The proposed rule amends language to the areas of SSI-Related Medicaid Program resource eligibility criteria including transfer to annuities, home equity, penalty period and compensation for property. Included in this proposed rule amendment are ...

DEPARTMENT OF CHILDREN AND FAMILY SERVICES
Economic Self-Sufficiency Program

RULE NO.: RULE TITLE:
65A-1.712: SSI-Related Medicaid Resource Eligibility Criteria
PURPOSE AND EFFECT: The proposed rule amends language to the areas of SSI-Related Medicaid Program resource eligibility criteria including transfer to annuities, home equity, penalty period and compensation for property. Included in this proposed rule amendment are wording changes and technical changes of a non-substantive nature to improve the overall content of the rule.
SUMMARY: The proposed rule amends language to the areas of SSI-Related Medicaid Program resource eligibility criteria.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department considered the factors in Section 120.541, F.S. The proposed rule is not expected to exceed the criteria in paragraph 120.541(2)(a), F.S., therefore legislative ratification is not required under subsection 120.541(3), F.S.
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.
RULEMAKING 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: March 21, 2012, 1:30 p.m.
PLACE: 1317 Winewood Boulevard, Building 3, Room 455, Tallahassee, Florida 32399-0700
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Cindy Keil. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Cindy Keil, Economic Self-Sufficiency Program, [phone], 1317 Winewood Boulevard, Tallahassee, Florida 32399-0700, [e-mail]

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 Medicaid for the Aged or Disabled Demonstration Waiver (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) For Qualified Medicare Beneficiary (QMB), an individual cannot have resources exceeding three times the SSI resource limit with increases based on the Consumer Price Index the Medically Needy resource limit.

(c) For Working Disabled (WD), an individual cannot have resources exceeding the Medically Needy resource limit.

(d) For Special Low Income Medicare Beneficiary (SLMB), an individual cannot have resources exceeding three times the SSI resource limit with increases based on the Consumer Price Index the Medically Needy resource limit.

(e) For Medically Needy, an individual or couple cannot have resources exceeding the applicable Medically Needy resource limit level set forth in subsection 65A-1.716(3), F.A.C.

(f) For the Home and Community Based Waiver Services (HCBS) Waiver 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 Department follows SSI policy prescribed in 20 C.F.R. § 416.1210 (2011) (2009) and 20 C.F.R. §416.1218 (2009), incorporated by reference, in determining what is counted as a resource exclusions, with the following exceptions in paragraphs (a) through (f) below, as mandated by federal Medicaid policies, or additional exclusions, as adopted by the Department under 42 U.S.C. § 1396a(r)(2) (2010) (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) Resources of a comatose applicant (or recipient) are excluded not considered as available when there is no known legal guardian or other individual who can access and expend the resource(s).

(b) through (d) No change.

(e) One automobile is excluded, regardless of value.

(e)(f) No change.

(f)(g) An individual who is a beneficiary under a qualified state Long-Term Care Insurance Partnership Policy 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 Institutional Care Program (ICP) nursing home care, HCBS 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) (2010) (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 ICP nursing facility care services, Iinstitutional Hhospice or HCBS Wwaiver Programs services. The Department will mail a notice to individuals who report a transfer for less than fair market value (Form CF-ES 2264, 02/2007, 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 Department 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 ICP, Institutional Hospice or HCBS Waiver Programs long-term care services) and advised of their penalty period (Form 2358, 02/2007, Medicaid Transfer Disposition Notice, incorporated herein by reference). Transfers of resources or income made prior to January 1, 2010 (first day of month following effective date) are subject to a 36 month look back period, except in the case of a trust treated as a transfer in which case the look back period is 60 months. Transfers of resources or income made on or after January 1, 2010 (first day of month following effective date) are subject to a 60 month look back period.

(a) The Department follows the policy for transfer of resources assets mandated by 42 U.S.C. §§ 1396p (2010) (2006) and 1396r-5 (2010) (2006), incorporated by reference. Transfer policies apply to the transfer of income and resources.

(b) No change.

1. Individuals and their spouses must disclose their ownership interest in any annuity, including annuities that are not subject to the transfer of resources assets provision, and if purchased on or after November 1, 2007 (and within the look back period) 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 or in the second position after the community spouse and/or minor or disabled child unless the spouse, child or their representative disposes of the remainder for less than fair market value.

