No. 36443 (Amendment): Rule R414-307. Eligibility for Home and Community-Based Services Waivers

(Amendment)

DAR File No.: 36443
Filed: 07/02/2012 03:44:55 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to incorporate eligibility criteria for all home and community-based services (HCBS) waivers and to implement eligibility provisions for the new Medicaid Autism Waiver program in accordance with H.B. 272, 2012 General Session.

Summary of the rule or change:

This change implements eligibility for the new Medicaid Autism HCBS Waiver, incorporates eligibility criteria for other HCBS waivers, changes the age limit for eligibility under the New Choices Waiver, and makes corrections to match other waiver implementation plans.

State statutory or constitutional authorization for this rule:

• Section 26-18-3
• Section 26-1-5

This rule or change incorporates by reference the following material:

• Adds 42 CFR 435.217 and 435.726, published by Government Printing Office, 10/01/2011
• Adds Title XIX of the Social Security Act, Section 1915(c), published by Social Security Administration, 04/13/2012

Anticipated cost or savings to:

the state budget:

The Legislature appropriated $4,500,000 for this new waiver program. Other changes to this rule, however, do not create additional costs because the Department limits program enrollment to available funding.

local governments:

There is no impact to local governments because they do not determine Medicaid eligibility or fund Medicaid services.

small businesses:

Small businesses may share in the revenue created through this appropriation. At this time, however, the Department cannot estimate a revenue amount because there is no data on the number of individuals who will receive these new waiver services.

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

Medicaid providers may share in the revenue created through this appropriation. At this time, however, the Department cannot estimate a revenue amount because there is no data on the number of individuals who will receive these new waiver services. Medicaid recipients who are eligible under the waiver will save on out-of-pocket expenses.

Compliance costs for affected persons:

A single Medicaid provider may share in the revenue created through this appropriation. At this time, however, the Department cannot estimate a revenue amount because there is no data on the number of individuals who will receive these new waiver services. A single Medicaid recipient who is eligible under the waiver will save on out-of-pocket expenses.

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

Consolidating definitions and standards for Home and Community Based Waiver services will have no negative fiscal impact on business and may simplify compliance.

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:

08/14/2012

This rule may become effective on:

09/01/2012

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.

R414-307-1. Introduction and Authority.

(1) Section 26-18-3 authorizes this rule. It establishes [general ]eligibility requirements for Medicaid coverage for home and community-[ ]based service waivers.[ It also specifies eligibility criteria that applies to the New Choices Home and the Community-Based Services Waiver.]

(2) The Department adopts 42 CFR 435.217 and 435.726, 2011 ed., which are incorporated by reference. The Department adopts Title XIX of the Social Security Act, Section 1915(c) in effect April 13, 2012, which is incorporated by reference.

 

R414-307-2. Definitions.

The definitions found in Rules R 414-1 and R414-301 apply to this rule.

 

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

The following provisions apply to all applicants and recipients of home and community- based services waivers:

(1) 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 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 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) [An individual must apply for and provide required verifications pursuant to R414-308 relating to the application and verification process.]The provisions found in Rule R414-301 apply to applicants and recipients of home and community-based services waivers.

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

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

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

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

(7) 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) 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) The Department shall not pay for waiver services when an individual has home equity that exceeds the limit set forth by Pub. L. No. 109 171.

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

(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 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 [Department]eligibility agency shall apply[ies] 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 [Department]eligibility agency may only count[s only] 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 [Department]eligibility agency shall count[s] 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 [Department]eligibility agency may only count[s only] 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 [Department]eligibility agency may [does] not count income of the individual's spouse except for actual contributions from the spouse.

(4) If the individual is a minor child, the [Department]eligibility agency may [does] 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 [Department]eligibility agency shall count[s] 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 [Department]eligibility agency shall apply[ies] the transfer of asset provisions of Section 1917 of the Social Security Act, as amended by Pub. L. No. 109[-] 171.

(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 [department]eligibility agency each month for Medicaid waiver eligibility.

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

(9) The [Department]eligibility agency shall determine[s] special income group eligibility for an individual starting the month that waiver services begin. The [Department]eligibility agency shall determine[s] 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 [Department]eligibility agency shall apply[ies] 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 [Department]eligibility agency may only count[s only] 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 [Department]eligibility agency shall count[s] one-half of jointly-held assets available to each spouse. Each spouse must pass the medically needy resource test for one person.

