TITLE 1.ADMINISTRATION

Part 3. OFFICE OF THE ATTORNEY GENERAL

Chapter 55. CHILD SUPPORT ENFORCEMENT

Subchapter G. AUTHORIZED COSTS AND FEES IN IV-D CASES

1 TAC (No change.)55.154

The Office of the Attorney General proposes to add §55.154 to Subchapter G, Authorized Costs and Fees in IV-D Cases, concerning attorney's fees for attorneys representing the state in IV-D cases, as authorized under Texas Family Code 231.109. Texas Family Code §157.167(d) requires a court to order a respondent to pay attorney's fees if the respondent is found to be in contempt of court for failure or refusal to pay child support and the respondent owes $20,000 or more in child support arrearages.

Cynthia Bryant, Director of Child Support, has determined that for the first five years this new section as proposed is in effect, there will be no significant fiscal implication for state or local government.

Ms. Bryant has also determined that for each year of the first five years the section is in effect, the public benefit as a result of this new section is compliance with legislation and publication of the hourly rate charged by attorneys representing the state under Texas Family Code 231.109.

Ms. Bryant has also determined that there will be no local employment impact as a result of this new section.

Comments on this proposed section should be submitted to Kathy Shafer, Legal Counsel, Child Support Division, Office of the Attorney General, (physical address) 5500 East Oltorf, Austin, Texas, 78741 or (mailing address) P.O. Box 12017, Mail Code 041, Austin, Texas 78711-2017.

The new section is proposed under the authority of Texas Family Code §§157.167 and 231.109.

The new section is affected by Texas Family Code §§157.167 and 231.109.

§55.154.Reasonable Attorney's Fees in IV-D Cases.

(a) The usual and customary attorney's fees for attorneys representing the state under Section 231.109 of the Texas Family Code is $150 per hour.

(b) The reasonable attorney's fees for attorneys representing the state under Section 231.109 of the Texas Family Code is $150 per hour.

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 April 16, 2004.

TRD-200402528

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Earliest possible date of adoption: May 30, 2004

For information regarding this publication, you may contact A.G. Younger, Agency Liaison, at (512) 463-2110


Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Chapter 355. MEDICAID REIMBURSEMENT RATES

Subchapter A. COST DETERMINATION PROCESS

1 TAC §355.112

The Texas Health and Human Services Commission (HHSC) proposes to amend §355.112, concerning attendant compensation rate enhancement, in its Medicaid Reimbursement Rates chapter. The purpose of the amendment is to expand the definition of an attendant in the Residential Care (RC) and Community Based Alternatives Assisted Living/Residential Care (CBA AL/RC) programs to include drivers as attendants. The amendment will help RC and CBA AL/RC providers meet their spending requirements, since additional staff salaries will be counted toward their actual attendant spending. The amendment also corrects references to the CBA AL/RC program so they are consistent throughout the rule.

Tom Suehs, Deputy Executive Commissioner for Financial Services, has determined that for the first five-year period the proposed section is in effect, there are no fiscal implications for state or local government as a result of enforcing or administering the section.

Ed White, Director, Rate Setting and Forecasting, has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing the section is that RC and CBA AL/RC providers will have a greater probability of meeting their spending requirement, which will result in fewer providers facing recoupment of enhanced funds.

There is no adverse economic effect on small or micro businesses as a result of enforcing or administering the section, because the proposed section has no impact on the funding of the enhancement program overall. There is no anticipated economic cost to persons who are required to comply with the proposed section. There is no anticipated effect on local employment in geographic areas affected by this section.

Questions about the content of this proposal may be directed to Carolyn Pratt by telephone at (512) 491-1359, or by fax at (512) 491-1998, in HHSC Rate Analysis. Written comments on the proposal may be submitted to Ms. Pratt by fax at (512) 491-1998 or by mail at HHSC Rate Analysis, Mail Code H-400, 1100 West 49th Street, Austin, TX 78756-3101, within 30 days of publication in the Texas Register .

Under §2007.003(b) of the Government Code, HHSC has determined that Chapter 2007 of the Government Code does not apply to this rule. The changes this rule makes does not implicate a recognized interest in private real property. Accordingly, HHSC is not required to complete a takings impact assessment regarding this rule.

