Sec. 10.09.24.10. Determining Financial Eligibility for Institutionalized Persons

A. Scope.

(1) This section applies to persons who are institutionalized throughout a calendar month.

(2) Institutional status is presumed to begin on the first day of the first full calendar month in which the person is institutionalized and ends on the last day of the last full calendar month before discharge.

(3) Institutional status is not interrupted by a transfer from one long-term care facility to another or by a transfer from a long-term-care facility to a hospital.

(4) Presumed institutional status changes on the first day of the month of discharge to the community.

(5) Eligibility for noninstitutionalized persons shall be determined separately under Regulation .09 of this chapter.

B. Basis.

(1) Financial eligibility shall be determined on the basis of the countable resources and income of members of the assistance unit.

(2) A person is categorically needy if his total income before deductions does not exceed 300 percent of the current SSI payment standard and his countable resources are within the applicable amount in Schedule MA-2A.

(3) A person is medically needy if his total income before deductions exceeds 300 percent of the SSI payment standard or if countable resources exceed the applicable amount in Schedule MA-2A.

(4) When calculating an institutionalized recipient's available income for the cost-of-care in a long-term care facility, in accordance with Regulations .10 and .10-1 of this chapter, guardianship fees may not be allowed as an income deduction, whether or not the recipient has a community spouse.

C. Retroactive Eligibility.

(1) A retroactive eligibility determination shall be made for services incurred by an institutionalized person within 3 months before the month of application. Eligibility will be considered only for the month, or months, in which the expenses were incurred.

(2) The period under consideration shall be the month, or months, for which coverage is requested.

(3) Excess Resources. When the countable resources are greater than the medically needy resource standard, retroactive eligibility does not exist.

(4) Determination of Available Income for the Retroactive Period. The following amounts shall be deducted from the total income in the following order:

(a) For dates of service beginning July 1, 2003, a personal needs allowance of:

(i) $50 a month for an institutionalized person other than a person who meets the requirements of §C(4)(a)(iii) of this regulation.

(ii) $100 a month for an institutionalized couple.

(iii) $100 a month for a person who resided in an ICF/IID or mental hospital, participated in therapeutic work activities, and received remuneration for participation in these activities. An amount greater than $100 a month but not to exceed the MNIL may be deducted based on additional documented work-related need.

(b) For dates of service beginning July 1, 2004, a personal needs allowance of:

(i) $60 a month for an institutionalized person other than a person who meets the requirements of §C(4)(b)(iii) of this regulation;

(ii) $120 a month for an institutionalized couple; and

(iii) $100 a month for a person who resides in an ICF/IID or mental hospital, participates in therapeutic work activities, and received remuneration for participation in these activities, and an amount greater than $100 a month but not to exceed the MNIL which may be deducted from available income based on additional documented work-related need.

(c) For dates of service beginning July 1, 2005, a personal needs allowance adjusted annually by an amount not exceeding 5 percent to reflect the percentage by which social security benefits are increased by the federal government to reflect changes in the cost of living.

(d) Spousal or Family Allowance or Both. For an institutionalized spouse as defined under Regulation .11B(6) of this chapter, an amount equal to the community spouse monthly income allowance as defined under Regulation .11B(2) of this chapter and, if applicable, an amount equal to the family allowance as determined under Regulation .11C(3)(c) of this chapter. For an institutionalized person without a spouse in the community, the amount needed to maintain an unmarried child or children younger than 21 years old living at home at a level which, based on verified need, equals the applicable medically needy income level.

(e) Residential Maintenance Allowance for a Single Person.

(i) For a person with no spouse or unmarried child younger than 21 years old at home, the amount not to exceed the medically needy income level that was needed to maintain the person's residence during the retroactive period shall be deducted beginning with the person's earliest first full month of institutionalization if, based on a medical review process established by the Department, it is determined that the person will be able to resume living in his community residence and that the person intends to do so.

(ii) Institutional status is not interrupted by a transfer from one long-term care facility to another or by a transfer to a hospital.

