No. 38098 (Amendment): Rule R414-307. Eligibility for Home and Community-Based Services Waivers

(Amendment)

DAR File No.: 38098
Filed: 11/01/2013 06:44:17 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to comply with provisions of the Patient Protection and Affordable Care Act (PPACA) for eligibility under the home and community-based services waivers for married individuals with a community spouse.

Summary of the rule or change:

This amendment requires the Department to apply the provisions of Section 1924 of the Social Security Act in determining eligibility and the post-eligibility deductions under the home and community-based services waivers for married individuals with a community spouse for the waiver programs.

State statutory or constitutional authorization for this rule:

• Pub. L. No. 111-148
• Section 26-1-5
• Section 26-18-3

This rule or change incorporates by reference the following material:

• Adds Section 1917(f) of the Compilation of the Social Security Laws, published by Social Security Administration, 01/01/2013

Anticipated cost or savings to:

the state budget:

The impact to the state budget is addressed in the companion rule filing for Rule R414-304. (DAR NOTE: The proposed amendment to Rule R414-304 is under DAR No. 38100 in this issue, November 15, 2013, of the Bulletin.)

local governments:

There is no impact to local governments because they neither fund Medicaid services nor make eligibility determinations for the Medicaid program.

small businesses:

This amendment does not impose any new costs or requirements because it does not affect services for Medicaid recipients and small businesses do not make eligibility determinations for the Medicaid program. In addition, this amendment does not affect business revenue because the conversion process to MAGI-based methodology does not systematically increase or decrease Medicaid eligibility.

persons other than small businesses, businesses, or local governmental entities:

Some Medicaid recipients may realize savings roughly equivalent to the anticipated state costs because more individuals will become eligible for Medicaid services. Nevertheless, this amendment does not affect provider revenue because the conversion process to MAGI-based methodology does not systematically increase or decrease Medicaid eligibility.

Compliance costs for affected persons:

There are no compliance costs because this amendment can only result in out-of-pocket savings to a single Medicaid recipient. Furthermore, this amendment does not affect provider revenue because the conversion process to MAGI-based methodology does not systematically increase or decrease Medicaid eligibility.

Comments by the department head on the fiscal impact the rule may have on businesses:

The changes may modify individual eligibility but will have no impact on business.

David Patton, PhD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Care Financing, Coverage and Reimbursement Policy
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Craig Devashrayee at the above address, by phone at 801-538-6641, by FAX at 801-538-6099, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/16/2013

This rule may become effective on:

01/01/2014

Authorized by:

David Patton, Executive Director

RULE TEXT

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-307. Eligibility for Home and Community-Based Services Waivers.

R414-307-3. General Requirements for Home and Community-Based Services Waivers.

(1) The Department shall apply the provisions of Sec. 2404 of Pub. L. No. 111 148, Patient Protection and Affordable Care Act, which refers to applying the provisions of Section 1924 of the Social Security Act to married individuals who are eligible for home and community-based waiver services.[ The following provisions apply to all applicants and recipients of home and community- based services waivers:]

([1]2) To qualify under a home and community -based services waiver, an individual must meet:

(a) the medical eligibility criteria defined in the waiver implementation plan adopted in Rule R414-61 applicable to the specific waiver under which the individual is seeking services, as verified by the referring agency case manager;

(b) the eligibility criteria for one of the Medicaid coverage groups selected for coverage in the specific waiver implementation plan under which the individual is seeking services;[ and]

(c) the non-financial Medicaid criteria defined in Rule R414-302; and

(d) the requirements in this rule applicable to all waiver applicants and recipients, as well as requirements specific to the waiver for which the individual is seeking eligibility.

([2]3) The provisions found in Rule R414-301 apply to applicants and recipients of home and community-based services waivers.

([3]4) For individuals claiming a disability, the disability provisions of Rule R414-303 apply.

([4]5) Except where otherwise stated in this rule, the income provisions of Rule R414-304 apply to waiver applicants and recipients.

([5]6) Except where otherwise stated in this rule, the resource provisions of Rule R414-305 apply to waiver applicants and recipients.

([6]7) The benefit provisions of Rule R414-306 apply to waiver applicants and recipients.

([7]8) The provisions found in Rule R414-308 that apply to eligibility determinations, redeterminations, change reporting, verification, and improper medical assistance also apply to waiver applicants and recipients.

