Chapter 5160:1-3 Medicaid for the Aged Blind and Disabled

5160:1-3-01.1 Medicare premium assistance programs (MPAP).

(A) This rule sets forth the eligibility criteria and benefits for the medicare premium assistance programs (MPAP). These programs are: qualified medicare beneficiary (QMB), specified low-income medicare beneficiary (SLMB), and qualified individuals (QI-1).

(B) Definitions.

(1) "Enrolled", for the purpose of this rule, means an individual is in receipt of benefits under a medicare health plan.

(2) "MPAP" means any or all of the medicare premium assistance programs: QMB, SLMB, and QI-1.

(3) "MPAP resource limit" means the maximum amount of resources allowed under section 1905(p)(1) of the Social Security Act (as in effect on January 1, 2010), as adjusted annually by the consumer price index for urban areas.

(4) "Qualified", for the purpose of this rule, means an individual is eligible to receive benefits under a medicare health plan, whether or not the individual has applied for those benefits.

(5) "QI-1" means the qualified individual group, for which federal funds are provided each year, described in section 1902(a)(10)(E)(iv) of the Social Security Act (as in effect on January 1, 2010). Enrollment for this group may be limited.

(6) "QMB" means the qualified medicare beneficiary group described in section 1905(p)(1) of the Social Security Act (as in effect on January 1, 2010).

(7) "SLMB" means the specified low-income medicare beneficiary group described in section 1902(a)(10)(E)(iii) of the Social Security Act (as in effect on January 1, 2010).

(C) Eligibility. To be eligible for a medicare premium assistance program, an individual must meet all of the following conditions:

(1) Be qualified for coverage under medicare part A (part A).

(a) An individual is ineligible for MPAP benefits under this rule if the individual is receiving medicare benefits under section 1818A of the Social Security Act (as in effect on January 1, 2010), but the individual may be eligible for benefits under rule 5101:1-39-01.2 or 5101:1-41-30 of the Administrative Code. Rule 5101:1-39-01.2 of the Administrative Code describes individuals receiving benefits under section 1818A.

(b) An individual otherwise qualified for QMB must be enrolled in either part A or medicare part B ("part B") for the administrative agency to provide benefits under this rule.

(c) An individual otherwise qualified for SLMB or QI-1 must be enrolled in part A for the administrative agency to provide benefits under this rule.

(2) Have resources, as determined under Chapter 5101:1-39 of the Administrative Code, no greater than the MPAP resource limit for an individual or for a couple, whichever is appropriate.

(3) Have income, as determined under paragraph (D) of this rule, within the income limits for the MPAP:

(a) For QMB, no greater than one hundred per cent of the federal poverty level (FPL) for the individual's family size; or

(b) For SLMB, greater than one hundred per cent of the FPL but less than one hundred twenty per cent of the FPL for the individual's family size; or

(c) For QI-1, at least one hundred twenty per cent of the FPL but less than one hundred thirty-five per cent of the FPL for the individual's family size.

(4) For QI-1, be otherwise ineligible for medical assistance under Chapters 5101:1-37 to 5101:1-41 of the Administrative Code. However, an individual who is eligible only with a delayed spenddown, as set forth in rule 5101:1-39-10 of the Administrative Code, is eligible for QI-1 benefits.

(5) Meet the application, conditions of eligibility, and verification requirements set forth in Chapter 5101:1-38 of the Administrative Code.

(D) Countable income shall be determined under Chapter 5101:1-39 of the Administrative Code except the annual cost of living increase (COLA) shall be deducted from the individual's income beginning in January of each year and ending the month after the COLA was published in the Federal Register.

(E) Coverage periods.

(1) The effective date of QMB coverage is the first day of the month after the month in which the administrative agency approves QMB benefits. No retroactive coverage is available for QMB.

(2) Eligibility for SLMB benefits begins no earlier than the third month prior to the month of application, provided the individual met all eligibility criteria including enrollment in part A during the three-month period.

(3) QI-1 eligibility is limited by calendar year.

(a) QI-1 coverage begins on the first day of the month of application. If all eligibility requirements were met in any of the three months before the month of application, coverage begins three months before the month of application, except that retroactive coverage under QI-1 cannot begin earlier than January of that year.

(i) The individual must reapply for QI-1 coverage each year.

(ii) Federal funding is limited, and only a certain number of individuals can be covered. Applications are considered and individuals are approved for coverage on a first-come, first-served basis each year until the number of covered individuals equals that year's maximum.

(b) QI-1 coverage continues until December thirty-first of each year, except that coverage will end on the last day of the month in which the individual dies or ceases to be an Ohio resident.

(4) The date and effect of termination of MPAP benefits is set forth in rule 5101:1-38-03 of the Administrative Code.

(F) Benefits.

(1) If an individual is eligible for QMB, the administrative agency shall pay the individual's:

(a) Premiums for part B and, if a premium is charged, part A; and

(b) Medicare deductibles; and

(c) Medicare co-pays; and

(d) Medicare coinsurance costs.

(2) If an individual is eligible for SLMB or QI-1, the administrative agency shall pay the individual's part B premiums.

(G) Administrative agency responsibilities. The administrative agency shall:

(1) Explore eligibility for medicaid and for all MPAP categories if a medicaid applicant is qualified for part A. The agency shall advise the individual:

(a) Of the categories of medicaid or MPAP for which the individual is eligible, the individual's right to decline payment of premiums, co-pays, or coinsurance costs, and the effect of declining MPAP payments; and

(b) That if an individual is qualified for benefits under part A or part B, whether or not a premium would be charged for those benefits, ODJFS is prohibited from paying for prescriptions on behalf of that individual.

(2) If an individual is eligible for QMB:

(a) Approve benefits under QMB and pay the part A, if applicable, and part B premiums on behalf of a QMB-eligible individual as set forth in rule 5101:1-38-03 of the Administrative Code, effective the month after the CDJFS approves QMB coverage; and

(b) Provide form JFS 07212 "Explanation of Qualified Medicare Beneficiary (QMB) Medicaid Coverage" (rev. 6/2001) to the individual; and

(c) For individuals who are not receiving free part A, but who could receive part A benefits by paying a premium, coordinate enrollment in parts A and B with ODJFS and SSA.

(3) If the individual is eligible for SLMB, approve benefits under SLMB and pay the individual's part B premium as set forth in rule 5101:1-38-03 of the Administrative Code, effective the month SLMB coverage begins.

(4) If an individual is determined to be eligible for QI-1: (a) Approve QI-1 for eligible individuals on a first-come, first-served basis each year; and (b) Pay the individual's part B premium as set forth in rule 5101:1-38-03 of the Administrative Code, effective the month QI-1 coverage begins.

(5) Determine whether coverage for any category of benefits under this rule should have been effective prior to the effective date in the electronic medicare buy-in system. If coverage should have begun earlier, the CDJFS shall request that ODJFS manually buy-in the individual with the correct coverage effective date.

(6) Deny benefits under this rule if:

(a) Any of the conditions for denial set forth in rule 5101:1-38-01 of the Administrative Code are met; or

(b) The individual is eligible only for benefits under QI-1 and there is insufficient funding for the QI-1 program.

(7) Terminate benefits under this rule if:

(a) An individual no longer meets the eligibility criteria for any covered group under this rule; or

(b) Any of the conditions for termination set forth in rule 5101:1-38-01 of the Administrative Code are met; or

(c) The individual was eligible for benefits under QI-1 but becomes eligible for another category of medicaid, including ongoing spenddown medicaid as set forth in rule 5101:1-39-10 of the Administrative Code.

(8) Coordinate enrollment with the individual, the SSA, and the buy-in unit of the Ohio department of job and family services (ODJFS).

(H) Individual responsibilities. An individual:

(1) Who is otherwise eligible for QMB but who is not currently in receipt of part A or part B must apply at the SSA for part A or part B.

(2) Who is otherwise eligible for SLMB but who is not currently in receipt of part A must apply at the SSA for part A.

(3) Must inform the county department of job and family services (CDJFS) of any actions by the SSA on the individual's application for part A or part B, or any changes in the individual's part A or part B coverage.

Replaces:

5101:1-39- 01.1

Effective: 01/01/2010
R.C. 119.032 review dates: 01/01/2015
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 1/1/1989 (Emer.), 4/1/1989, 1/1/1990 (Emer.),
1/5/1990 (Emer.), 4/1/1990, 7/1/1990 (Emer.), 9/8/1990, 9/28/1990 (Emer.), 12/24/1990, 1/1/1992 (Emer.), 3/20/1992, 7/1/1992, 1/1/1993 (Emer.), 3/18/1993, 6/11/1993, 8/15/1993, 3/1/1994 (Emer.), 4/18/1994 (Emer.), 6/1/1998, 8/12/1998 (Emer.), 11/1/1998, 10/01/2002, 7/1/2005

5160:1-3-01.2 Medicare: qualified disabled and working individuals (QDWI).

(A) This rule sets forth the eligibility requirements, coverage period, and benefits of the qualified disabled and working individuals (QDWI) program established by section 1905(s) of the Social Security Act (as in effect on January 1, 2010).

(B) Definitions.

(1) "Enrolled", for the purposes of this rule, means that an individual is in receipt of benefits under a medicare health plan.

(2) "QDWI" means the qualified disabled and working individuals program established by section 1905(s) of the Social Security Act (as in effect on January 1, 2010). This program is sometimes referred to as the qualified working disabled individuals (QWDI) program.

(C) Eligibility. To receive QDWI benefits, an individual must:

(1) Be enrolled in medicare part A (part A) under section 1818A of the Social Security Act (as in effect on January 1, 2010). Coverage can be identified as being provided under section 1818A of the Social Security Act when the individual:

(a) Has not reached age sixty-five; and

(b) Has lost disability benefits under Title II of the Social Security Act (as in effect on January 1, 2010) solely due to earnings in excess of the substantial gainful activity (SGA) level established by the social security administration (SSA); and

(c) Is paying a premium for part A coverage; and

(d) Has provided no document or communication from the SSA indicating another basis for part A coverage.

(2) Have countable income, as determined under Chapter 5101:1-39 of the Administrative Code, which does not exceed two hundred per cent of the federal poverty level for the individual's family size.

(3) Have countable resources, as determined under Chapter 5101:1-39 of the Administrative Code, which do not exceed twice the standard under the supplemental security income (SSI) program.

(4) Not be otherwise eligible for medicaid.

(5) Meet the application, conditions of eligibility, and verification requirements set forth in Chapter 5101:1-38 of the Administrative Code.

(D) Coverage period.

(1) Eligibility for QDWI benefits begins no earlier than the third month prior to the month of application, provided the individual met all eligibility criteria including enrollment in part A during the three-month period.

(2) The date and effect of termination of QDWI benefits is set forth in rule 5101:1-38-03 of the Administrative Code.

(E) Administrative agency responsibilities. The administrative agency shall:

(1) Deny benefits under this rule if any of the conditions for denial set forth in rules 5101:1-38-01 and 5101:1-38-01.8 of the Administrative Code are met; or

(2) Terminate benefits under this rule if any of the conditions for termination set forth in rules 5101:1-38-01 and 5101:1-38-01.8 of the Administrative Code are met; or

(3) Approve benefits if an individual is eligible for QDWI benefits, and pay the individual's monthly part A premium as set forth in rule 5101:1-38-03 of the Administrative Code, effective the month that QDWI coverage begins.

(F) Individual responsibilities. The individual must inform the county department of job and family services (CDJFS) of any changes in the individual's part A or part B coverage.

Replaces:

5101:1-39- 01.2

Effective: 01/01/2010
R.C. 119.032 review dates: 01/01/2015
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 7/1/1990 (Emer.), 9/8/1990, 1/1/1991, 10/1/2002

5160:1-3-02 Medicaid: grandfathering provisions resulting from the implementation of the supplemental security income (SSI) program.

(A) With the implementation of the SSI program in January 1974, various grandfathering provisions were enacted to assure that aged, blind, and disabled persons previously eligible for cash assistance and medicaid under the former programs of aid would not be disadvantaged by the new eligibility conditions under the SSI program.

(B) Under the grandfathering provisions, certain persons who were eligible for medicaid in December 1973 are entitled to continued medicaid eligibility coverage even though they may not meet the medicaid eligibility requirements imposed beginning in January 1974 for the coverage of the aged, blind, and disabled. These groups are as follows:

(1) Individuals who are recipients of mandatory supplement payments administered by the social security administration are automatically eligible for medicaid.

(2) Any individual who was eligible in December 1973 as a dependent spouse as long as the dependent spouse continues to be the spouse of and lives with the former cash assistance recipient of AFA, AFB, or AFD, and if the dependent spouse's needs were considered in determining the amount of assistance payable to the recipient in December 1973. The dependent individual must meet all other requirements for medicaid except limiting physical factor. Only in this situation is the requirement of age, blindness, or disability waived as medicaid eligibility requirements.

(3) Individuals who were eligible for medicaid in December 1973 because they met the definition of blindness or disability in effect under the former programs of AFB or AFD remain eligible for medicaid if the individual meets the criteria listed below:

(a) The individual meets all current requirements for medicaid eligibility except for blindness or disability, and

(b) The individual was eligible for medicaid in December 1973 as blind or disabled, whether or not the individual received cash assistance in December 1973, and

(c) For each consecutive month after December 1973, the individual has continued to meet the December 1973 criteria for blindness or disability, and

(d) For each consecutive month after December 1973, the individual has continued to meet all other eligibility requirements which were in effect December 1973.

(e) Failure to meet any one of the four conditions listed in paragraph (B)(3) of this rule renders the case ineligible under the blind or disabled grandfathering provisions. A case is ineligible when it is found that the recipient fails to meet any one condition.

(f) A blind or disabled grandfathered individual permanently loses his blind or disabled grandfathered status when he fails to meet any December 1973 eligibility requirement for any one month.

(g) Any changes in circumstances requires a redetermination of eligibility based upon all conditions in paragraph (B)(3) of this rule.

(4) Persons who would currently be eligible for SSI or cash assistance except for the amount of increased income resulting from the October 1972 twenty per cent general increase in RSDI are eligible for medicaid if, for the month of August 1972, they met the following criteria:

(a) The individual was eligible for and receiving cash assistance under the ADC, AFA, AFB, or AFD programs, and

(b) The individual received and was entitled to monthly RSDI benefits.

(c) Only the October 1972 RSDI increase is disregarded. Any subsequent increases in RSDI are not disregarded.

(d) Although the amount of the October 1972 RSDI increase is disregarded in determining financial eligibility, the individual must meet all of the current eligibility requirements for medicaid or the ADC eligibility requirements which were in effect on July 16, 1996.

(5) All individuals who were eligible for medicaid in December 1973 because they were inpatients or residents of Title XIX institutions and who would have been eligible for cash assistance if they were not in the institution are entitled to continued medicaid as long as they continue to meet the medicaid eligibility requirements in effect in December 1973 and continue to require institutional care.

Eff 9-3-77; 10-26-78; 5-1-79; 9-21-79; 2-7-80; 10-15-98; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
Replaces: 5101:1-39-47
R.C. 119.032 review dates: 10/01/2007

5160:1-3-02.1 Medicaid: treatment of social security payments made to certain persons who are made ineligible for SSI due to such payments.

(A) Social security child insurance and social security disability income (SSDI) of certain persons who were in receipt of SSI benefits and became ineligible for SSI benefits due to the receipt of SSDI income may, in certain circumstances, be disregarded for purposes of determining medicaid eligibility. This exemption does not apply if the individual is in a long term care facility or enrolled in a home and community-based services waiver.

(B) The following groups of individuals are eligible to have their SSDI income disregarded:

(1) Eligible widows(ers) who meet all of the following criteria:

(a) Entitled to a monthly social security benefit for December, 1983, and

(b) Entitled to, and paid, in January, 1984, a social security widow(er)'s disability benefit, and

(c) On or after January, 1984, were made ineligible for SSI because of an increase in their widow(er)'s benefits which resulted from the social security amendment which eliminated the additional reduction factor for disabled widows or widowers under age sixty, and

(d) They filed a medicaid application or reapplication prior to October 16, 1989, in order to reinstate their medicaid eligibility.