The amendment is proposed under the Government Code, §531.033, which authorizes the commissioner of HHSC to adopt rules necessary to carry out the commission's duties, and §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under the Human Resources Code, Chapter 32.

The amendment affects the Government Code, §§531.033 and 531.021(b).

§355.112.Attendant Compensation Rate Enhancement.

(a) (No change.)

(b) Definition of attendant. An attendant is the unlicensed caregiver providing direct assistance to the clients with Activities of Daily Living (ADL) and Instrumental Activities of Daily Living (IADL).

(1) In the case of DAHS, RC, and CBA AL/RC programs, the attendant may perform some nonattendant functions. In such cases, the attendant must perform attendant functions at least 80% of his or her total time worked. Staff in these settings not providing attendant services at least 80% of their total time worked are not considered attendants. Time studies must be performed in accordance with §355.105(b)(2)(B)(i) for staff in the DAHS, RC, and CBA AL/RC programs that are not full-time attendants but perform attendant functions to determine if a staff member meets this 80% requirement. Failure to perform the time studies for these staff will result in the staff not being considered to be attendants.

(2) (No change.)

(3) An attendant also includes a driver in the DAHS , RC, and CBA AL/RC programs [ program ].

(4) An attendant also includes medication aides in the RC and CBA AL/RC program.

(c)-(l) (No change.)

(m) Determination of attendant compensation rate component for nonparticipating contracts. For each of the programs identified in subsection (a) of this section, HHSC will calculate an attendant compensation rate component for nonparticipating contracts as follows.

(1)-(2) (No change.)

(3) For each contract included in the cost report database used to determine rates in effect on September 1, 1999, divide the result from paragraph (2) of this subsection by the corresponding units of service. Provider projected costs per unit of service are rank-ordered from low to high, along with the provider's corresponding units of service. For DAHS, the median cost per unit of service is selected. For all other programs, the units of service are summed until the median unit of service is reached. The corresponding projected cost per unit of service is the weighted median cost component. The result is multiplied by 1.044 for all programs in subsection (a) of this section except for RC and CBA AL/RC, which is multiplied by 1.07. The result is the attendant compensation rate component for nonparticipating contracts.

(4) (No change.)

(n) -(dd) (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 April 16, 2004.

TRD-200402529

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: May 30, 2004

For further information, please call: (512) 438-3734


Chapter 373. MEDICAID ESTATE RECOVERY PROGRAM

The Texas Health and Human Services Commission (HHSC) proposes new Chapter 373, Medicaid Estate Recovery Program, Subchapter A, §§373.101, 373.103, 373.105, Subchapter B, §§373.201, 373.203, 373.205, 373.207, 373.209, 373.211, 373.213, 373.215, 373.217, 373.219, and Subchapter C, §§373.301, 373.303, 373.305, 373.307. Proposed new Chapter 373 implements a program to recover Medicaid costs in certain circumstances, as required by §531.077, Government Code, and by 42 U.S.C. §1396p(b)(1).

Background and Factual Basis for the Rules

Section 531.077, Government Code (as added by Acts 2003, 78th Leg., ch 198, §2.17), requires HHSC to establish a Medicaid Estate Recovery Program (MERP) in order to comply with the provisions of the applicable federal law found at 42 U.S.C. §1396p(b)(1). HHSC, which is the State Medicaid Agency, will operate a Medicaid Estate Recovery Program that will seek recovery of the costs of Medicaid long-term care benefits received by certain Medicaid recipients.

Section 531.077, Government Code, requires that any funds recovered by the Medicaid Estate Recovery Program be deposited in the Medicaid account in the State's general revenue fund. Under the statute, money in the account may be appropriated only to fund long-term care, including both community-based and facility-based care.

Section-by-Section Explanation

Subchapter A, General, of the proposed new chapter contains §§373.101, 373.103 and 373.105. Section 373.101 describes the purpose of the proposed rules. Section 373.103 describes the applicability of the proposed rules. Section 373.105 defines terms used in the proposed rules.