([8]9) The Department shall limit the number of individuals covered by a home and community -based[-] services waiver as provided in the adopted waiver implementation plan.

([9]10) The Department adopts and incorporates by reference, Section 1917(f) of the Social Security Act, effective January 1, 2013.[shall not pay for waiver services] An individual is ineligible for nursing facility and other long-term care services when an individual has home equity that exceeds the limit set forth [by Pub. L. No. 109 171]in Section 1917(f).

(a) The Department sets that limit at the minimum level allowed under [Pub. L. No. 109 171]Section 1917(f).

(b) An individual who has excess home equity and meets eligibility criteria under a community Medicaid eligibility group defined in the Utah Medicaid State Plan may receive Medicaid for services other than long-term care services provided under the plan or the home and community-based waiver[ services].

(c) An individual who has excess home equity and does not qualify for a community Medicaid eligibility group, is ineligible for Medicaid under both the special income group and the medically needy waiver group.

 

R414-307-4. Special Income Group.

The following requirements apply to individuals who qualify for a Medicaid home and community-based services waiver under the special income group defined in 42 CFR 435.217 because they do not meet community Medicaid rules but would be eligible for Medicaid if they were living in a medical institution:

(1) If the individual's spouse meets the definition of a community spouse, the eligibility agency shall apply the income and resource provisions defined in Section 1924 of the Social Security Act and Section R414-305-3.

(2) If the individual does not have a spouse, or the individual's spouse does not meet the definition of a community spouse, the eligibility agency may only count the individual's resources to determine eligibility. If both members of a married couple who live together apply for waiver services and meet the criteria for the special income group, the eligibility agency shall count one-half of jointly-held assets as available to each spouse. Each spouse must pass the medically needy resource test for one person.

(3) The eligibility agency may only count income determined under the most closely associated cash assistance program to decide if the individual passes the income eligibility test for the special income group. The eligibility agency may not count income of the individual's spouse except for actual contributions from the spouse.

(4) If the individual is a minor child, the eligibility agency may not count income and resources of the child's parents to decide if the child passes the income and resource tests for the special income group. The eligibility agency shall count actual contributions from a parent, including court-ordered support payments as income of the child.

(5) The individual's income cannot exceed three times the payment that would be made to an individual with no income under Section 1611(b)(1) of the Social Security Act.

(6) The eligibility agency shall apply the transfer of asset provisions of Section 1917 of the Social Security Act[, as amended by Pub. L. No. 109 171] in effect January 1, 2013.

(7) The individual's cost-of-care contribution [is the income amount remaining after post-eligibility deductions for the applicable waiver. The individual must pay the cost-of-care contribution to the eligibility agency each month for Medicaid waiver eligibility]is determined by deducting from the individual's total income, the post-eligibility allowances for the specific waiver for which the individual qualifies.

[ (8) The eligibility agency shall deduct medical expenses incurred by the individual in accordance with Section R414-304-9.

] ([9]8) The eligibility agency shall determine special income group eligibility for an individual starting the month that waiver services begin. The eligibility agency shall determine eligibility for prior months using the community Medicaid or institutional Medicaid rules applicable to the individual's situation.

 

R414-307-5. Medically Needy Waiver Group.

The following requirements apply to individuals applying for or determined eligible for the New Choices Waiver or the Individuals with Physical Disabilities Waiver who meet the eligibility criteria for a medically needy coverage group defined in 42 CFR 435.301 that the Department has selected for coverage under the implementation plan for the specific waiver:

(1) If an individual's spouse meets the definition of a community spouse, the eligibility agency shall apply the resource provisions defined in Section 1924 of the Social Security Act and Section R414-305-3.

(2) If the individual does not have a spouse or the individual's spouse does not meet the definition of a community spouse, the eligibility agency may only count the individual's resources to determine eligibility. When both members of a married couple who live together apply for waiver services and meet the criteria for the medically needy waiver group, the eligibility agency shall count one-half of jointly-held assets available to each spouse. Each spouse must pass the medically needy resource test for one person.

(3) The eligibility agency may only count income of the individual determined under the most closely associated cash assistance program to decide eligibility for the medically needy waiver group. The eligibility agency may not count income of the individual's spouse except for actual contributions from the spouse.

