Revision 17-1; Effective March 1, 2017

 

I-2100 Look-Back Policy

Revision 13-4; Effective December 1, 2013

 

Note: Examples in this section may not reflect the most recent amount of the average private-pay cost per day.

Investigation of transfers is part of the application or program transfer process. Activity during the month of application or program transfer and forward is investigated. Activity in the past is also investigated.

The look-back period is established under federal law. The date on which the look-back period is established is based on the application file date or the institutional entry date, whichever is later.

Under pre-DRA transfer of assets policy, the look-back period is 36 months (or 60 months) from the later of the date of:

  • institutionalization, or
  • Medicaid application.

Under post-DRA transfer of assets policy, the look-back period is 60 months from the later of the date of:

  • institutionalization, or
  • Medicaid application.

Under both pre-DRA and post-DRA transfer of assets policies:

  • When a person is already a Medicaid recipient before entering a nursing facility (NF), intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID), state supported living center, or institution for mental diseases (IMD), the look-back period begins with institutional entry.
  • Penalties may be assessed for transfers occurring on or after the look-back date. Penalties cannot be assessed for time frames before the look-back period.

Example: If the application was received during the month of August and the individual entered the nursing facility in August, August sets the look-back period. August is considered month "0." The look-back period begins with July and continues for 36 or 60 months, as appropriate.

For any transfer transaction made on or after Feb. 8, 2006, the look-back period is 60 months from the application file date or program transfer request date. During the implementation phase of the post-DRA transfer of assets policy change, the 36-month look-back period for non-trust transfer transactions will remain in effect until Feb. 28, 2009. The 60-month look-back period will be phased in, and by February 2011, any transfer transactions will require a 60-month look-back period.

  • For applications received through February 2009, the look-back period is 36 months. February is the last file month for which the look-back period is 36 months.
  • Beginning with applications received in March 2009, add one month to the look-back period until the full 60-month look-back period is fully implemented in February 2011.

Examples:

  • Individual enters facility in January 2009. Application for Medicaid is made in March 2009. The look-back period is a total of 37 months (36-month look-back plus a phase-in of one month).
  • Individual enters facility in January 2009. Application for Medicaid is made in August 2009. The look-back period is a total of 42 months (36-month look-back plus a phase-in of six months).

 

I-2110 February 2011 and the 60-Month Look-Back Period

Revision 17-1; Effective March 1, 2017

 

By February 2011, any transfer transactions will require a 60-month look-back period.

Examples:

  • Individual enters facility in January 2011. Application for Medicaid is made in February 2011. Look-back period is 60 months.
  • Individual enters facility in January 2011. Application for Medicaid is made in August 2011. Look-back period is 60 months.

This does not negate the pre-DRA policy.

Under pre-DRA transfer of assets policy, there is a 36-month look-back period for most uncompensated transfers. However, there is a 60-month look-back period for certain transfers involving trusts. The look-back periods for trusts and distributions from trusts follow in Section I-2120.

 

I-2120 Revocable Trusts Under Pre- and Post-DRA

Revision 09-4; Effective December 1, 2009

 

  1. Payments from a revocable trust to or for the benefit of someone other than the person have a 60-month look-back period.

    Examples:

    The following samples are for demonstration purposes only. They may not reflect the current average monthly cost of private-pay care. Examples are based on the amount of the average private-pay cost per day, effective Nov. 1, 2005 ($117.08).

    • John Doe entered a nursing facility and applied for Medicaid in January. January sets the look-back period. January is considered month "0." He created a revocable trust six years ago. In January four years ago, the trustee made a $50,000 cash distribution to Mr. Doe's nephew. This is a transfer of assets with a 60-month look-back period.

      The look-back period begins in December (last month) and ends January five years ago. The distribution in January four years ago falls within the look-back period, and the penalty period is calculated as follows: $50,000 divided by $117.08 (average daily rate for private-pay nursing facility (NF) resident) = 427 days.

      Under pre-DRA transfer of assets policy, the penalty period, which began January four years ago and ended March 3 three years ago, has expired.

