the indi- vidual (or individual’s spouse) on or after the look-back date specified in subparagraph (B)(i), divided by (II) the average monthly cost to a private patient of nursing facility services in the State (or, at the option of the State, in the community in which the individual is institu- tionalized) at the time of application. (ii) With respect to a noninstitutionalized in- dividual, the number of months of ineligibility under this subparagraph for an individual shall not be greater than a number equal to— (I) the total, cumulative uncompensated value of all assets transferred by the indi- vidual (or individual’s spouse) on or after the look-back date specified in subparagraph (B)(i), divided by (II) the average monthly cost to a private patient of nursing facility services in the State (or, at the option of the State, in the community in which the individual is institu- tionalized) at the time of application. (iii) The number of months of ineligibility oth- erwise determined under clause (i) or (ii) with respect to the disposal of an asset shall be re- duced— (I) in the case of periods of ineligibility de- termined under clause (i), by the number of months of ineligibility applicable to the indi- vidual under clause (ii) as a result of such dis- posal, and (II) in the case of periods of ineligibility de- termined under clause (ii), by the number of months of ineligibility applicable to the indi- vidual under clause (i) as a result of such dis- posal. (iv) A State shall not round down, or other- wise disregard any fractional period of ineligi- bility determined under clause (i) or (ii) with re- spect to the disposal of assets. (F) For purposes of this paragraph, the pur- chase of an annuity shall be treated as the dis- posal of an asset for less than fair market value unless— (i) the State is named as the remainder ben- eficiary in the first position for at least the total amount of medical assistance paid on be- half of the institutionalized individual under this subchapter; or (ii) the State is named as such a beneficiary in the second position after the community spouse or minor or disabled child and is named in the first position if such spouse or a rep- resentative of such child disposes of any such remainder for less than fair market value. (G) For purposes of this paragraph with re- spect to a transfer of assets, the term ‘‘assets’’ includes an annuity purchased by or on behalf of an annuitant who has applied for medical assist- ance with respect to nursing facility services or other long-term care services under this sub- chapter unless— (i) the annuity is— (I) an annuity described in subsection (b) or (q) of section 408 of the Internal Revenue Code of 1986; or (II) purchased with proceeds from— (aa) an account or trust described in sub- section (a), (c), or (p) of section 408 of such Code; (bb) a simplified employee pension (with- in the meaning of section 408(k) of such Code); or (cc) a Roth IRA described in section 408A of such Code; or (ii) the annuity— (I) is irrevocable and nonassignable; (II) is actuarially sound (as determined in accordance with actuarial publications of the Office of the Chief Actuary of the Social Security Administration); and (III) provides for payments in equal amounts during the term of the annuity, with no deferral and no balloon payments made. (H) Notwithstanding the preceding provisions of this paragraph, in the case of an individual (or individual’s spouse) who makes multiple fractional transfers of assets in more than 1 month for less than fair market value on or after the applicable look-back date specified in subparagraph (B), a State may determine the pe- riod of ineligibility applicable to such individual under this paragraph by— (i) treating the total, cumulative uncompen- sated value of all assets transferred by the in- dividual (or individual’s spouse) during all months on or after the look-back date speci- fied in subparagraph (B) as 1 transfer for pur- poses of clause (i) or (ii) (as the case may be) of subparagraph (E); and (ii) beginning such period on the earliest date which would apply under subparagraph (D) to any of such transfers. (I) For purposes of this paragraph with respect to a transfer of assets, the term ‘‘assets’’ in- cludes funds used to purchase a promissory note, loan, or mortgage unless such note, loan, or mortgage— (i) has a repayment term that is actuarially sound (as determined in accordance with actu- arial publications of the Office of the Chief Ac- tuary of the Social Security Administration); (ii) provides for payments to be made in equal amounts during the term of the loan, with no deferral and no balloon payments made; and (iii) prohibits the cancellation of the balance upon the death of the lender. In the case of a promissory note, loan, or mort- gage that does not satisfy the requirements of clauses (i) through (iii), the value of such note, loan, or mortgage shall be the outstanding bal- ance due as of the date of the individual’s appli- cation for medical assistance for services de- scribed in subparagraph (C). (J) For purposes of this paragraph with respect to a transfer of assets, the term ‘‘assets’’ in- cludes the purchase of a life estate interest in another individual’s home unless the purchaser resides in the home for a period of at least 1 year after the date of the purchase. (2) An individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that— (A) the assets transferred were a home and title to the home was transferred to— Page 4259 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p (i) the spouse of such individual; (ii) a child of such individual who (I) is under age 21, or (II) (with respect to States eligible to participate in the State program established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to States which are not eligi- ble to participate in such program) is blind or disabled as defined in section 1382c of this title; (iii) a sibling of such individual who has an equity interest in such home and who was residing in such individual’s home for a pe- riod of at least one year immediately before the date the individual becomes an institu- tionalized individual; or (iv) a son or daughter of such individual (other than a child described in clause (ii)) who was residing in such individual’s home for a period of at least