Louisiana Medicaid Eligibility Manual Eligibility Factors
Issued May 09, 2023 Page 1 of I-1700
Replacing February 08, 2017
I-1700 TRUSTS
I-1710 GENERAL INFORMATION
Definitions
Annuity – a contract or agreement by which one receives fixed
non variable payments on an investment for a lifetime or a
specified number of years. Refer to I-1634 Types of Resources
(SSI-Related).
Beneficiary – a person for whose benefit the trust is created.
For the benefit of/on behalf of – consider a trust established
“for the benefit of” an individual if payments of any sort from the
corpus or income of the trust are paid to another person or
entity so that the individual derives some benefit from the
payment. Likewise, consider payments to be made “on behalf
of”, or “to or for the benefit of” an individual, if payments of any
sort from the corpus or income of the trust are paid to another
person or entity so that the individual derives some benefit from
the payment. For example, such payments could include
purchase of food or shelter, or household goods and personal
items that count as income. The payments could also include
services for medical or personal attendant care that the
individual may need which does not count as income.
For the sole benefit of – consider a trust established “for the
sole benefit of” an individual if the trust benefits no one but that
individual, whether at the time the trust is established or at any
time for the remainder of the individual's life.
Income beneficiary – a beneficiary to whom income is payable,
presently, conditionally, or in the future, or for whom it is
accumulated, or who is entitled to the beneficial use of corpus
(principal) presently, conditionally, or in the future, for a time
before its distribution.
Individual – the term “individual” includes the individual himself
or herself, as well as:
• The individual’s spouse, where the spouse is acting in
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the place or on behalf of the applicant/beneficiary;
• 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; and
• Any person, including a court or administrative body,
acting at the direction or upon the request of the
individual or the individual’s spouse.
Inter Vivos Trust – a trust established during the lifetime of the
settlor. It may also be referred to as a “living trust.”
Irrevocable Trust - a settlor does not have the legal authority to
revoke or terminate the trust or to direct the use of the trust
assets for his or her own support and maintenance. Although
termed irrevocable, a trust which provides that the trust can only
be modified or terminated by a court is a revocable trust.
Payment – any disbursal from the corpus (principal) of the trust
or from income generated by the trust which benefits the party
receiving it.
Principal beneficiary – a beneficiary presently, conditionally, or
ultimately entitled to corpus (principal).
Revocable Trust – a settlor may revoke a trust in whole or in
part only if he has reserved the right to revoke the trust or an
unrestricted right to modify the trust. Modification, division,
termination, or revocation of a trust shall be by authentic act or
by act under private signature executed in the presence of two
witnesses and duly acknowledged by the person who makes the
modification, division, or termination or by the affidavit of one of
the attesting witnesses; a trust that will terminate if a certain
circumstance occurs during the lifetime of the beneficiary, such
as the beneficiary leaving the nursing facility and returning
home.
Settlor (also referred to as “grantor” or “trustor”) – The person
who creates the trust. A person who subsequently transfers
property to the trustee of an existing trust is not a settlor.
Testamentary Trust – a trust established by a will and effective
at the time of the testator’s death.
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Trust – any arrangement in which a settlor transfers property to
a trustee or trustees to be held, managed, or administered by
the trustee(s) for the benefit of the settlor or certain designated
individuals (beneficiaries).
Trustee – A person to whom the title to the trust property is
transferred in order for the property to be administered by him or
her as a fiduciary.
Trust instrument – the written document creating the trust and
all amendments and modifications thereof; verification for a
Testamentary or Inter Vivos Trust.
Verification for a Testamentary or Inter Vivos Trust
Request the following:
1. Copy of the trust agreement;
2. Copy of the will, if the trust is a testamentary trust; and
3. Statements from the financial institution, trust
management company, and attorney as to the value of
the trust corpus at the first moment of the first day of the
month(s), the amount and frequency of income produced
by the trust, and the amount of corpus and income
available to the Individual.