(4) If the individual is a minor child, the eligibility agency may only count income and resources of the child and may not count income and resources of the child's parents to decide if the child passes the income and resource tests for the medically needy waiver group. The eligibility agency shall count actual contributions from a parent, including court-ordered support payments as income of the child.

(5) The individual's income must exceed three times the payment that would be made to an individual with no income under Section 1611(b)(1) of the Social Security Act.

(6) The eligibility agency shall apply the income deductions allowed by the community Medicaid category under which the individual qualifies. The eligibility agency shall compare countable income to the applicable medically needy income limit for a one-person household to determine the individual's spenddown.

(a) The individual's medical expenses, including the cost of long-term care services, must exceed the spenddown amount.

(b) If an individual does not have a community spouse, [T]the individual must pay the spenddown to the eligibility agency for Medicaid waiver eligibility.

(c) An individual who has a community spouse is subject to the post-eligibility provisions of Section 1924 of the Social Security Act. The eligibility agency determines the individual's cost-of-care contribution by deducting from the individual's total income, the post-eligibility allowances defined in the implementation plan of the specific waiver for which the individual qualifies.

(7) The eligibility agency [shall ]deducts medical expenses incurred by the individual in accordance with Section R414-304-[9]11.

(8) The eligibility agency shall determine an individual's eligibility for the medically needy waiver group starting the month that waiver services begin. The eligibility agency shall determine eligibility for prior months using the community Medicaid or institutional Medicaid rules applicable to the individual's situation.

 

R414-307-6. New Choices Waiver Eligibility Criteria.

[ The following eligibility requirements apply to the New Choices Waiver:

](1) To qualify for the New Choices Waiver, [A]an individual must be 65 years of age [65] or older, or [age 18 through age 64]at least 18 through 64 years of age and disabled as defined in Section 1614(a)(3) of the Social Security Act. For the purpose of this waiver, an individual is 18 years of age beginning the first month after the month of the individual's 18th birthday.

(2) A[n] single individual eligible under the special income group, or any married individual with a community spouse, may be required to pay a contribution toward the cost -of - care to receive home and community - based services. The eligibility agency [shall ]determines a client's cost-of-care contribution as follows:

(a) The eligibility agency [shall ]counts all of the client's income unless [such]the income is excluded under other federal laws that exclude certain income from being counted to determine eligibility for federally-funded, needs-based medical assistance.

(b) The eligibility agency [shall ]deducts the following amounts from the individual's income[.]:

(i) A personal needs allowance equal to 100% of the federal poverty guideline for a household of one[.];

(ii) For individuals with earned income, up to $125 of gross-earned income[.];

(iii) Actual monthly shelter costs not to exceed $300. This deduction includes mortgage, insurance, property taxes, rent, and other shelter expenses[.];

(iv) A deduction for monthly utility costs equal to the standard utility allowance Utah uses under Section 5(e) of the Food Stamp Act of 1977. If the waiver client shares utility expenses with others, the allowance is prorated accordingly[.];

(v) In the case of a married individual with a community spouse, [A]an allowance for a community spouse and dependent family members [living]who live with the community spouse, in accordance with the provisions of Section 1924 of the Social Security Act[.];

(vi) In the case of an individual who does not have a community spouse or whose spouse is also eligible for institutional or waiver services, an allowance for a dependent family member that is equal to one-third of the difference between the minimum monthly spousal needs allowance defined in Section 1924 of the Social Security Act and the family member's monthly income. If more than one individual who qualifies for a Medicaid home and community -based waiver or institutional Medicaid coverage contributes income to the dependent family member, the combined income deductions of [such]these individuals cannot exceed one-third of the difference between the minimum monthly spousal needs allowance and the family member's monthly income[.];

(vii) Medical and remedial care expenses incurred by the individual in accordance with Section R414-304-[9]11.

(c) The income deduction to provide an allowance to a spouse or a dependent family member cannot exceed the amount the individual actually gives to such spouse or dependent family member.

(d) The remaining amount of income after [such]these deductions is the individual's cost -of -care contribution.

(3) The individual must pay the contribution to cost-of-care to the eligibility agency each month to receive home and community - based services.

[(4) The eligibility agency shall count parental and spousal income only if the client receives a cash contribution from a parent or spouse.