two years imme- diately before the date the individual be- comes an institutionalized individual, and who (as determined by the State) provided care to such individual which permitted such individual to reside at home rather than in such an institution or facility; (B) the assets— (i) were transferred to the individual’s spouse or to another for the sole benefit of the individual’s spouse, (ii) were transferred from the individual’s spouse to another for the sole benefit of the individual’s spouse, (iii) were transferred to, or to a trust (in- cluding a trust described in subsection (d)(4)) established solely for the benefit of, the indi- vidual’s child described in subparagraph (A)(ii)(II), or (iv) were transferred to a trust (including a trust described in subsection (d)(4)) estab- lished solely for the benefit of an individual under 65 years of age who is disabled (as de- fined in section 1382c(a)(3) of this title); (C) a satisfactory showing is made to the State (in accordance with regulations promul- gated by the Secretary) that (i) the individual intended to dispose of the assets either at fair market value, or for other valuable consider- ation, (ii) the assets were transferred exclu- sively for a purpose other than to qualify for medical assistance, or (iii) all assets trans- ferred for less than fair market value have been returned to the individual; or (D) the State determines, under procedures established by the State (in accordance with standards specified by the Secretary), that the denial of eligibility would work an undue hardship as determined on the basis of criteria established by the Secretary. The procedures established under subparagraph (D) shall permit the facility in which the insti- tutionalized individual is residing to file an undue hardship waiver application on behalf of the individual with the consent of the individual or the personal representative of the individual. While an application for an undue hardship waiver is pending under subparagraph (D) in the case of an individual who is a resident of a nurs- ing facility, if the application meets such cri- teria as the Secretary specifies, the State may provide for payments for nursing facility serv- ices in order to hold the bed for the individual at the facility, but not in excess of payments for 30 days. (3) For purposes of this subsection, in the case of an asset held by an individual in common with another person or persons in a joint ten- ancy, tenancy in common, or similar arrange- ment, the asset (or the affected portion of such asset) shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual’s owner- ship or control of such asset. (4) A State (including a State which has elect- ed treatment under section 1396a(f) of this title) may not provide for any period of ineligibility for an individual due to transfer of resources for less than fair market value except in accordance with this subsection. In the case of a transfer by the spouse of an individual which results in a pe- riod of ineligibility for medical assistance under a State plan for such individual, a State shall, using a reasonable methodology (as specified by the Secretary), apportion such period of ineligi- bility (or any portion of such period) among the individual and the individual’s spouse if the spouse otherwise becomes eligible for medical assistance under the State plan. (5) In this subsection, the term ‘‘resources’’ has the meaning given such term in section 1382b of this title, without regard to the exclu- sion described in subsection (a)(1) thereof. (d) Treatment of trust amounts (1) For purposes of determining an individual’s eligibility for, or amount of, benefits under a State plan under this subchapter, subject to paragraph (4), the rules specified in paragraph (3) shall apply to a trust established by such in- dividual. (2)(A) For purposes of this subsection, an indi- vidual shall be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established such trust other than by will: (i) The individual. (ii) The individual’s spouse. (iii) A person, including a court or adminis- trative body, with legal authority to act in place of or on behalf of the individual or the individual’s spouse. (iv) A person, including any court or admin- istrative body, acting at the direction or upon the request of the individual or the individ- ual’s spouse. (B) In the case of a trust the corpus of which includes assets of an individual (as determined under subparagraph (A)) and assets of any other person or persons, the provisions of this sub- section shall apply to the portion of the trust attributable to the assets of the individual. (C) Subject to paragraph (4), this subsection shall apply without regard to— (i) the purposes for which a trust is estab- lished, (ii) whether the trustees have or exercise any discretion under the trust, (iii) any restrictions on when or whether dis- tributions may be made from the trust, or Page 4260 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p (iv) any restrictions on the use of distribu- tions from the trust. (3)(A) In the case of a revocable trust— (i) the corpus of the trust shall be considered resources available to the individual, (ii) payments from the trust to or for the benefit of the individual shall be considered income of the individual, and (iii) any other payments from the trust shall be considered assets disposed of by the indi- vidual for purposes of subsection (c). (B) In the case of an irrevocable trust— (i) if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the por- tion of the corpus from which, or the income on the corpus from which, payment to the in- dividual could be made shall be considered re- sources available to the individual, and pay- ments from that portion of the corpus or in- come— (I) to or for the benefit of the individual, shall be considered income of the individual, and (II) for any other purpose, shall be consid- ered a transfer of assets by the individual subject to subsection (c); and (ii) any portion of the trust from which, or any income on the corpus from which, no pay- ment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the in- dividual for purposes of subsection (c), and the value of the trust shall be determined for pur- poses of such subsection by including the amount of any payments made from such