Medicaid Income Trust Law and Legal Definition

The qualified Medicaid income trust is a legal instrument which meets criteria in 42 United States Code 1396 (p) (d) (4) (B) and which allows individuals with income over the institutional care program limits to qualify for institutional care services or for home and community based services assistance.

The trust must have a grantor and a trustee. The grantor is the person setting up the trust (this would be the individual, the individual's spouse, or someone acting on behalf of the individual or the individual's spouse). The trustee is any individual, individuals, or entity that manages the trust and has the responsibility for the income in the trust account.

The individual or someone acting on behalf of the individual must set up an income trust bank account into which only the individual’s income is deposited. Income deposited into the trust account in the month it is received is not counted when determining income towards the program income limit. The account must be appropriately titled as an income trust account for the individual with a trustee listed on the account. Sufficient income must be deposited into the income trust account in the month in which the income is received to reduce the individual’s countable income (the income outside the trust) to within the program income limits. Deposits into the trust account must be made during and for each month that eligibility is requested.

All income (including the money deposited into the trust account) is counted in determining patient responsibility. An allowance for personal needs and for a community spouse may be made. When the person dies, any income remaining in the trust upon death goes to the state (up to the amount Medicaid paid on the persons behalf). The trustee has full discretion over the money in the trust account.

A medicaid trust may take various forms and laws vary by state. There are differing requirements under state laws regarding what assets may be counted or reached for recovery upon death. To comply with applicable requirements, professional financial advice should be sought.

The following is a portion of relevant federal law governing Medicaid income trusts:

" Treatment of trust amounts

(1) For purposes of determining an individual’s eligibility for, or amount of, benefits under a State plan under this subchapter, subject to paragraph (4), the rules specified in paragraph (3) shall apply to a trust established by such individual.

(2)

(A) For purposes of this subsection, an individual shall be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established such trust other than by will:

  1. The individual.
  2. The individual’s spouse.
  3. A person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual’s spouse.
  4. A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual’s spouse.

(B) In the case of a trust the corpus of which includes assets of an individual (as determined under subparagraph (A) and assets of any other person or persons, the provisions of this subsection shall apply to the portion of the trust attributable to the assets of the individual.

(C) Subject to paragraph (4), this subsection shall apply without regard to—

  1. the purposes for which a trust is established,
  2. whether the trustees have or exercise any discretion under the trust,
  3. any restrictions on when or whether distributions may be made from the trust, or
  4. any restrictions on the use of distributions from the trust.

(3)

(A) In the case of a revocable trust—

  1. the corpus of the trust shall be considered resources available to the individual,
  2. payments from the trust to or for the benefit of the individual shall be considered income of the individual, and
  3. any other payments from the trust shall be considered assets disposed of by the individual for purposes of subsection (c) of this section.

(B) In the case of an irrevocable trust—

  1. if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income—
  1. to or for the benefit of the individual, shall be considered income of the individual, and
  2. for any other purpose, shall be considered a transfer of assets by the individual subject to subsection (c) of this section; and

ii. any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subsection (c) of this section, and the value of the trust shall be determined for purposes of such subsection by including the amount of any payments made from such portion of the trust after such date.

(4) This subsection shall not apply to any of the following trusts:

(A) A trust containing the assets of an individual under age 65 who is disabled (as defined in section 1382c (a)(3) of this title) and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.

(B) A trust established in a State for the benefit of an individual if—

  1. the trust is composed only of pension, Social Security, and other income to the individual (and accumulated income in the trust),
  2. the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter; and
  3. the State makes medical assistance available to individuals described in section 1396a (a)(10)(A)(ii)(V) of this title, but does not make such assistance available to individuals for nursing facility services under section 1396a (a)(10)(C) of this title.

(C) A trust containing the assets of an individual who is disabled (as defined in section 1382c (a)(3) of this title) that meets the following conditions:

  1. The trust is established and managed by a non-profit association.
  2. A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, the trust pools these accounts.
  3. Accounts in the trust are established solely for the benefit of individuals who are disabled (as defined in section 1382c (a)(3) of this title) by the parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court.
  4. To the extent that amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust pays to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under the State plan under this subchapter.

(5) The State agency shall establish procedures (in accordance with standards specified by the Secretary) under which the agency waives the application of this subsection with respect to an individual if the individual establishes that such application would work an undue hardship on the individual as determined on the basis of criteria established by the Secretary.

(6) The term “trust” includes any legal instrument or device that is similar to a trust but includes an annuity only to such extent and in such manner as the Secretary specifies."