2. A purchase of an annuity (and other transactions that change the course of an annuity payment or treatment of income or principal) made on or after November 1, 2007 (and within the look back period) will be considered a transfer of resources assets for less than fair market value unless the annuity meets all of the following criteria for applicants at the time of approval and recipients at the time of annual review: (a) the State of Florida, Agency for Health Care Administration, state is named as the primary beneficiary (or secondary as appropriate pursuant to subparagraph (b)1. above); (b) the annuity is irrevocable and non-assignable; (c) the annuity pays principal and interest in equal amounts during the term of the annuity, with no balloon or deferred payments; and (d) the annuity is actuarially sound based on standards published by the Office of the Chief Actuary of the Social Security Administration called the Period of Life Table as set forth in Rule 65A-1.716, F.A.C. (Life Expectancy Tables). If the annuity meets all of the above criteria, funds in the annuity are excluded as a resource and the periodic payments are counted as income in the eligibility determination and calculation of patient responsibility. Annuities purchased for the community spouse after November 1, 2007 must name the state as primary (or secondary) beneficiary pursuant to subparagraph (b)1. above and must be actuarially sound based on the community spouse’s age and the life expectancy tables.

a. Certain transactions, such as additions of principal to an existing annuity or electing to annuitize an existing annuity that occurs on or after November 1, 2007 make an annuity (including an annuity purchased before November 1, 2007) subject to the transfer of resources provisions unless the criteria of (a)2. through (d)2. above are met.

b. Annuities purchased on or after November 1, 2007 (and within the look back period), by or on behalf of the community spouse, must name the State of Florida, Agency for Health Care Administration, as primary (or secondary) beneficiary pursuant to subparagraph (b)1. above and must be actuarially sound based on the community spouse’s age and the life expectancy tables. Annuities purchased by or on behalf of the community spouse after approval of ICP, Institutional Hospice or HCBS Waiver Programs for the applicant spouse are not evaluated for transfer of resources provisions.

3. Individual Retirement Accounts (IRAs) or annuities (as described in Section 408 of the Internal Revenue Code) (2010) (2008), incorporated by reference) established by an employee or employer are not considered under the transfer of resources 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) (2010) (2006), incorporated by reference).

1. through 5. No change.

(d) Except for allowable transfers described in 42 U.S.C. § 1396p(c)(2) (2010), in all other instances the Department must presume the transfer occurred to become Medicaid eligible unless the individual can prove otherwise.

1. through 2. No change.

3. Promissory notes, loans and mortgages purchased on or signed after November 1, 2007 (and within the look back period) will be considered transfers of resources for less than fair market value assets without fair compensation to become Medicaid eligible unless the promissory notes, loans or mortgages meet all of the following criteria: (a) the repayment term is actuarially sound in accordance with the Life Expectancy Tables as referenced in paragraph (b)2. above; (b) payments must be made in equal amounts during the term of the loan, with no deferral and no balloon payments being possible; and (c) debt forgiveness is not allowed. If these criteria are not met, for purposes of transfer of resources assets, the value of the promissory notes, loans or mortgages will be the outstanding balance due as of the date of application for ICP, Institutional Hospice or HCBS Waiver Programs long-term care services.

4. A life estate interest purchased in another individual’s home on or after November 1, 2007 (and within the look back period) is considered a transfer of resources assets for less than fair market value. If the individual has not lived in the home for at least one year after the date of the purchase, 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 who purchased the life estate has resided in the home for at least one continuous year after the date of the purchase, 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), can be incorporated by reference, as found in Appendix A-17 of the Department’s online manual located at http://www.dcf.state.fl.us/programs/access/esspolicymanual.shtml 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.

5. Compensation for a resource may be received in the form of cash, real or personal property or other valuable consideration provided. Compensation is the gross amount paid or to be paid for the resource based on the agreement at the time of transfer, or contract for sale, if earlier. Compensation received in the form of real or personal property is valued according to its fair market value (FMV). Fair market value is defined as the price for which a resource can reasonably be expected to sell on the open market. If compensation for the resource is in the form of jointly owned real or personal property, the value of the compensation received is the FMV of the fractional interest in the real or personal property transferred or received. Expenses attributed to the sale of a resource do not reduce the value of the compensation.

(e) through (f) No change.