por- tion of the trust after such date. (4) This subsection shall not apply to any of the following trusts: (A) A trust containing the assets of an indi- vidual under age 65 who is disabled (as defined in section 1382c(a)(3) of this title) and which is established for the benefit of such individual by the individual, a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical as- sistance paid on behalf of the individual under a State plan under this subchapter. (B) A trust established in a State for the benefit of an individual if— (i) the trust is composed only of pension, Social Security, and other income to the in- dividual (and accumulated income in the trust), (ii) the State will receive all amounts re- maining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter; and (iii) the State makes medical assistance available to individuals described in section 1396a(a)(10)(A)(ii)(V) of this title, but does not make such assistance available to indi- viduals for nursing facility services under section 1396a(a)(10)(C) of this title. (C) A trust containing the assets of an indi- vidual who is disabled (as defined in section 1382c(a)(3) of this title) that meets the fol- lowing conditions: (i) The trust is established and managed by a non-profit association. (ii) A separate account is maintained for each beneficiary of the trust, but, for pur- poses of investment and management of funds, the trust pools these accounts. (iii) Accounts in the trust are established solely for the benefit of individuals who are disabled (as defined in section 1382c(a)(3) of this title) by the parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court. (iv) To the extent that amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust pays to the State from such remaining amounts in the account an amount equal to the total amount of med- ical assistance paid on behalf of the bene- ficiary under the State plan under this sub- chapter. (5) The State agency shall establish proce- dures (in accordance with standards specified by the Secretary) under which the agency waives the application of this subsection with respect to an individual if the individual establishes that such application would work an undue hardship on the individual as determined on the basis of criteria established by the Secretary. (6) The term ‘‘trust’’ includes any legal instru- ment or device that is similar to a trust but in- cludes an annuity only to such extent and in such manner as the Secretary specifies. (e) Disclosure and treatment of annuities (1) In order to meet the requirements of this section for purposes of section 1396a(a)(18) of this title, a State shall require, as a condition for the provision of medical assistance for serv- ices described in subsection (c)(1)(C)(i) (relating to long-term care services) for an individual, the application of the individual for such assistance (including any recertification of eligibility for such assistance) shall disclose a description of any interest the individual or community spouse has in an annuity (or similar financial instrument, as may be specified by the Sec- retary), regardless of whether the annuity is ir- revocable or is treated as an asset. Such applica- tion or recertification form shall include a statement that under paragraph (2) the State be- comes a remainder beneficiary under such an annuity or similar financial instrument by vir- tue of the provision of such medical assistance. (2)(A) In the case of disclosure concerning an annuity under subsection (c)(1)(F), the State shall notify the issuer of the annuity of the right of the State under such subsection as a preferred remainder beneficiary in the annuity for medical assistance furnished to the indi- vidual. Nothing in this paragraph shall be con- strued as preventing such an issuer from noti- fying persons with any other remainder interest of the State’s remainder interest under such subsection. (B) In the case of such an issuer receiving no- tice under subparagraph (A), the State may re- Page 4261 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p quire the issuer to notify the State when there is a change in the amount of income or principal being withdrawn from the amount that was being withdrawn at the time of the most recent disclosure described in paragraph (1). A State shall take such information into account in de- termining the amount of the State’s obligations for medical assistance or in the individual’s eli- gibility for such assistance. (3) The Secretary may provide guidance to States on categories of transactions that may be treated as a transfer of asset for less than fair market value. (4) Nothing in this subsection shall be con- strued as preventing a State from denying eligi- bility for medical assistance for an individual based on the income or resources derived from an annuity described in paragraph (1). (f) Disqualification for long-term care assistance for individuals with substantial home equity (1)(A) Notwithstanding any other provision of this subchapter, subject to subparagraphs (B) and (C) of this paragraph and paragraph (2), in determining eligibility of an individual for med- ical assistance with respect to nursing facility services or other long-term care services, the in- dividual shall not be eligible for such assistance if the individual’s equity interest in the individ- ual’s home exceeds $500,000. (B) A State may elect, without regard to the requirements of section 1396a(a)(1) of this title (relating to statewideness) and section 1396a(a)(10)(B) of this title (relating to com- parability), to apply subparagraph (A) by sub- stituting for ‘‘$500,000’’, an amount that exceeds such amount, but does not exceed $750,000. (C) The dollar amounts specified in this para- graph shall be increased, beginning with 2011, from year to year based on the percentage in- crease in the consumer price index for all urban consumers (all items; United States city aver- age), rounded to the nearest $1,000. (2) Paragraph (1) shall not apply with respect to an individual if— (A) the spouse of such individual, or (B) such individual’s child who is under age 21, or (with respect to States eligible to par- ticipate in the State program established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to States which are not eligible to participate in such program) is