Title 7 . Health and Social Services

Chapter 45 . Hearings

Section 300. Exempt resources

7 AAC 45.300. Exempt resources

(a) Exempt resources are not considered in determining eligibility for ATAP benefits. A resource is not exempt unless it is determined to be wholly or partially exempt under this section or 7 AAC 45.301.

(b) The physical structure that serves as the applicant's or recipient's residence, and the land upon which that structure is situated, are an exempt resource. For any other land to be exempt, it must be fully contiguous to the land upon which the residence is situated.

(c) A business property is a nonexempt resource unless the property is also the applicant's or recipient's residence or is land that is fully contiguous to the land on which the residence is situated.

(d) For purposes of (b) and (c) of this section, land is fully contiguous if it touches the land upon which a residence is located. An easement or right-of-way on the land does not cause that land to cease to be fully contiguous. Land is not fully contiguous if it can be sold separately from the land upon which the residence is located without platting or other intervention of a federal, state, or local government.

(e) Land and stock distributed to Alaska Natives and their descendants under 43 U.S.C. 1601 - 1629h (Alaska Native Claims Settlement Act (ANCSA)) and held by an Alaska Native, or a descendant of that Alaska Native, to whom it was distributed, are exempt resources. The first $2,000 cash of distributions that an individual retains in a calendar year from a village or regional corporation established under ANCSA is an exempt resource. Any amount received and retained in excess of $2,000 in a calendar year is a nonexempt resource. If an individual receives cash distributions from one or more ANCSA corporations, the combined total amount of those distributions that is retained and that exceeds $2,000 in a calendar year is a nonexempt resource. This $2,000 exemption applies to each individual in an economic unit and to each calendar year.

(f) Payments made to or held in trust for a member of an Indian tribe under 25 U.S.C. 117a - 117c, 459 - 459e, 1261, and 1401 - 1407, and purchases made with that money, are exempt resources.

(g) Land that is classified as "Native Restricted Deed" and that cannot be sold without approval of the Bureau of Indian Affairs, or land that may not have the same classification but that has substantially similar title restrictions, is an exempt resource.

(h) Personal effects and household goods that are essential to day-to-day living are exempt resources. Luxury items that are not essential to daily life are determined to be either exempt or nonexempt resources under (o) of this section.

(i) Tools, light machinery, or farm machinery necessary to produce income are exempt resources.

(j) Stock and inventory necessary to produce self-employment income, including fish nets, traps, motor vehicles, transferable limited entry fishing permits issued under AS 16.43 (Regulation of Entry into Alaska Commercial Fisheries), and handicrafts on consignment for sale, are exempt resources if they are actually producing gross self-employment income as defined in 7 AAC 45.445, or would be producing income except for temporary factors beyond the applicant's or recipient's control.

(k) Unless otherwise exempt under this section, real property is an exempt resource if the applicant or recipient is making a good faith effort to sell the property. For purposes of this subsection, the department will consider an applicant or recipient to be making a good faith effort to sell if the property is actually being offered for sale on a continuous basis by being listed with a realtor or, if offered privately, by being advertised in the local newspaper at least once a month. A visible "for sale" sign must be posted on the property. The property must be offered at a price that is not greater than the prices for similar properties in the area.

( l ) A corrective payment of ATAP benefits is an exempt resource in the month that it is received.

(m) A resource placed in trust for a member of an ATAP economic unit is considered an available and nonexempt resource, unless the trust is established by an individual who is not a member of the economic unit and the trust document prohibits distribution for basic living expenses. The department will individually examine all other trusts that pertain to a member of an assistance unit, to determine if the property of the trust, or its income, are exempt resources. For a trust for which the department determines that trust property or trust income is a nonexempt resource, the applicant must provide a copy of the trust document and any related documents necessary to determine the net worth of that trust. If an individual who has the power to terminate or modify the trust agrees to terminate or modify the trust and release the property or the balance of the trust to the caretaker relative, the relative's spouse, or to the child receiving ATAP benefits, the trust property and trust income are nonexempt resources.