Review the trust and determine if the trust:
1. Is a testamentary or inter vivos trust;
2. Is revocable or irrevocable;
3. Was established by someone other than the Individual,
such as a spouse, parent, grandparent, etc;
4. Was established with the assets of a third party;
5. Restricts the Individual’s access; or
6. Names the Individual as the trustee.
Based on the review, count the value of the corpus of the
trust as an available resource if the trust is a testamentary
or inter vivos trust and the:
1. Trust is revocable; and
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2. Individual is named as the trustee and can use the
money for his or her own benefit.
Based on the review, do not count the value of the corpus
of the trust as an available resource if the trust is a
testamentary or inter vivos trust and the:
1. Individual is not the trustee of the trust; and
2. Individual’s access to the trust is restricted (i.e. only the
trustee or the court may withdraw the corpus).
Additionally, the corpus of the trust is not counted as an
available resource to the individual, even if the:
1. Legal guardian is the trustee;
2. Trust provides a regular, specified payment/disbursement
to the Individual; or
3. Trust provides for discretionary withdrawals by the
trustee.
I-1720 MEDICAID QUALIFYING TRUST
A Medicaid Qualifying Trust (MQT) is a trust established prior to
August 11, 1993 which:
● Is established with the applicant/beneficiary's own funds
by the applicant/beneficiary, spouse, guardian, or legal
representative, or is established on behalf of an
applicant/beneficiary who has a cognitive impairment or
intellectual disability using his/her own funds by the legal
guardian on or after April 7, 1986;
● Names the applicant/beneficiary as the trust beneficiary
of all or part of the payments from the trust; and
● Permits the trustee to exercise any discretion with
respect to the distribution of such payments to the
individual.
Prior to April 7, 1986, an applicant/beneficiary could use the
trust mechanism to shield his own funds from being counted for
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Medicaid purposes. Therefore, these trusts were called
Medicaid Qualifying Trusts. The applicant/beneficiary could
create a trust with his own funds and give discretion to the
trustee concerning distribution of trust funds. The
applicant/beneficiary, therefore, no longer had access to the
funds. The penalty for transfer of resources could be applied.
The value of the trust was not counted after any penalty period
had expired.
Trusts set up in this manner, whether created before or after
April 7, 1986, are now counted as resources even though they
are still called Medicaid Qualifying Trusts.
Exception:
A trust established prior to April 7, 1986 with the
beneficiary's own funds solely for the benefit of a
beneficiary who has a cognitive impairment or
intellectual disability residing in an ICF/ID facility
is not considered a Medicaid Qualifying Trust.
Count as a resource the maximum amount that could be
distributed to the trust beneficiary under the terms of the trust, if
the trustee exercised his full discretion.
If a Medicaid Qualifying Trust is revoked or if the full amount of
the principal of the trust is actually distributed to the
applicant/beneficiary, it is no longer a Medicaid Qualifying trust.
These assets must then be examined to determine the
countable value according to policy for that particular type of
resource.
The trust rules of the SSI cash assistance program (refer to
I-1634 Types of Resources (SSI-Related)
are used to evaluate
the impact on Medicaid eligibility of trusts established prior to
August 11, 1993 that do not meet the definition of a Medicaid
Qualifying Trust.
I-1730 TRUSTS ESTABLISHED AFTER AUGUST 11, 1993
The Omnibus Budget Reconciliation Act of 1993 (OBRA 93)
included new requirements applicable to the treatment of trusts
established on or after August 11, 1993. This policy does not
apply to trusts established with assets that did not belong to the
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individual. Regardless of when the trust was established, refer
to applicable cash assistance policies to determine the impact
on Medicaid eligibility of trusts established with the assets of
someone other than the individual. Trusts established before
August 11, 1993 with the individual’s assets are subject to the
rules at I-1710.
OBRA 93 requirements apply to eligibility determinations and
post eligibility determinations for all individuals, including cash
assistance recipients and others who are otherwise
automatically eligible and whose income and resources are not
ordinarily measured against an independent Medicaid eligibility
standard.