(3) The [Department]eligibility agency may only count[s only] income of the individual determined under the most closely associated cash assistance program to decide [if the individual passes the income] eligibility [test ]for the [special income]medically needy waiver group. The [Department does]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 [Department does]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 [Department]eligibility agency shall count[s] 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 [Department]eligibility agency shall apply[ies] the income deductions allowed by the [non-institutional]community Medicaid category under which the individual qualifies. The [Department]eligibility agency shall compare[s] countable income to the applicable medically needy income limit for a one-person household to determine the individual's spenddown. The individual must pay the spenddown to the [Department]eligibility agency for Medicaid waiver eligibility.

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

(8) The [Department]eligibility agency shall determine[s] an individual's eligibility for the medically needy waiver group [eligibility for an individual] starting the month that waiver services begin. The [Department]eligibility agency shall determine[s] 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) An individual must be age 65 or older, or age [21]18 through age 64 and disabled as defined in Section 1614(a)(3) of the Social Security Act. For the purpose of this waiver, an individual is [21]18 years of age beginning the first month after the month of the individual's [21st]18th birthday.

(2) An individual eligible under the special income group 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 of the client'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.

[ (2) Under post-eligibility income rules defined in Section 1924 of the Social Security Act for individuals with a community spouse, and in 42 CFR 435.726 for individuals without a community spouse, the Department deducts the following amounts from the income of an individual who meets the eligibility criteria for the special income group:

]([a]b) The eligibility agency shall deduct 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.

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

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

([d]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.

([e]v) An allowance 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.

([f]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[s] 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.

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

(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.

(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) 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.

(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 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 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.

(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) 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) 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.

(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 concerning transfers of assets apply to individuals seeking eligibility or receiving benefits under this home and community based services waiver.

 

R414-307-9. Home and Community Based Services Waiver for Technology Dependent/Medically Fragile Individuals.

(1) To be eligible for admission to this waiver, the individual must be under age 21 at the time of admission to the waiver. An individual is considered to be under age 21 until the month after the month in which the 21st birthday falls.

(2) Once admitted to the waiver, the individual can continue to receive waiver benefits and services as long as the individual continues to meet the medical criteria defined by the Department in the Technology Dependent waiver implementation plan, non-financial Medicaid eligibility criteria in Rule R414-302, and a Medicaid category of coverage defined in the waiver implementation plan.

(3) All other eligibility requirements follow the rules for the Community Supports Home and Community-Based Services Waiver found in Section R414-307-7, except for Subsection R414-307-7(1).

 

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.

 

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 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. Eligibility is determined counting only the gross income of the client.

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

(5) The client's income cannot exceed three times the SSI benefit amount payable under Section 1611(b)(1) of the Social Security Act, except that individuals with income over this amount can 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 concerning transfers of assets apply to individuals seeking eligibility or receiving benefits under this home and community-based services waiver.

 

R414-307-12. Home and Community-Based Services Waiver for Individuals with Autism.

(1) To qualify for the waiver for individuals with autism, the child must be at least two years of age and under six years of age. The last month a child can be eligible for this waiver is the month in which the child turns six years of age.

(2) All other eligibility requirements follow the rules of the Community Supports Home and Community-Based Services Waiver found in Section R414-307-7 except for Subsection R414-307-7(1).

 

[R414-307-7. Other Provisions.

The following provisions apply to all applicants and recipients of home and community based-services waivers:

(1) Applicants and recipients of home and community-based services waivers receive the same rights and have the same responsibilities as all other medical assistance applicants and recipients.

(2) For individuals claiming a disability, the disability provisions of R414-303 apply.

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

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

(5) The benefit provisions of R414-306 apply to waiver applicants and recipients.

(6) The provisions found in R414-308 that apply to eligibility determinations, redeterminations, change reporting, and improper medical assistance also apply to waiver applicants and recipients.

(7) The Department limits the number of individuals covered by a home and community based-services waiver as provided in the adopted waiver implementation plan.

(8) The Department does not pay for waiver services when an individual has home equity that exceeds the limit set forth by Pub. L. 109-171.

(a) The state sets that limit at the minimum level allowed under Pub. L. 109-171.

(b) An individual who has excess home equity and meets eligibility criteria under a community Medicaid eligibility group is not disqualified from receiving Medicaid for services other than 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. This is in accordance with institutional deeming rules found in Section 1924 of the Social Security Act.

 

]KEY: eligibility, waivers, special income group

Date of Enactment or Last Substantive Amendment: [May 15, 2007]2012

Notice of Continuation: April 17, 2012

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

 

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