(f) Incurred expenses for medical care or remedial service that have not been paid for by any third party, including a family member or an insurer, and are not required to be paid for by any third party, such as an insurer, including:

(i) Medicare and other health insurance premiums, deductibles or co-insurance charges;

(ii) In the case of eligibility determinations before August 1, 2005, necessary medical care or remedial service recognized under State law but not covered under the State Plan; and

(iii) In the case of eligibility determinations on or after August 1, 2005, unless a court of competent jurisdiction issues a contrary ruling in a final unappealable order, necessary medical care or remedial service recognized under State law but not subject to Medical Assistance reimbursement.

(g) Incurred expenses for necessary medical care or remedial service described under §C(4)(f)(iii) of this regulation as follows:

(i) For eligibility determinations on or after August 1, 2005, unless a court of competent jurisdiction issues a contrary ruling in a final unappealable order, incurred expenses may not include medical expenses for dates of service more than 3 months before the month of the Medical Assistance application; and

(ii) Incurred expenses shall be limited to the fees reimbursed by Medical Assistance in effect on the date of service and shall be for actual charges if no Medical Assistance fee exists.

(h) The maximum deduction for unpaid nursing facility bills incurred during a penalty period resulting from a transfer of assets shall be zero.

(5) Subject to the requirements of §C(6) of this regulation, effective October 1, 2016, the personal needs allowance set forth in §C(4) of this regulation shall be increased as follows:

(a) For a Medicaid recipient who has been assigned a guardian of the person, $50 per month;

(b) For a Medicaid recipient who has been assigned a guardian of the property, $50 per month;

(c) For a Medicaid recipient who has been assigned a single guardian serving all purposes, $50 per month; and

(d) For a Medicaid recipient who has been assigned one individual to serve as guardian of the person and one different individual to serve as guardian of the property, $100 per month.

(6) A guardian shall submit a monthly bill to the Medicaid recipient or authorized representative in order for a guardianship fee to be added to the recipient’s personal needs allowance set forth in §C(4) of this regulation.

(7) If the effective date cited in §C(4)(f)(ii) and (iii), and (g)(i) of this regulation is invalidated by final unappealable order of a court of competent jurisdiction, the effective date shall be April 1, 2009.

(8) When the available income as determined under §C(4) of this regulation is equal to or less than the person's incurred cost-of-care to the facility and countable resources are equal to or less than the medically needy resource standard, retroactive eligibility exists and begins on the first day of the period under consideration. Certification is established under Regulation .11D of this chapter.

(9) When the available income as determined under §C(4) of this regulation is greater than the person's incurred cost-of-care to the facility and countable resources are equal to or less than the medically needy resource standard, retroactive eligibility may exist under §C(10) of this regulation.

(10) Retroactive Spend-Down Eligibility.

(a) In determining retroactive spend-down eligibility, documented medical expenses incurred more than 3 months before the month of the Medical Assistance application shall be considered if the incurred expenses:

(i) Have not been paid for by any third party, including a family member or an insurer;

(ii) Are not required to be paid for by any third party, such as an insurer;

(iii) Were not incurred during a penalty period; and

(iv) Were not forgiven by the provider.

(b) The incurred medical expenses shall be considered on a month-by-month basis beginning with the earliest month in the period under consideration and shall be deducted from excess available income in the following order:

(i) Medicare and other health insurance premiums, deductibles, or co-insurance charges;

(ii) Expenses incurred for necessary medical care or remedial services that are recognized under State law but are not covered under the State Plan;

(iii) Expenses incurred for necessary medical care or remedial services that are covered under the State Plan.

(c) The medical expenses used to establish retroactive spend-down eligibility may not be:

(i) Reimbursed by the Medical Assistance Program;

(ii) Used for any subsequent eligibility determination; or

(iii) Incurred before the period for which retroactive eligibility is requested.

(d) Retroactive spend-down eligibility is established on the day the incurred medical expenses considered under §C(10)(b) of this regulation equal or exceed the excess available income. Certification is established under Regulation .11D of this chapter.