The requirements apply to trusts without regard to:
• The purpose for which the trust is established;
• Whether the trustee(s), has or exercises any discretion
under the trust;
• Any restrictions on when or whether distributions can be
made from the trust; or
• Any restrictions on the use of distributions from the trust.
Any trust which meets the basic definition of a trust can be
counted in determining eligibility for Medicaid. No clause or
requirement in the trust, no matter how specifically it applies to
Medicaid or other Federal or State programs, i.e. exculpatory
clause, precludes a trust from being considered.
The trust provisions apply to all applicants/beneficiaries,
whether in an institutionalized setting or not. However, the
penalty period for transfers of assets into irrevocable trusts
applies only to a person in an institutional setting.
Individuals to Whom Trust Provisions Apply
This policy applies to any individual who establishes a trust
and who is an applicant/beneficiary of Medicaid. An
individual is considered to have established a trust if:
• The trust was established on or after August 11, 1993;
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• The individual’s assets were used to form all or part of
the corpus of the trust; and
• The trust was established by the individual, the
individual’s spouse, any person, including a court or
administrative body, with legal authority to act on
behalf of or in place of the individual or individual’s
spouse, or any person, including a court or
administrative body, acting upon the discretion or the
request of the individual or the individual’s spouse.
If the trust corpus includes assets of another person as well
as of the individual, the prorated amounts of income and
resources based on the proportion of the individual's assets
shall be used in determining countable income and
resources in the trust for eligibility and post-eligibility
purposes.
Treatment of Revocable Trusts
Use the following criteria to determine how a revocable trust
is counted for eligibility purposes.
● The entire corpus of a revocable trust is counted as
an available resource to the individual.
● Any payments from the trust made to or for the benefit
of the individual are counted as income to the
individual. Refer to 3 of I-1670 for definition of
Income.
● Any payments from the trust which are not made to or
for the benefit of the individual are considered assets
disposed of for less than fair market value.
If a portion of a revocable trust is treated as a transfer of
assets for less than FMV, the look-back period is extended to
sixty (60) months.
Example:
Mr. Baker establishes a revocable trust with a corpus of
$100,000 on March 1, 2006, enters a nursing facility on
November 15, 2009, and applies for Medicaid February
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15, 2010. The trustee has the complete discretion in
disbursing funds from the trust. Each month the trustee
disburses $100 as an allowance to Mr. Baker and $500
to a property management firm for the upkeep of Mr.
Baker’s home. On June 15, 2006, the trustee gives
$50,000 from the corpus to Mr. Baker’s brother. The
$100 personal allowance and $500 for the upkeep of
the home are counted as income for Mr. Baker.
Because the trust is revocable, the entire value of the
corpus is considered a resource. However, in June the
trustee gave away $50,000. Only the remaining
$50,000 is countable as a resource to Mr. Baker. The
$50,000 given to Mr. Baker’s brother is treated as a
transfer of resources for less than fair market value.
Treatment of Irrevocable Trusts
If there are any circumstances under which payment from an
irrevocable trust could be made to or for the benefit of the
Individual, then:
● Payments from income or from the corpus made to or
for the benefit of the individual are treated as income
to the individual;
● Income on the corpus of the trust which could be paid
to or for the benefit of the individual is treated as a
resource available to the individual;
● The portion of the corpus that could be paid to or for
the benefit of the individual is treated as a resource
available to the individual; and
● Payments from income or from the corpus that are
made but not to or for the benefit of the individual are
treated as a transfer of assets for less than fair market
value.
Example:
Mr. Baker establishes an irrevocable trust with a
corpus of $100,000 on March 1, 2006, enters a
nursing facility on November 15, 2009 and applies
for Medicaid February 15, 2010. The trustee has
the discretion to disburse the entire corpus and all
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income from the trust to anyone, including the
grantor. Each month the trustee disburses $100 as
an allowance to Mr. Baker and $500 to a property
management firm for the upkeep of Mr. Baker’s
home. The $100 personal allowance and $500 for
the upkeep of the home are counted as income for
Mr. Baker. In June the trustee gave away $50,000.
