DAR File No. 39310

Health, Health Care Financing, Coverage and Reimbursement Policy

Rule R414-307

Eligibility for Home and Community-Based Services Waivers

Notice of Proposed Rule

(Amendment)

DAR File No.: 39310
Filed: 04/29/2015 09:37:42 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to clarify client eligibility for Home and Community-Based Services (HCBS) waivers.

Summary of the rule or change:

This amendment clarifies medical and financial criteria to become eligible for an HCBS waiver. It also clarifies the time frame used to determine waiver eligibility and makes other technical changes.

State statutory or constitutional authorization for this rule:

• Section 26-1-5
• Pub. L. No. 111-148
• Section 26-18-3

Anticipated cost or savings to:

the state budget:

There is no impact to the state budget because this change only clarifies waiver eligibility for Medicaid recipients.

local governments:

There is no impact to local governments because they do fund or provide Medicaid services to Medicaid recipients.

small businesses:

There is no impact to small businesses because this change only clarifies waiver eligibility for Medicaid recipients.

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

There is no impact to Medicaid providers and to Medicaid recipients because this change only clarifies waiver eligibility for Medicaid recipients.

Compliance costs for affected persons:

There are no compliance costs to a single Medicaid provider or to a Medicaid recipient because this change only clarifies waiver eligibility for Medicaid recipients.

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

There is no impact to business because this change only clarifies waver eligibility for Medicaid recipients, which will have no impact on providers.

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 [email protected]

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:

06/15/2015

This rule may become effective on:

07/01/2015

Authorized by:

David Patton, Executive Director

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-307. Eligibility for Home and Community-Based Services Waivers.

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

(1) The Department shall apply the provisions of Sec. 2404 of Pub. L. No. 111 148, Patient Protection and Affordable Care Act, which refers to applying the provisions of Section 1924 of the Social Security Act to married individuals who are eligible for home and community-based waiver services.

(2) To qualify for Medicaid coverage of[under a] home and community-based waiver services[ waiver], an individual must meet:

(a) the medical eligibility criteria defined in the State [w]Waiver [i]Implementation [p]Plan adopted in Rule R414-61, [applicable]which applies to the specific waiver under which the individual is seeking services, as verified by the [referring]operating agency case manager;

(b) the financial and non-financial 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 Rule R414-302; and

(d) the]other requirements defined in this rule [applicable]that apply to all waiver applicants and recipients, [as well as requirements]or specific to the waiver for which the individual is seeking eligibility.

(3) [The provisions found in Rule R414-301 apply to applicants and recipients of home and community-based services waivers.

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

(5) ]The provisions found in Rule R414-304 and Rule R414-305 apply to eligibility determinations under a Home and Community-Based Services (HCBS) waiver, [E]except where otherwise stated in this rule[, the income provisions of Rule R414-304 apply to waiver applicants and recipients].

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

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

(8) 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.

]([9]4) The Department shall limit the number of individuals covered by an [home and community-based services]HCBS waiver as provided in the adopted waiver implementation plan.

([10]5) The Department adopts and incorporates by reference, Subsection 1917(f) of the Social Security Act, effective January 1, 2013. An individual is ineligible for nursing facility and other long-term care services when an individual has home equity that exceeds the limit set forth in Subsection 1917(f).

(a) The Department sets that limit at the minimum level allowed under Subsection 1917(f).

(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 long-term care services provided under the plan or the [home and community-based]HCBS waiver.

(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.

(6) To determine initial eligibility for a Medicaid coverage group under an HCBS waiver, the eligibility agency must receive a completed waiver referral form from the operating agency or designee. Individuals who are not currently eligible for Medicaid must also complete a Medicaid application.

(a) The waiver referral form must verify the date the individual meets the level of care requirements as defined in the State Waiver Implementation Plan.

(b) If the individual's Medicaid eligibility is not approved within 60 days of the level of care date stated on the waiver referral form, the waiver referral form is no longer valid.

(i) The operating agency or designee must submit a new waiver referral form to the eligibility agency establishing a new level of care date.

(ii) Eligibility for Medicaid under an HCBS waiver cannot begin before the new level of care date on the new waiver referral form, subject to the same 60-day period to approve eligibility.

(c) The Medicaid agency may not pay for waiver services before the start date of the individual's approved comprehensive care plan, which may not be earlier than the date the individual meets:

(i) the eligibility criteria for a Medicaid coverage group included in the applicable waiver; and

(ii) the level of care date verified on a valid waiver referral form.

(7) In the event an individual is not approved for Waiver Medicaid services due to Subsection R414-307-3(6), an individual who otherwise meets Medicaid financial and non-financial eligibility criteria for a Non-Waiver Medicaid coverage group may qualify for Medicaid services other than services under an HCBS waiver.

(8) If an individual's Medicaid eligibility ends and the individual reapplies for Waiver Medicaid, the Department shall establish a process of obtaining approval from the operating agency or designee in which the individual continues to meet medical criteria for the Waiver. The operating agency or designee approval may establish a new date in which eligibility to receive coverage of waiver services may begin.

(9) An individual denied Medicaid coverage for an HCBS waiver may request a fair hearing.

(a) The Department conducts hearings on programmatic eligibility for payment of waiver services.

(b) The Department of Workforce Services conducts hearings on financial eligibility issues for a Medicaid coverage 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:]The following provisions set forth financial eligibility requirements for the special income group that apply to individuals seeking Medicaid coverage for services under an HCBS waiver as defined in 42 CFR 435.217.