blind or disabled as defined in sec- tion 1382c of this title, is lawfully residing in the individual’s home. (3) Nothing in this subsection shall be con- strued as preventing an individual from using a reverse mortgage or home equity loan to reduce the individual’s total equity interest in the home. (4) The Secretary shall establish a process whereby paragraph (1) is waived in the case of a demonstrated hardship. (g) Treatment of entrance fees of individuals re- siding in continuing care retirement commu- nities (1) In general For purposes of determining an individual’s eligibility for, or amount of, benefits under a State plan under this subchapter, the rules specified in paragraph (2) shall apply to indi- viduals residing in continuing care retirement communities or life care communities that collect an entrance fee on admission from such individuals. (2) Treatment of entrance fee For purposes of this subsection, an individ- ual’s entrance fee in a continuing care retire- ment community or life care community shall be considered a resource available to the indi- vidual to the extent that— (A) the individual has the ability to use the entrance fee, or the contract provides that the entrance fee may be used, to pay for care should other resources or income of the individual be insufficient to pay for such care; (B) the individual is eligible for a refund of any remaining entrance fee when the indi- vidual dies or terminates the continuing care retirement community or life care com- munity contract and leaves the community; and (C) the entrance fee does not confer an ownership interest in the continuing care re- tirement community or life care commu- nity. (h) Definitions In this section, the following definitions shall apply: (1) The term ‘‘assets’’, with respect to an in- dividual, includes all income and resources of the individual and of the individual’s spouse, including any income or resources which the individual or such individual’s spouse is enti- tled to but does not receive because of ac- tion— (A) by the individual or such individual’s spouse, (B) by a person, including a court or ad- ministrative body, with legal authority to act in place of or on behalf of the individual or such individual’s spouse, or (C) by any person, including any court or administrative body, acting at the direction or upon the request of the individual or such individual’s spouse. (2) The term ‘‘income’’ has the meaning given such term in section 1382a of this title. (3) The term ‘‘institutionalized individual’’ means an individual who is an inpatient in a nursing facility, who is an inpatient in a med- ical institution and with respect to whom pay- ment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title. (4) The term ‘‘noninstitutionalized indi- vidual’’ means an individual receiving any of the services specified in subsection (c)(1)(C)(ii). (5) The term ‘‘resources’’ has the meaning given such term in section 1382b of this title, without regard (in the case of an institutional- ized individual) to the exclusion described in subsection (a)(1) of such section. (Aug. 14, 1935, ch. 531, title XIX, § 1917, as added Pub. L. 97–248, title I, § 132(b), Sept. 3, 1982, 96 Stat. 370; amended Pub. L. 97–448, title III, § 309(b)(21), (22), Jan. 12, 1983, 96 Stat. 2410; Pub. Page 4262 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p L. 100–203, title IV, § 4211(h)(12), Dec. 22, 1987, 101 Stat. 1330–207; Pub. L. 100–360, title III, § 303(b), title IV, § 411(l)(3)(I), July 1, 1988, 102 Stat. 760, 803; Pub. L. 100–485, title VI, § 608(d)(16)(B), Oct. 13, 1988, 102 Stat. 2417; Pub. L. 101–239, title VI, § 6411(e)(1), Dec. 19, 1989, 103 Stat. 2271; Pub. L. 103–66, title XIII, §§ 13611(a)–(c), 13612(a)–(c), Aug. 10, 1993, 107 Stat. 622–628; Pub. L. 109–171, title VI, §§ 6011(a), (b), (e), 6012(a)–(c), 6014(a), 6015(b), 6016(a)–(d), 6021(a)(1), Feb. 8, 2006, 120 Stat. 61–68; Pub. L. 109–432, div. B, title IV, § 405(b)(1), Dec. 20, 2006, 120 Stat. 2998; Pub. L. 110–275, title I, § 115(a), July 15, 2008, 122 Stat. 2507; Pub. L. 111–5, div. B, title V, § 5006(c), Feb. 17, 2009, 123 Stat. 507; Pub. L. 113–67, div. A, title II, § 202(b)(3), Dec. 26, 2013, 127 Stat. 1177; Pub. L. 114–255, div. A, title V, § 5007(a), Dec. 13, 2016, 130 Stat. 1197; Pub. L. 115–123, div. E, title XII, § 53102(b)(1), Feb. 9, 2018, 132 Stat. 298.) Editorial Notes REFERENCES IN TEXT The Internal Revenue Code of 1986, referred to in sub- secs. (b)(1)(C)(iii)(II) and (c)(1)(G)(i), is classified gen- erally to Title 26, Internal Revenue Code. AMENDMENTS 2018—Subsec. (a)(1)(A). Pub. L. 115–123, § 53102(b)(1), re- pealed Pub. L. 113–67, § 202(b)(3), and provided that the provisions amended by section 202(b) shall be applied and administered as if such amendment had never been enacted. See 2013 Amendment note below. 2016—Subsec. (d)(4)(A). Pub. L. 114–255 inserted ‘‘the individual,’’ after ‘‘for the benefit of such individual by’’. 2013—Subsec. (a)(1)(A). Pub. L. 113–67, § 202(b)(3), which directed amendment of subpar. (A) to read as fol- lows: ‘‘pursuant to— ‘‘(i) the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or ‘‘(ii) rights acquired by or assigned to the State in accordance with section 1396a(a)(25)(H) of this title or section 1396k(a)(1)(A) of this title, or’’, was repealed by Pub. L. 115–123, § 53102(b)(1). 2009—Subsec. (b)(3). Pub. L. 111–5 designated existing provisions as subpar. (A) and added subpar. (B). 