(n) A motor vehicle is exempt if the motor vehicle is used for family transportation necessary to meet basic needs, including obtaining food, medical care, other essentials, or for transportation to or from school, work, or training. A motor vehicle also is exempt if necessary to transport a disabled family member, to produce self-employment income, or for a family member to participate in a work activity approved by the department, or if used as the family's home. The equity value of a motor vehicle that is not exempt under this subsection is considered a nonexempt resource.

( o ) The equity value of household goods and personal effects that are nonessential luxury items are exempt resources, with the following exceptions:

(1) a luxury item is exempt if its equity value is $1,000 or less;

(2) entertainment devices, personal apparel, rare-metal service items regularly used by the family, and religious articles are exempt regardless of value;

(3) a decorative object of art is totally exempt, regardless of its value, if the object

(A) was made by a person whose relationship to the applicant or recipient would qualify that person as a caretaker relative if that person were actually providing care and control of the dependent child; or

(B) has an important cultural significance to the applicant's or recipient's clan, village, ethnic group, or racial community, such that the applicant or recipient is, in effect, acting as caretaker or agent of the community and is not free to dispose of the item without suffering personal or social consequences for violating rules or unwritten traditions of the clan, village, ethnic group, or racial community.

(p) One burial plot for each assistance unit member is an exempt resource, regardless of location, salability, or equity value. The equity value of a funeral agreement regarding an assistance unit member, up to a limit of $1,500, is an exempt resource. The equity value of a funeral agreement in excess of $1,500 is a nonexempt resource.

(q) The department will consider as a nonexempt resource all or part of the cash on hand or in an account held in whole or in part by an applicant or recipient, unless the applicant or recipient demonstrates to the department's satisfaction that the money belongs to another person for whom the applicant or recipient has agreed to act as an agent, trustee, payee, or financial guardian, and that the money is not being used for the support of the assistance unit. If the applicant or recipient cannot demonstrate to the department's satisfaction that the money is not available to the assistance unit, the department will give written notice that the applicant or recipient has 30 days to modify or end the agreement before the department will consider the money a nonexempt resource. A bank account jointly owned by an applicant or recipient and by another person is a nonexempt resource if the applicant or recipient can withdraw money from that account without the consent of the other person and can use the money for any purpose without incurring liability to the other person.

(r) Cash on hand or in an account is an exempt resource if it was received as

(1) an educational, personal, commercial, or other loan for which the borrower has an obligation, and expresses an intent, to repay;

(2) federal major disaster and emergency assistance under 42 U.S.C. 5121 - 5206 (Disaster Relief Act of 1974), and comparable disaster assistance provided by the state, a local government, or a disaster assistance organization;

(3) a restitution payment made to Aleuts or individuals of Japanese ancestry under 50 U.S.C. App. 1989 - 1989d; or

(4) income earned from participation in a youth activity operated under 29 U.S.C. 2854 (sec. 129 of the Workforce Investment Act of 1998).

(s) Compensation paid under AS 18.67 or a similar program established by another state or by the federal government to aid a victim of a violent crime is an exempt resource.

(t) Money held in a publicly or privately funded individual development account that meets the requirements of 42 U.S.C. 604(h) (sec. 404(h) of the Social Security Act), including interest earned and left to accumulate in that account is an exempt resource.

(u) In this section

(1) "burial plot" includes

(A) a parcel of ground located in a cemetery and suitable for the burial of one person;

(B) a vault in a mausoleum;

(C) a one-person mausoleum or crypt;

(D) a niche in a columbarium or a cinerarium; and

(E) any markers and maintenance that are conveyed as a natural benefit of ownership;

(2) "funeral agreement" means a legally binding written agreement between a member of an assistance unit and a provider of funeral, burial, or cremation services and goods that provides for prepayment of services upon death; "funeral agreement" includes agreements called "burial contracts" or burial or funeral "trusts";

(3) "residence" means a structure permanently affixed to or situated on land; "residence" includes a mobile home, motor home, travel trailer, and companion structures such as a garage, tool shed, outhouse, or lean-to.

History: Eff. 8/5/92, Register 123; am 7/1/97, Register 142; am 10/1/97, Register 143; am 10/1/2001, Register 159; am 1/7/2005, Register 173

Authority: AS 47.05.010

AS 47.27.005