Subchapter B, Recovery Claims, contains §§373.201, 373.203, 373.205, 373.207, 373.209, 373.211, 373.213, 373.215, 373.217, and 373.219. Section 373.201 provides the basis for estate recovery claims. Section 373.203 describes the claim procedures HHSC will use for estate recovery claims. Section 373.205 prescribes: (1) the contents of an estate recovery claim; and (2) the time within which the Medicaid Estate Recovery Program will file a probate claim after receiving notice of a Medicaid recipient's death. Section 373.207 sets forth estate recovery exemptions. Section 373.209 describes undue hardship waivers and the procedure for requesting an undue hardship waiver. Section 373.211 discusses the general procedure for requesting a review of a denial of an undue hardship waiver. Section 373.213 describes the deduction allowed for expenses for home maintenance of a Medicaid recipient's home and for any costs of care provided on behalf of a Medicaid recipient that delayed the recipient's institutionalization. Section 373.215 defines when Medicaid estate recovery will not be cost effective and will not be pursued. Section 373.217 explains how the estate recovery claim is calculated. Section 373.219 describes the procedure to be used for payment of estate recovery claims.

Subchapter C, Notice, contains §§373.301, 381.303, 373.305, and 381.307. Section 373.301 requires that notice be provided to Medicaid applicants concerning the provisions of the Medicaid Estate Recovery Program. Section 373.303 identifies who will receive notice of the Medicaid Estate Recovery Program. Notice will be provided during the Medicaid application and/or recertification processes. Section 373.305 describes the contents of the notice to be provided to applicants, which will include: (1) a description of Medicaid Estate Recovery Program provisions; (2) information on covered Medicaid long-term care services subject to estate recovery claims; (3) claim procedures found in §322 of the Texas Probate Code; (4) Information on applicable "look-back" penalties for transfers of property for less than market value during the 36 months prior to applying for Medicaid benefits; (5) a description of hardship exemptions and related procedures in regard to any recovery claim; and (6) Information concerning a MERP estate recovery claim and the Notice of Intent to File a Claim on the death of a Medicaid recipient. Section 373.307 describes the contents of the Notice of Intent to File a Claim and to whom the Notice will be provided.

Public Benefit

Charles Bell, M.D., Deputy Executive Commissioner for Health Services, has determined that during the first five years the proposed rules are in effect, the public benefit from adoption of the rules will be an increase in available funding for Medicaid long-term care, including community-based and facility-based care. Recovery of covered long-term care services will be sought only from the estate of a deceased Medicaid recipient age 55 years or over.

Fiscal Note

Tom Suehs, Deputy Executive Commissioner for Financial Services, has determined that for the first five-year period that the proposed rules are in effect there will be no significant negative impact on state or local governments. However, the implementation of a Medicaid estate recovery program will generate estimated revenue to the State of Texas for State Fiscal Year 2004 of $0; for State Fiscal Year 2005 of up to $32,728 for State Fiscal Year 2006 of up to $817,042; for State Fiscal Year 2007 of up to $2,165,549; and for State Fiscal Year 2008 of up to $3,450,307.

Small and Micro-business Impact Analysis

The proposed rules will not result in additional costs to persons required to comply with them. HHSC does not anticipate that the rules will have any adverse impact on small or micro-businesses. The rules will not negatively affect local employment.

Regulatory Analysis

The Commission has determined that none of the proposed rules is a "major environmental rule," as defined by §2001.0225, Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. None of the proposed rules is specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

The Health and Human Services Commission has evaluated the takings impact of the proposed rules under §2007.043, Government Code. HHSC has determined that this action does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of governmental action and, therefore, does not constitute a taking. The proposed rules are reasonably taken to fulfill requirements of both federal and state law.

Public Comment

Comments on the proposed rules may be submitted in writing to Frank Genco, Health and Human Services Commission, P.O. Box 13247, Austin, Texas 78711-3247, or by e-mail to Frank.Genco@hhsc.state.tx.us. Hand deliveries will be accepted at HHSC, 4900 N. Lamar Blvd., Austin, Texas 78751. Comments also may be faxed to (512) 424-6665. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

Public Hearing

A public hearing is scheduled for May 27, 2004, from 3:00 PM to 6:00 PM (central time) in the Public Hearing Room of the Brown-Heatly Building, 4900 North Lamar, Austin, Texas. Persons requiring further information, special assistance, or accommodations should contact Becky Medina at (512) 424-6509.