(2) Individuals who have a disability who have attained the age of eighteen and are receiving social security benefits on the basis of blindness or a disability which began before they attained the age of twenty-two, and who meet all of the following criteria:

(a) On or after July 1, 1987, became entitled to social security child's insurance benefits on the basis of such disability or to an increase in the amount of the child's insurance benefits which are payable, and

(b) Were in receipt of SSI benefits prior in the month prior to the receipt of the SSDI benefits; and

(c) Were made ineligible for further SSI benefits solely because of their receipt of such child's insurance benefits or because of the increase in child's insurance benefits.

(3) A widow(er) who was in receipt of SSI and meets all of the following criteria:

(a) Would continue to be eligible for SSI payments but for receipt of SSDI benefits as a disabled widow(er), and

(b) Received an SSI payment the month before the SSDI payments began, and

(c) Is not entitled to medicare part A. The SSDI payment will be disregarded only until the individual becomes entitled to medicare part A.

Eff 4-17-89 (Emer.); 6-30-89; 8-1-90 (Emer.); 10-25-90; 10-24-91 (Emer.); 1-20-92; 7-1-94; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
Replaces: 5101:1-39-38
R.C. 119.032 review dates: 10/01/2007

5160:1-3-02.2 Medicaid: continuing care communities, life care communities and philanthropic long-term care facilities.

(A) The purpose of this rule is to describe the eligibility requirements for individuals residing in a continuing care retirement community (CCRC), life care community, or a philanthropic long-term care facility (LTCF).

(B) Definitions.

(1) "Continuing care retirement communities" and "life care communities" mean housing communities that provide different types of care based on each resident's need over time. CCRCs and life care communities may range from independent living in an apartment to assisted living to full-time care in a nursing facility. Residents may move from one setting to another, based on their needs, but continue to live as part of the community. Generally, CCRCs require a written contract and an entrance fee, in addition to monthly fees. CCRCs and life care communities may also be philanthropic facilities.

(2) An "entrance fee" means a payment generally required for admission to a CCRC and life care community and may vary in amount based on the type of housing accommodations and/or type of care.

(3) An "individual" means an applicant for or recipient of a medical assistance program.

(4) A "philanthropic long-term care facility" means a not-for-profit long-term care facility.

(C) Philanthropic long-term care facility.

(1) An aged, blind or disabled person, living in a philanthropic long-term care facility, who has entered into a life care contract with the LTCF, is eligible for medicaid, if all medicaid eligibility requirements and the following conditions are met:

(a) The philanthropic LTCF must provide evidence that it is financially unable to operate. The LTCF must show that the total financial situation, of the LTCF, indicates the LTCF is financially unable to fulfill its responsibilities under the life care contract (rather than showing the individual has exhausted the amount of money turned over to the long-term care facility); and

(b) The entrance fee would be depleted had the individual paid the facility at the medicaid long-term care rate for a comparable facility.

(2) An individual residing in a philanthropic long-term care facility who has not entered into a life care contract must have eligibility for medical assistance determined in accordance with Chapter 5101:1-39 of the Administrative Code.

(D) For purposes of determining or redetermining eligibility for medical assistance on or after February 8, 2006, an individual's entrance fee for admission to a CCRC or life care community must be considered an available resource to the individual when all of the following conditions are met:

(1) The entrance fee can be used to pay for care, under the terms of the entrance contract, should other resources or income of the individual be insufficient; and

(2) The individual is eligible for a refund of any remaining entrance fee when the individual dies or terminates the contract and leaves the CCRC or life care community; and

(3) The entrance fee does not confer an ownership interest in the CCRC or life care community.

Replaces: 5101:1-39- 02.2

Effective: 10/01/2006
R.C. 119.032 review dates: 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 10/26/78, 5/1/79, 9/21/79, 2/21/80, 6/18/89, 10/1/02

5160:1-3-02.3 Medicaid: SSI recipients qualifying under section 1619 of the Social Security Act for continued medicaid coverage.

(A) Section 1619 of the Social Security Act comprises two basic provisions:

(1) Section 1619(a) extends special SSI cash to individuals whose earnings preclude eligibility for regular SSI cash benefits. Individuals in 1619(a) may still receive an SSI cash benefit in addition to the individual's earned income.

(2) Section 1619(b) extends medicaid coverage to individuals whose earnings, although high enough to preclude eligibility for regular SSI cash benefits or special SSI cash benefits under section 1619(a), may not be enough for medical care.

(B) To determine initial medicaid eligibility for sections 1619(a) and 1619(b), the CDJFS shall:

(1) Verify that the individual is currently in 1619(a) or 1619(b) status.

(a) The individual's current 1619 status shall be verified by using the CRIS-E screen DESX and the SVES screens whenever possible.

(b) The CRIS-E screens and information from the social security administration do not definitively show the first month of the most recent period that an individual went into 1619 status. The CDJFS must use the applicant or other source to verify the first month of 1619 eligibility.

(c) The CDJFS should assist the individual in obtaining the necessary verification from the social security administration when necessary or when requested.

(d) The eligibility worker may contact the social security administration and obtain verbal confirmation of the beginning date of 1619 eligibility. The contact must be documented in CRIS-E running record comments (CLRC)

(2) Determine that the individual was eligible for medicaid the month prior to the month he qualified for section 1619(a) or 1619(b).

(a) The CDJFS must use the month immediately preceding the first month of the most recent period of eligibility under section 1619.

(b) The individual will be determined eligible for medicaid for purposes of this rule if the individual met all of the medicaid eligibility requirements for the month prior to the month of 1619 eligibility except for meeting his or her spenddown obligation that is defined in rule 5101:1-39-10 of the Administrative Code.

(C) When determining medicaid eligibility for an individual in 1619(a) or (b) status or for an eligible couple when one spouse is eligible under 1619 provisions and the other spouse is not, the spenddown medicaid policy shall not apply to either spouse even though the couple's budget would result in a spenddown liability.

(D) Individuals or couples eligible for medicaid through the spenddown provision and who become eligible under the 1619 provisions will no longer be required to meet a spenddown regardless of their source(s) of income as long as they remain eligible under the 1619 provisions.

(E) Once it is determined that the individual is in section 1619 status and that he was eligible to receive medicaid in the month prior to the first month of the most recent period of qualifying for section 1619, the individual is protected from losing medicaid benefits under this provision as long as he remains in 1619(a) or (b) status. The individual may have income or resources in excess of the medicaid requirements and remain eligible for regular medicaid, i.e., no spend-down liability, under the 1619 provision. However, if the individual's income or resources disqualifies him for 1619 status, the individual's medicaid protection is lost.

(F) A pretermination review of continuing medicaid eligibility must be completed when it has been determined that the individual or couple is no longer eligible for medicaid under the 1619 provisions.

Eff 7-1-87 (Emer.); 8-3-87; 1-1-88; 4-1-89 (Emer.); 6-18-89; 9-1-93; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
Replaces: 5101:1-39-41
R.C. 119.032 review dates: 10/01/2007

5160:1-3-02.8 Medicaid: treatment of qualified long-term care insurance policies.

(A) This rule describes the qualified long-term care partnership (QLTCP) program.

(B) Definitions.

(1) "Estate recovery" means the program set forth in rule 5160:1-2-07 of the Administrative Code.

(2) "Qualified long-term care partnership" (QLTCP) means the program established under section 5164.86 of the Revised Code, under which an individual's resources are disregarded in eligibility determinations and at estate recovery in the amount of benefits paid to or on behalf of the individual by a QLTCP policy.

(C) A QLTCP policy is one that meets all of the following requirements:

(1) On the date the policy was issued, the state in which the insured resided had in place an approved state plan amendment which provides, pursuant to 42 U.S.C. 1396p(b) (as in effect on March 1, 2014), for the disregard of resources in an amount equal to the insurance benefit payments made to or on behalf of an individual who is a beneficiary of a QLTCP policy; and

(2) The policy is a qualified long-term care insurance policy, as defined in 26 U.S.C. 7702B(b) (as in effect March 1, 2014); and

(3) The policy meets the requirements set forth by the Ohio department of insurance in section 3923.41 of the Revised Code, or, if purchased outside Ohio, meets the requirements of an approved state plan amendment, as described in paragraph (C)(1) of this rule, in the state of purchase.

(D) At application or reapplication for long-term care services, a home and community-based services (HCBS) waiver, or the program of all inclusive care for the elderly (PACE), an individual's resources will be disregarded up to the dollar amount of benefits paid to or on behalf of the individual by a QLTCP policy.

(1) The administrative agency shall determine medicaid eligibility in accordance with the eligibility rules contained in Chapters 5160:1-1 to 5160:1-6 of the Administrative Code.

(2) An individual may apply for long term care services before exhausting the benefits of a QLTCP policy. If an individual applies for and is eligible to receive medicaid coverage before the QLTCP policy is exhausted, the QLTCP insurer must make payment for medical care to the maximum extent of their liability before medicaid funds may be used to pay providers for covered long-term care services.

(3) If an individual has applied for and been found eligible to receive medicaid, and then receives additional resources, the individual continues to be eligible for medicaid to the extent the total value of all disregarded resources does not exceed the individual's QLTCP disregard plus the applicable resource allowance.

(4) A QLTCP disregard cannot reduce patient liability or cost of care.

(E) Improper transfers of resources, as described in rule 5160:1-3-07.2 of the Administrative Code, are treated as follows when there is a QLTCP disregard.

(1) If an individual becomes eligible for medicaid through the application of a QLTCP disregard, then makes a transfer of disregarded resources that would otherwise be considered an improper transfer, no restricted medicaid coverage period applies. The disregarded value of the transferred resource continues to be considered part of the individual's QLTCP disregard.

(2) If an individual becomes eligible for medicaid through the application of a QLTCP disregard after making a transfer that would otherwise be considered an improper transfer:

(a) If the value of the individual's remaining countable resources plus the value of the transferred resources is less than or equal to the individual's QLTCP disregard plus the applicable resource limit, no restricted medicaid coverage period applies. The disregarded value of the transferred resource is considered part of the individual's QLTCP disregard.

(b) If the value of the individual's remaining countable resources plus the value of the transferred resources is greater than the individual's QLTCP disregard plus the applicable resource limit:

(i) The individual's remaining QLTCP disregard is determined by adding the individual's original QLTCP disregard amount to the applicable resource limit, then subtracting the individual's current countable resources and any amounts that had previously been transferred without a restricted medicaid coverage period as a result of a QLTCP disregard.

(ii) The individual's remaining QLTCP disregard is subtracted from the amount that would otherwise have been considered improperly transferred. The difference is the amount improperly transferred; a restricted medicaid coverage period is calculated for the difference in accordance with rule 5160:1-3-07.2 of the Administrative Code.

Replaces: 5160:1-2-11

Effective: 12/01/2014
Five Year Review (FYR) Dates: 12/01/2019
Promulgated Under: 119.03
Statutory Authority: 5162.21 , 5163.02 , 5164.86
Rule Amplifies: 5162.21 , 5164.86
Prior Effective Dates: 9/1/07

5160:1-3-03 Medicaid: limiting physical factor.

(A) This rule addresses the eligibility criterion of limiting physical factor. Limiting physical factor is a non-financial medicaid eligibility criterion.

(B) Definitions.

(1) "Administrative agency" is the county department of job and family services (CDJFS), Ohio department of job and family services (ODJFS) or other entity that determines eligibility for a medical assistance program.

(2) "CMS packet" consists of all required forms specified in paragraph (C) of this rule and all available current medical information to support the disability claim. The CMS packet is submitted by the administrative agency to the county medical services (CMS) unit for a disability determination.

(3) "Continuing disability review" is the process by which the CMS unit determines whether an individual continues to meet the disability criteria for medicaid eligibility. The CMS unit will conduct a continuing disability review for individuals who are approved for disability or blindness by the CMS unit but who are not yet approved for SSA disability benefits through the social security administration (SSA). The CMS unit shall determine the disability begin date and disability review date.

(4) "Current medical information" is medical information that originated within eighteen months of the date of initial application or continuing disability review.

(5) "Deferral of a disability determination" is the process by which the CMS unit returns the CMS packet to the administrative agency because there is incomplete or insufficient information contained in the CMS packet to approve, deny or continue the disability or blindness claim.

(6) "Disability determination" is the process by which the CMS unit determines whether an individual meets the limiting physical factor eligibility criteria of "blind" or "disabled" for medicaid eligibility. The CMS unit determines blindness and disability in accordance with SSA policy. The SSA sets forth a five-step sequential evaluation process for determining whether or not an individual is disabled.

(7) "Disability begin date" is the date that the CMS unit enters into the electronic eligibility system as the date on which the CMS unit determines an individual meets the limiting physical factor.

(8) "Disability review date" is the date that the CMS unit determines for the continuing disability review and the date that the current CMS approval will expire.

(9) "Individual" is the applicant or recipient of a medical assistance program.

(10) "Limiting physical factor" is a physical or mental characteristic or impairment or combination of characteristics or impairments that may limit an individual's ability to work. For the purposes of medicaid eligibility, limiting physical factor is a non-financial eligibility criterion. There are three ways an individual can meet the eligibility criterion of limiting physical factor:

(a) "Aged" means an individual is age sixty-five years or older. The administrative agency shall determine if the individual meets the limiting physical factor of "aged";

(b) "Blind" as defined in 42 USC 1382c , (12/17/1999) means an individual has central visual acuity of 20/200 or less in the better eye with the use of a correcting lens; and

(c) "Disabled", as defined in 42 USC 1382c , (12/17/1999):

(i) An individual age eighteen or over who is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

(ii) An individual under age eighteen who has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

(11) "Mental deficiency" means mental retardation. The presumptive disability category outlined in paragraph (I) of this rule pertains to individuals who require care and supervision of routine daily activities and are dependent upon others for meeting personal care needs. As a result of mental retardation, the individual's dependence on others grossly exceeds age-appropriate dependence.

(12) "Pending" means the SSA is in the process of making a determination, whether initial or continuing disability review, about whether the individual is disabled and has not yet arrived at a decision.

(13) "Presumptive disability" is a temporary determination of disability. The administrative agency shall determine the limiting physical factor is met when the individual alleges, another person who is applying on behalf of the individual alleges, or the individual appears to have at least one of the specific impairments or conditions listed in paragraph (I) of this rule.

(14) "SSA disability benefits" are disability benefits provided to an individual and authorized by the SSA through Title II and Title XVI of the Social Security Act [ 42 USC 402 (4/7/2000) and 42 USC 416 (8/15/1994)]. "Supplemental Security Income (SSI)" are benefits authorized by the SSA through Title XVI of the Social Security Act.

(C) Administrative agency responsibilities.

(1) The administrative agency shall determine medicaid eligibility in accordance with the eligibility rules contained in Chapters 5101:1-37 to 5101:1-42 of the Administrative Code.

(2) The administrative agency shall determine the limiting physical factor is met and shall not submit a CMS packet to the CMS unit when:

(a) An individual meets the definition of "aged"; or

(b) An individual has been approved for SSA disability benefits for the individual's own disability or blindness as defined in paragraph (B)(14) of this rule.

(c) An individual has a level of care (LOC) determination in accordance with rule 5101:1-39-04 of the Administrative Code.

(3) The administrative agency shall determine the limiting physical factor is not met and shall submit a CMS packet to the CMS unit for a disability determination when:

(a) An individual has, alleges, or appears to have a physical or mental impairment or combination of impairments that may limit his or her ability to work;

(b) An individual is, alleges being or appears to be blind;

(c) An individual is potentially eligible for alien emergency medical assistance (AEMA) under a category of medicaid that requires a disability determination, in accordance with rule 5101:1-41-20 of the Administrative Code;

(d) An individual has an application for SSA disability benefits pending with the SSA; and

(e) An individual has, alleges or appears to have a physical or mental impairment, blindness, or combination of impairments, but is eligible for medicaid under a category other than disability or blindness.

(4) The administrative agency shall determine the limiting physical factor is met and shall also submit a CMS packet to the CMS unit for a disability determination when:

(a) An individual is determined to have a presumptive disability in accordance with paragraph (I) of this rule; and

(b) An individual is determined to have a presumptive disability by the SSA and has an application for SSA disability benefits pending.

(5) As a condition of medicaid eligibility, the administrative agency shall require individuals to apply for any SSA disability benefits to which they are entitled.

(6) Upon request, the administrative agency shall assist the individual in obtaining medical documentation to support the disability or blindness claim. Upon request, the administrative agency shall utilize administrative funds to assist the individual in receiving an eye examination or medical/psychological examination to determine whether an individual is blind or disabled.

