1 TAC §358.430
The Texas Health and Human Services Commission (HHSC) proposes
to amend §358.430(f)(2), concerning Transfer of Assets and calculation
of the penalty period, in its Medicaid Eligibility chapter. The purpose of
the amendment is to implement an option available under federal law that permits
the penalty period for an uncompensated transfer of assets to be calculated
in terms of months and days, rather than whole months.
The proposed amendment to §358.430(f)(2) would change the current
HHSC policy of disregarding fractional remainders in calculating the length
of a period of ineligibility caused by a transfer of assets without compensation
by an individual who applies for or receives Medicaid or by that individual's
spouse. When an individual applies for Medicaid and the individual or the
individual's spouse transferred an asset without compensation during the applicable
"look back" period before the date of the Medicaid application (36 or 60 months),
such a transfer can result in a period of ineligibility. The length of the
ineligibility period is determined by dividing the amount of the uncompensated
transfer by the monthly average private pay rate for nursing facility care
in the state. Under current HHSC policy, fractional remainders that result
from this calculation are disregarded, resulting in whole month periods of
ineligibility. As a result of this proposed rule change, fractional remainders
would be considered, so that the resulting period of ineligibility may be
days, or months and days.
Tracy Henderson, Chief Financial Officer, has determined that, for the
first five-year period the proposed section is in effect, there are fiscal
implications for state government as a result of enforcing or administering
the section. The effect on state government for the first five-year period
is an estimated reduction in cost. However, HHSC lacks sufficient data to
accurately estimate the cost savings. HHSC has not found that there would
be any fiscal implications for local government as a result of enforcing or
administering the sections.
Anne Heiligenstein, Deputy Executive Commissioner for Social Services,
has determined that, for each year of the first five years the sections are
in effect, the public benefit anticipated as a result of enforcing the section
is the preservation of limited Medicaid dollars for those truly in need or
most in need of the assistance. There is no adverse economic effect on small
or micro businesses as a result of enforcing or administering the sections,
because the proposed amendment relates only to a requirement for individuals
to become eligible to receive Medicaid benefits. There is no anticipated economic
cost to persons who are required to comply with the proposed sections. There
is no anticipated effect on local employment in geographic areas affected
by these sections.
Questions about the content of this proposal may be directed to John Stockton
at (512) 206-4764 with the Long Term Care Medicaid Policy section of the HHSC
Office of Family Services. Written comments on the proposal may be submitted
to Dee Church, P.O. Box 12668, mail code 2090, Austin, Texas 78711-2668, within
30 days of publication in the
Texas Register
.
Under Government Code, §2007.003(b), HHSC has determined that Chapter
2007 of the Government Code does not apply to these rules. The change this
rule amendment makes does not implicate a recognized interest in private real
property. Accordingly, HHSC is not required to complete a takings impact assessment
regarding these rules.
The amendment is proposed under Government Code, §531.0055
and §531.021, which provide the Texas Health and Human Services Commission
with the authority to supervise the administration and operation of the Medicaid
program and to administer federal medical assistance funds.
The amendment affects the Human Resources Code, §§32.001-32.067.
§358.430.Transfer of Assets.
(a) - (e)
(No change.)
(f)
Calculation of penalty period.
(1)
There is no limit to the penalty period under OBRA 1993.
The penalty period is determined by dividing the uncompensated value of all
assets transferred by the average monthly cost of nursing facility care for
a private pay patient.
(2)
The
[
Fractional remainders are rounded
down. This
] penalty period calculation applies to the transfer of both
income and resources.
(3)
The same penalty period calculation is used for clients
who apply for home/community-based waiver programs. Penalty periods continue
to run if a client moves from an institutional program to a home/community-based
waiver program or vice-versa.
(4)
The penalty period begins the month of transfer. However,
a new penalty period cannot be imposed while a previous penalty period is
still in effect. Therefore, the penalty periods assessed under OBRA 1993 rules
for multiple transfers that overlap run separately but consecutively.
(5)
If a penalty period ends and a subsequent transfer occurs,
a new penalty period is established effective the month of the subsequent
transfer. This means there may be a gap between penalty periods.
(6)
When multiple transfers occur during the look-back period
in such a way that the penalty periods for each overlap, the transfers are
treated as a single event. The uncompensated values are lumped together and
divided by the average monthly rate for a private-pay patient in a nursing
facility. If multiple transfers occur in such a way that the penalty periods
do not overlap, then the transfers are treated as separate events and the
penalty periods are calculated separately.
(g) - (m)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 31, 2005.
TRD-200502186
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 17, 2005
For further information, please call: (512) 424-6900