Subchapter A. GENERAL

1 TAC §§373.101, 373.103, 373.105

Statutory Authority

These new rules are proposed pursuant to the authority granted to HHSC under §531.033, Government Code, which authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules necessary to implement HHSC's duties, and is required under Section 531.077, Government Code (as added by Acts 2003, 78th Leg., ch. 198, §2.17), which requires HHSC to establish a Medicaid estate recovery program.

There are no other codes, statutes or articles affected by this proposal.

§373.101.Purpose.

The purpose of this chapter is to implement §531.077, Government Code, consistent with applicable federal law at 42 U.S.C. §1396p(b)(1), which requires the Commission, as the State Medicaid Agency, to operate a Medicaid Estate Recovery Program (MERP) to recover the costs of Medicaid long-term care benefits received by certain Medicaid recipients.

§373.103.Applicability.

(a) A Medicaid Estate Recovery claim may be filed against the estate of a deceased Medicaid recipient for covered Medicaid services if the recipient:

(1) was age 55 years or older at the time the services were received; and

(2) applied for covered Medicaid long-term care services on or after the effective date of these rules.

(b) For purposes of this chapter, an individual will be considered to be age 55 as of the first day of the month following the month in which the recipient attains the age of 55.

(c) Covered services include the following services provided to a recipient age 55 years or older under the State of Texas Medicaid plan under Title XIX of the Social Security Act:

(1) nursing facility services; and

(2) related costs of hospital and prescription drug services.

(d) For the purposes of this chapter, covered services do not include services provided before the effective date of these rules.

§373.105.Definitions.

For the purposes of this chapter, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(1) Claim--A right to recover the total amount of Medicaid assistance paid for all nursing facility services and related hospital and prescription drug services provided from the time the decedent was 55 years of age or older.

(2) Cost-effective--Economical to the extent that the amount reasonably expected to be recovered by the Medicaid Estate Recovery Program exceeds the cost of recovery by the program as provided in this chapter.

(3) Decedent--a deceased individual who was 55 years of age or older at the time that covered Medicaid long-term care assistance was received.

(4) Effective date--The date on which these rules take effect under §2001.036, Government Code.

(5) Estate--The property that is included in the definition of estate in §3, Probate Code.

(6) Heir--A person defined in §3(o), Probate Code.

(7) Legatee--A person defined in Texas Probate Code §3(s).

(8) MERP--The Medicaid Estate Recovery Program.

(9) Recipient--An individual who received covered long-term care Medicaid services on or after the effective date of the adoption of these rules

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 April 19, 2004.

TRD-200402563

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: May 30, 2004

For further information, please call: (512) 424-6576


Subchapter B. RECOVERY CLAIMS

1 TAC §§373.201, 373.203, 373.205, 373.207, 373.209, 373.211, 373.213, 373.215, 373.217, 373.219

Statutory Authority

These new rules are proposed pursuant to the authority granted to HHSC under §531.033, Government Code, which authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules necessary to implement HHSC's duties, and is required under Section 531.077, Government Code (as added by Acts 2003, 78th Leg., ch. 198, §2.17), which requires HHSC to establish a Medicaid estate recovery program.

There are no other codes, statutes or articles affected by this proposal.

§373.201.Basis for Claims.

The acceptance of Medicaid medical assistance, as defined by Title XIX of the Social Security Act, including mandatory and optional payments under the Social Security Act, provides a basis for a Class 7 claim, as defined in §322 of the Texas Probate Code, in favor of the Medicaid Estate Recovery Program as an interested party in the estate of the deceased Medicaid recipient.

§373.203.Claims Procedures.

(a) Medicaid Estate Recovery Program (MERP) may file a Class 7 probate claim against the estate of deceased Medicaid recipients in accordance with the priorities contained in Texas Probate Code §322.

(b) A claim may be filed in accordance with applicable provisions of the Texas Probate Code, including §298, which allows unsecured claims to be presented at any time before the estate is closed or within 4 months of receipt of notice from the estate administrator.

§373.205.MERP Recovery Claim.

