Section 75-03-23-14 - Disqualifying transfers1. An individual is not eligible for SPED benefits under this chapter if the department determines that the individual or the spouse of the individual has made any assignment or transfer of any asset for the purpose of making the individual eligible for benefits before or after making application for SPED services except as provided in subsection 2.2. An individual is not ineligible for SPED benefits under this chapter by reason of subsection 1 to the extent that: a. The value of the transferred assets when added to the value of the individual's other assets would not otherwise make the individual ineligible for SPED or does not decrease the individual's service fee.b. The asset transferred was a home, and title to the home was transferred to: (1) The individual's spouse; or(2) The individual's son or daughter who is under the age of twenty-one or who is blind or disabled.c. The assets: (1) Were transferred to the individual's spouse or to another person for the sole benefit of the individual's spouse; or(2) Were transferred from the individual's spouse to another person for the sole benefit of the individual's spouse.d. The individual makes a satisfactory showing that: (1) The individual intended to dispose of the assets at fair market value or for other valuable consideration, and the individual had an objectively reasonable belief that fair market value or its equivalent was received;(2) The assets were transferred exclusively for a purpose other than to qualify for SPED benefits under this chapter; or(3) All assets transferred for less than fair market value have been returned to the individual.e. If a disqualifying transfer occurred five years prior to the date an individual initially applies for SPED services, the department will presume that the transfer was not for the purpose of obtaining SPED benefits.3. There is a presumption that a transfer was made for purposes of making an individual eligible for SPED services under this chapter: a. If an inquiry about SPED benefits or benefits under this chapter was made, by or on behalf of the individual to any other individual, before the date of transfer;b. If the individual or the individual's spouse was an applicant for or an eligible individual of SPED benefits under this chapter before the date of transfer;c. If a transfer is made by or on behalf of the individual's spouse, if the value of the transferred asset, when added to the value of the individual's other assets, would exceed SPED asset limits; ord. If the transfer was made, on behalf of the individual or the individual's spouse, by a guardian, conservator, or attorney-in-fact, to the guardian, conservator, or attorney-in-fact or to any spouse, child, grandchild, brother, sister, niece, nephew, parent, or grandparent, by birth, adoption, or marriage, of the guardian, conservator, or attorney-in-fact.4. An applicant or eligible individual who claims that assets were transferred exclusively for a purpose other than to qualify for SPED benefits under this chapter must show a desire to receive SPED benefits under this chapter played no part in the decision to make the transfer and must rebut any presumption arising under subsection 3.5. If the transferee of any assets is the child, grandchild, brother, sister, niece, nephew, parent, grandparent, stepparent, stepchild, son-in-law, daughter-in-law, or grandchild-in-law of the individual or the individual's spouse, services or assistance furnished by the transferee to the individual or the individual's spouse may not be treated as consideration for the transferred asset unless the transfer is made pursuant to a valid written contract entered into prior to rendering the services.6. A transfer is complete when the individual, or the individual's spouse, making the transfer has no lawful means of undoing the transfer or requiring a restoration of ownership.7. For purposes of this section, fair market value is received:a. When one hundred percent of apparent fair market value is received for an asset whose value is not subject to reasonable dispute, such as cash, bank deposits, stocks, and fungible commodities;b. When seventy-five percent of estimated fair market value is received for an asset whose value may be subject to reasonable dispute; andc. When one hundred percent of fair market value is received for an asset considered to be income to the individual or individual's spouse.8. If an applicant or eligible individual is denied Medicaid based on a disqualifying transfer of assets, the SPED applicant or eligible individual is also ineligible for SPED-funded services.N.D. Admin Code 75-03-23-14
Effective January 1, 2009.Amended by Administrative Rules Supplement 2023-391, January 2024, effective 1/1/2024.General Authority: NDCC 50-06.2-07
Law Implemented: NDCC 50-06.2-07