(7) The administrative agency shall obtain all available current medical information as well as any other information requested by the CMS unit and submit it in the CMS packet.

(a) The administrative agency shall include in the CMS packet all available current medical information for all alleged impairment(s) or combination of impairments.

(b) The administrative agency shall assist the individual in obtaining existing medical information, tests, services or records from other entities such as the SSA, Ohio rehabilitation services commission, workers' compensation, etc.

(8) The administrative agency shall give the forms listed in this paragraph to the individual, the individual's legal representative, another person applying on behalf of the individual, or the treating physician(s).

(a) JFS 07302, "Basic Medical Form";

(b) JFS 07308, "Mental Functional Capacity Assessment" when the individual has or appears to have a mental impairment; and

(c) JFS 03606, "Physician Certification of Medication Dependency" when applicable.

(9) The administrative agency or SSI case manager shall complete the JFS 07004, "Social Summary Report for Disability Determination".

(10) The administrative agency shall complete the JFS 03605, "ODJFS Referral to CMS" using current medical information.

(11) The administrative agency shall submit the CMS packet to the CMS unit for a disability determination and for a continuing disability review.

(12) When the CMS unit has deferred a disability determination, and the administrative agency is unable to obtain all of the requested additional medical information, the administrative agency shall resubmit the initial CMS packet and any additional information to the CMS unit for a final decision.

(13) The administrative agency shall maintain case records in accordance with rule 5101-9-21 of the Administrative Code.

(14) The administrative agency shall issue proper notice and hearing rights as outlined in division-level designation 5101:6 of the Administrative Code.

(15) The administrative agency shall not terminate medical assistance for a member(s) of an assistance group until a pre-termination review (PTR) of continuing medicaid or medical assistance eligibility has been completed in accordance with rule 5101:1-38-01.1 of the Administrative Code.

(16) The administrative agency shall determine presumptive disability when the individual alleges, another person who is applying on behalf of the individual alleges or the individual appears to have at least one of the specific impairments or conditions listed in paragraph (I) of this rule. The administrative agency shall obtain medical documentation from an appropriate medical professional knowledgeable about the individual's current medical status to support the existence of the specific impairment or condition. The administrative agency shall determine the limiting physical factor is met, approve medicaid eligibility and shall also submit a CMS packet to the CMS unit for a disability determination.

(17) The administrative agency shall submit the following information to the CMS unit for an individual's continuing disability review prior to the disability review date:

(a) A new CMS packet. The CMS packet shall contain all required forms specified in paragraph (C) of this rule and all available current medical information to support the disability claim;

(b) The previously approved CMS packet; and

(c) Any other information requested by the CMS unit.

(D) Responsibilities of the individual.

(1) When the individual alleges a disability or blindness, the individual shall assist the administrative agency in obtaining all available current medical information to include in the CMS packet that supports the disability or blindness claim. The individual shall assist the administrative agency in obtaining any existing medical information, tests, services or records from other entities such as the SSA, Ohio rehabilitation services commission, workers' compensation, etc.

(2) If the SSA makes a decision denying SSA disability benefits the individual has the right to file an appeal with the SSA.

(E) County medical services (CMS) unit responsibilities.

(1) The CMS unit shall approve, deny or defer disability determinations submitted by the administrative agency. The CMS unit shall notify the administrative agency upon approving, denying or deferring a disability determination via the electronic eligibility system and the JFS 03600, "County Medical Services Disability Determination".

(2) When the CMS unit approves a disability, the CMS unit shall determine the disability begin date and the continuing disability review date. The CMS unit shall inform the administrative agency via the electronic eligibility system and the JFS 03600.

(3) The CMS unit shall approve, deny or defer continuing disability reviews submitted by the administrative agency. The CMS unit shall notify the administrative agency upon approving, denying or deferring a continuing disability review via the electronic eligibility system and the JFS 03600.

(4) In accordance with paragraph (C)(12) of this rule, when the administrative agency is unable to obtain all of the requested additional medical information in a deferred case, the administrative agency shall resubmit the initial CMS packet to the CMS unit. The CMS unit shall make a final decision on the case. The CMS unit shall notify the administrative agency of the decision via the electronic eligibility system and the JFS 03600.

(F) Medicaid eligibility during initial eligibility determination.

(1) In order for an individual to be eligible for medicaid, the individual must meet all medicaid eligibility criteria.

(2) As a condition of medicaid eligibility, the administrative agency shall require individuals to apply for any SSA disability benefits to which they are entitled.

(3) If the individual meets limiting physical factor in addition to all medicaid eligibility criteria in accordance with paragraphs (C)(1) to (C)(2) of this rule, the administrative agency shall approve medicaid eligibility.

(4) If the individual meets limiting physical factor in addition to all medicaid eligibility criteria in accordance with paragraphs (C)(1) and (C)(4) of this rule, the administrative agency shall approve medicaid eligibility and shall also submit a CMS packet to the CMS unit for a disability determination.

(5) If the individual does not meet limiting physical factor in accordance with paragraph (C)(3) of this rule, the administrative agency shall not approve medicaid eligibility and shall also submit a CMS packet to the CMS unit for a disability determination.

(6) If the SSA denies the individual SSA disability benefits or does not complete a disability determination for a non-disability reason, the administrative agency shall submit a CMS packet to the CMS unit for a disability determination, in accordance with paragraph (C) of this rule.

(a) If the CMS unit approves the disability, the limiting physical factor is met and the administrative agency shall approve medicaid eligibility.

(b) If the CMS unit denies the disability, the limiting physical factor is not met and the administrative agency shall not approve medicaid eligibility.

(7) When the individual's SSA application is pending, the administrative agency shall submit a CMS packet to the CMS unit for a disability determination, in accordance with paragraph (C) of this rule.

(a) If the CMS unit approves the disability, the limiting physical factor is met and the administrative agency shall approve medicaid eligibility until the SSA makes a decision on the SSA application.

(b) If the CMS unit denies the disability, the limiting physical factor is not met and the administrative agency shall not approve medicaid eligibility until the SSA makes a decision on the SSA application:

(i) If the SSA makes a decision approving SSA disability benefits, the limiting physical factor is met and the administrative agency shall determine medicaid eligibility based upon the initial medicaid application and continue medicaid eligibility until a medicaid redetermination is required.

(ii) If the SSA makes a decision denying SSA disability benefits, the limiting physical factor is not met and the administrative agency shall not approve medicaid eligibility.

(8) When the SSA makes a decision denying SSA disability benefits, the individual has a right to appeal the SSA decision.

(9) The SSA appeal consists of several levels of administrative review that shall be requested within certain time periods and at the proper level. The levels of administrative review are reconsideration, administrative law judge (ALJ) hearing, and appeals council review. The appeals council review ends the administrative review process. If an individual is still dissatisfied, he/she may request judicial review which is done by filing an action in federal court.

(a) If the individual appeals the SSA decision, the administrative agency shall continue medicaid eligibility through the SSA appeals council review process. The SSA gives an individual sixty-five days to request an appeal after receiving notice of denial. Eligibility for medicaid shall continue through the sixty-fifth day from the date on the adverse SSA disability decision.

(b) If an individual requests an appeal of the SSA decision before medicaid is terminated, medicaid shall be continued until a decision is made after the SSA appeals council review. The SSA appeals council review is the final administrative decision.

(c) If the individual fails to appeal the SSA decision within the sixty-five day period, but is later permitted by the SSA to appeal for good cause shown, the administrative agency shall restore medicaid eligibility back to the date of the medicaid termination.

(d) If the individual fails to appeal the SSA decision in accordance with paragraph (F) of this rule, the limiting physical factor is no longer met.

(G) Medicaid eligibility during continuing disability review.

(1) In order for an individual to be eligible for medicaid, the individual must meet all medicaid eligibility criteria. If the individual meets all medicaid eligibility criteria, the administrative agency shall continue medicaid eligibility while the CMS unit is conducting a continuing disability review.

(2) If the SSA had previously denied the individual SSA disability benefits or did not complete a disability determination for a non-disability reason and the CMS unit approved the disability, the administrative agency shall submit a CMS packet to the CMS unit for a disability determination, in accordance with paragraph (C) of this rule.

(a) If the CMS unit approves the disability, the limiting physical factor is met and the administrative agency shall continue medicaid eligibility.

(b) If the CMS unit denies the disability, the limiting physical factor is not met and the administrative agency shall not continue medicaid eligibility.

(3) When the individual's SSA application is pending at the time of the continuing disability review, the administrative agency shall submit a CMS packet to the CMS unit in accordance with paragraph (C) of this rule.

(a) If the CMS unit approves the disability, the limiting physical factor is met and the administrative agency shall continue medicaid eligibility until the SSA makes a decision on the SSA application.

(b) If the CMS unit denies the disability, the limiting physical factor is not met and the administrative agency shall not continue medicaid eligibility.

(4) If the individual's SSA application is in an appeal at the time of the continuing disability review, the administrative agency shall continue medicaid eligibility through the SSA appeals council review process, in accordance with paragraph (F)(6) of this rule.

(H) Reapplication for medicaid. When an individual is terminated from medicaid and reapplies:

(1) Within twelve months after the disability begin date, the limiting physical factor is met. The administrative agency shall not submit a new CMS packet to the CMS unit. The administrative agency shall apply the existing disability review date, in accordance with paragraph (G) of this rule.

(2) Beyond twelve months of the disability begin date, the limiting physical factor is not met. The administrative agency shall submit a new CMS packet to the CMS unit for a disability determination, in accordance with paragraphs (C) to (F) of this rule.

(I) Presumptive disability conditions or impairments:

(1) Amputation of a leg at the hip;

(2) Total deafness;

(3) Total blindness;

(4) Bed confinement or immobility without a wheelchair, walker, or crutches, due to a longstanding condition, excluding recent accident and recent surgery;

(5) A stroke (cerebral vascular accident) more than three months in the past and continued marked difficulty in walking or using a hand or arm;

(6) Cerebral palsy, muscular dystrophy or muscle atrophy and marked difficulty in walking (e.g., use of braces), speaking or coordination of the hands or arms;

(7) Down's syndrome;

(8) An allegation of severe mental deficiency made by a person applying on behalf of an individual who is at least seven years of age, in accordance with the definition of "mental deficiency" in paragraph (B) of this rule;

(9) A child who has not attained his or her first birthday and the birth certificate or other evidence (e.g., the hospital admission summary) shows a weight below twelve hundred grams (two pounds, ten ounces) at birth;

(10) A child who has not attained his or her first birthday and the birth certificate or other evidence (e.g., the hospital admission summary) shows a gestational age at birth on the table below with the corresponding birth-weight indicated:

Gestational age and birth weight

Gestational age (in weeks) Weight at birth

37-40 Less than 2000 grams (4 pounds, 6 ounces)

36 1875 grams or less (4 pounds, 2 ounces)

35 1700 grams or less (3 pounds, 12 ounces)

34 1500 grams or less (3 pounds, 5 ounces)

33 1200 grams to 1325 grams (2 pounds, 10 ounces to 2 pounds, 15 ounces)

(11) Diseases and/or illnesses that are a result of human immunodeficiency virus (HIV) infection, and the diseases and/or illnesses have progressed to the point where the individual is unable to work for a minimum of twelve consecutive months, as confirmed by a licensed physician;

(12) An individual who is receiving hospice services because of terminal illness;

(13) A spinal cord injury producing inability to ambulate without the use of a walker or bilateral hand held assistive devices for more than two weeks;

(14) End stage renal disease with ongoing dialysis; or

(15) Amyotrophic lateral sclerosis (ALS, Lou Gehrig's disease).

Eff 9-3-77; 1-1-81; 9-6-84; 8-1-85; 7-1-87 (Emer.); 8-3-87; 1-1-88 (Emer.); 3-28-88; 10-1-88 (Emer.); 12-20-88; 10-1-91 (Emer.); 12-2-91; 10-1-02; 11-25-02; Rescinded and renacted eff. 1-1-05
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011 , 5111.012
Replaces: 5101:1-39-03, 5101:1-39- 03.1, 5101:1-39- 03.2, 5101:1-39- 03.3
R.C. 119.032 review dates: 01/01/2010

5160:1-3-03.4 Medicaid: continued medicaid coverage for children who lost their eligibility for supplemental security income (SSI) due to a change in the disability determination.

(A) Section 4913 of the Balanced Budget Act (BBA) provides that any child who was receiving SSI and medicaid on August 22, 1996 whose SSI payments were terminated as a result of the change in the SSI disability criteria for children, continues to meet the limiting physical factor requirement of disability for medicaid.

(1) "Receiving SSI" means that, as of August 22, 1996, the child was in current SSI pay status, had received a favorable or partially favorable administrative decision awarding SSI, or had appealed a decision by SSA to deny his or her application for SSI or to terminate his or her SSI. Medicaid is protected pending the outcome of the appeal.

(2) Medicaid disability eligibility for the pending SSI category is protected pending the outcome of the appeal through the appeals council decision.

(3) Medicaid is not protected for those individuals whose applications for SSI were pending as of August 22, 1996 and they failed to file timely appeals of the SSI denial.

(B) Children not receiving SSI as of August 22, 1996 as defined in paragraph (A) of this rule or who filed for SSI on or after August 22, 1996 are not protected under section 4913 and are, therefore, covered by the new SSI definition of disability for children.

(C) Protected children are required to meet medicaid income and resource requirements in order to get or keep medicaid coverage.

(1) A protected child does not lose his protected status if he becomes eligible under another category of medicaid.

(2) All categories of medicaid must be explored for the child and the child given the choice of category if she or she is eligible under more than one category of medicaid.

(D) If the child is in receipt of medicaid for the disabled (MA-D), the child's disability must be reviewed for continued MA-D eligibility at the first reapplication after all SSI appeals have been exhausted, the child must continue to meet the pre August 22, 1996 criteria to remain in protected status. The child's disability must be reviewed if the child is not eligible for medicaid under any category other than MA-D. The county medical services (CMS) will determine if the child continues to meet the pre-August 22, 1996 criteria.

(E) As a child nears age eighteen, his or her disability must be redetermined by CMS using the adult definition of disability. The individual must also apply for SSI as part of the redetermination process.

(F) Children covered by section 4913 whose medicaid eligibility is uninterrupted should have their eligibility redetermined at their regularly scheduled time. Whenever a redetermination is scheduled, the medicaid non-disability eligibility criteria that is in effect at the time of the reapplication shall be used.

(G) In accordance with rule 5101:1-38-01.1 of the Administrative Code, eligibility for all other categories of medicaid must be determined prior to proposing terminating coverage under the child's current category of medicaid.

Eff 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
R.C. 119.032 review dates: 10/01/2007

5160:1-3-04 Medicaid: living arrangement requirement.

(A) This rule describes the living arrangement requirement for an individual.

(B) Definitions:

(1) "Administrative Agency" means the county department of job and family services (CDJFS), Ohio department of job and family services (ODJFS), or other entity that determines eligibility for a medical assistance program.

(2) "Individual" means applicant for or recipient of a medical assistance program.

(C) An individual shall be considered to have met the living arrangement requirement for medical assistance if the individual is a resident of Ohio.

(D) An individual shall not be eligible for payment of services under certain circumstances as described in rule 5101:1-37-20 of the Administrative Code.

(E) Unless there is contradictory information provided to or maintained by the administrative agency, an individual's self-declaration of state residency shall meet the requirement of this rule.

Replaces: 5101:1-39-04

Effective: 05/29/2009
R.C. 119.032 review dates: 05/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.011 , 5111.01
Rule Amplifies: 5111.011 , 5111.01
Prior Effective Dates: 9/3/1997, 12/31/1977, 1/1/1981, 12/1/1982, 12/1/1984 (Emer.), 2/10/1985, 4/1/1988 (Emer.), 6/30/1988, 8/1/1988 (Emer.), 10/30/1988, 10/1/1990, 4/1/1991, 1/1/2003, 3/1/2009(Emer)

5160:1-3-05 Medicaid: resource requirement.

(A) This rule defines how resources are treated for purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Administrative agency" means the county department of job and family services, the Ohio department of job and family services, or other entity that determines eligibility for a medical assistance program.

(2) "Assets" include all income and resources of the individual and of the individual's spouse. This includes any income or resources the individual or the individual's spouse is entitled to, but does not receive, because of action taken to avoid receipt of the assets by:

(a) The individual or the individual's spouse; or

(b) A person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or

(c) Any person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

(3) "Countable resources" mean those resources remaining after all exemptions have been applied.