(a) Contents of MERP Recovery Claim. The MERP claim will be filed in the appropriate Probate Court and will include the amount of the claim, the date or dates of the covered Medicaid services provided, and a statement that to MERP's best knowledge the deceased Medicaid recipient had:

(1) No surviving spouse;

(2) No surviving child under age 21;

(3) No surviving child who is blind or disabled as defined by 42 United States Code §1382c;

(4) No unmarried adult child residing continuously in the decedent's homestead for at least one year prior to the time of the Medicaid recipients' death; and

(5) That to the best knowledge of the MERP that no undue hardship, as defined by these rules, exists and that recovery will be cost-effective.

(b) An estate recovery claim will be filed within 60 days after MERP has actual notice of the death of a Medicaid recipient aged 55 years or older who received covered long-term care services.

§373.207.Exemptions From Claims.

(a) Medicaid Estate Recovery claims will be sought only after the death of the Medicaid recipient, and if there is:

(1) no surviving spouse;

(2) no surviving child or children under 21 years of age;

(3) no surviving child or children of any age who are blind or permanently and totally disabled pursuant to the eligibility requirements of Title XIX of the Social Security Act; or

(4) no unmarried adult child residing continuously in the decedent's homestead for at least one year prior to the time of the Medicaid recipients' death.

(b) Certain assets and resources of American Indians (AI) and Alaska Natives (AN) are exempt from estate recovery claims. The following AI/AN income, resources, and property are exempt from Medicaid estate recovery:

(1) Certain AI/AN income and resources (such as interests in and income derived from Tribal land and other resources currently held in trust status and judgement funds from the Indian Claims Commission and the U.S. Claims Court) that are exempt from Medicaid estate recovery by other laws and regulations;

(2) Ownership interest in trust or non-trust property, including real property and improvements:

(A) Located on a reservation (any federally recognized Indian Tribe's reservation, pueblo, or Colony, including former reservations in Oklahoma, Alaska Native regions established by Alaska Native Claims Settlement Act and Indian allotments) or near a reservation as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior; or,

(B) For any federally recognized Tribe not described in subsection (a) of this section located within the most recent boundaries of a prior Federal reservation.

(C) Protection of non-trust property described in subsections (a) and (b) of this section is limited to circumstances when it passes from an Indian (as defined in section 4 of the Indian Health Care Improvement Act) to one or more relatives (by blood, adoption, or marriage) including Indians not enrolled as a member of a Tribe and non-Indians such as spouses and step-children, that their culture would nevertheless protect as family members; to a Tribe or Tribal organization; and/or to one or more Indians;

(3) Income left as a remainder in an estate derived from property protected in paragraph (2) of this subsection, that was either collected by an Indian, or by a Tribe or Tribal organization and distributed to Indian(s), as long as the individual can clearly trace it as coming from protected property.

(4) Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights related to natural resources (including extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of Federally-protected rights, and income either collected by an Indian, or by a Tribe or a Tribal organization and distributed to Indian(s) derived from these sources as long as the individual can clearly trace it as coming from protected sources; and

(5) Ownership interests or usage rights to items not covered by paragraphs (1) - (4) of this subsection that have unique religious, spiritual, traditional, and/cultural significance, or rights that support subsistence or a traditional life style according to applicable Tribal law or custom.

(c) American Indians and Alaska Natives Income, Resources, and Property Not Exempt from Medicaid Estate Recovery include:

(1) Ownership interests in assets and property, both real and personal, that are not described in subsections (a) or (b) of this section; or

(2) Any income and assets left as a remainder in an estate that do not derive from protected property or sources in subsections (a) or (b) of this section.

(d) Government reparation payments to individuals in special populations are exempt from estate recovery claims.

§373.209.Undue Hardship Waivers.

(a) The Medicaid Estate Recovery Program (MERP) will not recover from estates if recovery would cause undue hardship. An undue hardship waiver request form will be provided with the MERP Notice of Intent to File a Claim, and undue hardship waiver requests must be made within 30 days of the date of the MERP Notice of Intent to File a Claim.

(b) An undue hardship does not exist solely because:

(1) Recovery would prevent heirs or legatees from receiving an anticipated inheritance; or

(2) The circumstances giving rise to the hardship were created by, or are the result of estate planning methods under which assets were sheltered or divested in order to avoid estate recovery.

