(a) A Medicaid-qualifying trust (MQT) is a trust that a recipient, the recipient's spouse or guardian, or anyone holding the recipient's power of attorney establishes using the recipient's money. The recipient is the beneficiary of an MQT. A trust meeting this definition that was established between June 1, 1986, and August 10, 1993, is an MQT. A trust meeting this definition that was established before June 1, 1986, is treated as a standard inter vivos trust.
(b) Except as described in §358.338 of this division (relating to Treatment of a Trust Established with Zebley v. Sullivan Settlement Funds), the Texas Health and Human Services Commission (HHSC) counts potential distributions from an MQT as resources available to a person, whether or not distributions are actually made.
  (1) The amount available to the person is the maximum amount the trustee could distribute under the terms of the trust.
  (2) If distribution is not made, the maximum amount the trustee may distribute under terms of the trust is considered an available resource.
  (3) If a trust does not specify an amount for distribution, and if the trustee has access to and use of the principal, then HHSC counts:
    (A) the corpus of the trust as a resource; and
    (B) payments from the trust to or for the benefit of the person as income only if the payments would ordinarily be counted as income in accordance with 20 CFR §416.1102.

Source Note: The provisions of this §358.337 adopted to be effective September 1, 2009, 34 TexReg 5497