New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 281 - MEDICAID ELIGIBILITY - INSTITUTIONAL CARE (CATEGORIES 081, 083 AND 084) › Part 510 - TRUST STANDARDS › Section 8.281.510.11 - RECOGNIZED MEDICAID TRUSTS

Current through Register Vol. 35, No. 13, July 16, 2024
The trust provisions set forth in
				  8.281.510.9
				  NMAC and
				  8.281.510.10
				  NMAC shall not apply to the following trusts so long as the trust document
				  meets all the requirements set forth in this section.
A. The recognized medicaid trusts described
				in this section (special needs trusts and non-profit trusts for certain
				disabled individuals) are subject to the following.
(1) Only income and resources distributed
				directly to the applicant/recipient or to a third party on the
				applicant/recipient's behalf by the trustee are considered available to the
				applicant/recipient in determining medicaid eligibility if the
				applicant/recipient could use the payment for food or shelter for
				him/herself.
(2) The trusts are
				reversionary trusts meaning the trust must provide that, upon the death of the
				applicant/recipient, any funds remaining in the trust revert to the state
				medicaid agency, up to the amount paid in medicaid benefits on the
				applicant/recipient's behalf. If the applicant/recipient has resided in more
				than one state, the trust must provide that the funds remaining in the trust
				are distributed to each state in which the applicant/recipient received
				medicaid, based on the state's proportionate share of the total amount of
				medicaid benefits paid by all of the states on the applicant/recipient's
				behalf.
(3) All trusts submitted
				for review to the department must be in writing, signed, and fully executed.
				Trusts that are not signed and executed will not be considered as effective
				trusts until they are signed and executed. Trusts must also be funded as
				demonstrated by verifiable documentation prior to review by the
				department.
(4) Assets are not part
				of a trust and are considered outside of the trust until the date they are
				actually transferred into the trust, as demonstrated by verifiable
				documentation, regardless of the effective date of the trust. Assets outside of
				a trust will be evaluated according to the applicable regulations regarding the
				counting of resources.
(5) Since
				the department is a reversionary beneficiary for all of the trusts described in
				the rest of this section, any legal action concerning one of these trusts must
				name the department as an interested party and the department must be notified
				by service of process in accordance with the New Mexico Rules of Civil
				Procedure.
(6) The
				applicant/recipient may not be the trustee and may not have any ability,
				access, or authority to manage or control the trust account.
(7) Each trust document must identify the
				person or organization that drafted the trust document.
(8) If the department approves or previously
				approved a recognized medicaid trust, the trust and administration of the trust
				are subject to review by the department, at least annually, and more frequently
				upon the request of the department, to determine if the trust remains a valid
				trust for the purposes of meeting the requirements of a recognized medicaid
				trust.
(9) If the department
				determines that a trust is invalid under Paragraph (8) above, the department
				will evaluate the applicant/recipient's medicaid eligibility, applying the
				provisions of 8.281.500 NMAC to the corpus of any existing trust. If the corpus
				of the trust is not disclosed, or cannot be identified by the department due to
				a lack of documentation, the department will presume that the corpus of the
				trust is a countable resource in excess and will be counted toward the
				allowable resource limit in
				8.281.500.11
				NMAC,
applicable resource standards
.
(10) The trustee and any alternate trustees
				shall be specifically identified by name and address.
(11) The department shall not be charged any
				fees or costs for obtaining trust records or documents.
(12) The trust may not under any
				circumstances provide a loan to the beneficiary or any other individual or
				entity.
(13) The trust must be in
				compliance with all applicable criteria as set forth in 8.281.510.11
				NMAC.
(14) All trusts under
				Subsection B below must terminate upon the death of the beneficiary and
				provision made to immediately disburse the remaining corpus in accordance with
				the terms of the trust.