(c) Undue hardship waivers include:

(1) $50,000 of the county tax appraisal district value of a homestead on the date of death of a deceased Medicaid recipient is exempt from Medicaid estate recovery claims. This exemption value will be adjusted on an annual basis by MERP based on the annual percentage change in the U.S. Department of Housing and Urban Development Office of Federal Housing Enterprise Oversight (OFHEO) house price index for Texas;

(2) The estate property subject to recovery has been the site of the operation of a family business at that location for at least 12 months prior to the death of the decedent; is the sole income producing asset of heirs and legatees, and produces more than 50 percent of their livelihood; or is a family farm or ranch, and recovery by the State would affect the property and result in the heir or legatee losing his or her primary source of income;

(3) Heirs and legatees would become eligible for public and/or medical assistance if a recovery claim were made;

(4) Allowing one or more survivors to receive the estate will enable him or her or them to discontinue eligibility for public and/or medical assistance; or

(5) Other compelling reasons.

(d) HHSC has exclusive authority to waive its claim and grant undue hardship waivers as determined by the HHSC MERP program on an individual case-by-case basis. An undue hardship waiver determination will be made by MERP within 30 days of the receipt of an undue hardship waiver request form and all required necessary supporting documents by MERP.

(e) Undue hardship waiver request forms must be submitted to the following address: MERP, P.O. Box 13247, Austin, Texas, 78711.

§373.211.Right to a Review of an Undue Hardship Waiver Denial.

A Medicaid Estate Recovery Program (MERP) undue hardship waiver applicant may request a review of the denial of an undue hardship waiver request within 30 days of receiving notice of the denial from MERP. The review is an informal process and is not a hearing. All requests for a review of the denial of an undue hardship waiver request must be made in writing to the following address: MERP, P.O. Box 13247, Austin, Texas, 78711.

§373.213.Deduction Allowed for Expenses for Home Maintenance and Costs of Care.

(a) An amount equal to necessary and reasonable maintenance expenses and taxes may be deducted from the Medicaid Estate Recovery Program (MERP) claim for maintaining the home of the deceased Medicaid recipient, provided that sufficient supporting documentation of these expenditures, such as receipts, is provided to MERP by estate personal representatives, heirs, or legatees. Necessary and reasonable expenses for maintaining the home include real estate taxes, utility bills, home repairs, and home maintenance expenses such as lawn care.

(b) An amount equal to the necessary and reasonable expenses for the direct payment of the costs of care (including payment of personal attendant care) provided for a deceased Medicaid recipient that enabled the recipient to remain in his or her home and thereby delayed the institutionalization of the Medicaid recipient may be deducted from the MERP claim, provided that sufficient supporting documentation of these expenditures, such as receipts, is provided to MERP by estate personal representatives, heirs, or legatees.

(c) Requests for obtaining allowable deductions from MERP claims for expenses under subsections (a) or (b) of this section must be made in writing within 30 days after receipt of the Notice of the Intent to File a Claim by MERP. All supporting documentation must be attached to the request and sent to MERP, P.O. Box 13247, Austin, Texas, 78711.

§373.215.Recovery Not Cost-Effective.

Recovery will not be cost-effective when the value of the estate is $10,000 or less, or the cost involved in the sale of the property would be equal to or greater than the value of the property. No estate recovery claim will be filed if it is not cost effective.

§373.217.Claim Amount.

(a) The amount of the Medicaid Estate Recovery Program (MERP) claim will be calculated as the amount paid under §373.103(c) for the benefit of a Medicaid recipient for medical assistance services received after the Medicaid recipient reached 55 years of age.

(b) No claim will be filed for services received prior to the effective date of these rules.

(c) The claim amount may be amended prior to and after MERP files the claim.

§373.219.Claim Payments.

(a) All payments on estate recovery claims must be made payable to the "Texas Medicaid Account for Long-Term Care," and must be sent to the HHSC MERP, P.O. Box 13247, Austin, Texas, 78711.

(b) The claim can be paid according to a negotiated installment plan. Interest on the unpaid portion of any claim is the same as the amount provided under §2251.025(b), Government Code.

