65A-1.712: SSI-Related Medicaid Resource Eligibility Criteria
PURPOSE AND EFFECT: The proposed rule amends SSI-Related Medicaid resource policy.
SUMMARY: The proposed rule amends language to clarify the look back period for Deficit Reduction Act provisions, and allows a resource disregard for the Long Term Care Insurance Partnership Policy for the Home and Community Based Waiver Services Program, the Program of All Inclusive Care for the Elderly (PACE), and hospice benefits.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 409.919 FS.
LAW IMPLEMENTED: 409.902, 409.903, 409.904, 409.906, 409.919 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: September 14, 2009, 1:30 p.m.
PLACE: 1317 Winewood Boulevard, Building 3, Room 455, Tallahassee, FL 32399
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Pat Whitford, Economic Self-Sufficiency Services, telephone (850)410-3479
THE FULL TEXT OF THE PROPOSED RULE IS:
65A-1.712 SSI-Related Medicaid Resource Eligibility Criteria.
(1) Resource Limits. If an individual’s total resources are equal to or below the prescribed resource limits at any time during the month the individual is eligible on the factor of resources for that month. The resource limit is the SSI limit specified in Rule 65A-1.716, F.A.C., with the following exceptions:
(a) For MEDS-AD Demonstration Waiver, an individual whose income is equal to or below 88 percent of the federal poverty level must not have resources exceeding the current Medically Needy resource limit specified in Rule 65A-1.716, F.A.C.
(b) through (e) No change.
(f) For the a Home and Community Based Waiver Services (HCBS) Program, an individual cannot have countable resources that exceed $2,000. If the individual’s income falls within the MEDS-AD Demonstration Waiver limit, the individual can have resources up to $5,000.
(2) Exclusions. The Ddepartment follows SSI policy prescribed in 20 C.F.R. § 416.1210 (2009) and 20 C.F.R. § 416.1218 (2009), incorporated by reference, Part 416 in determining what is counted as a resource with the following exceptions, as mandated by federal Medicaid policies, or additional exclusions, as adopted by the Ddepartment under section 42 U.S.C. § 1396a(r)(2) (2006), incorporated by reference. SSI policy requires resources in a blocked account to be countable resources. This applies regardless of whether the individual or their representative is required to petition the court to withdraw funds for the individual’s care. A blocked account is one in which state law protects an individual’s funds by specifically requiring that the funds be made available for the care and maintenance of the individual.
(a) through (f) No change.
(g) An individual who is a beneficiary under a qualified state Long-Term Care Insurance Partnership Policy issued after November 1, 2007 is given a resource disregard equal to the amount of the insurance benefit payments made to or on behalf of the individual for long term care services when determining if the individual’s countable resources are within the program limits to qualify for Medicaid nursing home care,. Home and Community Based Waiver Services Program, the Program of All Inclusive Care for the Elderly (PACE), or hospice benefits.
(3) Transfer of Resources and Income. According to 42 U.S.C. § 1396p(c) (2006), incorporated by reference, if an individual, the spouse, or their legal representative, disposes of resources or income for less than fair market value on or after the look back date, the Ddepartment must presume that the disposal of resources or income was to become Medicaid eligible and impose a period of ineligibility for nursing facility care services, institutional hospice or HCBS waiver services. The Ddepartment will mail a notice to individuals who report a transfer for less than fair market value (Form CF-ES 2264, 02/2007 Feb 2007, Notice of Determination of Assets (Or Income) Transfer, incorporated herein by reference), advising of the opportunity to rebut the presumption and of the opportunity to request and support a claim of undue hardship per subparagraph (c)5. below. If the Ddepartment determines the individual is eligible for Medicaid on all other factors of eligibility except the transfer, the individual will be approved for general Medicaid services (not long-term care services) and advised of their penalty period (Form 2358, 02/2007 Feb 2007, Medicaid Transfer Disposition Notice, incorporated herein by reference.) The look back period is 36 months prior to the date of application, except in the case of a trust treated as a transfer in which case the look back period is 60 months prior to the date of application. All applications for nursing home and waiver based Medicaid programs (except in the case of a trust treated as a transfer) are subject to an asset transfer look back period as provided for below.