(4) An "encumbrance" means a claim, lien, charge, or liability attached to and binding on an identified piece of real or personal property.

(5) "Equity value" means the fair market value of a resource minus any encumbrance on it.

(6) "Fair market value" of a resource means the going price, for which real or personal property can reasonably be expected to sell on the open market, in the particular geographic area involved.

(7) "Individual" means an applicant for or recipient of a medical assistance program.

(8) "Personal property" means any property that is not real property. The term includes, but is not limited to, such things as cash, jewelry, household goods, tools, life insurance policies, automobiles, promissory notes, etc.

(9) "Real property" means land, including buildings or immovable objects, attached permanently to the land.

(10) "Resources" mean cash, personal property, and real property an individual and/or the individual's spouse has an ownership interest in, has the legal ability to access in order to convert to cash (if not already cash), and is not legally prohibited from using for support and maintenance.

(a) An ownership interest in property, whether real or personal, is any interest recognized by law that can be protected or enforced in a court of law. Ownership interest includes either legal title or equitable interests. Access to property or a right to use property does not make that property a resource if there is no ownership interest.

(b) Property cannot be a resource if the individual lacks the legal ability to access funds for spending or to convert noncash property into cash.

(i) Property, or an interest in real or personal property, must have a cash value that is available to the individual upon liquidation or sale of the property.

(ii) An individual has the legal ability to access property even when action can be taken only by an agent, any person with power of attorney, a guardian whether court appointed or not, or any other court appointed fiduciary such as a conservator of the individual. For purposes of medicaid eligibility, any action by an agent, a guardian whether court appointed or not, any person with a power of attorney, or any other court appointed fiduciary such as a conservator is deemed to be an action by the individual. This is true even if he or she is required to petition the court to withdraw funds for the individual's care.

(c) Even with ownership interest and legal ability to access property, a legal restriction against the property's use for the owner's own support and maintenance means the property is not a resource.

(11) "Resource limit" means the maximum combined value of all resources an individual can have an ownership interest in and still qualify for medicaid.

(a) For an individual, the resource limit is one thousand five hundred dollars.

(b) For a couple, whether both are eligible or one is ineligible, the resource limit is two thousand two hundred fifty dollars.

(c) A child living with a parent is considered to be an individual and has a resource limit of one thousand five hundred dollars.

(12) "Trust" is defined in rule 5101:1-39-27.1 of the Administrative Code.

(C) Treatment of non-exempt resources and determination of resource availability.

(1) The administrative agency must evaluate and calculate the value of all resources held by an individual and the individual's spouse. An individual is ineligible for medical assistance if he or she has an ownership interest in resources with an aggregate or total countable value greater than the resource limit. The following provisions govern that process.

(a) Receipt and retention of cash or in-kind items.

(i) An individual or the individual's spouse may receive cash or in-kind items during a calendar month (the "month of receipt"). The administrative agency must treat the cash or in-kind items as a possible source of countable income for the month of receipt under the rules governing income.

(ii) If the individual or the individual's spouse retains the cash or in-kind items beyond the month of receipt, the administrative agency must determine the availability of the cash or in-kind items as a possible countable resource under the rules governing resources.

(iii) Receipt of cash or in-kind items from the sale or exchange of timber, minerals, or other like items that are part of the land must be governed by this provision.

(b) If the individual or the individual's spouse receives cash or in-kind items as the result of an exchange, sale, replacement, or conversion of a resource, the administrative agency must consider the availability of the cash or in-kind items under the rules governing the treatment of resources, even in the first calendar month.

(2) Changes in the value of resources.

(a) The administrative agency must review any change (increase or decrease), in the total value of an individual's resources, if the change may affect the individual's eligibility for medical assistance .

(b) The review may be initiated by an eligibility worker based upon information derived from any reliable source indicating the value of an individual's available resources has increased or decreased.

(c) The administrative agency must conduct the review of any changes as soon as possible.

(3) Discovery of previously unknown ownership interests.

(a) Any individual alleging lack of knowledge of an ownership interest in a resource must provide a signed statement attesting to the lack of knowledge and explaining the circumstances resulting in its discovery.

(b) The individual must obtain supporting documentation, which may include signed statements from other individuals who are familiar with the individual's situation, that confirms the individual's claim.

(c) If the administrative agency obtains both the signed statement and adequate supporting documentation from the individual, the administrative agency will not count an individual's ownership interest as an available resource during any period in which the individual was unaware of the ownership interest.

(d) The administrative agency must treat previously unknown ownership interests, including any monies (interest, dividends, or other earnings) that have accumulated on it, in the same manner as the receipt or retention of cash or in-kind items under this rule.

(e) If either the signed statement or the supporting documentation is not provided, the administrative agency will count an individual's ownership interest as an available resource during any period in which the individual claimed to be unaware of the ownership interest. The administrative agency must treat the ownership interest, including any monies (interest, dividends, or other earnings) that have accumulated on it, in the same manner as the receipt or retention of cash or in-kind receipts under this rule. When appropriate, the administrative agency may refer the case to the administrative agency's benefit recovery unit.

(4) Shared ownership.

(a) If the individual shares ownership with another person (co-owner), the resources are treated in the following manner:

(i) If the co-owner is not the individual's spouse, parent (if the individual is under age eighteen), or child under age eighteen, and the co-owner intends to block the individual's use or disposal of the resource, the individual is required to pursue legal action to make the resource available. The individual must provide written verification of legal action.

(ii) If the written response indicates a legal action can make part or all of the resource available, the individual is required to pursue such a legal action.

(iii) If the individual is unwilling to take legal action to make the resource available, the application is denied or the case is terminated for failure to cooperate.

(iv) If the individual is unable to make the resource available because one of the owners cannot be located, the cost of a legal action is prohibitive, or the individual was unsuccessful in a legal action, the resource is not counted. Availability of the resource is reexamined at each eligibility review.

(b) If the co-owner is the individual's spouse, parent (if the individual is under age eighteen), or child under age eighteen, the ability to use or dispose of the resource is assumed to exist unless the individual can provide documentation of the contrary.

(5) Continuing verification.

(a) The administrative agency must verify the value of real and personal property with each application or reapplication and any time information is provided that indicates that a change in the individual's resources may have occurred.

(b) The administrative agency must record the verification and place all supporting documents in the case record.

(6) Property that has not been sold.

(a) This provision governs real and personal property that has not been sold. If an individual owns property that affects eligibility and the property has not been sold, it will not be counted as an available resource as long as the individual continues to list the property for sale at an amount equal to the market value determined by the county auditor.

(b) Real property that was the principal place of residence must first be considered in accordance with rule 5101:1-39-31.3 of the Administrative Code before the provisions of this paragraph are applied.

(c) The inability to sell property may result from legal technicalities, general economic conditions in the community, or the inability to find a buyer. Before property will be determined to be exempt as a countable asset, the individual has the burden of producing reliable documentation establishing either of the following.

(i) The individual may produce documentation from two different types of knowledgeable sources in the geographic area that agree that although the property is listed for sale, the property has not been sold due to an attribute of the property or the market or both.

(a) In cases involving real property, knowledgeable sources are limited to the following: the county auditor, real estate brokers, the local office of the farmer's home administration for rural land, the local office for the agricultural stabilization and conservation service for rural property, banks, savings and loan associations, mortgage companies and similar lending institutions, and the county extension service.

(b) In the case of personal property, knowledgeable sources are limited to the following: any professional, business owner or operator, or expert who has experience in the sale, trade, restoration, or valuation of the type of personal property in question.

(ii) Alternatively, the individual may produce documentation showing that an actual but unsuccessful sale attempt has been made.

(a) If real property, the documentation must show that the property has been, and is currently, listed for sale with a real estate agent or real estate firm in the geographic area. The property is a countable asset until it is listed for sale.

(b) The property must be listed for sale at an amount equal to the market value determined by the county auditor.

(c) The real estate agent or firm must verify that no offer to purchase has been received. The "geographic area" is the area covered by radio, television, newspaper, and other media serving the area where the individual lives and where the property is located.

(d) If the individual receives an offer for the property that is less than ninety per cent of the current market value established by the county auditor, the low offer may be an indication that the value is incorrect.

(e) If it appears that the stated value is incorrect, either the individual or the administrative agency may obtain an appraisal from a second source to set a more accurate value. A second appraisal is not necessary when the purchase offer is so low that it is obviously unreasonable.

(f) The individual has the right to rebut the value by obtaining an appraisal of the property.

(7) Property that can be accessed only through legal action.

(a) If the applicant is unable to access or liquidate property due to a legal impediment or due to conduct of another person, the administrative agency must refer the individual to legal aid services or the prosecuting attorney's office to determine if they can assist in making the resource available. A written response to the referral is required.

(i) A failure or refusal by the prosecuting attorney or legal aid service to provide a written response must not result in a denial for medical assistance; or

(ii) A delay in the eligibility determination by the administrative agency.

(b) If the written response indicates that a legal action can make part or all of the resource available, the individual is required to pursue such a legal action.

(c) If the individual is unwilling to take legal action to make the resource available, the application is denied or the case is terminated for a failure to cooperate.

(d) If the individual is unable to make the resource available because the cost of a legal action is prohibitive, or if the individual is unsuccessful in their legal action, the resource is not counted. Availability of the resource is reexamined at each redetermination for medical assistance.

(D) Resources of family members, households, essential persons, and aliens.

(1) The resources of spouses residing together are addressed in accordance with the deeming of resources rule in Chapter 5101:1-39 of the Administrative Code.

(2) In non-institutional settings, the administrative agency must apply the resource limitation for an individual effective with the month following the month a couple separates or divorces or one member dies. Reference rules 5101:1-39-22 and 5101:1-39-35 of the Administrative Code for the treatment of resources for individuals receiving long term care services in a long term care facility, under a home and community-based services(HCBS) waiver program, or under the program of all-inclusive care for the elderly (PACE).

(3) The resources of a child under the age of eighteen are addressed in accordance with the deeming of resources rule in Chapter 5101:1-39 of the Administrative Code.

(4) The resources of an individual include those of his essential person. An "essential person" is someone who:

(a) Has continuously lived in the individual's home since December 1973; and

(b) Was not eligible for state assistance in December 1973; and

(c) Has never been eligible for SSI benefits as an eligible individual or as an eligible spouse; and

(d) Under the state plan in effect for June 1973, the state took that person's needs into account in determining the eligible individual's need for state assistance in December 1973.

(5) The resources of an alien and sponsor(s) are addressed in accordance with the sponsor-to-alien deeming requirements in Chapter 5101:1-2 of the Administrative Code.

(E) Institutionalization on or prior to December 31, 1989.

(1) An individual who entered a medical institution on or prior to December 31, 1989, and has continuously resided in the institution, is considered to have been living apart from his or her family effective the month following the month of institutionalization.

(2) All resources, in the name of the institutionalized individual, must be considered in the determination of eligibility for medical assistance.

(3) Any resource, owned solely by a spouse or parent living outside the institution, is not considered available to the spouse/child residing in the institution. Only those resources that are actually being contributed (e.g., share of savings account) must be used in the determination of resource eligibility.

(4) The availability of a resource owned jointly.

(a) If a resource is jointly owned and listed with names connected by "and" or "or", the total amount of the resource is considered available to the institutionalized individual unless the individual provides documentation verifying the portion contributed by the other owners. Only the portion the individual contributed is considered a resource.

(b) Resources of parents are not considered available to a child who is institutionalized when the institutionalization is not temporary, even if the child returns to the home for periodic visits.

(F) Couples separated by institutionalization on or after January 1, 1990, must have resources assessed in accordance with rules 5101:1-39-35 to 5101:1-39-36.2 of the Administrative Code.

(G) Couples separated by institutionalization on or prior to December 31, 1989, but the institutionalized individual returned to a community setting for thirty days or longer on or after January 1, 1990 and then is separated by another period of institutionalization, must have resources assessed in accordance with rules 5101:1-39-35 to 5101:1-39-36.2 of the Administrative Code. The first date of institutionalization on or after January 1, 1990 must be considered the first continuous period of institutionalization.

(H) Resources determined exempt and/or excluded from the applicable resource limit for medical assistance remain exempt or excluded at the time of the individual's death. Exempt and/or excluded resources are part of the deceased individual's estate and are subject to the estate recovery provisions in accordance with section 5111.11 of the Revised Code.

(I) For purposes of determining or redetermining eligibility for medical assistance on or after February 8, 2006, the entrance fee for individuals residing in a continuing care retirement community or a life care community must be considered an available resource in accordance with rule 5101:1-39-02.2 of the Administrative Code.

Replaces: 5101:1-39-05

Effective: 10/01/2006
R.C. 119.032 review dates: 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 1/1/81, 2/15/85 (Emer.), 5/14/85 (Emer.), 6/10/85, 10/1/90, 1/1/91, 9/1/92, 1/1/93 (Emer.), 3/18/93, 9/1/94, 1/1/95, 10/1/95, 11/07/02, 7/01/05

5160:1-3-05.4 Medicaid: cash and checking and savings accounts and time deposits.

(A) This rule describes the treatment of cash, checking and savings accounts, and time deposits for purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Cash" means money on hand or available in the form of currency or coins. Foreign currency or coins are cash to the extent that they can be exchanged for U.S. currency.

(a) Monthly income is not counted when evaluating cash on hand.

(b) The individual's statement of actual cash on hand is accepted without verification.

(2) "Checking account" or "savings account" is the same as having cash on hand because deposits are payable on demand. An individual should be able to withdraw money from a checking account or savings account on the same day the individual requests it. In a joint account, all funds in the account are a resource of the individual if he has unrestricted access to the funds.

(3) "Dedicated account" means an account in a financial institution, the sole purpose of which is to receive and maintain SSI past-due benefits which are required or allowed to be paid into such an account and the use of which is restricted by section 1631(a)(2)(F) of the Social Security Act (as in effect March 1, 2014).

(4) "Depository account", for the purpose of this rule, means a checking account, savings account, or time deposit at a financial institution that allows money to be deposited and withdrawn by the account holder.

(5) "Depository signature card" means a contract with the financial institution and it shows who has access to the depository account and whether or not the signatures of more than one owner of the depository account are needed to withdraw funds.

(6) "Passbook" means a financial institution record which shows deposits, withdrawals, and interest.

(7) "Past-due benefits" mean SSI benefits due but unpaid that accrue prior to the month payment was made effectuated, benefits due but unpaid that accrue during a period of suspension from SSI payments for which the individual was subsequently determined to have been eligible, and any adjustment to SSI benefits that results in an accrual of unpaid benefits.

(8) "Time deposit" means a contract between an individual and a financial institution whereby the individual agrees to leave funds on deposit for a specified period and the financial institution agrees to pay interest at a specified rate for that period.

(a) Certificates of deposit (CDs) and saving certificates are common forms of time deposits.

(b) Withdrawal of a time deposit before the specified period expires incurs a penalty, which usually is imposed against the principal. This penalty does not prevent the time deposit from being a resource, but does reduce its value as a resource. On rare occasions, the terms of a time deposit will prohibit early withdrawal.

(C) Access to depository accounts.

(1) In situations where a depository account is shared with others and the amount of funds has an effect on the individual's eligibility, the administrative agency shall inform the individual that if he or she has restricted access to the depository account by the contract with the financial institution or if a portion of the depository account was contributed by another person, the individual must provide documentation to support his or her case.

(2) The depository account signature card will show who has access to the funds. In the absence of the depository account signature card, a statement from the financial institution is acceptable documentation.

(3) If the individual provides documentation that access to the depository account is restricted through the need for the signature of other owners, all of the funds are still considered a resource of the individual unless documentation is provided of the percentage the other owners have contributed.

(a) If the other owners refuse to allow the individual to withdraw funds from the depository account, the individual must provide documentation that the resource is unavailable and take any action necessary to obtain the resource.

(b) If the individual is institutionalized, a determination of whether an improper transfer has occurred must be completed. If the applicant's signature is all that is needed to access the depository account, then the depository account is his or hers in its entirety unless documentation is provided that indicates what percentage of the funds the other person(s) deposited.

(4) When an individual provides documentation that shows another person has an ownership interest in the depository account, then only the portion that the individual contributed shall be considered as a resource.