The remaining $50,000 is countable as a resource
to Mr. Baker since there are circumstances under
which payment of this account could be made to
Mr. Baker. The $50,000 given to Mr. Baker’s
brother is treated as a transfer of resources for
less than fair market value.
If the trust is irrevocable and if all or a portion of the corpus
or income on the corpus of a trust cannot be paid to the
individual under any circumstances, treat all or any such
portion or income as a transfer of assets for less than fair
market value.
The date of the transfer is considered to be:
● The date the trust was established; or
● If later, the date on which payment to the individual
was foreclosed.
For transfer of asset purposes, use the value of assets in the
trust on the date the trust is established or payment is
foreclosed. If the trustee or the grantor adds funds to the
trust after the dates listed above, the addition of funds is
considered to be a new transfer of assets, effective on the
date the funds are added.
If all or a portion of an irrevocable trust is treated as a transfer
of assets for less than FMV, the look-back period is extended
to sixty (60) months.
Example:
Using the facts of the previous irrevocable trust
example except the trustee is prohibited by the trust
from disbursing any of the corpus of the trust to or for
Mr. Baker. Again the $100 and $500 (which come
from income to the trust) are counted as income for
Mr. Baker. Because none of the corpus can be
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disbursed to Mr. Baker, the entire value of the corpus
at the time the trust was created ($100,000) is treated
as a transfer of resources for less than fair market
value. The $50,000 given to Mr. Baker’s brother does
not alter the amount of the transfer upon which the
penalty is based. If Mr. Baker places an additional
$50,000 in the trust, none of which can be disbursed
to him, is treated as an additional transfer of assets.
Payments Made from Revocable or Irrevocable Trusts to, or
Payments are considered to be made to the individual when
any amount from the trust, from the corpus or income
produced by the corpus, is paid to the individual or to
someone acting on his/her behalf.
Circumstances Under Which Payments Can or Cannot Be
Made
To determine whether payments can or cannot be made
from a trust to or for an individual, consider any restrictions
on payments, such as use restrictions, exculpatory clauses,
or limits on trustee discretion.
Example:
If an irrevocable trust provides that the trustee can
only disburse $1000 to or for an individual out of a
$20,000 trust, only the $1,000 is treated as a payment
that could be made. The remaining $19,000 is
treated as an amount which cannot, under any
circumstances, be paid to or for the benefit of the
individual. However, if a trust contains $50,000 that
the trustee can pay to the grantor only in the event
that the grantor needs, for example, a heart
transplant, the full $50,000 is considered as payment
that could be made under some circumstance and
thus the full $50,000 is considered an available
resource to the individual.
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Placement of Excluded Assets in Trust
Placement of an excluded asset, with the exception of the
home of an institutionalized individual, in a trust does not
change the excluded nature of that asset; it remains
excluded. Because 1917(e) of the Social Security Act
provides that the home is not an excluded resource for
institutionalized individuals, placement of the home of an
institutionalized individual in a trust results in the home
becoming a countable resource.
Use of Trust vs. Transfer Rules for Assets Placed in Trust
Placement of a non-excluded asset in a trust generally
results in a transfer of assets for less than fair market value.
Because the trust provisions are more specific and detailed
in their requirements for dealing with funds placed in a trust,
evaluate assets placed in trust exclusively under trust policy,
which may in some instances require that trust assets be
treated as a transfer for less than FMV.
Legal Instrument or Device Similar to a Trust
Any legal instrument, device, or similar arrangement which
may not be called a trust under Louisiana law, but which is
similar to a trust in that it involves a settlor who transfers
property to a trustee. This can include (but is not limited to)
annuities, escrow accounts, investment accounts, pension
funds, certain Uniform Transfer to Minors Act (UTMA)
accounts and other similar devices managed by an individual
or entity with fiduciary obligations. For instruction on
treatment of these types of accounts, see the appropriate
section in this Manual.
