"TRANSFER PENALTY"
AND
WHAT TO DO

(revised 1-21-24)
DISCLAIMER

Lisa Nachmias Davis
Davis O'Sullivan & Priest LLC
59 Elm St. Ste 540
New Haven, CT 06510

203-776-4400
Fax 203-774-1060
davis@sharinglaw.net
www.sharinglaw.net


        Oh no!  You applied for Medicaid but the State of CONNECTICUT says it will "impose a transfer penalty."  What does this mean? What do you do?

            A "transfer penalty" is imposed if the State of Connecticut decides that an applicant for Medicaid, or that person's spouse, "transferred" something for purposes of qualifying for Medicaid.  For every $14,542 (changes annually), the applicant is DENIED MEDICAID for one month.  The State of Connecticut starts counting the first day of the month the person would have been "otherwise eligible."   I go into this a little differently on my page "what if I give it all away." 

            For the home care program, the State of Connecticut doesn't start counting until all the paperwork is done; for a nursing home situation, it's when the assets were "reduced" even if the paperwork wasn't done.  This is especially bad if the person is in desperate need of care, in fact, even if the person may die without proper care.  I can say this, because it happened to a client of mine. Because of a transfer penalty, my client DIED.

            But how did this happen?  You knew that a gift during the "look-back" can cause a penalty.  But nobody gave anything away!

            Two possible problems can cause this to happen.  (1) It's a "transfer" if something goes from the applicant to someone else and the State feels that the applicant did not get fair market value in return.  The State's view of what is fair market value may be different than yours.  (2) The State gets to
ASSUME that the reason for this was "for purposes of qualifying for Medicaid" unless "proven" otherwise. 

           
First -- know the exemptions.  Some "transfers" are just exempt. If this one fits into the right pigeonhole, and you can explain that to the caseworker, you got yourself out of the jam.  In that case don't argue about the value or the motive. Just argue the exemption.  What's exempt? Here are SOME important exemptions to know:
  1. Any gift in any amount to the applicant's "disabled child." "Disabled" means either someone who is on SSI or Social Security Disability OR (important) meets the criteria for these programs even if not actually receiving those benefits.  In other words, if the recipient was a disabled child, STOP, you don't have to worry about motive or value.  Just prove the recipient was a disabled child. (Grandchild, nephew, etc. won't do -- CHILD.)  The State needs the child's birth certificate and proof of disability such as the Social Security letter, or if not, a doctor's letter saying the child was "unable to engage in substantial gainful activity for at least 12 months" -- possibly the State may make the person fill out more forms and be determined disabled by the State's contractor.
     
  2. (Connecticut only -- a state interpretation of "other valuable consideration")  Gift to a person who LIVED WITH the applicant for 2+ years and provided services like a homemaker/home health type, WITHOUT WHICH the person would have needed nursing home care for those 2+ years. For every month of care, $14,524 (changes annually) is "exempt," PROVIDED you meet the 2+ years.  To document this you will be asked for a  statement of what you did / what the applicant could do (write this up saying "I declare under penalty of perjury"), plus a doctor's letter to this effect, plus 2 years of medical records.   For your statement, go into the gory details.  Talk about changing the person's diaper, that time when the person wandered off and the police were called, etc.  If all you did is stay there at night, mention every time the person got up to pee and you made sure he didn't fall.  I know you did more than you think you did.   You might need proof you LIVED THERE, not just visited every day for 16 hours or whatever..  (If it's a 2-family that should still be OK.  Or if the mailing address has two different numbers but it was really a single building owned by the landlord  which you can show using the assessor's card which you can find online).  BTW this works if the caregiving person was the child, friend, niece, even the live-in girlfriend of 25 years.  OR that no-good brother who mooched off mom for years!  But it does not work if the person was the husband or wife of the applicant! 

  3. Same as above, but if the caregiver was the person's child, the person could gift the entire home even if it was worth more than $14,524 x number of months.  (The idea is that it's like the person paid a nursing home $14,524 per month.)  This rule is national, not just CT.

  4. Trickier:  Transfer of something that would be "exempt if retained."   A person is allowed to have  a car on the theory that the person may need it to get to a doctor. SO if the car is given away, it is exempt if retained.  That also applies if the community spouse would have been allowed to keep the money as part of the "community spouse protected amount."  For instance, if the Medicaid rules say the spouse was allowed $50,000.  Instead there is only $25,000 left, but $25,000 was given away two years ago.  This won't work if the application is home care and the home was transferred.

  5. Very tricky:  Giving something back to the true owner if the applicant was just the "record owner."  For instance, if child had a bank account for years and when it was opened child was a minor and so mom's name was on it as co-owner, but all these years child's pay went into it and mom never put anything in it. Needless to say, this requires a lot of detail like proof of what went in and out for years.  It's even harder if it's real estate, for instance, child had bad credit so mom bought the house/took out the mortgage but child paid the mortgage every month. MAYBE this will work but you'd have to show all the mortgage payments, etc. 
        The actual state rule that lists the exemption is here.  #2 is what is known as "other valuable consideration" explained here.