(a) Interest accrued on the depository account shall be allocated according to the portions of ownership.

(b) Documentation necessary to show that the individual does not own the funds in the depository account includes:

(i) A statement of the individual giving his or her allegation regarding ownership of the funds, the reason for establishing the joint depository account, who made deposits to and withdrawals from the depository account, how withdrawals were spent, etc.; and

(ii) Corroborating statements from the other depository account holder(s); and

(iii) Where ownership for prior periods needs to be established, the evidence must include a financial institution record, income statement or work record. This may result in determinations that the individual owned varying dollar amounts for the prior period.

(5) If the co-holder of the joint depository account is incompetent or a minor, it is unnecessary to obtain a corroborating statement from that person. That person's incompetency or age may be the reason why the claimant is listed as a joint depository account holder. In the event that this occurs, the administrative agency shall:

(a) Obtain a corroborating statement from a third party who has knowledge of the circumstances surrounding the establishment of the joint depository account.

(b) Make the decision without a corroborating statement if there is no third party and document the basis for its decision and why no corroborating statement was obtained.

(6) If following the evaluation of ownership it is determined that the individual's share of the resource is within the allowable limit, assistance can be approved or continued. The individual shall:

(a) Remove his or her assets from the joint depository account within sixty days from the date his or her eligibility is approved; and

(b) Provide documentation that the change has been made.

(7) The name and address of the financial institution, the depository account number, the name(s) on the depository account, and the amount of money in the depository account must be documented in the individual's case record. If the authority to withdraw money from the depository account does not belong to those whose names are shown on the depository account, that fact must also be documented.

(D) Time deposits.

(1) If the owner of a time deposit cannot under any circumstances withdraw it before it matures, it is not a resource. It becomes a resource (not income) on the date it matures, and may affect countable resources in the month in which the time deposit matures. If the owner has no access to the interest before the time deposit matures, accrued interest is not a resource and is income in the month the deposit matures.

(2) If an individual has transferred his or her resources into a time deposit in which early withdrawal is prohibited, a determination of whether an improper transfer has occurred must be completed. The determination should include consideration of the length of the period of inaccessibility, the individual's life expectancy and the amount of the time deposit.

(3) A time deposit for which early withdrawal is prohibited is still considered a countable resource for the purposes of completing a resource assessment for an institutionalized individual.

(4) A time deposit's resource value at any given time, if early withdrawal is permitted, is the amount the owner would receive upon withdrawing it at that time, excluding interest paid that month. Generally, this is the amount originally deposited; plus accrued interest for past months; minus any penalty specified on the time deposit certificate for early withdrawal.

(E) Verifying depository accounts.

(1) A checking account is verified by examining the printout from online banking or the last monthly bank statement and the checkbook record to arrive at the current bank balance. A copy of the monthly bank statement and check register should be retained in the case record.

(a) If the printout or statement shows deposit and withdrawal activity or cash flow inconsistent with the individual's stated financial situation, the case shall be investigated carefully to establish the source of income. The administrative agency shall document whether large withdrawals or checks written actually transferred funds to another person or whether such funds are still available to the individual.

(b) If the printout, bank statement or checkbook is not available or there is some reason to doubt the accuracy of the checkbook record, verification shall be obtained by contact with the financial institution after obtaining the individual's written authorization.

(2) A savings account is verified by examining the printout from online banking or current balance of the passbook.

(a) The administrative agency shall retain a copy of the the page(s) that show activity in the last sixty days. If the printout or passbook shows deposit and withdrawal activity inconsistent with the individual's stated financial situation, the administrative agency shall investigate fully to establish the source of income.

(b) If the printout or passbook is not available or appears to have been materially altered, the administrative agency shall obtain verification by contact with the financial institution after securing the individual's written authorization.

(c) All the information obtained shall be retained in the individual's case record.

(d) For nonpassbook savings, the most recent statement or other record of the account in the individual's possession shall be retained in the case record.

(3) A time deposit is verified by viewing the time deposit certificate or document and the account records of interest accrual. The administrative agency may also obtain verification of the time deposit or early withdrawal provisions by contacting the financial institution after securing the individual's authorization. All the information obtained shall be retained in the individual's case record.

(F) Dedicated account.

(1) Past-due benefits and other underpayments that exceed six times the monthly SSI payment deposited into a dedicated financial institution account and any accrued interest or other earnings on such an account are excluded from income and resources.

(2) For any month that funds other than accrued interest or other earnings on the account are commingled in this account, the exclusion does not apply to any funds in the account.

(a) An exception is if the financial institution requires the individual to deposit money to open an account, such as a minimum deposit, a small amount of other funds can be used to open the dedicated account.

(i) The funds that were used to open the account are not excluded as a resource and must be removed from the account once the account has been established and the past-due benefits paid into it.

(ii) The funds that were used to open the account must be withdrawn before the end of the month following the month that the past-due benefits are paid.

(b) Funds other than those described in paragraph (F)(2)(a) of this rule shall not be deposited into a dedicated account.

(3) The individual must provide verification that a dedicated account has been established. The verification should include the name and address of the financial institution, account number, account title, type of account, and the amount of money in the account.

(4) The individual's representative payee shall use funds in the account to pay for the following allowable expenses: education or job skills training, personal needs assistance, special equipment, housing modification, medical treatment, therapy or rehabilitation, or any other item or service that the commission for social security determines to be appropriate provided that such expense benefits the individual and, in the case of personals needs assistance, special equipment, housing modification, therapy or rehabilitation or other approved item, is related to the impairment (or combination of impairments) of the individual. These expenditures do not affect an individual's income or resources.

(5) Restrictions on the use of funds in a dedicated account continue to apply during a period of suspension from SSI payments, non-pay status, and SSI eligibility but no payment.

(a) The exclusion from resources of the funds in the account continues to apply until SSI eligibility is terminated.

(b) Once an individual's eligibility has been terminated, the exclusion of the funds in a dedicated account cannot be carried over if the individual establishes a new period of SSI eligibility by filing a new application for SSI.

(c) Reopening of a prior period of eligibility following termination is not a new period of eligibility and, therefore, the exclusion may be reapplied.

(d) Any remaining funds are a countable resource.

(6) When an individual receives past-due benefits that are less than or equal to six times the monthly SSI payment that may be, but have not yet been, deposited into a dedicated account, the payment is excluded from resources for nine months until the payee deposits the payment into a dedicated account. Such payments are not required to be deposited into a dedicated account at the option of the representative payee.

Replaces: 5160:1-3- 27.2

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 1/3/80, 12/1/84 (Emer.), 2/1/085, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 4/1/91, 9/1/94, 5/1/98, 10/1/02

5160:1-3-05.5 Medicaid: promissory notes, mortgages, stocks, bonds and loans.

(A) This rule describes the treatment of promissory notes, mortgages, stocks, bonds and loans for purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Assets" is defined in rule 5160:1-3-05.1 of the Administrative Code.

(2) "Look-back period" is defined in rule 5160:1-3-07.2 of the Administrative Code.

(3) "Mortgage" means a pledge of a particular property for the payment of a debt or the performance of some other obligation within a prescribed time period.

(4) "Promissory note" means a written, unconditional promise signed by a person to pay a specified sum of money at a specified time, or on demand, to the person, corporation, or institution named on the note. A promissory note making periodic payments is not considered an annuity.

(5) "Value of a promissory note" means the outstanding balance due as of the date of the individual's application for medical assistance.

(C) Promissory notes held by an individual.

(1) A promissory note is an available resource unless it cannot be sold.

(2) If the terms of the promissory note prohibit or prevent the sale of the note, the assets given in exchange for the note must be considered improperly transferred, in accordance with the transfer of resources rule 5160:1-3- 07.2 of the Administrative Code.

(a) The total value of resources improperly transferred is the value of the assets originally exchanged for the note, reduced by the sum total of any repayments made on or before the date of application for medical assistance.

(b) The restricted medicaid coverage period shall not be reduced based upon anticipated, estimated, or projected future payments made under the note.

(c) The individual may seek a new eligibility determination and/or a recalculation of the restricted medicaid coverage period based upon actual repayments made under the terms of the note.

(d) If the sum total of all repayments made under the note is less than the original value of the assets given in exchange for the note, the difference will be considered improperly transferred.

(3) Payments received by an individual under a promissory note are treated as income, as defined in Chapter 5160:1-3 of the Administrative Code.

(4) If the individual sells a promissory note for an amount less than the value of assets given in exchange for the note, the difference will be considered improperly transferred as of the note's sale date. The individual may rebut the findings of an improper transfer by:

(a) Providing credible evidence from a knowledgeable source establishing the market value was less than its outstanding principal balance. The knowledgeable source must:

(i) Be clearly identified; and

(ii) Provide a written explanation regarding its opinion of the market value; and

(iii) Affirmatively indicate the decreased market value was not caused in whole or part by the terms of the note and the decrease in value was entirely outside the control of the individual or the individual's representative(s).

(b) Providing documentation clearly showing the individual received payments under the terms of the note prior to the sale, and such payments equal or exceed the difference between the sale price and the value of assets orginally given in exchange for the note; or

(c) Providing documentation clearly showing that the lower price of the note was accepted by the individual as payment of a debt owed by the individual to the purchaser.

(5) Documentation must be provided by the individual verifying his or her proportionate share of the note if ownership of the note is shared.

(6) A promissory note has no value if the individual adequately documents the obligations under the promissory note were discharged by order of a bankruptcy court.

(D) Mortgages held by an individual.

(1) A mortgage is an available resource unless it cannot be sold.

(2) The assets given in exchange for the mortgage will be considered improperly transferred if the terms of the mortgage prohibit or prevent the sale of the mortgage in accordance with the transfer of resources rule Chapter 5160:1-3- 07.2 of the Administrative Code.

(3) Any payments made under a mortgage must be treated as income, as defined in Chapter 5160:1-3 of the Administrative Code.

(4) A copy of the property agreement must be recorded with the county auditor, county recorder, or other appropriate government agency charged with the responsibility of recording property agreements.

(a) For the purposes of this rule, a property agreement is not considered effective until the date it is recorded with the county auditor, county recorder, or other appropriate government agency charged with the responsibility of recording property agreements. The administrative agency shall disregard any property agreement that is not properly recorded and shall consider the entire property as an available resource to the individual.

(b) For the purposes of this rule, the property agreement recording date held by the appropriate government agency is considered the date of transfer.

(5) For an individual selling a mortgage for an amount less than the value of assets given in exchange for the mortgage, the difference shall be considered improperly transferred as of the mortgage sale date. The individual may rebut the findings of an improper transfer by:

(a) Providing credible evidence from a knowledgeable source establishing the fair market value at the mortgage's sale date was less than its outstanding principal balance. The knowledgeable source must:

(i) Be clearly identified; and

(ii) Provide a written explanation regarding its opinion of the market value; and

(iii) Affirmatively indicate that the decreased market value was not caused in whole or part by the terms of the mortgage and that the decrease in value was entirely outside the control of the individual or the individual's representative(s).

(b) Providing documentation clearly showing the individual received payments under the terms of the mortgage prior to the sale, and such payments equal or exceed the difference between the sale price and the value of assets originally given in exchange for the mortgage; or

(c) Providing documentation clearly showing that the lower sale price of the mortgage was accepted by the individual as payment of a debt owed by the individual to the purchaser.

(6) Documentation must be provided by the individual verifying his or her proportionate share of the mortgage if ownership of the mortgage is shared.

(7) Proceeds from reverse mortgages or home equity conversion programs are excluded income in the month of receipt. Proceeds retained until the month following the month of receipt are subject to evaluation as a resource, in accordance with Chapter 5160:1-3 of the Administrative Code.

(8) The value of a mortgage is the outstanding balance due as of the individual's application date for medical assistance.

(9) A mortgage will have no value if the individual adequately documents the obligations under the mortgage were discharged by order of a bankruptcy court.

(E) Loans held by an individual.

(1) Money an individual borrows or money received as the principal repayment of a bona fide loan is not considered income.

(a) Any interest received on money loaned is unearned income.

(b) Retained proceeds of a loan in the month following the month of receipt are counted as a resource.

(2) The value of the loan is the outstanding balance due as of the individual's application date for medical assistance.

(F) Funds used to purchase a promissory note, mortgage or loan.

(1) With respect to a transfer of assets, as referenced in rule 5160:1-3-07.2 of the Administrative Code, funds used to purchase a promissory note, mortgage or loan are considered an asset unless the promissory note, mortgage or loan:

(a) Has a repayment term that is actuarially sound as determined in accordance with actuarial publications of the office of the chief actuary in 26 C.F.R. 20.2031-7 (as in effect December 1, 2013);

(b) Provides for payments made in equal amounts during the term of the promissory note, mortgage or loan, with no deferral and no balloon payments made; and

(c) Prohibits the cancellation of the balance upon the lender's death.

(G) Stocks held by an individual, including preferred stocks, warrants and rights, and stock option purchases.

(1) Stock shares represent ownership in a business corporation. Their value shifts with demand and may fluctuate widely.

(2) The current market value of publicly traded stock is its closing price. The stock closing price, on a given day, can usually be found in the next day's regulator or financial newspaper. The value of over-the-counter stocks are shown on a "bid" and "asked" basis. The bid price is used to determine the stock's value.

(a) If the closing or bid price of a stock is not shown, a local securities firm must determine its value. If the ownership of the stock is shared (i.e., more than one name is on the face of the stock certificate), the individual must provide documentation verifying the individual's proportionate stock share.

(b) The stock of some corporations is not publicly traded and is held within close groups and traded very infrequently. The sale of such stock is often handled privately and subject to restrictions. The burden of proof for establishing the value of this kind of stock is on the individual. The preferred evidence is a letter or other written statement from the firm's accountants giving their best estimate of the stock's value and the basis for the estimate, and can include the most recent sale, the most recent offer from outsiders, the current market value of assets less debts on them, cessation of activity and sale of assets, and bankruptcy.

(3) The county prosecutor or the administrative agency's legal staff shall be consulted for assistance in determining the value of the stock when the verification of the current value of the stock of a closely held corporation is questionable, including when there are indications that the extent of an individual's ownership is being manipulated to reduce the value of the stock as a countable resource.

(4) Shares of stock in an Alaskan native regional or village corporation, as defined in 43 U.S.C. 1601 - 1624 (as in effect on December 1, 2013), are excludeded from resources.

(H) A mutual fund is determined in the same manner as the value of a stock.

(I) The current cash value of a municipal, corporate, or government bond is counted as a resource. If the ownership of a bond is shared, the individual must provide documentation verifying the individual's proportionate share of the bond.

(J) The current redemption value of a U.S. savings bond is a countable resource. The individual must provide documentation verifying the individual's proportionate share of the bonds if the bonds are jointly owned.

Replaces: 5160:1-3- 27.3

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 10/1/91, 9/1/94, 11/7/02, 10/1/06

5160:1-3-05.6 Medicaid: preneed funeral contracts.

(A) This rule describes the treatment of preneed funeral contracts for purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Liquid assets" means cash or property immediately convertible to cash.

(2) "Preneed funeral contract" means an agreement whereby the buyer pays in advance for a burial that the seller agrees to furnish upon the death of the buyer or other designated individual.

(C) Irrevocable preneed funeral contracts.

(1) Irrevocable preneed funeral contracts are not a resource.

(2) Increases in the value of irrevocable preneed funeral contracts which result from accrual on interest or from appreciation in the value of the preneed burial agreement are excluded from countable resources.

(D) Revocable or salable preneed funeral contracts.

(1) If a preneed funeral contract is revocable or salable it is a countable resource.

(2) The value of a revocable or salable funeral contract is:

(a) The amount payable to the buyer upon revocation; or

(b) The current market value.

(3) Revocable preneed funeral contracts and burial vault contracts payable on demand are considered liquid assets. Their value, when combined with all other countable resources, cannot exceed the resource limit.

(E) Purchase of burial space. Any portion of the contract that clearly represents the purchase of a burial space is excludable as a countable resource if it meets the requirements of rule 5160:1-3-05.7 of the Administrative Code.

(F) Life insurance funded preneed funeral contracts

(1) A life insurance funded preneed funeral contract involves an individual owning/purchasing a life insurance policy on his or her own life and then assigning, revocably or irrevocably, either the proceeds or ownership of the policy to a third party, generally a funeral provider. The purpose of the assignment is to fund a preneed funeral contract.