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 April 19, 2004.

TRD-200402564

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: May 30, 2004

For further information, please call: (512) 424-6576


Subchapter C. NOTICE

1 TAC §§373.301, 373.303, 373.305, 373.307

Statutory Authority

These new rules are proposed pursuant to the authority granted to HHSC under §531.033, Government Code, which authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules necessary to implement HHSC's duties, and is required under Section 531.077, Government Code (as added by Acts 2003, 78th Leg., ch. 198, §2.17), which requires HHSC to establish a Medicaid estate recovery program.

There are no other codes, statutes or articles affected by this proposal.

§373.301.Notice Upon Application.

The Medicaid Estate Recovery Program (MERP) shall provide written notice of the estate recovery program provisions from the time of initial application through certification on or after the effective date of these rules to Medicaid recipients. Medicaid long-term care services provided before the effective dates of the rules are not covered services for the purpose of MERP.

§373.303.Application Notice Provision to Recipients and Others.

Written notice will be provided to the following, if known by Medicaid Estate Recovery Program (MERP) at the time of notice:

(1) The recipient;

(2) The recipient's guardian of the person, if any; guardian of the estate, if any; or guardian of the person and estate, if any, provided that the name and address of the guardian or guardians are known by MERP;

(3) The recipient's agent under a durable power of attorney if the name and address of the agent are known by the MERP;

(4) The recipient's agent under a medical power of attorney if the name and address of the agent are known by the MERP; or

(5) If none of the above are known, to family members acting on behalf of the recipient, provided that the name and address of those family members acting on behalf of the recipient are known by MERP.

§373.305.Medicaid Application Estate Recovery Notice Contents.

The written notice provided by the Medicaid Estate Recovery Program (MERP) to those listed in §373.303 of this title (relating to Application Notice Provision to Recipients and Others) will contain the following information:

(1) Description of the Medicaid Estate Recovery Program;

(2) Information as to covered Medicaid long-term care services subject to estate recovery;

(3) Claim procedures found in §322, Probate Code;

(4) Information as to applicable "look-back" penalties for transfers of property for less than market value during the 36 months prior to applying for Medicaid benefits;

(5) Description of hardship exemptions and related procedures in regard to any recovery claim;

(6) Information concerning the MERP Notice of Intent to File a Claim and the Medicaid Estate Recovery Claim on the death of a Medicaid recipient.

§373.307.Notice of Intent to File A Claim upon the Death of a Medicaid Recipient.

(a) The Medicaid Estate Recovery Program (MERP) shall, within 30 days of the notification of the death of a Medicaid recipient, provide a Notice of Intent to File a Claim, to the following:

(1) Estate representative;

(2) Recipient's guardian of the person, if any; guardian of the estate, if any; or guardian of the person and estate, if any, provided that the name and address of the guardian or guardians are known by MERP;

(3) Recipient's agent under a durable power of attorney if the name and address of the agent are known by MERP;

(4) Recipient's agent under a medical power of attorney if the name and address of the agent are known by MERP; or

(5) If none of the above are known, then family members who have acted on behalf of the recipient provided that the name and address of those family members who have acted on behalf of the recipient are known by MERP.

(b) Contents of Notice of Intent to File a Claim Written notice of MERP's intent to file an estate recovery claim against the estate of a deceased Medicaid recipient for covered services will be provided to individuals identified in subsection (a) of this section. The notice will include the following:

(1) A program overview;

(2) A questionnaire that seeks to determine whether the deceased recipient had:

(A) A surviving spouse;

(B) A surviving child under age 21;

(C) A surviving child who is blind or disabled as defined by 42 United States Code §1382c; or

(D) An unmarried adult child residing continuously in the decedent's homestead for at least one year prior to the time of the Medicaid recipient's death.

(c) An undue hardship waiver request form is due to MERP within 30 days of the date of the Notice of Intent to File a Claim.

(d) The Notice of Intent to File a Claim will state the date that MERP received notification of the death of a Medicaid recipient and the source of the death notification of the Medicaid recipient.

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 April 19, 2004.

TRD-200402565

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: May 30, 2004

For further information, please call: (512) 424-6576