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1996 SESSION

960222713
SENATE BILL NO. 378
Offered January 22, 1996
A BILL to amend and reenact § 20-88.02 of the Code of Virginia, relating to medical assistance services; transfer of assets to qualify for assistance.
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Patron-- Miller, K.G.
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Referred to the Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That § 20-88.02 of the Code of Virginia is amended and reenacted as follows:

§ 20-88.02. Transfer of assets to qualify for assistance; liability of transferees.

A. As used in this section, "uncompensated value" means the aggregate amount by which the fair market value of all property or resources, including fractional interests, transferred by any transferor after the effective date of and subject to this section, exceeds the aggregate consideration received for such property or resources.

B. Within thirty months prior to the date on which any person receives benefits from any program of public assistance as defined in § 63.1-87, if such person has transferred any property or resources resulting in uncompensated value, the transferee of such property or resources shall be liable to repay the Commonwealth for benefits paid on behalf of the transferor up to the amount of that uncompensated value less $25,000.

C. In their discretion, the heads of the agencies which administer the appropriate program or programs of public assistance may petition the circuit court having jurisdiction over the property or over the transferee for an order requiring repayment. That order shall continue in effect, as the court may determine, for so long as the transferor receives public assistance or until the uncompensated value is completely repaid. With respect to all transfers subject to this section, a rebuttable presumption is created that the transferee acted with the intent and for the purpose of assisting the transferor to qualify for public assistance. If the presumption is rebutted, this section shall not apply and the petition shall be dismissed.

D. After reasonable investigation, the agency or agencies administering the program of public assistance shall not file any petition, and no court shall order payments under subsection B of this section if it is determined that: (i) the uncompensated value of the property transferred is $25,000 or less, (ii) that the property transferred was the home of the transferor at the time of the transfer and the transferor or any of the following individuals reside in the home: the transferor's spouse, any natural or adopted child of the transferor under the age of twenty-one years or any natural or adopted child of the transferor, regardless of age, who is blind or disabled as defined by the federal Social Security Act or the Virginia Medicaid Program, or (iii) the transferee is without financial means or that such payment would work a hardship on the transferee or his family. If the transferee does not fully cooperate with the investigating agency to determine the nature and extent of the hardship, there shall be a rebuttable presumption that no hardship exists.

E. Upon the effective date of any federal act providing for medical assistance services as a block grant with state discretion concerning eligibility and services, the following provisions shall apply, in so far as consistent with federal law:

1. Within eight years prior to the date on which any person receives benefits from any program of public assistance, if such person has transferred any property or resources resulting in uncompensated value, the transferee of the property or resources shall be liable to reimburse the Commonwealth for the full cost of the benefits paid on behalf of the transferor up to the amount of the uncompensated value.

2. Any spousal support order which results in derogation of the Doctrine of Necessaries pursuant to § 55-37 or in violation of the limitations on spousal support orders which result in medical assistance eligibility pursuant to § 20-88.02:1 shall be a transfer of assets for uncompensated value and the community spouse shall be liable to reimburse the Commonwealth for the full cost of the benefits paid on behalf of the institutionalized spouse up to the amount of the spousal support order.

3. The chief executive officer or his designee of any public agency administering a program of public assistance shall petition the circuit court having jurisdiction over the property or over the transferee or over the community spouse for an order requiring repayment. Such order shall continue in effect for so long as the transferor or institutionalized spouse receives public assistance or until the Commonwealth receives the total amount of reimbursement due in accordance with subdivisions 1 and 2 above.

4. Any transfer of property for uncompensated value or any spousal support order described in subdivision 2 above shall create a rebuttable presumption which the transferee or community spouse must overcome by a preponderance of the evidence.

5. No petition shall be filed, and no court shall order payments under this subsection if it is determined that (i) the property transferred was the home of the transferor at the time of the transfer or the spousal support order and the transferor or the institutionalized spouse, such person's spouse or any other dependent resides in the home, (ii) the transferee or community spouse will be rendered indigent without the income provided by the property, or (iii) the transferee or community spouse has a disease or condition requiring medical treatment or long-term care and the payment would cause the transferee to be unable to purchase the necessary medical treatment or long-term care and, if enforced, could render the transferee eligible for medical assistance.