(2) For medical assistance purposes, the ownership of a life insurance policy may be irrevocably changed to a financial institution or a provider of funeral services for the specific use as an irrevocable preneed funeral contract for the individual and/or spouse.

(a) To determine if the transfer of ownership of a life insurance policy to an irrevocably transferred policy has been completed, the administrative agency must review and maintain in the case record all of the following items:

(i) The life insurance policy.

(ii) Preneed funeral contract. The preneed funeral contract must have a fair market value equal to the face value of the policy that has been irrevocably transferred or assigned.

(iii) For medical assistance purposes, for a preneed funeral contract that is funded by a life insurance policy, the funeral provider can stipulate in the preneed funeral contract that goods and services will be provided commensurate with the amount of insurance proceeds that are available at the time the services are required.

(iv) Completed legal document changing irrevocable ownership of the policy to the financial institution or funeral provider. Verification that the change of ownership has been completed must be obtained from the insurer.

(v) A provision in the contract that the funeral provider has the irrevocable right to the proceeds of the life insurance policy upon the death of the insured.

(vi) At the time of death, the cash surrender value (CSV) of the policy may exceed the cost of the preneed funeral contract or expenses. The preneed funeral contract must include a provision that any funds in excess of the costs will be paid to the deceased individual's estate. Probate court must decide how these funds are dispersed. If the administrative agency is contacted by the funeral director regarding these funds, the administrative agency must direct them to the appropriate probate court.

(b) The transfer of ownership must be verified by the insurer that the insurer has, in fact, changed ownership of the policy.

(i) For the purpose of determining eligibility for medical assistance, the CSV of the policy will not be considered a countable resource effective on the date of the change of ownership. The date of the change of ownership will be considered the later of the dates that the irrevocable change of ownership paperwork and the preneed funeral contract were signed by the owner of the policy and the funeral provider if both were not signed on the same date.

(ii) Verification must be provided to the administrative agency verifying the change of ownership has been acknowledged and completed by the insurer before paragraph (F)(2)(b)(i) of this rule can be implemented.

(c) A change of beneficiary, whether irrevocable or not, of a life insurance policy does not satisfy the requirement of an irrevocable change of ownership.

(3) Dividend accumulations of a life insurance policy as part of the value of the policy or the preneed funeral contract are not excluded. Dividend accumulations are separate resources and must be designated separately in order to qualify for the burial funds exclusion.

Replaces: 5160:1-3- 27.4

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/1/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 10/1/88 (Emer.), 12/20/88, 10/1/02

5160:1-3-05.7 Medicaid: burial spaces.

(A) This rule describes the treatment of burial spaces for the purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Agreement," for the purpose of this rule, means a contract with a burial provider for a burial space held for the eligible individual or a member of his/her immediate family.

(a) An individual's immediate family includes his parents, including adoptive parents, minor or adult children, including adoptive and stepchildren, siblings, including adoptive and stepsiblings and the spouses of the immediate family members.

(b) In order for the burial space exclusion to apply to spouses of the immediate family members, the marriage must be in effect at the time of determination or redetermination of eligibility for medical assistance.

(2) "Burial space," means a burial plot, gravesite, crypt, mausoleum, casket, urn, niche, or other repository customarily and traditionally used for the deceased's bodily remains. The term also includes a contract for care and maintenance of the gravesite, sometimes referred to as an endowment or perpetual care and necessary and reasonable improvements or additions to such spaces, including but not limited to vaults, headstones, markers, or plaques, burial containers (e.g., for caskets) and arrangements for the opening and closing of the gravesite.

(C) An agreement which represents the purchase of a burial space held for the burial of the individual, his or her spouse, or any other member of his or her immediate family is an excluded resource, regardless of value. For example, exclude a cemetery lot and a casket for the same person, but not a casket and an urn.

(D) A burial space is held for an individual when someone currently has title to and/or possesses a burial space intended for the individual's use (e.g., has title to a burial plot or owns a burial urn stored in the basement for his own use) or a contract with a funeral service company for specified burial spaces for the individual's burial (i.e., an agreement which represents the individual's current right to the use of the items at the amount shown).

(E) Until the purchase price is paid in full, a burial space is not held for an individual under an installment sales contract or similar device.

(F) Administrative agency responsibilities. The administrative agency shall:

(1) Determine whether the burial space is held for the individual or member of the individual's immediate family if the agreement shows the purchase of a specified burial space at a specified price.

(2) Of items that serve the same purpose, exclude only one per person.

(3) If the agreement calls for installment payments, determine whether the value of the burial space must be treated as an available resource.

Replaces: 5160:1-3- 32.2

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer), 8/1/85, 9/1/85 (Emer), 11/25/85, 9/1/86, 5/1/91 (Emer), 7/1/91, 6/11/93, 9/1/94, 10/1/02

5160:1-3-05.8 Medicaid: lump-sum payments.

(A) This rule describes the treatment of lump-sum payments for purposes of determining eligibility for medical assistance.

(B) Definition. "Lump-sum payment" means income which is accrued over two or more months or it is a money payment which is not related to any time period, such as a death benefit or inheritance.

(C) A nonrecurring lump-sum payment is considered unearned income unless otherwise excluded. It is unearned income in the month received and a countable resource in the month following the month of receipt.

(1) The following are some types of lump-sum payments that are considered unearned income:

(a) Gifts, prizes, or awards.

(b) Retirement or pension funds (c) Judgments and out-of-court settlements.

(d) Proceeds received as the beneficiary of a life insurance policy, including social security lump-sum death benefits.

(e) Workers compensation payments when received as a lump-sum.

(2) The following are some types of lump-sum payments that are considered resources, that are not unearned income:

(a) Income and property tax refunds.

(b) Proceeds received from the surrender or maturing of insurance policies.

(c) Proceeds received for the sale of real property.

(d) Replacement of income that was lost, destroyed or stolen if the original income was used to determine eligibility.

(D) The transfer of a lump sum in the month of receipt or anytime thereafter is subject to the regulations in rule 5160:1-3-07.2 of the Administrative Code relating to transfers of resources.

(E) Retroactive payments from supplemental security income (SSI) or retirement, survivors, disability insurance (RSDI) are unearned income in the month received and excluded as countable resources for six months following the month of receipt. The source, amount, and the date of receipt of the retroactive payment must be verified and the information recorded in the case record.

(1) As long as the funds from the retroactive payment are not spent, they are excluded for the full six month period. Unspent money must be identifiable from other resources for this exclusion to apply. The money may be commingled with other funds, but if this is done in such a fashion that the retroactive amount can no longer be separately identified, that amount will count toward the resource limit.

(2) Once the money is spent, this exclusion does not apply to items purchased with the money even if the six month period has not expired. However, other exclusions may apply.

(F) When a medicaid individual, including a nursing home or home and community-based services waiver (HCBS) individual receives a lump-sum payment, he or she may increase his or her personal property holdings up to the maximums allowed. Then the CDJFS compares the amount received to the amount of medicaid payments made on behalf of the individual.

(1) If the lump sum is equal to or less than medicaid payments for the individual, the individual is given a choice of either:

(a) Terminating assistance and reapplying when resources are again within allowable limits; or,

(b) Repaying the medicaid program for medicaid payments made on his or her behalf in order to preserve continuing medicaid eligibility. The amount paid by medicaid for past care can be recovered only if the individual agrees and if the repayment amount will continue to make him or her eligible for medicaid.

(2) If the lump sum is in excess of past medicaid payments made on the individual's behalf, the excess amount shall be counted as an available resource. If the amount exceeds the maximum resource limit, the case shall be terminated. In this situation, the individual is not required to use any of the lump sum as repayment of past medicaid payments.

(G) Lump-sum payments received by an individual that are the result of a medical insurance policy that pays an individual directly rather than the providers for services when the individual is hospitalized or in a long term facility are assignable to the Ohio department of medicaid as reimbursement for past medical care, up to the amount that has been paid by medicaid.

Replaces: 5160:1-3- 27.5

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 9/1/86, 5/1/91 (Emer.), 7/1/91, 6/11/93, 9/1/94, 10/1/02

5160:1-3-05.9 Medicaid: dividends and interest.

(A) This rule describes the treatment of dividends and interest for the purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Dividends" and "interest", for the purpose of this rule, are returns on financial institution accounts. A cash gift or incentive payment to open an account is considered interest.

(2) "Financial institution account", for the purpose of this rule, is an individual or joint account such as checking or savings, certificate of deposit, stocks, bonds, etc.

(C) Accrued dividends and interest on financial institution accounts are added to the principal and the total is evaluated as a resource.

Replaces: 5160:1-3- 27.6

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 4/1/91, 10/1/02

5160:1-3-05.10 Medicaid: household goods and personal effects as resources.

(A) This rule describes the treatment of household goods and personal effects for the purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Household goods", for the purpose of this rule, are all personal property customarily found in the home and used in connection with the maintenance, use and occupancy of the premises. This encompasses items necessary for an adequate standard of sustenance, accommodation, comfort, information and entertainment of occupants and guests. Such items include furniture, furnishings, linens, household appliances, carpets, dishes, cooking and eating utensils, televisions and personal computers.

(2) "Personal effects, for the purpose of this rule, are other personal property normally held and recognized as incidental items intended for personal use by one or more household members. Such items include clothing, jewelry, watches, personal grooming articles and musical instruments.

(C) Household goods and personal effects are excluded as resources.

(D) Items acquired or are held for their value or as an investment are not considered personal effects and are countable resources. Such items can include but are not limited to gems, jewelery that is not worn or held for family significance, or collectibles.

Replaces: 5160:1-3-28

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 10/1/02

5160:1-3-05.11 Medicaid: automobiles and other modes of transportation as resources.

(A) This rule describes the treatment of automobiles and other modes of transportation for purposes of determining eligibility for medical assistance.

(B) Definition. "Automobile", for the purpose of this rule, means any vehicle used for transportation. It can include, in addition to cars and trucks: boats, snowmobiles, animal-drawn vehicles, and even animals.

(C) One automobile is excluded for the individual or a member of the individual's household regardless of value if it is: necessary for employment; necessary for the treatment of specific or regular medical problems; modified for operation by, or the transportation of, a handicapped person; or necessary, because of climate, terrain, distance or similar factors, for the performance of essential daily activities.

(1) For the purposes of determining the resource assessment for couples when one spouse is institutionalized, one automobile is considered totally excluded, regardless of its use and value in accordance with rule 5160:1-3-06.2 of the Administrative Code.

(2) If no automobile is excluded for one of the above listed reasons, up to four thousand five hundred dollars of the current market value of one automobile is excluded. If the current market value exceeds four thousand five hundred dollars, the excess counts as a resource unless the automobile can be excluded under some other rule. Equity value is not a consideration for purposes of this exclusion.

(3) Any automobile an individual owns in addition to the one wholly or partly excluded and which cannot be excluded under another rule (e.g., property essential for self-support) is a resource in the amount of its equity value.

(4) If one of two cars can be excluded because of one of the reasons listed above, and the other is a countable resource, the exclusion applies to the car with the greater equity value regardless of which car is actually used.

(5) The equity value is counted for all additional automobiles, regardless of the type of vehicle (e.g., automobiles, boats, etc.), is counted as a resource.

(6) The equity value for all vehicles that are not used for transportation (e.g., pleasure boats, snowmobiles, etc.) or excluded under another rule (e.g., necessary for self-employment) is counted as a resource. These vehicles are considered countable, not excludable, personal property.

(D) For the purpose of determining whether a vehicle is used for transportation (i.e., whether it is an automobile for medicaid purposes), accept the individual's account of its use unless a question arises. If a vehicle is not being used for transportation, find out why.

(1) A temporarily broken-down vehicle normally used for transportation still qualifies as an automobile. One that has been junked or that is used only as a recreational vehicle (e.g., a boat used weekends on the lake) does not qualify as an automobile.

(2) Vehicles that do not meet the definition of an automobile are personal property. The value they have as a resource is their equity value, and the personal effects exclusion, described in rule 5160:1-3-05.10 of the Administrative Code, does not apply to them.

(E) The current market value of an automobile is determined by the average trade-in value shown for the vehicle in the most recently published "National Automobile Dealers Association (NADA) Guide". The description of the car must be complete enough to enable the administrative agency to find it in the appropriate NADA guide. The description should include the year, make, model, number of doors, equipment, etc. Absent evidence to the contrary, assume the vehicle to be in average condition.

(1) If the NADA guide cannot be used (e.g., animal-drawn vehicle), obtain a current market value estimate from a disinterested knowledgeable source.

(2) An individual who disagrees with the value of the vehicle can rebut the value by obtaining a written appraisal of the vehicle's current market value from a disinterested knowledgeable source, such as a used car or truck dealer or an automobile insurance company. The administrative agency is not bound by this appraisal but the appraisal should be considered in the evaluation of the vehicle.

(3) Always verify the collector value of an antique or other collectible vehicle.

Replaces: 5160:1-3-29

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 4/1/86, 7/1/88 (Emer.), 9/1/88, 1/1/90 (Emer.), 4/1/90, 7/1/93, 10/1/02

5160:1-3-05.12 Medicaid: life insurance.

(A) This rule describes how life insurance policies are treated for purposes of determining medical assistance eligibility.

(B) Definitions of terms contained within life insurance policies.

(1) "Accelerated life insurance payments" means proceeds paid to a policyholder prior to death. Although accelerated payment plans vary from company to company, all of the plans involve early payout of some or all of the proceeds of the policy.

(2) "Beneficiary" means an individual or entity named in the contract to receive the policy proceeds upon the death of the insured.

(3) "Cash surrender value (CSV)" means a form of equity value that the policy acquires over time. The owner of a policy can obtain its CSV only by turning the policy in for cancellation before it matures or the insured dies. A loan against a policy reduces its CSV. The value usually increases with the age of the policy.

(4) "Dividend additions" and "dividend accumulations" mean amounts of insurance purchased with dividends and added to the policy, increasing its death benefit and CSV.

(a) Dividend additions are amounts of insurance purchased with dividends and added to the policy, increasing its death benefit and CSV. The table of CSV's that comes with a policy does not reflect the added CSV of any dividend additions.

(b) Dividend accumulations are dividends that the policy owner has constructively received but left in the custody of the insurer to accumulate an interest, like money in a bank account. They are not a value of the policy per se; the owner can obtain them at any time without affecting the policy's face value (FV) or CSV. Dividend accumulations cannot be excluded from resources under the life insurance exclusion, even if the policy that pays the accumulations is excluded from resources. Unless they can be excluded under another provision, they are a countable resource.

(5) "Dividends", for the purpose of this rule, means periodically (annually, as a rule), the insurer may pay a share of any surplus company earnings to the policy owner as a dividend. Depending on the life insurance company and type of policy involved, dividends can be applied to premiums due or paid by check to the owner or by an addition or accumulation to an existing policy.

(6) "Face value" (FV) means the amount of basic death benefit contracted for at the time the policy is purchased.

(7) "Insured" means the individual whose life is covered by the life insurance policy.

(8) "Insurer" means the company or association which contracts with the owner.

(9) "A life insurance policy" means a contract under which the insurer agrees to pay a specified amount to a designated beneficiary upon the death of the insured.

(10) "Owner" means the individual with the right to change such policy. It is normally the person who pays the premiums.

(11) A "supplementary contract" is not a life insurance policy. It is an agreement whereby, when the policy matures or the insured dies, the proceeds are paid not in a lump sum, but in an alternative manner selected by the individual, usually as an annuity. A supplementary contract must be evaluated as a potential source of income that the individual must avail themselves of as outlined in rule 5160:1-3-03.1 of the Administrative Code.

(C) A life insurance policy is a countable resource for medical assistance purposes if it generates a CSV. Its value as a resource is the amount of the CSV.

(1) The total CSV of all life insurance policies for an individual is excluded if the total face value of the policies is equal to or less than one thousand five hundred dollars for any one individual. If the total face value of all life insurance policies for any one individual is more than one thousand five hundred dollars, then the total CSV of all the policies for that individual is counted toward the applicable resource limit. Policies in which a CSV has not yet accrued are still considered available when determining the total face value of the individual's life insurance policies.

(2) Life insurance policies in which no CSV will ever accrue (e.g., term insurance), are not considered in determining the face value of the insurance policies, and are excluded from all computations. In addition, burial insurance policies are not considered in computing face value. Burial insurance is insurance which by its terms can only be used to pay the burial expense of the insured and will not accrue any CSV.