(g) For transfers prior to November 1, 2007 (and within the look back period), 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 (and within the look back period), periods of ineligibility begin with the later of the following dates: (1) the day the individual is eligible (pursuant to Rules 65A-1.711 through 65A-1.713, F.A.C.) for Medicaid medical assistance under the state plan and would otherwise be receiving institutional level care services in a nursing home facility, an institution with a level of care equivalent to that of a nursing facility, or home or community based services furnished under a waiver 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. No change.

a. For transfers prior to November 1, 2007 (and within the look back period), where resources or income have been transferred in amounts or frequency or both that would make the calculated penalty periods overlap, the value of all transferred resources or income is added together and divided by the average cost of private nursing home care.

b. For transfers prior to November 1, 2007 (and within the look back period), where multiple transfers are made in such a way that the penalty periods for each would not overlap, each transfer is treated as a separate event with its own penalty period.

c. For transfers on or after November 1, 2007 (and within the look back period), the uncompensated value of all transfers will be added together to arrive at one total value with a penalty period assigned.

2. If an institutionalized individual is ineligible for ICP, Institutional Hospice or an HCBS Waiver Program 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 Iinstitutional Hhospice services, any remaining penalty period must be apportioned between the spouses. The Department shall apportion penalty periods by dividing any new or remaining penalty periods by two 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. Individuals who are ineligible due solely to the uncompensated value of a transferred resource or income are ineligible for ICP nursing home, Iinstitutional Hhospice or HCBS Wwaiver services payment, but are eligible for other Medicaid benefits.

(4) Spousal Impoverishment. The Department follows 42 U.S.C. § 1396r-5 (2010) 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 services under, HCBS Wwaiver Pprograms services, except for individuals in the Long-Term Care Community Diversion Program, the Assisted Living Facility Wwaiver or the Cystic Fibrosis Wwaiver.

(a) through (f) No change.

(g) The institutionalized spouse shall not be determined ineligible based on a community spouse’s resources if all of the following conditions are found to exist:

1. The institutionalized individual is not eligible for Medicaid Iinstitutional Care Program services because of the community spouse’s resources and the community spouse refuses to use the resources for the institutionalized spouse; and

2. through 4. No change.

(5) Other Resource Policies.

(a) Individuals shall not be eligible for ICP, Institutional Hospice or HCBS Waiver Programs on or long-term care services after November 1, 2007, if the individual’s equity interest in the individual’s home exceeds $525,000 $500,000.

1. The individual’s equity interest is based on the current market value of the home (including all contiguous property), minus any encumbrances such as a mortgage or other associated loans. Long-term care services include Medicaid services authorized under the Institutional Care Program, institutional hospice, home and community based waiver services and the Program of All Inclusive Care for the Elderly (PACE).

2. Unless evidence to the contrary is on file or is received, accept the individual or designated representative’s statement as to equity value of a home that is less than $500,000. For equity value of $500,000 or more, the individual or designated representative must provide verification of current market value and indebtedness. Verification of the current market value must be obtained from a knowledgeable source commonly involved in the housing industry in the geographic locale, such as a real estate broker, mortgage broker, property appraiser, or builder. The verification must include the current market value, the name of the person providing the estimate, and the contact information of the business or agency for whom the person providing the estimate works.

3.2. Paragraph (5)(a) above 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 (2011) (2009), incorporated by reference, and “disability” in 20 C.F.R. §§ 416.905-416.906 (2011) (2009), incorporated by reference of any age is are residing in the institutionalized individual’s home.

4.3. The home equity provision may be waived when denial of ICP, Institutional Hospice or HCBS Waiver Pprograms long-term care services would result in demonstrated hardship to the institutionalized individual.

5.4. The Department will mail a notice to individuals whose home equity interest exceeds $525,000 $500,000 (Form CF-ES 2354, 02/2007, 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 SEC. 1917(g) of the Social Security Act (2011) (2007), which is incorporated herein by reference.

(c) The Department follows SSI policy prescribed in SSA’s Program Operations Manual System, SI 01120.010 and SI 01140.215 with regard to block accounts. 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.

(6) Copies of the forms and materials incorporated by reference in this rule are available from the Economic Self-Sufficiency ACCESS Florida Headquarters Office at 1317 Winewood Boulevard, Tallahassee, Florida 32399-0700. Forms are also available on the Department’s web-site at http://www.dcf.state.fl.us/dcfforms/Search/DCFFormSearch.aspx.

Rulemaking 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, 12-24-09,_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Jeri Flora
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: David E. Wilkins
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 26, 2011
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: September 3, 2010