Key provisions of "DSS Implementer Bill" (HB 7503; LCO 9143) enacted 2001, affecting elder law practitioners:
AN ACT CONCERNING THE EXPENDITURES OF THE DEPARTMENT OF SOCIAL SERVICES.Be it enacted by the Senate and House of Representatives in General Assembly convened:
Sec. 3. Section 17b-261 of the general statutes is repealed and the following is substituted in lieu thereof: * * *
* * * (c) For the purposes of determining eligibility for the Medicaid program, an available asset is one that is actually available to the applicant or one that the applicant has the legal right, authority or power to obtain or to have applied for the applicant's general or medical support. If the terms of a trust provide for the support of an applicant, the refusal of a trustee to make a distribution from the trust does not render the trust an unavailable asset. Notwithstanding the provisions of this subsection, the availability of funds in a trust or similar instrument funded in whole or in part by the applicant or the applicant's spouse shall be determined pursuant to the Omnibus Budget Reconciliation Act of 1993, 42 USC 1396p. The provisions of this subsection shall not apply to special needs trust, as defined in 42 U.S.C. 1396p(d)(4)(A).
(d) The transfer of an asset in exchange for other valuable consideration shall be allowable to the extent the value of the other valuable consideration is equal to or greater than the value of the asset transferred.
Sec. 4. (NEW) The Commissioner of Social Services shall seek a waiver of federal law for the purpose of establishing that the penalty period during which an applicant for or recipient of assistance for long-term care under the Medicaid program is ineligible for Medicaid-funded services due to a transfer of assets for less than fair market value shall begin in the month the applicant is found otherwise eligible for Medicaid coverage of services rather than in the month of the transfer of assets. This section shall only apply to transfers that occur on or after the effective date of the waiver. The provisions of section 17b-8 of the general statutes shall apply to this section.
Sec. 5. (NEW) (a) The Department of Social Services shall be the sole agency to determine eligibility for assistance and services under programs operated and administered by said department.
(b) Any person filing an application with a probate court for spousal support, in accordance with section 45a-655 of the general statutes, shall certify to that court that a copy of the application and accompanying attachments have been sent by regular mail, postage prepaid, to the Commissioner of Social Services. The probate court shall provide a notice of hearing to the commissioner at least fifteen business days prior to the hearing. The commissioner or a designee shall have the right to appear at such hearing and may present the commissioner's position as to the application in person or in writing. Any final order by the court on such application for spousal support shall be sent to the commissioner within seven business days of the order.
(c) No probate court shall approve an application for spousal support of a community spouse unless (1) notice is provided in accordance with subsection (b) of this section, and (2) the order is consistent with state and federal law.
Sec. 6. Subsection (d) of section 45a-655 of the general statutes is repealed and the following is substituted in lieu thereof:
(d) In the case of any person receiving public assistance, state-administered general assistance or Medicaid, the conservator of the estate shall apply toward the cost of care of such person any assets exceeding limits on assets set by statute or regulations adopted by the Commissioner of Social Services. Notwithstanding the provisions of subsections (a) and (b) of this section, in the case of an institutionalized person who has applied for or is receiving such medical assistance, no conservator shall apply and no court shall approve the application of (1) the net income of the ward to the support of the ward's spouse in an amount that exceeds the monthly income allowed a community spouse as determined by the Department of Social Services pursuant to 42 USC 1396r-5(d)(2)-(4), or (2) any portion of the property of the ward to the support, maintenance and medical treatment of the ward's spouse in an amount that exceeds the amount determined allowable by the department pursuant to 42 USC 1396r-5(f)(1) and (2), notwithstanding the provisions of 42 USC 1396r-5(f)(2)(A)(iv), unless [(A)] such limitations on income [or property] would result in significant financial duress. [or (B) an amount exceeding such limitations is necessary to generate income.]