      Under post-DRA transfer of assets policy, the penalty period start date is the first day of the month of the medical effective date (MED), if the individual meets all other eligibility criteria.
    • Same situation as above, except that the $50,000 distribution to Mr. Doe's nephew was made in December six years ago.

      The look-back period begins in December and ends January five years ago. The distribution in December six years ago falls outside the look-back period and is not subject to penalty.
  2. Making a revocable trust irrevocable with payments from corpus/income unavailable to the person is a transfer of assets and has a 60-month look-back period.

    Examples:
    • Joe Bridges entered a nursing facility and applied for Medicaid in January. January sets the looks back period. January is considered month "0." He created a revocable trust six years ago during the first quarter, which became irrevocable on his 75th birthday (January four years ago). The corpus and undistributed income in January four years ago was valued at $100,000. As of January four years ago, there are no conditions under which the trustee may make payments to or for the benefit of Mr. Bridges. This is a transfer of assets with a 60-month look-back period.

      The look-back period begins in December and ends January five years ago. The transfer in January four years ago falls within the look-back period, and the penalty period is calculated as follows: $100,000 divided by $117.08 (average daily rate for private-pay NF resident) = 854 days.

      Under pre-DRA transfer of assets policy, the penalty period, which began January four years ago and ended May 4 two years ago, has expired.

      Under post-DRA transfer of assets policy, the penalty period start date is the first day of the month of the MED, if the individual meets all other eligibility criteria.
    • Same situation as above, except that Mr. Bridges' 75th birthday was in December six years ago.

      The look-back period begins in December and ends January five years ago. The transfer in December six years ago occurred outside the look-back period and is not subject to penalty.

 

I-2130 Irrevocable Trusts

Revision 09-4; Effective December 1, 2009

 

  1. Payments from an irrevocable trust (where trustee distributions are not available to the person) that are made to (or for the benefit of) someone other than the person have a 36-month look-back period under pre-DRA policy.

    Payments from an irrevocable trust (where trustee distributions are not available to the person) that are made to (or for the benefit of) someone other than the person have a 60-month look-back period under post-DRA policy.

    Example:

    Mary Smith entered the nursing facility (NF) and applied for Medicaid in January. January sets the look-back period. January is considered month "0." Six years ago, she created an irrevocable trust. The trustee has discretion to make distributions to Ms. Smith or for her benefit. The trustee does not make payments to or for the benefit of Ms. Smith, but in January three years ago she made a $75,000 cash distribution to her niece. Under pre-DRA transfer of assets policy, this payment was a transfer of assets with a 36-month look-back period. The look-back period begins in December (last month) and ends January three years ago. The transfer in January three years ago occurred during the look-back period.

    Under post-DRA transfer of assets policy, all transfer of assets will eventually have a 60-month look-back period. During the implementation phase of the post-DRA transfer of assets policy change, use the 36-month look-back period for this type of transfer transaction through Feb. 28, 2009. The 60-month look-back period will be phased in and by February 2011, any transfer transactions will require a 60-month look-back period.

    The penalty period is calculated as follows: $75,000 divided by $117.08 (average daily rate for private-pay NF resident) = 640 days.

    Under pre-DRA transfer of assets policy, the penalty period, which began January three years ago and ended Oct. 2 two years ago, has expired. The portion of the current corpus and undistributed income that the trustee could pay to Ms. Smith or for her benefit is a countable resource.

    Under post-DRA transfer of assets policy, the penalty period start date is the first day of the month of the medical effective date, if the individual meets all other eligibility criteria. The portion of the current corpus and undistributed income that the trustee could pay to Ms. Smith or for her benefit is a countable resource.
  2. Creating an irrevocable trust where trustee payments are unavailable to the person is a transfer of assets with a 60-month look-back period.

    Examples:
    • Rob Jones entered a nursing facility and applied for Medicaid in January. January sets the look-back period. January is considered month "0." In December six years ago, he created an irrevocable trust with a corpus of $100,000. There are no circumstances under which the trustee may make payments to or for the benefit of Mr. Jones. Creation of this trust is a transfer of assets with a 60-month look-back period.