I-1740 EXCEPTIONS TO COUNTING TRUSTS ESTABLISHED
AFTER AUGUST 11, 1993
Policy I-1730 regarding how a trust is counted for eligibility
determination purposes does not apply to Special Needs Trusts
(SNT) or Pooled Trusts as described below. Trusts that meet
the exception requirements are treated differently in determining
eligibility for Medicaid. Funds entering and leaving these trusts
are treated according to the rules of the applicable cash
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assistance program, i.e. PCR, FITAP or SSI.
Treatment of Special Needs Trusts
To qualify as a Special Needs Trust under Section
1917(d)(4)(A) of the Social Security Act and as an exception
to the general rule of a trust as a countable resource, the
trust must contain the following elements:
a. Assets of an individual under age 65;
To qualify for the special needs trust exception,
the trust must be established for the benefit of an
individual with disabilities under age 65. This
exception does not apply to a trust established for
the benefit of an individual age 65 or older. If the
trust was established for the benefit of an
individual with disabilities prior to the date the
individual attained age 65, the exception continues
to apply after the individual reaches age 65.
b. Additions to the trust after age 65;
Additions to or augmentation of a trust after age
65 (except as outlined below) are not subject to
this exception. Such additions may be income in
the month added to the trust depending on the
source of the funds and may be counted as
resources in the following months under regular
Additions or augmentation do not include interest,
dividends or other earnings of the trust or a portion
of the trust meeting the special needs trust
exception. If the trust contains the irrevocable
assignment of the right to receive payments from
an annuity or support payments made when the
trust beneficiary was less than 65 years of age,
annuity or support payments paid to a special
needs trust are treated the same as payments
made before the individual attained age 65 and do
not disqualify the trust from the special needs trust
exception.
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c. Benefits the individual;
Under the special needs trust exception, the trust
must be established for and used for the benefit of
the individual with disabilities. SSA has interpreted
this provision to require that the trust be for the
sole benefit of the individual. Other than trust
provisions for qualifying third party payments and
reasonable expenses of administration related to
the trust, any provisions that:
• Provide benefits to others or entities during
the individual's lifetime, or
• Allow for termination of the trust prior to the
individual's death and payment of the
corpus to another individual or entity (other
than the State(s) or another creditor for
payment for goods or services provided to
the individual) will result in disqualification
for the special needs trust exception.
d. Who established the trust;
Trusts established before December 13, 2016
The special needs trust exception does not apply
to a trust established before December 13, 2016
through the actions of the individual with
disabilities himself or herself. To qualify for the
special needs trust exception, the assets of the
disabled individual must be put into a trust
established through the actions of the individual's:
• Parent(s);
• Grandparent(s);
• Legal guardian(s); or
• A court.
Trust established on or after December 13,
2016
The special needs trust exception applies to trusts
established on or after December 13, 2016 for the
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benefit of an individual with disabilities under age
65 through the actions of the:
• Individual;
• The individual’s parent(s);
• The individual’s grandparent(s);
• The individual’s legal guardian(s); or
• A court.
In the case of a legally competent, adult with
disabilities, a parent or grandparent may establish
a “seed” trust using a nominal amount of his or her
own money, or an empty or dry trust. After the
seed trust is established, the legally competent
adult with disabilities may transfer his or her own
assets to the trust, or another individual with legal
authority (e.g., power of attorney) may transfer the
individual's assets into the trust.
In the case of a trust established through the
actions of a court, the creation of the trust must be
required by a court order. Approval of a trust by a
court is not sufficient.
Note:
The person establishing the trust with the assets
of the individual or transferring the assets of the
individual to the trust must have legal authority to
act with respect to the assets of that individual.