        But maybe no pigeonhole fits.  Now what?


        I was about to go through a lot of other arguments you can make. Unfortunately, I tend to take a rosy view of your powers of persuasion and argument.  But most likely you are not a lawyer who spent three expensive years learning how to persuade and argue effectively.  You may be outgunned.  You are also likely to be disrespected. You and I might say the exact same thing but I might use fancier words and threaten court and the caseworker might give in to my arguments but not yours. That is -- you may need a lawyer.  If the caseworker actually issues a formal notice of intent to impose a penalty you'll only have 10 days to argue about it. Once you lose at that level and the worker reaches a formal decision, you have 60 days to ask for a "fair hearing" (usually done by zoom or similar, or phone call), but for that you REALLY need a lawyer.   Even the exceptions above may work better with a lawyer.  Especially #4 and #5.  This is reality.0

          Some disputes are about value.  For instance, Mom gave you (son) $20,000 four years ago. Since then you did not live with her but came over and took care of her eight hours a day.  You're also an accountant and her power of attorney and did mom's tax returns and paid all her bills.  You ought to be able to argue that you "gave back" $20,000 worth of caregiving if you can show what you did, how many hours, what it would be worth.  This is harder since they will demand a log or a caregiver agreement.  It helps to have a lawyer.

          Often the issue is motive. For that you have to remember that if you submit "sworn statements," either notarized or written up saying "under penalty of perjury I declare,"  that is testimony. That's like a witness being in court swearing to something. It counts as proof. It still has to be persuasive but the caseworker can check off the box "sworn statement" as a "verification."   The details, the background, WRITTEN UP IN A STATEMENT, or supported by other statements, are important.  It helps to have a lawyer to remind the caseworker that a swong statement is proof.  (99% of the time, a gift made after the person was already receiving long-term care is not going to fly, however.)

            Example:  Say mom wanted to sell her house and a neighbor offered to buy it and she thought she'd do better than paying a broker commission. She didn't realize the housing market was hot and that the price she was paid was well under market.  The state infers that this is a gift. You know that's nuts and that she thought it was a good deal.  You might need her sworn statement or the sworn statement of family members as to what she told them.  Proof that the neighbor was not a friend or family member.  Maybe proof that mom had cognitive decline at the time.  A letter from the doctor.  It helps to have a lawyer tell you to get more witnesses.

             Even a gift motive can succeed provided the person had no expectation of needing long-term care.  For instance, dad sent his unemployed son money every month so he would not be foreclosed.  That wasn't for purposes of qualifying for Medicaid. Or mom paid the down-payment on her son's house when she had plenty of money and was taking care of her sick husband at home and swore he'd never go to a nursing home.  That wasn't for purposes of qualifying for Medicaid.  There was a reason.  "Fairness" usually won't work, at least at the caseworker level.. The dad who sent money to the unemployed son also sent the same amount to his daughter just to be "fair."  That one lost. Then I had a case where the applicant (age 80) gave her children $150,000 and a year later had a stroke.  She had only retained $40,000, although she had moved to subsidized housing and had a small long-term care insurance policy that covered some home care. I argued that she thought she had enough to cover all her needs when she made the gift -- she was living independently, baby-sat her grandchildren regularly  -- and that she believed she had promised her husband that when she sold the house she would give the kids the money.  We demanded that if there was a fair hearing, it would have to be at her bedside so she could testify about her motive.  We won.   But it was hard.   Arguing a case is hard. 

            My client who died had a sad story and he didn't explain it well.  He was being foreclosed and his sister paid off his mortgage and he signed his house over to her.  Even I thought she should have taken out a mortgage on the house instead.  What I didn't know was that she had already bailed him out once before, that he had piles of debts, and that he might have been sued if he'd kept the house. There was also the fact that he was bedridden and vulnerable, so I could've argued that he had no real choice.  I'll always wonder what might have happened if I, trained as a lawyer, had helped him to fight that penalty. Instead he just took it, didn't hire me, waited for the penalty to expire, did without care, and died. I'm writing this because, while we lawyers like to keep some things to ourselves so you will hire us, I don't want anyone to DIE because they don't know these rules.

             So if the caseworker talks about a transfer penalty (or you can tell that the caseworker is headed that way) -- take it seriously. But don't take it lying down. And unless you feel really confident about it, get legal help. (Not necessarily from me.  There are hundreds of us out there.  We make a lot of referrals to other lawyers.)  Even if you are broke, you can cut a deal. PERSUADE the lawyer to help you on a payment plan.  Use a credit card.  It's serious.

  Disclaimer:  This information is maintained to benefit the elderly in Connecticut and nationwide by providing a resource to
attorneys, caregivers, and others assisting the elderly.   This is not legal advice,
and establishes no attorney-client relationship.  Accuracy and currency are not guaranteed.
The law changes often; this may be out of date.
USE AT YOUR OWN RISK.
Please report changes, errors, and suggestions to Lisa Davis.