(3) When the face value of all countable life insurance policies on an ineligible individual exceeds one thousand five hundred dollars and deeming is required, the cash value of the policies is combined with the ineligible individual's other countable resources and appropriately deemed to the eligible individual.

(D) The individual must submit all policies that the individual and spouse own. The following information must be recorded in the case record:

(1) Name of insured;

(2) Name of owner;

(3) Type of insurance (ordinary [whole], life or term);

(4) Face value;

(5) For ordinary life, cash surrender value;

(6) For ordinary life, amount of loans outstanding against the policy;

(7) For term insurance, amount of premium and frequency;

(8) Name of company;

(9) Policy number;

(E) The following factors are considered to determine whether a life insurance policy is a resource:

(1) If the policy does not have a CSV due to the type of policy, further examination is not necessary. If the policy does have a CSV, the administrative agency must distinguish between the owner of the policy and the insured.

(2) The owner of the policy is the only individual who can receive the proceeds under the cash surrender provisions of the policy. Therefore, it is not material that the individual (or spouse) is the insured individual if the individual is not also the owner of the policy. If this is the case, there is no resource available.

(3) A life insurance policy is an available resource only when the policy is owned by the individual or person whose resources are deemed to the individual. If the consent of another person is needed to surrender a policy for its full CSV, the policy is available as a resource after the individual has obtained the consent. The individual must make a reasonable effort to obtain consent. If the consent cannot be obtained, the policy is not available. Any doubt about possible availability is resolved by contacting the insurance company. A determination would need to be made as to whether an improper transfer had occurred.

(4) The exclusion of a total of one thousand five hundred dollars face value of countable insurance policies applies to each individual separately and does not mean an average of one thousand five hundred dollars per person. An individual and spouse are each allowed one thousand five hundred dollars but not any combination of values for a three thousand dollar total for both.

(5) CSV of a policy is determined by contacting the insurance company whenever there is any question regarding the current value.

(6) The insurance exclusion does not apply to a matured endowment policy since the owner may elect to receive the total face value at any time. If the individual leaves the matured policy on deposit with the insurance company, it is no longer classified as insurance but is considered a liquid asset, an investment at interest (the same as money in a savings account).

(F) Evaluating the insurance policy.

(1) Face value. The face value on the insurance policy may be labeled the "face amount," "sum insured," "amount of insurance" or "amount of this policy."

(a) The face value does not include additional benefits payable because of special conditions such as double indemnity riders, which apply in the event of accidental death.

(b) If the face value cannot be determined, the insurance company or local agent is contacted for clarification. For example, the insurance company must clarify the value when there has been a lapse in the policy because of nonpayment of premiums which results in some other insurance option becoming effective. If the information is obtained by telephone, the name, title and telephone number of the person contacted, and the name and address of the insurance company and the details of the conversation are documented in the case record.

(2) Cash surrender value. To compute the cash surrender value of a life insurance policy, it is necessary to know whether the premiums are up-to-date or in default (have not been paid) and to read the conditions in the policy affecting cash surrender. The anniversary date of a policy is the same day and month as the date of issuance. Verification of the cash surrender value must be obtained from the insurance company if the CSV, on its own, or in conjunction with other resources is close to the applicable resource limit.

(3) An owner's failure to pay the premiums on the life insurance policy or failure to elect an option within a certain period of time after defaulting on the premiums generally causes an option to apply automatically. The CSV is usually applied by the company along with any dividends to buy extended life insurance. Under these circumstances, the face amount of the life insurance is uncertain and there is a possibility that a certain option or options have come into play. It is necessary for the insurance company to compute the actual CSV before a determination of eligibility can be made. The current face value and CSV must be obtained from the insurance company.

(4) When an individual has borrowed on a life insurance policy, the amount of the CSV depends upon the outstanding loan. Under these circumstances, the administrative agency must contact the insurance company to determine the amount of the CSV.

(G) Treatment of accelerated life insurance payments.

(1) Most accelerated payment plans fall into three basic types, depending on the circumstances which cause or trigger the payments to be accelerated. These types are the following:

(a) Long term care model, which allows the policyholders to access their death benefits should they require extended confinement in a care facility or, in some instances, health care services at home;

(b) Dread disease or catastrophic illness model, which allows policyholders to access their death benefits if they contract or acquire one of a number of specified covered conditions; and

(c) Terminal illness model, which allows policyholders to access their death benefits following a diagnosis of terminal illness where death is likely to occur within a specified number of months.

(2) Some companies refer to these types of payments as "living needs" or "accelerated death" payments.

(3) Depending on the type of accelerated payment plan, receipt of accelerated payments may reduce the policy's face value by the amount of the payments and may reduce the CSV in a manner proportionate to the reduction in face value. In some cases, a lien may be attached to the policy in the amount of the accelerated payments and a proportionate reduction in CSV results.

(4) Accelerated payments are not "benefits" for purposes of exploring potential income. It is not required that a policyholder apply for accelerated payments as a condition of obtaining or retaining medical assistance eligibility.

(5) Since accelerated payments can be used to meet food or shelter needs, the payments are income in the month received and a resource if retained into the following month and not otherwise excludable.

(6) The receipt of an accelerated payment is not treated as a conversion of a resource for medicaid purposes. This is because, under an accelerated arrangement, an individual receives proceeds from the policy, not the policy's resource value, which is its CSV.

Replaces: 5160:1-3-30

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 11/1/87, 7/1/88 (Emer.), 9/1/88, 9/1/92, 8/13/02, 10/1/06

5160:1-3-05.13 Medicaid: treatment of the home.

(A) This rule describes the treatment of an individual's home for purposes of determining eligibility for medical assistance.

(B) Definitions.

(1) "Home", for the purpose of this rule, means any property in which an individual has an ownership interest in and which serves as the individual's principal place of residence. Home includes the structures and land appertaining to the home property. Appertaining land must be contiguous to adjoin the land on which the home property is located and must not be separated by intervening land property owned by others.

(2) "Home equity limit" means, for applications filed on or after January 1, 2006, the maximum amount of equity which an individual could have in a home and remain eligible for long-term care facility (LTCF) services, home and community based services (HCBS) waiver or program of all inclusive care for the elderly (PACE) services. The home equity limit of five hundred thousand dollars will increase annually beginning January 1, 2011, as established by section 5163.32 of the Revised Code.

(3) "Nursing facility", for the purpose of this rule, refers to a nursing facility, intermediate care facility for individuals with intellectual disabilities, or other medical institutions.

(4) "Principal place of residence" means the dwelling the individual considers his or her established or principal home and to which, if absent, he or she intends to return. Principal place of residence can be real or personal property, fixed or mobile, and located on land or water.

(5) "Qualified long term care partnership (QLTCP)" is defined in rule 5160:1-3-02.8 of the Administrative Code.

(C) The home lived in, owned by, and considered the principal place of residence by the individual, the couple, or the parents with whom the eligible child is living.

(1) Only one living place may be established as the principal place of residence.

(2) A temporary absence from the home does not affect the principal place of residence exemption so long as the individual intends to return to the home and has not established permanent residence elsewhere.

(3) The administrative agency must obtain a signed statement, declaring the principal place of residence, when there is an indication the individual resides in more than one place.

(D) Treatment of the home when LTCF services, HCBS waiver or PACE services are requested.

(1) For the value of the home to be excluded:

(a) The home must be the individual's or the individual's spouse principal place of residence; and

(b) The deed to the home must be in the individual's or individual's spouse's name; and

(c) The home must comply with the provisions in paragraphs (D)(5) to (D)(7) of this rule.

(2) The home is no longer considered to be the principal place of residence if the individual resides in a nursing facility, intermediate care facility for individuals with intellectual disabilities (ICF-IID), or other medical institution for a continuous period of thirteen months or longer. The administrative agency must consider the home a countable resource when the individual has continuously resided in a nursing facility, ICF-IID, or other medical institution for thirteen months or longer; however, the home is not a countable resource if any of the following individuals are residing in the home:

(a) The individual's spouse; or

(b) The individual's child who is under age twenty-one, or blind or disabled as defined in Chapter 5160:1-3 of the Administrative Code; or

(c) The individual's child who is age sixty-five or older and is financially dependent upon the individual for housing. Verification of financial dependency in this situation is determined by comparing the aged child's countable income to the Ohio works first (OWF) payment standard defined in Chapter 5101:1-23-20 of the Administrative Code; or

(d) The individual's sibling who has a verified equity and ownership interest in the home and has resided in the home for at least one year immediately before the date the individual was admitted to the nursing facility.

(3) The thirteen month home exclusion period begins the first month in which the individual is both eligible for medicaid and residing in a nursing facility, ICF-IID, or other medical institution.

(4) If a thirteen month home exclusion period is interrupted because the individual has resided in a nursing facility, ICF-MR, or other medical institution for less than thirteen months or the individual is ineligible for medicaid for any month during the thirteen month home exclusion period, then a new thirteen month home exclusion period must begin as outlined in paragraph (D)(2) of this rule.

(5) For applications filed on or after January 1, 2006, an individual is not eligible for LTCF services, a HCBS waiver or PACE if the individual's equity interest in the individual's home exceeds the home equity limit. The home equity limit is applicable even though the home is considered the principal place of residence as defined in this rule.

(a) The equity value in excess of the home equity limit does not apply to an individual if any of the following persons are lawfully residing in the individual's home:

(i) The individual's spouse; or

(ii) The individual's child who is under age twenty-one, or blind or disabled as defined in Chapter 5160:1-3 of the Administrative Code.

(b) Nothing in paragraph (D)(5) of this rule should be construed as preventing an individual from using a reverse mortgage or home equity loan to reduce the individual's total equity interest in the home below the home equity limit.

(c) The requirements in this paragraph must be waived in the case of a demonstrated hardship as outlined in paragraph (E) of this rule.

(6) The home equity limit is applicable even when an individual is a recipient of QLTCP benefits. A QLTCP exclusion can not offset or reduce home equity for the purposes of paragraph (D)(5) of this rule.

(7) An individual who applies for and is determined eligible for long-term care (LTC) services before January 1, 2006 is not subject to the home equity limit; however, if the individual has a break in LTC eligibility on or after January 1, 2006, the home equity limit described in paragraph (D)(5) of this rule applies.

(E) Home equity and undue hardship.

(1) The administrative agency must deny or terminate LTC services, HCBS waiver or PACE payment when an individual's equity interest in the individual's home exceeds the home equity limit, with the exception in paragraph (D)(5)(a) of this rule.

(2) The individual will not be subject to a denial or termination of benefits resulting from home equity in excess of the home equity limit if the denial or termination will result in an undue hardship. An undue hardship exists when denial or termination of LTC services, HCBS waiver or PACE would deprive the individual of the following:

(a) Medical care such that the individual's health or life would be endangered; or

(b) Food, clothing, shelter, or other necessities of life.

(3) The individual must first document an attempt was made to reduce the home equity value below the home equity limit.

(4) An undue hardship exemption may be requested by the individual or, with the consent of the institutionalized individual or the authorized representative, by the nursing facility on behalf of the institutionalized individual.

(5) Undue hardship does not exist when the institutionalized individual has taken action to restrict access to the excess home equity.

(6) For the purpose of this rule, individuals determined to be incompetent, who do not have another individual to act on their behalf, must be referred to the county prosecutor or the administrative agency's own legal staff.

(F) The individual must provide verification, as defined in rules 5160:1-2-08 and 5160:1-2-10 of the Administrative Code.

Replaces: 5160:1-3-31

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 11/1/86 (Emer.), 12/22/86, 7/1/96 (Emer.), 9/1/96, 11/7/02, 10/1/06

5160:1-3-05.14 Medicaid: resource exclusion.

(A) This rule describes excluded resources for the purpose of determining medicaid eligibility.

(B) Definition. "Home" is defined in rule 5160:1-3-05.13 of the Administrative Code.

(C) The following are considered excluded resources:

(1) Household goods and personal effects of a reasonable value as described in rule 5160:1-3-05.10 of the Administrative Code.

(2) Automobiles and other modes of transportation as described in rule 5160:1-3-05.11 of the Administrative Code.

(3) Life insurance policies as described in rule 5160:1-3-05.12 of the Administrative Code.

(4) The home considered the principal place of residence as described in rule 5160:1-3-05.13 of the Administrative Code.

(5) Real or personal property considered essential to the means of self-support as described in rule 5160:1-3-05.19 of the Administrative Code.

(6) The value of a burial space as described in rule 5160:1-3-05.7 of the Administrative Code.

(7) Certain preneed funeral contracts as described in rule 5160:1-3-05.6 of the Administrative Code.

(8) Cash or in-kind replacement received from any source for purposes of replacing or repairing an exlcuded resource which is lost, damaged, or stolen. Any interest earned on such cash payments, is not income. The total amount of cash (including interest earned) or the value of the in-kind replacement is excluded as a resource for a period of nine months from the date of receipt.

(a) If the exclusion time expires and the individual has not used all of the cash, any remaining cash (as well as interest earned on such cash) is a countable resource effective the first day of the following month in which the time period expires.

(b) The exclusion time may be extended for good cause for a reasonable period not to exceed an additional nine months (a total of eighteen months from the date the cash is received).

(c) Good cause may be found if:

(i) The individual made a reasonable effort to contract for or obtain replacement or repair of an excluded resource within the original nine-month period; and

(ii) The individual still intends to use any cash received for that purpose.

(d) Any change of intent, which occurs during the extension period, will cause the exclusion to end. Any cash and interest retained becomes a resource the first day of the month following the month in which the individual reports the change or intent, or the eighteen-month period ends, whichever comes first.

(e) Temporary housing received by an individual whose home was destroyed or damaged is also excluded for a period of nine months beginning with the month the temporary housing is first provided. For purposes of this rule, temporary housing includes the value of support and maintenance. When a home is damaged or destroyed and temporary housing is furnished to an individual who owned the home, any form of in-kind support and maintenance is not counted as income.

(9) Funds held in plans for achieving a self-support (PASS) account in accordance with section 1613(a)(4) of the Social Security Act (as in effect on March 1, 2014).

(10) The accumulation of payments received under the Agent Orange Compensation Exclusion Act, Pub. L. No. 101-201 (as in effect on December 1, 2013) received on or after January 1, 1989.

(11) The accumulation of payments received under section 105 of Pub. L. No. 100-383 (as in effect on December 1, 2013) by individuals of Japanese ancestry.

(12) The accumulation of payments received under section 206 of Pub. L. No. 100-383 (as in effect on December 1, 2013) by Aleuts.

(13) The accumulation of German reparation (restitution) payments paid under the republic of Germany's federal law for compensation of nationalist socialist persecution to certain surviving victims of Nazi persecution, per Pub. L. No. 103-286 (as in effect on December 1, 2013).

(14) The accumulation of payments under the Radiation Exposure Compensation Act, Pub. L. No. 101-426 (as in effect on December 1, 2013).

(15) Federal earned income tax credit payments, either refunded or advanced by an employer, are excluded for nine months beginning after the month of receipt in accordance with section 1613(a)(11) of the Social Security Act (as in effect on March 1, 2014).

(16) The accumulation of payments received under the Maine Indian Claims Settlement Act, Pub. L. No. 96-420 (as in effect on March 1, 2014) received on or after October 10, 1980.

(17) The accumulation of Austrian social insurance payments paid under paragraphs 500 and 506 of the Austrian General Social Insurance Act (as in effect on December 1, 2013).

(18) The accumulation of payments received under the Aroostook Bank of Micmacs Act, Pub. L. No. 102-171 (as in effect on March 1, 2014) received on or after November 26, 1991.

(19) The accumulation of payments received under the Seneca Nation Settlement Act, Pub. L. No. 101-503 (as in effect on December 1, 2013) received on or after November 3, 1990.

(20) The accumulation of payments received as a result of the Netherlands' Act on Benefits for Victims of Persecution (1940-1945) (as in effect on December 1, 2013).

(21) The accumulation of payments received from any fund established pursuant to a class settlement in the case of Susan Walker v. Bayer Corporation, et al, 96-c-5024 (N.D. Ill), per the Balanced Budget Act of 1997, Pub. L. No. 105-33 (December 1, 2013).

(22) Past-due benefits and other underpayments that exceed six times the monthly SSI payment deposited into a dedicated financial institution account and any accrued interest or other earnings on such an account are excluded as income and resources as defined in rule 5160:1-3-05.4 of the Administrative Code.