(1) If the individual's spouse meets the definition of a community spouse, the eligibility agency shall apply 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 eligibility agency may only count 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 eligibility agency shall count 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 eligibility agency may only count 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 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 eligibility agency may 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 eligibility agency shall count 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 Subsection 1611(b)(1) of the Social Security Act.

(6) The eligibility agency shall apply the transfer of asset provisions of Section 1917 of the Social Security Act[ in effect January 1, 2013].

(7) The individual's cost-of-care contribution is determined by deducting from the individual's total income, the post-eligibility allowances for the specific waiver for which the individual qualifies.

(8) The eligibility agency shall determine financial eligibility for the special income group [eligibility ]for an individual based on the level of care date on a valid waiver referral form as defined in Subsection R414-307-3(2).[starting the month that waiver services begin.] The eligibility agency shall determine eligibility for prior months using the community Medicaid or institutional Medicaid rules [applicable]that apply to the individual's situation.

 

R414-307-5. Medically Needy Waiver Group.

The following sets forth financial eligibility requirements for the medically needy coverage group, and applies to individuals seeking Medicaid coverage for HCBS under the New Choices Waiver or the Individuals with Physical Disabilities Waiver.[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 eligibility agency shall apply the resource provisions defined in Section 1924 of the Social Security Act and Section R414-305-3 and Section R414-305-4.

(2) If the individual does not have a spouse or the individual's spouse does not meet the definition of a community spouse, the eligibility agency may only count 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 eligibility agency shall count one-half of jointly-held assets available to each spouse. Each spouse must pass the medically needy resource test for one person.

(3) The eligibility agency may only count income of the individual determined under the most closely associated cash assistance program to decide eligibility for the medically needy waiver group. The 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 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 eligibility agency shall count 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 S ubsection 1611(b)(1) of the Social Security Act.

(6) To determine eligibility for an individual without a community spouse, [T]the eligibility agency shall apply the income deductions allowed by the community Medicaid category under which the individual qualifies.

(a) The eligibility agency shall compare countable income to the applicable medically needy income limit for a one-person household to determine the individual's spenddown.[

(a)] The individual's medical expenses, including the cost of long-term care services, must exceed the spenddown amount.

([b]i) If an individual does not have a community spouse, to receive Medicaid eligibility, the individual must meet the applicable contribution to the cost of care in the same manner as a spenddown as defined in Subsection R414-304-11(9).[pay the spenddown to the eligibility agency for Medicaid waiver eligibility.]

([c]ii) An individual who has a community spouse is subject to the post-eligibility provisions of Section 1924 of the Social Security Act. The eligibility agency determines the individual's cost-of-care contribution by deducting from the individual's total income, the post-eligibility allowances defined in the implementation plan of the specific waiver for which the individual qualifies.  The individual must meet the applicable contribution to the cost of care in the same manner as a spenddown as defined in Subsection R414-304-11(9).

([7]b) The eligibility agency deducts medical expenses incurred by the individual in accordance with Section R414-304-11.

([8]7) The eligibility agency shall determine an individual's financial eligibility for the medically needy waiver group [starting the month that waiver services begin]based on the level of care date on a valid waiver referral form as defined in Subsection R414-307-3(2). The eligibility agency shall determine eligibility for prior months using the community Medicaid or institutional Medicaid rules [applicable]that apply to the individual's situation.

 

R414-307-6. New Choices Waiver Eligibility Criteria.

(1) To qualify for the New Choices Waiver, an individual must be 65 years of age or older, or at least 18 through 64 years of age and disabled as defined in Subsection 1614(a)(3) of the Social Security Act. For the purpose of this waiver, an individual is 18 years of age beginning the first month after the month of the individual's 18th birthday.

(2) A single individual eligible under the special income group, or any married individual with a community spouse, may be required to pay a contribution toward the cost[-] of[-]care to receive [home and community-based ]services under an HCBS waiver. The eligibility agency determines a client's cost-of-care contribution as follows:

(a) The eligibility agency counts all of the client's income unless the 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 deducts 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;

(ii) For individuals with earned income, up to $125 of gross-earned income;

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

(iv) A deduction for monthly utility costs equal to the standard utility allowance Utah uses under Subsection 5(e) of the Food Stamp Act of 1977. If the waiver client shares utility expenses with others, the allowance is prorated accordingly;

(v) In the case of a married individual with a community spouse, an allowance for a community spouse and dependent family members who live with the community spouse, in accordance with the provisions of Section 1924 of the Social Security Act;

(vi) When an individual has a dependent family member at home and the provisions of Section 1924 of the Social Security Act do not apply,[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 an [Medicaid home and community-based]HCBS waiver or institutional Medicaid coverage, and contributes income to the dependent family member, the combined income deductions of these individuals cannot exceed one-third of the difference between the minimum monthly spousal needs allowance and the family member's monthly income. The eligibility agency shall end this deduction when the dependent family member enters a medical institution;

(vii) Medical and remedial care expenses incurred by the individual in accordance with

Section R414-304-11.

(c) The income deduction to provide an allowance to a spouse or a dependent family member [cannot]may not exceed the amount the individual actually gives to such spouse or dependent family member.

(d) The remaining amount of income after these deductions is the individual's cost-of-care contribution.

(3) The individual must pay the cost-of-care contribution [to cost-of-care ]to the eligibility agency each month to receive [home and community-based ]services under an HCBS waiver.

 

KEY: eligibility, waivers, special income group

Date of Enactment or Last Substantive Amendment: [January 1, 2014]2015

Notice of Continuation: April 17, 2012

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