(A) To be considered for a waiver due to undue hardship, the applicant must meet all other applicable eligibility criteria for assistance. If the federal "transfer of resources" rule set forth in 42 U.S.C. Section 1396p(c), as amended, applies to the applicant, then no undue hardship waiver may be granted until the period of ineligibility has expired. For the purposes of this subsection, the maximum length of ineligibility is extended to sixty months from the date of any improper transfer.
(B) The trust established for the applicant must meet the following criteria:
(1) the applicant's monthly gross income from all sources, without reference to the trust, exceeds the income eligibility standard for Medicaid then in effect but is less than the average private pay rate for nursing home care for the State;
(2) the property used to fund the trust is limited to monthly unearned income owned by the applicant, including any pension payment;
(3) the applicant and the state Medicaid program are the sole beneficiaries of the trust;
(4) the entire income and corpus of the trust, or as much as may be distributed each month without violating federal requirements for federal financial participation, must be distributed each month for expenses related to the applicant's nursing home care that are approved under the Medicaid program, except that:
(a) an amount reasonably necessary to maintain the existence of the trust, as approved by the Medicaid program, may be retained in the trust; and
(b) deductions may be distributed from the trust to the same extent deductions from the income of a nursing home resident who is not a trust beneficiary are allowed under the Medicaid program, which shall include:
(i) monthly personal needs allowance;
(ii) payments to the beneficiary's community spouse or dependent family members as provided and in accordance with state and federal law;
(iii) specified health insurance costs and special medical services provided under Title XIX of the federal "Social Security Act", 42 U.S.C. Section 1396a(r), as amended; and
(iv) other deductions provided in regulations of the State Health and Human Services Finance Commission;
(5) upon the death of the beneficiary, a remainder interest in the corpus of the trust passes to the State Health and Human Services Finance Commission. The commission shall remit the state share of the trust to the general fund; and
(6) the trust is not subject to modification by the beneficiary or the trustee without the approval of the state Medicaid program.
1993 Act No. 164, Part II, Section 74A.