2008—Subsec. (b)(1)(B)(ii). Pub. L. 110–275 inserted ‘‘(but not including medical assistance for medicare cost-sharing or for benefits described in section 1396a(a)(10)(E) of this title)’’ before period at end. 2006—Subsec. (b)(1)(C)(ii). Pub. L. 109–171, § 6021(a)(1)(A)(i), inserted ‘‘and which satisfies clause (iv), or which has a State plan amendment that pro- vides for a qualified State long-term care insurance partnership (as defined in clause (iii))’’ after ‘‘1993,’’ in introductory provisions. Subsec. (b)(1)(C)(iii) to (vi). Pub. L. 109–171, § 6021(a)(1)(A)(ii), added cls. (iii) to (vi). Subsec. (b)(5). Pub. L. 109–171, § 6021(a)(1)(B), added par. (5). Subsec. (c)(1)(B)(i). Pub. L. 109–171, § 6011(a), inserted ‘‘or in the case of any other disposal of assets made on or after February 8, 2006’’ before ‘‘, 60 months’’. Subsec. (c)(1)(D). Pub. L. 109–171, § 6011(b), designated existing provisions as cl. (i), substituted ‘‘In the case of a transfer of asset made before February 8, 2006, the date’’ for ‘‘The date’’, and added cl. (ii). Subsec. (c)(1)(E)(iv). Pub. L. 109–171, § 6016(a), added cl. (iv). Subsec. (c)(1)(F). Pub. L. 109–171, § 6012(b), added sub- par. (F). Subsec. (c)(1)(F)(i). Pub. L. 109–432 substituted ‘‘insti- tutionalized individual’’ for ‘‘annuitant’’. Subsec. (c)(1)(G). Pub. L. 109–171, § 6012(c), added sub- par. (G). Subsec. (c)(1)(H). Pub. L. 109–171, § 6016(b), added sub- par. (H). Subsec. (c)(1)(I). Pub. L. 109–171, § 6016(c), added sub- par. (I). Subsec. (c)(1)(J). Pub. L. 109–171, § 6016(d), added sub- par. (J). Subsec. (c)(2). Pub. L. 109–171, § 6011(e), substituted pe- riod for semicolon at end and inserted concluding pro- visions. Subsec. (e). Pub. L. 109–171, § 6012(a), added subsec. (e). Former subsec. (e) redesignated (f). Subsec. (f). Pub. L. 109–171, § 6014(a), added subsec. (f). Former subsec. (f) redesignated (g). Pub. L. 109–171, § 6012(a), redesignated subsec. (e) as (f). Subsec. (g). Pub. L. 109–171, § 6015(b), added subsec. (g). Former subsec. (g) redesignated (h). Pub. L. 109–171, § 6014(a), redesignated subsec. (f) as (g). Subsec. (h). Pub. L. 109–171, § 6015(b), redesignated subsec. (g) as (h). 1993—Subsec. (b)(1). Pub. L. 103–66, § 13612(a), sub- stituted ‘‘except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:’’ and subpars. (A) to (C) for ‘‘except—’’ and former subpars. (A) and (B) which read as follows: ‘‘(A) in the case of an individual described in sub- section (a)(1)(B) of this section, from his estate or upon sale of the property subject to a lien imposed on ac- count of medical assistance paid on behalf of such indi- vidual, and ‘‘(B) in the case of any other individual who was 65 years of age or older when he received such assistance, from his estate.’’ Subsec. (b)(3). Pub. L. 103–66, § 13612(b), added par. (3). Subsec. (b)(4). Pub. L. 103–66, § 13612(c), added par. (4). Subsec. (c)(1). Pub. L. 103–66, § 13611(a)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘In order to meet the requirements of this sub- section (for purposes of section 1396a(a)(51)(B) of this title), the State plan must provide for a period of ineli- gibility for nursing facility services and for a level of care in a medical institution equivalent to that of nurs- ing facility services and for services under section 1396n(c) of this title in the case of an institutionalized individual (as defined in paragraph (3)) who, or whose spouse, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual (if the individual is enti- tled to medical assistance under the State plan on such date) or, if the individual is not so entitled, the date the individual applies for such assistance while an in- stitutionalized individual, disposed of resources for less than fair market value. The period of ineligibility shall begin with the month in which such resources were transferred and the number of months in such period shall be equal to the lesser of— ‘‘(A) 30 months, or ‘‘(B)(i) the total uncompensated value of the re- sources so transferred, divided by (ii) the average cost, to a private patient at the time of the applica- tion, of nursing facility services in the State or, at State option, in the community in which the indi- vidual is institutionalized.’’ Subsec. (c)(2)(A). Pub. L. 103–66, § 13611(a)(2)(A), sub- stituted ‘‘assets’’ for ‘‘resources’’ in introductory provi- sions. Subsec. (c)(2)(B). Pub. L. 103–66, § 13611(a)(2)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘the resources were trans- ferred (i) to or from (or to another for the sole benefit of) the individual’s spouse, or (ii) to the individual’s child described in subparagraph (A)(ii)(II);’’. Subsec. (c)(2)(C). Pub. L. 103–66, § 13611(a)(2)(C), in in- troductory provisions, substituted ‘‘with regulations’’ for ‘‘with any regulations’’, in cl. (i), substituted ‘‘as- sets’’ for ‘‘resources’’ and struck out ‘‘or’’ at end, in cl. (ii), substituted ‘‘assets’’ for ‘‘resources’’ and ‘‘, or’’ for ‘‘; or’’, and added cl. (iii). Subsec. (c)(2)(D). Pub. L. 103–66, § 13611(a)(2)(D), amended subpar. (D) generally. Prior to amendment, Page 4263 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p subpar. (D) read as follows: ‘‘the State determines that denial of eligibility would work an undue hardship.’’ Subsec. (c)(3). Pub. L. 103–66, § 13611(a)(2)(E), added par. (3) and struck out former par. (3) which read as fol- lows: ‘‘In this subsection, the term ‘institutionalized individual’ means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical in- stitution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title.’’ Subsec. (c)(4). Pub. L. 103–66, § 13611(a)(2)(F), inserted at end ‘‘In the case of a transfer by the spouse of an in- dividual which results in a period of ineligibility for medical assistance under a State plan for such indi- vidual, a State shall, using a reasonable methodology (as specified by the Secretary), apportion such period of ineligibility (or any portion of such period) among the individual and the individual’s spouse if the spouse oth- erwise becomes eligible for medical assistance under the State plan.’’ Subsec. (d). Pub. L. 103–66, § 13611(b), added subsec. (d). Subsec. (e). Pub. L. 103–66, § 13611(c), added subsec. (e). 1989—Subsec. (c)(1). Pub. L. 101–239, § 6411(e)(1)(A), in- serted ‘‘or whose spouse,’’ after ‘‘an institutionalized individual (as defined in paragraph (3)) who,’’. Subsec. (c)(2)(B)(i). Pub. L. 101–239, § 6411(e)(1)(B)(i), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: ‘‘to (or to another for the sole benefit of) the community spouse, as defined in section 1396r–5(h)(2) of this title,,’’. Subsec. (c)(2)(B)(ii), (iii). Pub. L. 101–239, § 6411(e)(1)(B)(ii), struck out ‘‘, or’’ after ‘‘subparagraph (A)(ii)(II)’’ in cl. (ii) and struck out cl. (iii) which read as follows: ‘‘to (or to another for the sole benefit of) the individual’s spouse if such spouse does not transfer such resources to another person other than the spouse for less than fair market value’’. 