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36 months prior to the month of application 37 months prior to the month of application 38 months prior to the month of application 39 months prior to the month of application 40 months prior to the month of application 41 months prior to the month of application 42 months prior to the month of application 43 months prior to the month of application 44 months prior to the month of application 45 months prior to the month of application 46 months prior to the month of application 47 months prior to the month of application 48 months prior to the month of application 49 months prior to the month of application 50 months prior to the month of application 51 months prior to the month of application 52 months prior to the month of application 53 months prior to the month of application 54 months prior to the month of application 55 months prior to the month of application 56 months prior to the month of application 57 months prior to the month of application 58 months prior to the month of application 59 months prior to the month of application 60 months prior to the month of application |
(a) The Ddepartment follows the policy for transfer of assets mandated by 42 U.S.C. §§ 1396p (2006) and 1396r-5 (2006), incorporated by reference. Transfer policies apply to the transfer of income and resources.
(b) When funds are transferred to a retirement fund, including annuities, with the transfer look back period the Ddepartment must determine if the individual will receive fair market compensation in their lifetime from the fund. If fair compensation will be received in their lifetime there has been no transfer without fair compensation. If not, the child or their representative disposes of the remainder for less than fair market value. establishment of the fund must be regarded as a transfer without fair compensation. Fair compensation shall be calculated based on life expectancy tables published by the Office of the Actuary of the Social Security Administration. See Rule 65A-1.716, F.A.C.
1. Individuals and their spouses must disclose their ownership interest in any annuity, including annuities that are not subject to the transfer of assets provision, and if purchased after November 1, 2007 must name the state as a remainder beneficiary (for applicants at the time of approval or for recipients at time of annual review) in the first position for no more than the total amount of medical assistance paid on behalf of the institutionalized individual annuitant or in the second position after the community spouse and/or minor or disabled child unless the spouse,
2. No change.
3. Individual Retirement Accounts (IRAs) or annuities (as described in Section 408 of the Internal Revenue Code (2008), incorporated by reference) established by an employee or employer are not considered under the transfer of assets provision and are not required to name the state as the primary remainder beneficiary in accordance with subparagraph (b)1. above.
(c) No penalty or period of ineligibility shall be imposed against an individual for transfers described in 42 U.S.C. § 1396p(c)(2) (2006), incorporated by reference.
1. through 4. No change.
5. A transfer penalty shall not be imposed if the Ddepartment determines that the denial of eligibility due to transferred resources or income would work an undue hardship on the individual. Undue hardship exists when imposing a period of ineligibility would deprive an individual of medical care such that their life or health would be endangered. Undue hardship also exists when imposing a period of ineligibility would deprive the individual of food, clothing, shelter or other necessities of life. All efforts to access the resources or income must be exhausted before this exception applies. The facility in which the institutionalized individual is residing may request an undue hardship waiver on behalf of the individual with the consent of the individual or their designated representative.
(d) Except for allowable transfers described in 42 U.S.C. § 1396p(c)(2), in all other instances the Ddepartment must presume the transfer occurred to become Medicaid eligible unless the individual can prove otherwise.
1. through 3. No change.
4. A life estate interest purchased in another individual’s home after November 1, 2007 is considered a transfer of assets for less than fair market value. If the individual has not lived in the home for at least one year, the full amount of the purchase price paid for the life estate will be considered an uncompensated transfer without considering the value of the life estate. If the individual has resided in the home for at least one continuous year, the value of the life estate will be considered compensation and will be calculated by multiplying the current market value of the property at the time of the purchase by the life estate factor that corresponds to the individual’s age at the time of the purchase. The life estate tables are incorporated by reference from the Social Security Administration’s online Program Operations Manual System (SI 01140.120) (04/99), incorporated by reference, as found in Appendix A-17 of the Department’s online manual located at www.dcf.state.fl.us/ess/ (June 2009). Brief absences from the life estate property such as stays in a rehabilitation facility or vacations may not disrupt the client’s residency in the home. The facts of each absence will be evaluated to determine if the home continued to be the individual’s principal place of residence such as whether the person’s mail was delivered and received there or whether they paid the property taxes.
(e) through (f) No change.
(g) For transfers prior to November 1, 2007, periods of ineligibility are calculated beginning with the month in which the transfer occurred and shall be equal to the actual computed period of ineligibility, rounded down to the nearest whole number. For transfers made on or after November 1, 2007, periods of ineligibility begin with the later of the following dates: (1) the day the individual is eligible for medical assistance under the state plan and would otherwise be receiving institutional level care based on an approved application for such care but for the application of the penalty period; or (2) the first day of the month in which the individual transfers the asset; or (3) the first day following the end of an existing penalty period. The Ddepartment shall not round down, or otherwise disregard, any fractional period of ineligibility of the penalty period but will calculate the period down to the day. There is no limit on the period of ineligibility. Once the penalty period is imposed, it will continue although the individual may no longer meet all factors of eligibility and may no longer qualify for Medicaid long-term care benefits.
