The Texas Health and Human Services Commission (HHSC) proposes to amend §358.105(5), which describes individuals who are eligible under Type Program 51, as well as the program references in §§358.200(d), 358.210(a)(4), and 358.465(c). In addition, the proposal deletes or updates obsolete references, such as changing "department" to "commission."

The HHSC proposes to amend the rules relating to Type Program 51 due to no funds having been appropriated to the program beyond the current biennium, and because those clients affected will be assisted to employ an option available under federal law to retain Medicaid eligibility without interruption.

Under Type Program 51, Medicaid eligible individuals whose income exceeds the HHSC's Title XIX institutional income limit since July 1, 1979, because of a cost-of-living increase in pension or retirement benefits, continue to be eligible for medical benefits. This is because the applicable cost-of-living increases are excluded from countable income. This program has been funded with 100% state funds under a Rider to legislative appropriations that the 79th Texas Legislature did not continue.

Texas residents who require nursing home care and who have monthly income above the income cap but below the private pay cost of the care may have insufficient funds to pay for the needed care. To address this problem federally, Congress in 1993 amended section 1917 of the Social Security Act to provide for an income diversion trust, called a "Qualified Income Trust" or "QIT" (See 42 USC §1396p(d)(4)(B)). The proper use of a QIT allows a person to legally divert the person's income into a trust, after which the income is not counted for purposes of the Medicaid eligibility income cap. Those individuals affected by the repeal of the Type Program 51 rules may retain eligibility for medical assistance without interruption by establishing a QIT, and HHSC is coordinating assistance for these clients towards helping to ensure that each affected client establishes a QIT before Type Program 51 ends.

Tracy Henderson, Chief Financial Officer, has determined that for the first five-year period the proposed amendments are in effect, there are fiscal implications for state government as a result of enforcing or administering the amended sections. The effect on state government for the first five-year period is an estimated reduction in cost of approximately $481,000 per year. HHSC has not found that there would be any fiscal implications for local government as a result of enforcing or administering the amended sections. There will be no effect on small or micro businesses.

Anne Heiligenstein, Deputy Executive Commissioner for Social Services, has determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of enforcing the amended sections is continued Medicaid eligibility under another program for those clients affected, but with federal matching funds to assist the state in paying the benefits of those clients affected.

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 John Stockton, LTC ME Policy, Mail Code 2090, P.O. Box 12668, 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 changes the proposed amendment makes does not implicate a recognized interest in private real property. Accordingly, HHSC is not required to complete a takings impact assessment.

Subchapter A. GENERAL INFORMATION

1 TAC §358.105

The amendments are proposed under the Texas Government Code, §531.033, which provides the Commissioner of HHSC with broad rulemaking authority; the Human Resources Code, §32.021 and the Texas Government Code, §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.

No other statutes, articles or codes are affected by the amendments.

§358.105.Description of Eligible Clients.

The Texas Medical Assistance Program provides, under Title XIX (Medicaid) of the Social Security Act, certain benefits to all individuals who meet the commission's [ ~~department's~~ ] definition of eligible recipients. Eligible recipients are:

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

(3) individuals who are receiving supplemental security income (SSI) cash benefits under Title XVI of the Social Security Act. The Social Administration (SSA) establishes initial and continuing eligibility by using SSI eligibility criteria. These individuals are eligible for Medicaid benefits as long as they are eligible to receive SSI cash benefits. SSA notifies the commission [ ~~department~~ ] when an individual is added to the SSI eligibility rolls, and the commission [ ~~department~~ ] sends the recipient notification of Medicaid eligibility, identification cards, and an explanation of Title XIX benefits;

(4) individuals who live in a Title XIX-approved long-term care medical facility and who would be eligible for SSI cash benefits if they were living outside the facility except that their incomes exceed the SSI payment standard but are less than a special income limit established by the commission [ ~~department~~ ]. An individual must live in one or more institutions throughout at least 30 consecutive calendar days to be eligible under the special income limit:

(A) - (C) (No change.)

[(5) individuals who are eligible for vendor payments in Title XIX-approved long-term care facilities and whose incomes exceed the special income limit because of a cost-of-living increase in any pension or retirement benefits. These individuals continue to be eligible for Title XIX coverage under Type Program 51:]

[(A) to maintain eligibility under this program, these individuals must continue to live in a Title XIX medical facility, to require long-term care, and to meet all SSI eligibility standards except for income;]