]

R414-307-7. Community Supports Home and Community - Based Services Waiver for Individuals with Intellectual Disabilities and Other Related Conditions.

(1) Medicaid eligibility for the Community Supports Home and Community-Based Services waiver is limited to individuals with intellectual disabilities and other related conditions.

(2) An individual's resources must be equal to or less than the Medicaid resource limit applicable to an institutionalized person. The spousal impoverishment resource provisions for married, institutionalized individuals in Section R414-305-3 apply to a married individual.

(3) An eligible individual may be required to pay a contribution toward the cost -of - care to receive home and community -based services. The eligibility agency shall determine an individual's cost-of-care contribution as follows:

(a) The eligibility agency shall count all of the individual's income unless such income is excluded under other federal laws that exclude certain income from being counted to determine eligibility for federally-funded, needs-based medical assistance.

(b) The eligibility agency shall deduct the following amounts from the individual's income:

(i) For an individual with earned income, earned income up to the substantial gainful activity level of earnings defined in Section 223(d)(4) of the Compilation of the Social Security Laws in effect April 4, 2012, to determine countable earned income.

(ii) A personal needs allowance for the individual equal to 100% of the federal poverty level for one person.

(iii) In the case of a married individual with a community spouse, [A]a deduction for a community spouse and dependent family members living with the community spouse in accordance with the provisions of Section 1924 of the Social Security Act.

(iv) In the case of an individual who does not have a community spouse or whose spouse is also eligible for institutional or waiver services, an allowance for a dependent family member that is equal to one-third of the difference between the minimum monthly spousal needs allowance defined in Section 1924 of the Social Security Act and the family member's monthly income. If more than one individual who qualifies for a Medicaid home and community -based waiver or institutional Medicaid coverage contributes income to the dependent family member, the combined income deductions of such individuals cannot exceed one-third of the difference between the minimum monthly spousal needs allowance and the family member's monthly income.

(v) Health insurance premiums for the waiver-eligible recipient paid by the recipient, or medical expenses incurred by the recipient in accordance with Section R414-304-[9]11.

(c) The income deduction to provide an allowance to a spouse or a dependent family member cannot exceed the amount the individual actually gives to such spouse or dependent family member.

(d) The remaining amount of income after such deductions is the individual's cost -of -care contribution.

(4) The individual must pay the contribution to cost-of-care to the eligibility agency each month to receive home and community -based services.

(5) The eligibility agency shall count parental and spousal income only if the individual receives a cash contribution from a parent or spouse.

(6) The provisions of Section R414-305-[8]9 concerning transfers of assets apply to individuals seeking eligibility or receiving benefits under this home and community -based services waiver.

 

R414-307-8. Home and Community - Based Services Waiver for Individuals Age 65 and Older.

(1) Medicaid eligibility for Home and Community-Based Services for individuals [age ]65 years of age and older is limited to individuals eligible for Aged Medicaid who could qualify for skilled nursing home care.

(2) A client's resources must be equal to or less than the Medicaid resource limit applicable to an institutionalized person. The spousal impoverishment resource provisions for married, institutionalized individuals in Section R414-305-3 apply to a married individual.

(3) An eligible client may be required to pay a contribution toward the cost -of -care to receive home and community -based services. The eligibility agency shall determine a client's cost-of-care contribution as follows:

(a) The eligibility agency shall count all income unless such income is excluded under other federal laws that exclude certain income from being counted to determine eligibility for federally-funded, needs-based medical assistance. The eligibility agency shall count a spouse's income only if the client receives a cash contribution from a spouse.

(b) The eligibility agency shall deduct the following amounts from the individual's income:

(i) A personal needs allowance for the individual equal to 100% of the federal poverty level for one person[.];

(ii) For individuals with earned income, up to $125 of gross-earned income[.];

(iii) [An allowance for shelter expenses as defined in the waiver implementation plan.]Actual monthly shelter costs not to exceed $300. This deduction includes mortgage, insurance, property taxes, rent, and other shelter expenses;

(iv) A deduction for monthly utility costs equal to the standard utility allowance Utah uses under Section 5(e) of the Food Stamp Act of 1977. If the waiver client shares utility expenses with others, the allowance is prorated accordingly;

(v) In the case of a married individual with a community spouse, a deduction for a community spouse and dependent family members who live with the community spouse in accordance with the provisions of Section 1924 of the Social Security Act;

[ (iv) A deduction for a community spouse and dependent family members under the spousal impoverishment provisions for Institutional Medicaid defined in Section R414-304-10.