1. Monthly periods of ineligibility due to transferred resources or income are determined by dividing the total cumulative uncompensated value of all transferred resources or income computed in accordance with paragraph 65A-1.712(3)(f), F.A.C., by the average monthly private pay nursing facility rate at the time of application as determined by the Ddepartment (refer to paragraph 65A-1.716(5)(d), F.A.C.).
a. through c. No change.
2. If an institutionalized individual is ineligible for medical assistance due to a transfer of resources or income by the community spouse, and the community spouse becomes potentially eligible for ICP, HCBS, or institutional hospice services, any remaining penalty period must be apportioned beween the spouses. The Ddepartment shall apportion penalty periods by dividing any new or remaining penalty periods by 2 and attribute the quotient to each spouse. Any excess months may be attributed to the spouse that caused the penalty or according to the wishes of the couple or their representative.
3. No change.
(4) Spousal Impoverishment. The Ddepartment follows 42 U.S.C. § 1396r-5 for resource allocation and income attribution and protection when an institutionalized individual, including a hospice recipient residing in a nursing facility, has a community spouse. Spousal impoverishment policies are not applied to individuals applying for, or receiving, HCBS waiver services, except for individuals in the Long-Term Care Community Diversion Program, the Assisted Living Facility waiver or the Cystic Fibrosis waiver.
(a) through (c) No change.
(d) After the institutionalized spouse is determined eligible, the Ddepartment allows deductions from the eligible spouse’s income for the community spouse and other family members according to 42 U.S.C. § 1396r-5 and paragraph 65A-1.716(4)(c), F.A.C.
(e) If either spouse can verify that the community spouse resource allowance provides income that does not raise the community spouse’s income to the State’s minimum monthly maintenance income allowance (MMMIA), the resource allowance may be revised through the fair hearing process to an amount adequate to provide such additional income as determined by the hearing officer. Effective November 1, 2007 the hearing officers must consider all of the community spouse’s income and all of the institutionalized spouse’s income that could be made available to a community spouse. The hearing officers will base the revised community spouse resource allowance on the amount necessary to purchase a single premium lifetime annuity that would generate a monthly payment that would bring the spouse’s income up to the MMMIA (adjusted to include any excess shelter costs). The community spouse does not have to actually purchase the annuity. The community spouse will have the opportunity to present convincing evidence to the hearing officer that a single premium lifetime annuity is not a viable method of protecting the necessary resources for the community spouse’s income to be raised to the State’s MMMIA. If the community spouse requests that the revised allowance not be based on the earnings of a single premium lifetime annuity, the community spouse must offer an alternative method for the hearing officer’s consideration that will provide for protecting the minimum amount of assets required to raise the community spouse’s income to the State’s MMMIA during their lifetime.
(f) through (g) No change.
1. No change.
2. The institutional spouse assigns to the State any rights to support from the community spouse by submitting the Assignment of Rights to Support, Form CF-ES 2504, PDF 10/2005 (incorporated by reference), Support Rights form referenced in Rule 65A-1.400, F.A.C., signed by the institutionalized spouse or their representative; and
3. through 4. No change.
(5) Other Resource Policies.
(a) No change.
1. No change.
2. Paragraph (5)(a) does not apply if the individual’s spouse, individual’s child under age 21 or the individual’s blind or disabled child (based on the federal definitions of “blindness” in 20 C.F.R. § 416.981-416.986 (2009), incorporated by reference, and “disability” in 20 C.F.R. § 416.905-416.906 (2009), incorporated by reference 20 CFR 416) of any age are residing in the institutionalized individual’s home.
3. No change.
4. The Ddepartment will mail a notice to individuals whose home equity interest exceeds $500,000 (Form CF-ES 2354, 02/2007 Feb 2007, Notice of Excess Home Equity Interest, incorporated herein by reference), advising of the opportunity to have the home equity interest policy waived.
(b) An individual’s entrance fee in a continuing care retirement community or life care community shall be considered a resource, as set forth in 1917(g) of the Social Security Act (2007), which is incorporated herein by reference.
(6) Copies of the forms and materials incorporated by reference in this rule are available from the ACCESS Florida Headquarters Office at 1317 Winewood Boulevard, Tallahassee, Florida 32399-0700 or on the Department’s web site at http://www.dcf.state.fl.us/DCFForms/Search/DCFFormSearch.aspx.
Rulemaking Specific Authority 409.919 FS. Law Implemented 409.902, 409.903, 409.904, 409.906, 409.919 FS. History–New 10-8-97, Amended 1-27-99, 4-1-03, 9-28-04, 8-10-06(1)(a), (f), 8-10-06(1)(f), 8-10-06(3)(g)1., 11-1-07,_________.