PROPOSAL
Maryland Register
Issue Date: December 23, 2016
Volume 43 • Issue 26 • Pages 1488—1489
Title 10
DEPARTMENT OF HEALTH AND MENTAL HYGIENE
Subtitle 09 MEDICAL CARE PROGRAMS
10.09.24 Medical Assistance Eligibility
Authority: Health-General Article, §§2-104(b) and 15-103, Annotated Code of Maryland
Notice of Proposed Action
[16-355-P]
The Secretary of Health and Mental Hygiene proposes to amend Regulation .08-2 under COMAR 10.09.24 Medical Assistance Eligibility.
Statement of Purpose
The purpose of this action is to codify informal rules that comport with the business of operating pooled special needs trusts and of drafting stand-alone Special Needs Trusts.
Comparison to Federal Standards
There is no corresponding federal standard to this proposed action.
Estimate of Economic Impact
The proposed action has no economic impact.
Economic Impact on Small Businesses
The proposed action has minimal or no economic impact on small businesses.
Impact on Individuals with Disabilities
The proposed action has no impact on individuals with disabilities.
Opportunity for Public Comment
Comments may be sent to Michele A. Phinney, Director, Office of Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, MD 21201, or call 410-767-6499 (TTY 800-735-2258), or email to dhmh.regs@maryland.gov, or fax to 410-767-6483. Comments will be accepted through January 23, 2017. A public hearing has not been scheduled.
.08-2 Treatment of Trust Amounts.
A. (text unchanged)
B. Treatment of Trusts Established after August 10, 1993.
(1)—(6) (text unchanged)
(7) A nonprofit association that establishes and manages a trust consistent with the requirements of §B(6)(b) of this regulation may establish accounts for individuals for whom no governmental entity has made a determination of disability, provided that:
(a) The beneficiary of the account has submitted, or is actively engaged in preparing to submit, an application to:
(i) The Social Security Administration for Supplemental Security Income or Social Security Disability Insurance; or
(ii) The Department of Human Resources State Review Team for a disability determination using the Social Security Administration rules; and
(b) The account is closed immediately upon a determination, exclusive of appeals, by any State or federal governmental agency that the beneficiary of the account is not disabled.
C. Special Needs Trust. The following criteria shall define a single, stand-alone special needs trust that is funded with assets that belonged to the beneficiary:
(1)—(5) (text unchanged)
(6) The trust provides that all [States] states which have provided medical assistance benefits to the beneficiary shall be paid their proportionate share of the total amount of medical assistance benefits paid on behalf of the beneficiary by all [States] states, up to the amount of assets remaining in the trust upon the death of the beneficiary;
(7) If the trust allows for the termination of the trust before the death of the beneficiary, the trust shall provide that:
(a) All [States] states which have provided medical assistance benefits to the beneficiary shall be paid their proportionate share of the total amount of medical assistance benefits paid on behalf of the beneficiary by all [States] states, up to the amount of assets remaining in the trust at the time of termination, after administrative expenses related to the termination of the trust;
(b) Other than amounts paid to the [States] states under §C(7)(a) of this regulation and payment of administrative expenses and reasonable compensation to the trustee for trust management, along with reasonable costs associated with investment, legal, or other services, no entity other than the trust beneficiary may benefit from early termination of the trust; and
(c) (text unchanged)
(8) The trust does not permit distribution of trust assets upon termination of the trust that would hinder or delay reimbursement to the [Department] states under §C(6) and (7) of this regulation;
(9) The trust does not place time limits, or any other limits, on the [States’] states’ claim for reimbursement under §C(6) and (7) of this regulation;
(10) The trust contains the following provisions:
(a)—(c) (text unchanged)
(d) The trustee shall administer the trust in accordance with the provisions of Estates and Trusts Article, §15-502, Annotated Code of Maryland, and may not:
(i) [Have] Except for the beneficiary’s relative, limited to the relatives defined at COMAR 10.09.24.02B(10)(a), who may have a contingent future interest in any trust funds remaining in the trust after the requirements of §C(6) of this regulation have been met, have an interest in trust assets;
(ii)—(iv) (text unchanged)
(e)—(m) (text unchanged)
(n) Trust assets may not be used to purchase an annuity on the life of the beneficiary unless, upon the beneficiary’s death, all [States] states which have provided medical assistance benefits to the beneficiary are paid, out of any remaining annuity payments, their proportionate share of the total amount of medical assistance benefits paid on behalf of the beneficiary by all [States] states.
(o)—(t) (text unchanged)
(u) The trust may not receive payments from a structured settlement or an annuity that was purchased by funds that are not part of the trust unless:
(i) Upon the beneficiary’s death, all [States] states which have provided medical assistance benefits to the beneficiary are paid, out of any remaining annuity or settlement payments, their proportionate share of the total amount of medical assistance benefits paid on behalf of the beneficiary by all [States] states; and
(ii) (text unchanged)
(11)—(12) (text unchanged)
VAN T. MITCHELL
Secretary of Health and Mental Hygiene
