SSI-Related Medicaid Resource Eligibility Criteria

DEPARTMENT OF CHILDREN AND FAMILY SERVICES
Economic Self-Sufficiency Program

RULE NO: RULE TITLE
65A-1.712: SSI-Related Medicaid Resource Eligibility Criteria

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 33 No. 8, February 23, 2007 issue of the Florida Administrative Weekly.

STATEMENT OF ESTIMATED REGULATORY COST: AARP, Inc., submitted a proposal for lower cost regulatory alternative to the proposed rule above on March 16, 2007 at the rule hearing. AARP believes the proposed amendments “tremendously increase the administrative burden and cost in the processing of applications, yet not appreciably further the objectives of the DRA in reducing Medicaid expenditures through curtailment of transfers”. The proposals include changing some of the policies and procedures of the amendments.

The Department did not prepare a statement of estimated regulatory costs for the Notice of Proposed Rule 65A-1.712, F.A.C., as the proposed rule does not impose any regulatory costs to the Department, the affected individuals or the general public. Rule 65A-1.712, F.A.C., implements mandatory federal Medicaid policies used to determine if an individual is eligible for Medicaid long-term care services.

Medicaid is a medical public assistance program for indigent individuals and paid by the taxpayers of the state. Application is voluntary and individuals are never required to apply for Medicaid coverage. Individuals that do apply must present documentation or verification to the Department to show the value of their resources, so DCF staff can determine if the individual’s resources fall within the federal resource standards to qualify for the program.

The proposed rule implements the Deficit Reduction Act of 2005 (signed by President Bush on February 8, 2006) which provides new regulations regarding the assets of individuals applying for or receiving Medicaid long-term care services. The rule does not change existing administrative requirement for applicants and recipients to verify their resources. It changes only how the Department must consider certain resources (that is, do we count them, not count them or impose a period of ineligibility) when determining if someone can qualify for Medicaid long-term care services.

The proposed rule does not change DCF’s responsibility to apply all federal and state policies when determining if individuals qualify for Medicaid before authorizing benefits. There are no changes in the responsibilities of the staff or the applicants. The Department does not impose any regulatory fees to apply for Medicaid. The process remains the same; only the policy as to what resources are considered and how they are considered has changed. The applicant applies for help and provides the facts of their situation, including their resources as well as income. The Department’s eligibility staff must evaluate each application to see that the individual meets all eligibility criteria according to federal and state Medicaid policies before approving benefits.

There are no regulatory costs imposed by the Department. There are no regulatory costs incurred by the Department. The process and operation remains the same for the applicants, recipients and the Department.

Description of impacted individuals: Individuals in need of long-term care services are disabled and aged individuals with serious health problems who apply for and/or receive Medicaid nursing home care, Medicaid home & community based waiver programs (alternatives to nursing home care) or Medicaid hospice services. The Department does not capture information regarding transfers of resources when no penalty period is imposed or information regarding resource provisions in DRA, so no data is available. Not all applicants transfer resources to become Medicaid eligible and in fact, less than 1% of applicants last year reported resources that resulted in a period of ineligibility.

Estimate of cost to agency, state or local government to implement or enforce: No increased cost.

Estimate of transactional costs: None.

Estimate on small businesses, small counties and small cities: None.

The Department considers the proposal for lower cost regulatory alternative invalid, as there are no regulatory costs associated with implementation of these federally mandated Medicaid provisions. The process for determining Medicaid eligibility remains the same. Applicants must provide information about their financial situation. The Department must evaluate the facts and determine who is eligible for Medicaid long-term care services. The Department has implemented many new operational practices to simplify and modernize the process to apply for and receive public assistance in Florida. The new simplified procedures will apply to implementation of the DRA provisions as they apply to existing policies and procedures. The Department continues to work toward improving the eligibility process so it is not unnecessarily burdensome to our clients as well as our staff.

IF REQUESTED WITHIN 14 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: May 22, 2007, 3:00 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, Phone [phone]

 

THE FULL TEXT OF THE PROPOSED RULE CHANGES:

65A-1.712 SSI-Related Medicaid Resource Eligibility Criteria

(1) No change.

(a) through (e) No change.

(f) For 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) No change.

(3) Transfer of Resources and Income. According to 42 U.S.C. § 1396p(c), 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 department 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 department will mail a notice to individuals who report a transfer for less than fair market value without fair compensation (Form CF-ES 2264, Feb 2007 PDF 04/2002, Notice of Determination of Assets (Or Income) Resource/Income Transfer and Form CF-ES 2264A, Feb 2007, Rebuttal/Hardship Request; 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 long-term care services) and advised of their penalty period (Form 2358, 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.

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

(b) No change.

1. No change.

2. A purchase of an annuity (and other transactions that change the course of an annuity payment or treatment of income or principal) made after (effective date) will be considered a transfer of assets for less than fair market value without fair compensation 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 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). Annuities purchased for the community spouse after (effective date) 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.

3. No change.

(c) No change.

1. through 4. No change.

5. A transfer penalty shall not be imposed if the department 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 food, clothing, shelter or medical care such that their life or health would be endangered. 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 their consent or the consent of the individual or their designated personal representative.

(d) No change.

1. through 3. No change.

4. A life estate interest purchased in another individual’s home after (effective date) is considered a transfer of assets for less than fair market value without fair compensation. 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) as found in Appendix A-17 of the Department’s online manual located at www.dcf.state.fl.us/ess/. Brief absences from the life estate property such as due to stays in a rehabilitation facility or vacations may not disrupt the client’s residency in the home. The but 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) No change except for the final sentence in this paragraph which will be revised as follows: 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 non-institutional care benefits.

(4) No change.

(5)(a)1. through 3. No change.

4. The department will mail a notice to individuals whose home equity interest exceeds $500,000 (Form CF-ES 2354, Feb 2007, Notice of Excess Home Equity Interest Greater Than $500,000 and Form CF-ES 2354A, Feb 2007, Request for Waiver of Home Equity Limit, 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 available to the individual to the extent that after (effective date), regardless of whether a refund is actually received, if the individual has the ability to use the entrance fee or the contract indicates the entrance fee may be used for care when the individual’s income and assets are insufficient to pay for their care; the individual is eligible for a refund of any remaining entrance fee upon death or termination of the contract; and the entrance fee does not confer an ownership interest in the retirement community.

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), 8-10-06(2), 8-10-06(3),________.