(e) Retroactive spend-down eligibility is not established when the incurred medical expenses are less than the excess available income.

D. Current Eligibility.

(1) Excess Resources. When the countable resources are greater than the medically needy resource level, eligibility does not exist.

(2) Determination of Available Income. The following amounts shall be deducted from total income in the following order:

(a) For dates of service beginning July 1, 2003, a personal needs allowance of:

(i) $50 a month for an institutionalized person other than a person who meets the requirements of §D(2)(a)(iii) of this regulation.

(ii) $100 a month for an institutionalized couple.

(iii) $100 a month for a person who resides in an ICF/IID or mental hospital, participates in therapeutic work activities, and receives remuneration for participating in these activities. An amount greater than $100 a month but not to exceed the MNIL may be deducted based on additional documented work-related need.

(b) For dates of service beginning July 1, 2004, a personal needs allowance of:

(i) $60 a month for an institutionalized person other than a person who meets the requirements of §D(2)(b)(iii) of this regulation;

(ii) $120 a month for an institutionalized couple; and

(iii) $100 a month for a person who resides in an ICF/IID or mental hospital, participates in therapeutic work activities, and received remuneration for participation in these activities, and an amount greater than $100 a month but not to exceed the MNIL which may be deducted from available income based on additional documented work-related need.

(c) For dates of service beginning July 1, 2005, a personal needs allowance adjusted annually by an amount not exceeding 5 percent to reflect the percentage by which social security benefits are increased by the federal government to reflect changes in the cost of living.

(d) Spousal or Family Allowance or Both. For an institutionalized spouse as defined under Regulation .11B(6) of this chapter, an amount equal to the community spouse monthly income allowance as defined under Regulation .11B(2) of this chapter and, if applicable, an amount equal to the family allowance as determined under Regulation .11C(3)(c) of this chapter. For an institutionalized person without a spouse in the community, the amount needed to maintain an unmarried child or children younger than 21 years old living at home at a level which, based on verified need, equals the applicable medically needy income level.

(e) Residential Maintenance Allowance for a Single Person.

(i) For a person with no spouse or unmarried child younger than 21 years old at home, an amount not to exceed the medically needy income level needed to maintain the person's residence during institutionalization shall be deducted for a period of up to 6 months beginning with the person's first full month of current institutionalization if, based on a medical review process established by the Department, it is determined that the person will be able to resume living in his community residence during this period and that person intends to do so.

(ii) The maximum 6-month period is not interrupted by a transfer from one long-term care facility to another or by admission to a hospital.

(f) The following incurred medical expenses that are not subject to payment by a third party:

(i) Medicare and other health insurance premiums, deductibles or co-insurance charges;

(ii) For eligibility determinations before August 1, 2005, necessary medical care or remedial service recognized under State law but not covered under the State Plan; and

(iii) For eligibility determinations on or after August 1, 2005, unless a court of competent jurisdiction issues a contrary ruling in a final unappealable order, necessary medical care or remedial service recognized under State law but not subject to Medical Assistance reimbursement.

(g) Incurred expenses for necessary medical care or remedial service described under §D(2)(f)(iii) of this regulation as follows:

(i) For eligibility determinations on or after August 1, 2005, unless a court of competent jurisdiction issues a contrary ruling in a final unappealable order, incurred expenses may not include medical expenses for dates of service more than 3 months before the month of the Medical Assistance application; and

(ii) Incurred expenses shall be limited to the fees reimbursed by Medical Assistance in effect on the date of service and shall be for actual charges if no Medical Assistance fee exists.

(h) The maximum deduction for unpaid nursing facility bills incurred during a penalty period resulting from a transfer of assets shall be zero.