] (v i) In the case of an individual who does not have a community spouse or whose spouse is also eligible for institutional or waiver services, an allowance for a dependent family member that is equal to one-third of the difference between the minimum monthly spousal needs allowance defined in Section 1924 of the Social Security Act and the family member's monthly income. If more than one individual who qualifies for a Medicaid home and community -based waiver or institutional Medicaid coverage contributes income to the dependent family member, the combined income deductions of such individuals cannot exceed one-third of the difference between the minimum monthly spousal needs allowance and the family member's monthly income[.];

(vi i) Health insurance premiums for the waiver-eligible recipient paid by the recipient, or medical expenses incurred by the recipient in accordance with Section R414-304-[9]11.

(c) The income deduction to provide an allowance to a spouse or a dependent family member cannot exceed the amount the individual actually gives to such spouse or dependent family member.

(d) The remaining amount of income after such deductions is the individual's cost -of -care contribution.

(4) The individual must pay the contribution to cost-of-care to the eligibility agency each month to receive home and community -based services.

(5) The provisions of Section R414-305-[8]9 concerning transfers of assets apply to individuals seeking eligibility or receiving benefits under this home and community -based services waiver.

 

R414-307-10. Home and Community-Based Services Waiver for Individuals with Acquired Brain Injury.

(1) To qualify for services under this waiver, the individual must be at least 18 years of age. The person is considered to be 18 years of age in the month in which the 18th birthday falls.

(2) All other eligibility requirements follow the rules for the Home and Community-Based Services Waiver for Aged Individuals found in Section R414-307-8, except for Subsection R414-307-8(1).

 

R414-307-11. Home and Community-Based Services Waiver for Individuals with Physical Disabilities.

(1) To qualify for the waiver for individuals with physical disabilities, the individual must meet non-financial criteria for Aged, Blind, or Disabled Medicaid.

(2) A client's resources must be equal to or less than $2000. The spousal impoverishment resource provisions for married, institutionalized clients in Section R414-305-3 apply to this rule.

(3) Countable income is determined using income rules of Aged, Blind, or Disabled Institutional Medicaid. The eligibility agency [shall]counts all income unless [such]the income is excluded under other federal laws that exclude certain income from being counted to determine eligibility for federally-funded, needs-based medical assistance. Eligibility is determined counting only the gross income of the client.

(4) The eligibility agency [shall] counts a spouse's income only if the client receives a cash contribution from a spouse.

(5) An individual whose income does not exceed 300% of the federal benefit rate, or any married individual with a community spouse may be required to pay a cost-of-care contribution. The following provisions apply to the determination of cost-of-care contribution.

(a) The eligibility agency counts all of the client's income except income that is excluded under other federal laws from being counted to determine eligibility for federally-funded, needs-based medical assistance.

(b) The eligibility agency deducts the maximum allowance available, which is a personal needs allowance equal to 300% of the federal benefit rate payable under Section 1611(b)(1) of the Social Security Act for an individual with no income. No other deductions from income are allowed.

([5]6) [The client's income cannot]An individual who does not have a community spouse and whose income exceeds three times the [SSI]federal benefit [amount]rate payable under Section 1611(b)(1) of the Social Security Act[, except that individuals with income over this amount can]may pay a spenddown to become eligible. To determine the spenddown amount, the income rules and medically needy income standard for non-institutionalized aged, blind or disabled individuals in Rule R414-304 apply except that income is not deemed from the client's spouse.

[ (6) The eligibility agency may not assess a cost-of-care contribution for an individual with income that does not exceed three times the SSI benefit amount.

] (7) The provisions of Section R414-305-[8]9 concerning transfers of assets apply to individuals seeking eligibility or receiving benefits under this home and community-based services waiver.

 

KEY: eligibility, waivers, special income group

Date of Enactment or Last Substantive Amendment: [October 1, 2012]2014

Notice of Continuation: April 17, 2012

Authorizing, and Implemented or Interpreted Law: 26-1-5; 26-18-3

 

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