1988—Subsec. (c). Pub. L. 100–360, § 303(b), amended subsec. (c) generally, substituting pars. (1) to (4) relat- ing to taking into account certain transfers of assets, for former pars. (1) to (3) relating to denial of medical assistance, period of eligibility, and exceptions. Subsec. (c)(1). Pub. L. 100–485, § 608(d)(16)(B)(i), sub- stituted ‘‘period of ineligibility for nursing facility services and for a level of care in a medical institution equivalent to that of nursing facility services and for services under section 1396n(c) of this title in the case of an institutionalized individual (as defined in para- graph (3)) who, at any time during or after the 30- month period immediately before the date the indi- vidual becomes an institutionalized individual (if the individual is entitled to medical assistance under the State plan on such date) or, if the individual is not so entitled, the date the individual applies for such assist- ance while an institutionalized individual’’ for ‘‘period of ineligibility in the case of an institutionalized indi- vidual (as defined in paragraph (3)) who, at any time during the 30-month period immediately before the in- dividual’s application for medical assistance under the State plan’’. Subsec. (c)(2)(A)(ii). Pub. L. 100–485, § 608(d)(16)(B)(ii), inserted subcl. (I) and (II) designations. Subsec. (c)(2)(A)(iii). Pub. L. 100–485, § 608(d)(16)(B)(iii), substituted ‘‘the individual becomes an institutionalized individual’’ for ‘‘of the individual’s admission to the medical institution or nursing facil- ity’’. Subsec. (c)(2)(A)(iv). Pub. L. 100–485, § 608(d)(16)(B)(iv), substituted ‘‘the individual becomes an institutional- ized individual’’ for ‘‘of such individual’s admission to the medical institution or nursing facility’’. Subsec. (c)(2)(B). Pub. L. 100–485, § 608(d)(16)(B)(v), in- serted cl. (i) designation, substituted ‘‘section 1396r–5(h)(2) of this title,,’’ for ‘‘section 1396r–5(h)(2) of this title, or the individual’s child who is blind or per- manently and totally disabled’’, and added cl. (ii). Subsec. (c)(2)(B)(ii). Pub. L. 100–360, § 411(l)(3)(I), amended Pub. L. 100–203, § 4211(h)(12)(B), see 1987 Amendment note below. Subsec. (c)(3). Pub. L. 100–485, § 608(d)(16)(B)(vi), sub- stituted ‘‘in a nursing facility, who is an inpatient in a medical institution and with respect to whom pay- ment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title’’ for ‘‘in a medical in- stitution or nursing facility’’. Subsec. (c)(5). Pub. L. 100–485, § 608(d)(16)(B)(vii), added par. (5). 1987—Subsecs. (a)(1)(B)(i), (c)(2)(B)(i). Pub. L. 100–203, § 4211(h)(12)(A), substituted ‘‘nursing facility, inter- mediate care facility for the mentally retarded’’ for ‘‘skilled nursing facility, intermediate care facility’’. Subsec. (c)(2)(B)(ii). Pub. L. 100–203, § 4211(h)(12)(B), as amended by Pub. L. 100–360, § 411(l)(3)(I), substituted ‘‘a nursing facility’’ for ‘‘a skilled nursing facility’’ in two places each in subcls. (I) and (II). 1983—Subsec. (b)(2)(B). Pub. L. 97–448, § 309(b)(21), sub- stituted ‘‘who’’ for ‘‘and’’ before ‘‘has lawfully resided’’. Subsec. (c)(2)(B)(iii). Pub. L. 97–448, § 309(b)(22), sub- stituted in subcl. (I) ‘‘can’’ for ‘‘cannot’’ and struck out from subcl. (IV) the introductory word ‘‘if’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Pub. L. 115–123, div. E, title XII, § 53102(b)(1), Feb. 9, 2018, 132 Stat. 298, provided that the repeal of section 202(b) of Pub. L. 113–67 is effective Sept. 30, 2017, and the provisions amended by section 202(b) shall be applied and administered as if such amendments had never been enacted. In addition, such repeal by section 53102(b)(1) of Pub. L. 115–123 applicable with respect to any open claims, including claims pending, generated, or filed, after Sept. 30, 2017, see section 53102(b)(3) of Pub. L. 115–123, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 2016 AMENDMENT Pub. L. 114–255, div. A, title V, § 5007(b), Dec. 13, 2016, 130 Stat. 1197, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to trusts established on or after the date of the enactment of this Act [Dec. 13, 2016].’’ EFFECTIVE DATE OF 2009 AMENDMENT Amendment by Pub. L. 111–5 effective July 1, 2009, see section 5006(f) of Pub. L. 111–5, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–275, title I, § 115(b), July 15, 2008, 122 Stat. 2507, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall take effect as of January 1, 2010.’’ EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–432, div. B, title IV, § 405(b)(2), Dec. 20, 2006, 120 Stat. 2998, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall be effective as if included in the enactment of section 6012 of the Deficit Reduction Act of 2005 [Pub. L. 109–171].’’ Pub. L. 109–171, title VI, § 6011(c), Feb. 8, 2006, 120 Stat. 62, provided that: ‘‘The amendments made by this sec- tion [amending this section] shall apply to transfers made on or after the date of the enactment of this Act [Feb. 8, 2006].’’ Pub. L. 109–171, title VI, § 6012(d), Feb. 8, 2006, 120 Stat. 64, provided that: ‘‘The amendments made by this sec- tion [amending this section] shall apply to transactions (including the purchase of an annuity) occurring on or after the date of the enactment of this Act [Feb. 8, 2006].’’ Pub. L. 109–171, title VI, § 6014(b), Feb. 8, 2006, 120 Stat. 65, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to individuals who are determined eligible for medical assistance with respect to nursing facility services or other long-term Page 4264 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396p care services based on an application filed on or after January 1, 2006.’’ Pub. L. 109–171, title VI, § 6016(e), Feb. 8, 2006, 120 Stat. 67, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraphs (2) and (3), the amendments made by this section [amending this section] shall apply to payments under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) for calendar quarters beginning on or after the date of enactment of this Act [Feb. 8, 2006], without re- gard to whether or not final regulations to carry out such amendments have been promulgated by such date. ‘‘(2) EXCEPTIONS.—The amendments made by this sec- tion shall not apply— ‘‘(A) to medical assistance provided for services fur- nished before the date of enactment; ‘‘(B) with respect to assets disposed of on or before the date of enactment of this Act; or ‘‘(C) with respect to trusts established on or before the date of enactment of this Act. ‘‘(3) EXTENSION OF EFFECTIVE DATE FOR STATE LAW AMENDMENT.