Attempting to establish a trust with the assets of
another individual without proper legal authority to
act with respect to the assets of the Individual will
generally result in an invalid trust. A power of
attorney (POA) is legal authority to act with
respect to the assets of an individual with
disabilities. However, a trust established under a
POA will result in a trust we consider to be
established through the actions of the individual
himself or herself.
e. State Medicaid reimbursement requirement;
To qualify for the special needs trust exception,
the trust must contain specific language that
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provides that upon the death of the individual, the
State of Louisiana shall receive all amounts
remaining in the trust, up to an amount equal to
the total amount of medical assistance paid on
behalf of the individual under the State Medicaid
plan(s). The State of Louisiana’s claim shall be
considered a privilege on the succession estate,
and shall have a priority equivalent to an expense
of last illness as prescribed in Civil Code Article
3252 et seq.
The trust must provide payback for any State(s)
that may have provided medical assistance under
the State Medicaid plan(s) and not be limited to
any particular State(s). Medicaid payback may not
be limited to any particular period of time, i.e.
payback cannot be limited to the period after
establishment of the trust.
Note:
Labeling the trust as a Medicaid pay-back trust,
OBRA 93 pay-back trust, trust established in
accordance with 42 U.S.C. § 1396p, or as an
MQT, etc. is not sufficient to meet the
requirements for this exception. The trust must
contain language substantially similar to the
language above. An oral trust cannot meet this
requirement.
Non-Assignable Income Added to Trusts
Certain payments are non-assignable by law and, therefore,
are income to the individual entitled to receive the payment.
They may not be paid directly into a trust, but individuals
may attempt to structure trusts so that it appears that they
are so paid. Non-assignable payments include:
• Temporary Assistance to Needy Families (TANF)/Aid
to Families with Dependent Children (AFDC);
• Railroad Retirement Board-administered pensions;
• Veterans’ pensions and assistance;
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• Federal employee retirement payments (CSRS, FERS)
administered by the Office of Personnel Management;
• Social Security Title II (RSDI) and SSI payments; and
• Private pensions under the Employee Retirement
Income Security Act (ERISA) (29 U.S.C.A., Section
1056(d)).
Assignable Income Added to Trusts
A legally assignable payment that is assigned to a
trust/trustee is income unless the assignment is irrevocable.
For example, child support or alimony payments paid directly
to a trust/trustee as a result of a court order are not income.
If the assignment is revocable, the payment is income to the
individual legally entitled to receive it.
Pooled Trusts
A Specific exemption exists for transfers of funds into trusts
for persons with disabilities under the age of 65. Although a
pooled trust can be established for individuals age 65 or
older, there is no exemption from transfer of asset provisions
for funds placed in a pooled trust for individuals age 65 or
older. Transfer of assets rules apply to pooled trusts
established for individuals age 65 and older.
A pooled trust which contains the assets of an individual
under age 65 who is disabled as defined by the SSI program
must also meet the following conditions:
• The trust is established and managed by a non-profit
association;
• A separate account is maintained for each beneficiary
of the trust, but for purposes of investment and
management of funds, the trust pools the funds in
these accounts;
• Accounts in the trust are established solely for the
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benefit of individuals with disabilities, by the
individual, the parent, grandparent, legal guardian of
the individual, or by a court; and
• To the extent that any 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(s) the amount remaining in the account
up to an amount equal to the total amount of medical
assistance paid on behalf of the beneficiary under the
State Medicaid plan(s).
Miller-Type or Qualifying Income Trusts
Miller-Type or Qualifying Income Trusts are applicable in a
State only if the State's Medicaid plan provides Medicaid to
individuals eligible under a special income level (SIL) but
does not provide Medicaid for nursing facility services to the
medically needy.
Thus, Miller-Type or Qualifying Income Trusts were
applicable in Louisiana effective July 1, 1996 through June
30, 1997 due to the State's termination of the Title XIX
Medically Needy Program coverage plan.
Effective July 1, 1997, Miller-Type or Qualifying Income
Trusts are no longer applicable due to the re-implementation
of a Title XIX Medically Needy Program.
Post-Eligibility Treatment of Income
Income Not Placed in a Miller Trust - Income retained by the
individual is income to the individual according to SSI policy.
Thus, such income is subject to the post-eligibility rules.