      Under both pre-DRA and post-DRA, the look-back period begins in December (last month) and ends January five years ago. The transfer in December six years ago falls outside the look-back period and is not subject to penalty.
    • Same situation as above, except that Mr. Jones created the trust in January five years ago.

      Under both pre-DRA and post-DRA transfer of assets policies, the look-back period begins in December and ends January five years ago. The transfer in January five years ago falls within the look-back period.

      The penalty period is calculated as follows: $100,000 divided by $117.08 (average daily rate for private-pay NF resident) = 854 days.

      Under pre-DRA transfer of assets policy, the penalty period, which began January five years ago and ended May 4 three years ago, has expired.

      Under post-DRA transfer of assets policy, the penalty period start date is the first day of the month of the medical effective date, if the individual meets all other eligibility criteria. The portion of the current corpus and undistributed income that the trustee could pay to Ms. Smith or for her benefit is a countable resource.
  3. Under both pre-DRA and post-DRA, creating an irrevocable trust where the trustee initially has discretion to make payments to the person (or for his benefit), but where payments are unavailable to the person at a later date, is a transfer of assets as of the date payments are unavailable to the person. The look-back period is 60 months.

    Examples:
    • Sue Johnson entered the nursing facility and applied for Medicaid in January. January sets the look-back period. January is considered month "0." She created an irrevocable trust six years ago during the first quarter of the year. Beneficiaries are Ms. Johnson and her niece. The trustee has discretion to make payments to Ms. Johnson or for her benefit until the niece attains age 21. After that date, payments may only be made to the niece. The niece attained age 21 on Jan.1 two years ago. At that time, the corpus and undistributed income was valued at $100,000. This is a transfer of assets with a 60-month look-back period.

      The look-back period begins this past December and ends January five years ago. The transfer in January two years ago falls within the look-back period.

      The penalty period is calculated as follows: $100,000 divided by $117.08 (average daily rate for private-pay NF resident) = 854 days.

      Under pre-DRA transfer of assets policy, the penalty period began January two years ago and ends May 4 of this year.

      Under post-DRA transfer of assets policy, the penalty period start date is the first day of the month of the medical effective date, if the individual meets all other eligibility criteria. The portion of the current corpus and undistributed income that the trustee could pay to Ms. Smith or for her benefit is a countable resource.
    • Same situation as above, except that Ms. Johnson's niece attained age 21 in December six years ago.

      The look-back period begins this past December and ends January five years ago. The transfer in December six years ago falls outside the look-back period and is not subject to penalty.

Historical Note: Under pre-DRA transfer of assets policy, because the look-back period is for transfers on or after Aug. 11, 1993, the full 60-month look-back period did not become effective until Aug. 11, 1998.

 

I-2200 Look-Back Situations

Revision 09-4; Effective December 1, 2009

 

  • When a person applies and is certified for Medicaid more than once because of multiple institutional stays or periods of ineligibility, the look-back date is based on the later of the earliest application for Medicaid or the initial entry into the facility.

Check automated systems, if possible, for the earliest application date on record.

  • When an individual applies for a Home and Community-Based Services waiver program, the look-back period is based on the later of the date:
    • of application for the Home and Community-Based Services waiver program (completed, signed application form is received); or
    • after application that the person transfers assets.
  • When a person applies for institutional care or a Home and Community-Based Services waiver program but is not certified and then reapplies, a new look-back period is based on the latest application.
  • When a person applies and is certified for a Home and Community-Based Services waiver program, subsequently is denied, and reapplies for waiver services, the initial look-back period is still in effect.
  • When a look-back period is established, the person is certified in an institutional setting, and then moves to a Home and Community-Based Services waiver program or vice versa, the initial look-back period is still in effect. This is true even when there is a gap in eligibility periods.
  • Any additional transfers of assets that occur after the person is certified for Medicaid may be assessed a penalty.