(3) Subject to the requirements of §D(4) of this regulation, effective October 1, 2016, the personal needs allowance is increased as follows:

(a) For a Medicaid recipient who has been assigned a guardian of the person, $50 per month;

(b) For a Medicaid recipient who has been assigned a guardian of the property, $50 per month;

(c) For a Medicaid recipient who has been assigned a single guardian serving all purposes, $50 per month;

(d) For a Medicaid recipient who has been assigned one individual to serve as guardian of the person and one different individual to serve as guardian of the property, $100 per month.

(4) A guardian shall submit a monthly bill to the Medicaid recipient or authorized representative in order for a guardianship fee to be added to the recipient’s personal needs allowance set forth in §D(2) of this regulation.

(5) If the effective date cited in §D(2)(f)(ii) and (iii) and (g)(i) of this regulation is invalidated by final unappealable order of a court of competent jurisdiction, the effective date shall be April 1, 2009.

(6) If, after application of the disregards in §D(2) of this regulation, the person's income equals or is less than the projected cost-of-care, eligibility exists and may begin on the first day of the period under consideration. The amount remaining after application of the disregards in §D(2) of this regulation is available income to be applied to the person's cost-of-care. Certification is established under Regulation .11D of this chapter.

(7) If, after application of the disregards in §D(2) of this regulation, the person's income exceeds the projected cost-of-care, eligibility may be established under §D(8) of this regulation.

(8) Spend-down Eligibility.

(a) In determining spend-down eligibility, documented medical expenses incurred during the time periods and meeting the conditions specified in this section shall be considered.

(b) Medical expenses incurred before the month of application shall be considered if the expenses:

(i) Were not considered in any retroactive certification;

(ii) Were not used to establish spend-down eligibility for a prior certification;

(iii) Have not been paid for by any third party, including a family member or an insurer, and are not required to be paid for by any third party, such as an insurer;

(iv) Were not incurred during a penalty period;

(v) Remain the obligation of any person whose income and resources are considered in determining eligibility; and

(vi) Have not been forgiven by the provider of the services, as evidenced by account statements dating up to 3 months before the month of application.

(c) Medical expenses incurred at any time during or after the month of application and before the end of the period under consideration shall be considered if they:

(i) Were not paid for by any third party, including a family member or an insurer;

(ii) Are not required to be paid for by any third party, such as an insurer;

(iii) Were not incurred during a penalty period; and

(iv) Have not been forgiven by the provider.

(d) Each medical bill verifying expenses shall include a statement of the service and the date the service was rendered. For purchases of medicines and medical supplies or equipment, the statement from the provider shall include the item purchased and the date and cost of the purchase.

(e) Medical expenses incurred during the time periods specified in §D(8)(b) and (c) of this regulation shall be deducted from the excess available income beginning with the earliest time period and in the following order:

(i) Medicare and other health insurance premiums, deductibles, or co-insurance charges;

(ii) Expenses incurred for necessary medical care or remedial services that are recognized under State law but are not covered under the State Plan;

(iii) Expenses incurred for necessary medical care or remedial services that are covered under the State Plan.

(f) Spend-down eligibility is established for the remainder of the period under consideration on the day the incurred medical expenses, considered under §D(8)(e) of this regulation, including projected private cost-of-care obligations, equal or exceed the amount of excess available income. Certification is established under Regulation .11D of this chapter.

(g) The medical expenses used to establish spend-down eligibility may not be:

(i) Reimbursed by the Medical Assistance Program; or

(ii) Used for any subsequent eligibility determination.

(h) Eligibility exists on the day that incurred medical expenses equal or exceed the amount of excess available income.

(i) When spend-down eligibility is not established during the application process, the applicant shall be notified of his ineligibility and advised of the spend-down provision. The application date shall be preserved for possible spend-down eligibility at any time during the established period under consideration.

(j) Eligibility exists on the day during the preserved spend-down period that incurred medical expenses equal or exceed the amount of excess available income. Certification is established under Regulation .11D of this chapter.

(k) When the incurred medical expenses do not equal the amount of excess available income during the period under consideration, eligibility does not exist. A new application date and period under consideration will be established when the applicant reapplies after the expiration of the established period under consideration.