—In the case of a State plan under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) which the Secretary of Health and Human Services de- termines requires State legislation in order for the plan to meet the additional requirements imposed by the amendments made by a provision of this section, the State plan shall not be regarded as failing to com- ply with the requirements of such title solely on the basis of its failure to meet these additional require- ments before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legis- lative session, each year of the session is considered to be a separate regular session of the State legislature.’’ EFFECTIVE DATE OF 1993 AMENDMENT Pub. L. 103–66, title XIII, § 13611(e), Aug. 10, 1993, 107 Stat. 627, provided that: ‘‘(1) The amendments made by this section [amending this section and sections 1396a and 1396r–5 of this title] shall apply, except as provided in this subsection, to payments under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after October 1, 1993, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date. ‘‘(2) The amendments made by this section shall not apply— ‘‘(A) to medical assistance provided for services fur- nished before October 1, 1993, ‘‘(B) with respect to assets disposed of on or before the date of the enactment of this Act [Aug. 10, 1993], or ‘‘(C) with respect to trusts established on or before the date of the enactment of this Act. ‘‘(3) In the case of a State plan for medical assistance under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendment made by subsection (b) [amending this section], the State plan shall not be regarded as failing to comply with the requirements imposed by such amendment solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act [Aug. 10, 1993]. For purposes of the preceding sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a sepa- rate regular session of the State legislature.’’ Pub. L. 103–66, title XIII, § 13612(d), Aug. 10, 1993, 107 Stat. 628, provided that: ‘‘(1)(A) Except as provided in subparagraph (B), the amendments made by this section [amending this sec- tion] shall apply to payments under title XIX of the So- cial Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after October 1, 1993, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date. ‘‘(B) In the case of a State plan for medical assistance under title XIX of the Social Security Act which the Secretary of Health and Human Services determines re- quires State legislation (other than legislation appro- priating funds) in order for the plan to meet the addi- tional requirements imposed by the amendments made by this section, the State plan shall not be regarded as failing to comply with the requirements imposed by such amendments solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act [Aug. 10, 1993]. For purposes of the preceding sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a sepa- rate regular session of the State legislature. ‘‘(2) The amendments made by this section shall not apply to individuals who died before October 1, 1993.’’ EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–239 applicable to transfers occurring after Dec. 19, 1989, see section 6411(e)(4) of Pub. L. 101–239, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 1988 AMENDMENTS Amendment by Pub. L. 100–485 effective as if included in the enactment of the Medicare Catastrophic Cov- erage Act of 1988, Pub. L. 100–360, see section 608(g)(1) of Pub. L. 100–485, set out as a note under section 704 of this title. Amendment by section 303(b) of Pub. L. 100–360 appli- cable to payments under this subchapter for calendar quarters beginning on or after July 1, 1988 (except in certain situations requiring State legislative action), without regard to whether or not final regulations to carry out such amendment have been promulgated by such date, and subsection (c) of this section, as amend- ed by section 303(b) of Pub. L. 100–360, applicable to re- sources disposed of on or after July 1, 1988, but not ap- plicable with respect to inter-spousal transfers occur- ring before Oct. 1, 1989, see section 303(g)(2), (5) of Pub. L. 100–360, set out as an Effective Date note under sec- tion 1396r–5 of this title. Except as specifically provided in section 411 of Pub. L. 100–360, amendment by section 411(l)(3)(I) of Pub. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, ef- fective as if included in the enactment of that provi- sion in Pub. L. 100–203, see section 411(a) of Pub. L. 100–360, set out as a Reference to OBRA; Effective Date note under section 106 of Title 1, General Provisions. EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–203 applicable to nursing facility services furnished on or after Oct. 1, 1990, with- out regard to whether regulations implementing such amendment are promulgated by such date, except as otherwise specifically provided in section 1396r of this title, with transitional rule, see section 4214(a), (b)(2) of Pub. L. 100–203, as amended, set out as an Effective Date note under section 1396r of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 97–448 effective as if originally included as a part of this section as this section was added by the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, see section 309(c)(2) of Pub. L. 97–448, set out as a note under section 426–1 of this title. EFFECTIVE DATE Pub. L. 97–248, title I, § 132(d), Sept. 3, 1982, 96 Stat. 373, provided that: ‘‘The amendments made by this sec- Page 4265 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396q tion [enacting this section and amending section 1396a of this title] shall become effective on the date of the enactment of this Act [Sept. 3, 1982], but the provisions of section 1917(c)(2)(B) of the Social Security Act [42 U.S.C. 1396p(c)(2)(B)] shall not apply with respect to a transfer of assets which took place prior to such date of enactment.’’ AVAILABILITY OF HARDSHIP WAIVERS Pub. L. 109–171, title VI, § 6011(d), Feb. 8, 2006, 120 Stat. 62, provided that: ‘‘Each State shall provide for a hard- ship waiver process in accordance with section 1917(c)(2)(D) of the Social Security Act (42 U.S.C. 1396p(c)(2)(D))— ‘‘(1) under which an undue hardship exists when ap- plication of the transfer of assets provision would de- prive the individual— ‘‘(A) of medical care such that the individual’s health or life would be endangered; or ‘‘(B) of food, clothing, shelter, or other necessities of life; and ‘‘(2) which provides for— ‘‘(A) notice to recipients that an undue hardship exception exists; ‘‘(B) a timely process for determining whether an undue hardship waiver will be granted; and ‘‘(C) a process under which an adverse determina- tion can be appealed.’’ EXPANSION OF STATE LONG-TERM CARE PARTNERSHIP PROGRAM Pub. L. 109–171, title VI, § 6021, Feb. 8, 2006, 120 Stat. 68, as amended by Pub. L. 111–148, title VIII, § 8002(d), title X, § 10801(c), Mar. 23, 2010, 124 Stat. 847, 1015; Pub. L. 112–240, title VI, § 642(b)(3), Jan. 2, 2013, 126 Stat. 2358, provided that: ‘‘(a) EXPANSION AUTHORITY.— ‘‘(1) IN GENERAL.—[Amended this section.] ‘‘(2) STATE REPORTING REQUIREMENTS.—Nothing in clauses (iii)(VI) and (v) of section 1917(b)(1)(C) of the Social Security Act [42 U.S.C. 1396p(b)(1)(C)(iii)(VI), (v)] (as added by paragraph (1)) shall be construed as prohibiting a State from requiring an issuer of a long-term care insurance policy sold in the State (re- gardless of whether the policy is issued under a quali- fied State long-term care insurance partnership under section 1917(b)(1)(C)(iii) of such Act) to require the issuer to report information or data to the State that is in addition to the information or data re- quired under such clauses. ‘‘(3) EFFECTIVE DATE.—A State plan amendment that provides for a qualified State long-term care in- surance partnership under the amendments made by paragraph (1) may provide that such amendment is effective for long-term care insurance policies issued on or after a date, specified in the amendment, that is not earlier than the first day of the first calendar quarter in which the plan amendment was submitted to the Secretary of Health and Human Services. ‘‘(b) STANDARDS FOR RECIPROCAL RECOGNITION AMONG PARTNERSHIP STATES.—In order to permit portability in long-term care insurance policies purchased under State long-term care insurance partnerships, the Sec- retary of Health and Human Services shall develop, not later than January 1, 2007, and in consultation with the National Association of Insurance Commissioners, issuers of long-term care insurance policies, States with experience with long-term care insurance partner- ship plans, other States, and representatives of con- sumers of long-term care insurance policies, standards for uniform reciprocal recognition of such policies among States with qualified State long-term care in- surance partnerships under which— ‘‘(1) benefits paid under such policies will be treated the same by all such States; and ‘‘(2) States with such partnerships shall be subject to such standards unless the State notifies the Sec- retary in writing of the State’s election to be exempt from such standards. ‘‘(c) ANNUAL REPORTS TO CONGRESS.— ‘‘(1) IN GENERAL.—The Secretary of Health and Human Services shall annually report to Congress on the long-term care insurance partnerships estab- lished in accordance with section 1917(b)(1)(C)(ii) of the Social Security Act (42 U.S.C. 1396p(b)(1)(C)(ii)) (as amended by subsection (a)(1)). Such reports shall include analyses of the extent to which such partner- ships expand or limit access of individuals to long- term care and the impact of such partnerships on Federal and State expenditures under the Medicare and Medicaid programs. Nothing in this section shall be construed as requiring the Secretary to conduct an independent review of each long-term care insurance policy offered under or in connection with such a partnership. ‘‘(2) APPROPRIATION.—Out of any funds in the Treas- ury not otherwise appropriated, there is appropriated to the Secretary of Health and Human Services, $1,000,000 for the period of fiscal years 2006 through 2010 to carry out paragraph (1). ‘‘(d) NATIONAL CLEARINGHOUSE FOR LONG-TERM CARE INFORMATION.— ‘‘(1) ESTABLISHMENT.—The Secretary of Health and Human Services shall establish a National Clearing- house for Long-Term Care Information. The Clearing- house may be established through a contract or inter- agency agreement. ‘‘(2) DUTIES.— ‘‘(A) IN GENERAL.—The National Clearinghouse for Long-Term Care Information shall— ‘‘(i) educate consumers with respect to the availability and limitations of coverage for long- term care under the Medicaid program and pro- vide contact information for obtaining State-spe- cific information on long-term care coverage, in- cluding eligibility and estate recovery require- ments under State Medicaid programs; ‘‘(ii) provide objective information to assist consumers with the decisionmaking process for determining whether to purchase long-term care insurance or to pursue other private market al- ternatives for purchasing long-term care and pro- vide contact information for additional objective resources on planning for long-term care needs; and ‘‘(iii) maintain a list of States with State long- term care insurance partnerships under the Med- icaid program that provide reciprocal recognition of long-term care insurance policies issued under such partnerships. ‘‘(B) REQUIREMENT.—In providing information to consumers on long-term care in accordance with this subsection, the National Clearinghouse for Long-Term Care Information shall not advocate in favor of a specific long-term care insurance pro- vider or a specific long-term care insurance policy. ‘‘(3) APPROPRIATION.—Out of any funds in the Treas- ury not otherwise appropriated, there is appropriated to carry out this subsection, $3,000,000 for each of fis- cal years 2006 through 2010.’’ § 1396q. Application of provisions of subchapter II relating to subpoenas The provisions of subsections (d) and (e) of sec- tion 405 of this title shall apply with respect to this subchapter to the same extent as they are applicable with respect to subchapter II, except that, in so applying such subsections, and in ap- plying section 405(l) of this title thereto, with respect to this subchapter, any reference therein to the Commissioner of Social Security or the Social Security Administration shall be consid- ered a reference to the Secretary or the Depart- ment of Health and Human Services, respec- tively. (Aug. 14, 1935, ch. 531, title XIX, § 1918, as added Pub. L. 98–369, div. B, title III, § 2370(a), July 18,