N.M. Admin. Code § 8.215.500.16

Current through Register Vol. 35, No. 23, December 10, 2024

Section 8.215.500.16 - TRUSTS

In some instances, an applicant/recipient with a trust can be eligible for SSI cash benefits but not be automatically eligible for medicaid. If the social security administration (SSA) determines that an SSI recipient has a trust, SSI notifies the human services department (HSD) of the existence of the trust. The recipient is then notified that the trust document must be submitted to and reviewed by HSD before medicaid eligibility is determined.

A.Medicaid qualifying trusts: A "medicaid-qualifying trust" (MQT) is a trust or similar legal device established prior to August 11, 1993, other than by will, by an applicant/recipient or spouse, under which the applicant/recipient may be the beneficiary of all or part of the payments from the trust. The distribution of trust payments is determined by one or more trustees who are permitted to exercise discretion with respect to the distribution of payments to the applicant/recipient. When the use of an attorney is solicited to establish a trust, the beneficiary of that trust is not exempt from the requirements of MQT provisions. Legal instruments such as trusts are almost always drafted by an attorney. It is the grantor him/herself who actually establishes of creates the trust when he/she signs or executes it.

(1)Amount deemed available from an MQT: The amount from an MQT that is deemed available to an applicant/recipient is the maximum amount that could be distributed to the applicant/ recipient, or for the care of the applicant/ recipient, regardless of restrictions imposed by the trust on the allowable use of the funds. If, for example, the trustee can make payments to a health care provider for medical services, the applicant/recipient beneficiary is considered to be receiving benefits from the trust even though these benefits are not paid directly to the beneficiary. This provision applies regardless of whether the MQT was set up for the purpose of qualifying for medicaid or whether the trust is irrevocable.

(2)Revocable trusts: Revocable trusts that limit access to the assets held in trust must be dissolved and the assets spent down before eligibility can be established.

(3)Beneficiary of trust lives in an ICF-MR: If the beneficiary of a trust is an applicant/recipient who is mentally retarded and resides in an intermediate care facility for the mentally retarded (ICF-MR), that applicant/recipient's trust is not considered an MQT if the trust or trust decree was established prior to April 7, 1986, and is solely for the benefit of that applicant/recipient.

(4)Treatment of SSI or social security lump sum payments: SSI or social security lump sum payments for retroactive periods which are placed into an MQT do not qualify for the nine month exclusion from countable resources.

B.Trusts creating medicaid eligibility: [RESERVED]

N.M. Admin. Code § 8.215.500.16

2-1-95, 7-31-97; 8.215.500.16 NMAC - Rn, 8 NMAC 4.SSI.517, 3-1-01; A, 4-1-09, Adopted by New Mexico Register, Volume XXIX, Issue 04, February 27, 2018, eff. 3/1/2018