(23) Any interests of the individual (or spouse) in trust or restricted lands, in accordance with 20 C.F.R. 416.1234 (as in effect on December 1, 2013) if an individual or an individual's spouse is of native American Indian descent from a federally recognized native American Indian tribe. If an individual alleges an interest in trust or restricted lands, the administrative agency must obtain a copy of any document or documents that identify such interest and verify the allegation with the appropriate Indian agency.

(24) Assistance received as a result of a catastrophe declared by the president of the United States as a major disaster, no matter if received from federal, state, or local government, or from a disaster assistance organization. This includes any interest earned on the assistance.

(25) Any unspent payments received from a fund established by a state to aid victims of crime are excluded for nine months beginning after the month of receipt as identified in section 5031 of Pub. L. No. 101-508 (as in effect on December 1, 2013).

(26) Relocation assistance, under Title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970, 42 U.S.C. 301 (as in effect on December 1, 2013) provided to persons displaced by projects which acquire real property.

(27) Grants, scholarships, fellowships, and gifts used to pay tuition, fees and other necessary educational expenses, in accordance with section 1613(A)(15) of the Social Security Act (as in effect on March 1, 2014) are exluded for nine months.

(28) Funds received from the "Ricky Ray Hemophilia Relief Fund" under the Ricky Ray Hemophilia Relief Fund Act of 1998, Pub. L. No. 105-369 (as in effect on December 1, 2013).

(D) Administrative agency responsibilities. The administrative agency shall:

(1) Consider interest received on excluded funds listed in paragraph (C) of this rule, banked with a financial institution, as a resource unless otherwise specified.

(2) Consider any resource purchased with funds listed in paragraph (C) of this rule as not automatically excluded and subject to medicaid resource requirements.

Replaces: 5160:1-3-26

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 5/29/80, 5/29/80, 2/15/85 (Emer.), 5/14/85 (Emer.), 6/10/85, 4/1/86, 11/1/86 (Emer.), 12/22/86, 11/1/87, 7/1/88 (Emer.), 9/1/88, 6/1/90 (Emer.), 8/31/90, 2/7/91 (Emer.), 5/1/91, 10/1/91, 4/1/92, 6/1/92 (Emer.), 8/13/92, 10/1/92 (Emer.), 12/21/92, 10/7/94, 10/31/97 (Emer.), 1/26/98, 3/1/98 (Emer.), 5/1/98, 10/1/06

5160:1-3-05.15 Medicaid: exclusion of property no longer the principal place of residence.

(A) This rule describes the exclusion of property no longer the principal place of residence.

(B) A home that is no longer the principal place of residence may continue to remain excluded as a resource for the duration that the property satisfies the provisions governing the treatment of property essential for self-support as found in rule 5160:1-3-05.19 of the Administrative Code.

(C) If a home is no longer the principal place of residence and it does not qualify as property essential for self-support under rule 5160:1-3-05.19 of the Administrative Code, it may remain exempt as a resource if the following requirements are met:

(1) The individual must list the property for sale once the property no longer qualifies as either the principal place of residence or as property essential for self-support under rule 5160:1-3-05.19 of the Administrative Code.

(2) The individual must provide verification that the property was listed for sale with a real estate agent or real estate firm on or before the date that the property ceased to qualify as either the principal place of residence or as property essential for self-support under rule 5160:1-3-05.19 of the Administrative Code.

(3) The property must be listed for sale at an amount not greater than the market value as determined by the county auditor. The administrative agency shall verify the market value by using the assessed value as set by the local county auditor.

(4) The individual may not refuse a purchase offer that is equal to or greater than ninety percent of the market value as determined by the county auditor.

(5) The proceeds from the sale of the property must be used for the care and support of the medicaid recipient.

(a) The net proceeds of the property are treated as a lump sum in accordance with rule 5160:1-3-05.8 of the Administrative Code.

(b) The administrative agency must complete a redetermination of continuing eligibility once the property is sold.

(c) The administrative agency shall also apply the provisions of rule 5160:1-3-05.1 of the Administrative Code to determine the proper treatment of shared property.

(D) If the property is not sold within six months after its initial listing as required by paragraph (C) of this rule, the total equity value of the property will be counted as a resource, unless the individual demonstrates that it qualifies as property that has not been sold as set forth in rule 5160:1-3-05.1 of the Administrative Code.

Replaces: 5160:1-3- 31.3

Effective: 10/02/2014
Five Year Review (FYR) Dates: 10/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 11/1/86 (Emer.), 12/22/86, 5/1/94, 11/7/02

5160:1-3-05.16 Medicaid: home replacement exclusion.

(A) This rule describes the application of the home replacement exclusion for purposes of determining eligibility for medical assistance. If the home is being replaced due to loss or damage resulting from a disaster, refer to rule 5160:1-3-05.14 of the Administrative Code.

(B) Definitions.

(1) "Proceeds" mean the net payments received by the seller after satisfaction of all emcumbrances and sale expenses.

(2) "Sale expenses" mean all expenses that must be paid by the seller in connection with the sale of the home, including but not limited to broker fees, commissions, legal fees, mortgage-related fees such as points paid by the seller, inspection and settlement fees, and transfer and other accrued taxes paid by the seller.

(C) The home replacement exclusion allows an individual to sell an excluded home that was the individual's principal place of residence without having the proceeds of the sale count as resources if used for the purchase of another excluded home and for the costs incidental to occupying the substitute home.

(1) This exclusion from resources applies to the proceeds of the sale of the excluded home if they are used or obligated to purchase and occupy a substitute excluded home by the last day of the third full month following the month of receipt.

(2) If the home is not replaced within this period, then the proceeds are to be counted as a resource beginning with the month following the month they were received by the individual.

(3) The exclusion does not apply to interest earned on the proceeds of the sale.

(4) The administrative agency shall not implement the exclusion until the statement described in paragraph (E) of this rule is obtained.

(D) The home replacement period begins on the date that the proceeds of the sale are received by the individual. The home replacement period ends on the last day of the third full month following the month the proceeds are received.

(E) If the individual states that the home is being replaced, the administrative agency shall obtain a signed statement from the individual containing the following required information:

(1) Date and amount of proceeds received from the sale of the home; and

(2) The individual's intent of replacing the home with another home by a specific date that represents the last day of the third full month following the month of receipt of the proceeds; and

(3) An acknowledgement that any proceeds of the sale not used for a substitute home by the date in paragraph (E)(2) of this rule may count in determining eligibility for medical assistance beginning on a specific date that represents the first day of the first month following receipt.

(F) The administrative agency shall verify the amount of the proceeds and the date they were received by obtaining a copy of the settlement sheet or other documents prepared at settlement and received by the individual from the sale.

(G) By the last day of the month in which the home replacement period expires, the administrative agency shall contact the individual to verify the dates and amounts of any allowable costs or deductions for the replacement home by obtaining written evidence (e.g., contracts, bills, receipts, settlement sheets) on the substitute home.

(1) The administrative agency shall charge any retained proceeds not used or contracted to be used toward the replacement home before expiration of the replacement period as a resource beginning with the month following the month of receipt.

(2) If the individual has not replaced the home as intended, all of the proceeds will also count as a resource beginning with the month following the month of receipt.

Replaces: 5160:1-3- 31.4

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 11/1/86 (Emer), 12/22/86, 11/7/02

5160:1-3-05.17 Medicaid: life estates and life leases.

(A) This rule describes life estates and life leases as resources.

(B) Definitions.

(1) "Date of signature" is the date that the individual authorized to transfer the property actually signed the deed or transfer instrument.

(2) "Life estate" means an ownership interest in property wherein one person holds the right to possess, use, and obtain profits from the property as long as he or she lives, while another person holds the actual ownership interest in the property.

(a) A life estate is a form of legal ownership.

(b) It is usually created through an instrument such as deed or will or by operation of law.

(c) A life estate instrument often identifies remaindermen who will take possession of the property upon the expiration of the life estate.

(d) A life estate owner owns the property only for the duration of the life estate. The owner can sell only his or her interest in the life estate. The owner cannot take any action concerning the interest of the remainderman.

(3) "Life lease" means a written tenancy agreement giving a person certain rights to property during the person's lifetime.

(4) "Look-back period" is defined in rule 5160:1-3-07.2 of the Administrative Code.

(5) "Recording date" means the date that the deed is recorded with the county auditor, county recorder, or other appropriate government agency charged with the responsibility for recording real estate transfers and titles.

(6) A "remainderman" has an ownership interest in the physical property but normally does not have the right to possess and use the property until termination of the life estate.

(C) General description of life estates.

(1) Unless the instrument establishing the life estate places restrictions on the rights of the life estate owner, the owner has the right to possess, use, and obtain profits from the property and to sell his or her life estate interest.

(2) Unless restricted by the instrument establishing the remainder interest, the remainderman is generally free to sell his/her interest in the physical property even before the life estate interest expires.

(D) Categories of life estates.

(1) Life estates established with the individual's property within the look-back period.

(a) A life estate held by an individual falls within this category if it is established with property that the individual held an ownership interest in, and it was established within the applicable look-back period.

(b) If the individual has the right to transfer or sell the life estate, it is considered a countable resource unless it qualifies as an excluded resource as described in rule 5160:1-3-05.14 of the Administrative Code.

(c) If the individual does not have the right to sell the life estate, the value of the life estate is presumed improperly transferred.

(d) The administrative agency must examine the transferred remainder interest under the rules governing the transfer of assets.

(2) Life estates established with the individual's property prior to the look-back period.

(a) A life estate held by an individual falls within this category if it is established with property that the individual held an ownership interest in, and it was established prior to the applicable look-back period.

(b) If the individual has the right to transfer or sell the life estate, it is considered a countable resource unless it qualifies as an excluded resource as described in rule 5160:1-3-05.14 of the Administrative Code.

(c) A life estate that cannot be sold and was established prior to the look-back period must not be considered an improper transfer.

(d) A remainder interest established prior to the look-back period must not be considered an improper transfer.

(3) Life estates not established by the individual.

(a) A life estate held by an individual falls within this category if it is established with property that the individual did not hold an ownership interest in at the time of the establishment of the life estate.

(b) If the individual has the right to transfer or sell the life estate, it is considered a countable resource unless it qualifies as an excluded resource.

(E) Effective date of the creation of a life estate.

(1) For life estates that are recorded within six months after the date of signature, the date of signature is the date of transfer.

(2) If a life estate is recorded more than six months after the date of signature, the individual must produce documentation from other sources verifying that the transfer occurred on the date of signature rather than the date of recording.

(a) Such documentation may consist of financial records from lending institutions, tax records from governmental agencies, or records from other agencies or private or public instititutions.

(b) The individual may provide statements of persons holding a remainder interest, or other persons who participated in the creation of the life estate.

(F) Calculating the value of a life estate.

(1) The administrative agency must first determine the value of the property as established by the county auditor. If a valuation by a county auditor is unavailable, the value shall be based upon a valuation by the appropriate governmental agency charged with the responsibility for valuation of real property.

(2) The administrative agency must deduct from the value of the property all liens and encumbrances that have been placed against the property.

(3) The administrative agency must deduct from the value of the property all liens and encumbrances that have been placed against the life estate.

(4) After the deductions, the balance is the equity value of the property.

(5) The administrative agency must multiply the equity value of the property by the product that corresponds to the life estate owner's age at the time of determination for medical assistance on the following life estate table:

AGE

LIFE ESTATE

REMAINDER

0

.97188

.02812

1

.98988

.01012

2

.99017

.00983

3

.99008

.00992

4

.98981

.01019

5

.98938

.01062

6

.98884

.01116

7

.98822

.01178

8

.98748

.01252

9

.98663

.01337

10

.98565

.01435

11

.98453

.01547

12

.98329

.01671

13

.98198

.01802

14

.98066

.01934

15

.97937

.02063

16

.97815

.02185

17

.97700

.02300

18

.97590

.02410

19

.97480

.02520

20

.97365

.02635

21

.97245

.02755

22

.97120

.02880

23

.96986

.03014

24

.96841

.03159

25

.96678

.03322

26

.96495

.03505

27

.96290

.03710

28

.96062

.03938

29

.95813

.04187

30

.95543

.04457

31

.95254

.04746

32

.94942

.05058

33

.94608

.05392

34

.94250

.05750

35

.93868

.06132

36

.93460

.06540

37

.93026

.06974

38

.92567

.07433

39

.92083

.07917

40

.91571

.08429

41

.91030

.08970

42

.90457

.09543

43

.89855

.10145

44

.89221

.10779

45

.88558

.11442

46

.87863

.12137

47

.87137

.12863

48

.86374

.13626

49

.85578

.14422

50

.84743

.15257

51

.83674

.16126

52

.82969

.17031

53

.82028

.17972

54

.81054

.18946

55

.80046

.19954

56

.79006

.20994

57

.77931

.22069

58

.76822

.23178

59

.75675

.24325

60

.74491

.25509

61

.73267

.26733

62

.72002

.27998

63

.70696

.29304

64

.69352

.30648

65

.67970

.32030

66

.66551

.33449

67

.65098

.34902

68

.63610

.36390

69

.62086

.37914

70

.60522

.39478

71

.58914

.41086

72

.57261

.42739

73

.55571

.44429

74

.53862

.46138

75

.52149

.47851

76

.50441

.49559

77

.48742

.51258

78

.47049

.52951

79

.45357

.54643

80

.43659

.56341

M

.41967

.58033

82

.40295

.59705

83

.38642

.61358

84

.36998

.63002

85

.35359

.64641

86

.33764

.66236

87

.32262

.67738

88

.30859

.69141

89

.29526

.70474

90

.28221

.71779

£1

.26955

.73045

92

.25771

.74229

93

.24692

.75308

94

.23728

.76272

95

.22887

.77113

96

.22181

.77819

97

.21550

.78450

98

.21000

.79000

99

.20486

.79514

100

.19975

.80025

101

.19532

.80468

102

.19054

.80946

103

.18437

.81563

104

.17856

.82144

105

.16962

.83038

106

.15488

.84512

107

.13409

.86591

108

.10068

.89932

109

.04545

.95455

(G) If the individual disagrees with the county auditor's determination of the value of the property as described in paragraph (F)(1) of this rule, the individual may have a licensed real estate broker perform an appraisal of the property's value, which may be substituted as the current value of the property in paragraph (F)(1) of this rule. Such appraisal services may be provided through the use of administrative funds if the individual is unable to obtain an appraisal due to insufficient funds of his or her own.

(H) If the individual transfers or sells a life estate, the individual must receive fair market value for the life estate.

(1) The fair market value for the life estate shall be calculated in accordance with paragraph (F) of this rule.

(2) If the individual receives less than fair market value for a transferred life estate, the transfer must be examined under the rule governing the transfer of assets.

(I) With respect to a transfer of assets, as referenced in rule 5160:1-3-07.2 of the Administrative Code, the purchase of a life estate interest in another individual's home is a countable resource unless the purchaser resides in the home for a period of at least one year after the date of purchase.

(J) If a life lease is not excluded as the principal place of residence, it must be evaluated as a countable resource. The current market value of a life lease will vary according to the terms agreed upon and the life expectancy of the lessee.

(K) Administrative agency responsibilities. The administrative agency shall:

(1) Review the life estate instrument to determine the rights, responsibilities, and/or restrictions placed on the life estate owner and/or the remainderman for new applications for long term care facility (LTCF) services, home and community-based services (HCBS) and program of all inclusive care for the elderly (PACE) services.

(2) Determine the effective date of the creation of a life estate.

(3) Accept the statements of persons holding a remainder interest, or other persons who participated in the creation of the life estate, only upon a finding that their statements are corroborated and credible.

(4) Use the date of recording as the effective date of the creation of the life estate if the individual fails to produce documentation verifying that the transfer occurred on the date of signature.

(5) If the life estate has not been recorded, the administrative agency shall request that the individual verify transfer by recording the life estate and, unless the life estate was created within the prior six months, provide documentation as required in paragarph (E)(2) of this rule. If the individual does not provide documentation that the life estate has been recorded, disregard the life estate and consider the entire property as an available resource to the individual.

Replaces: 5160:1-3-32

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 7/1/88 Emer.), 9/1/88, 1/1/90 (Emer.), 4/1/90, 4/1/91 (Emer.), 6/17/91, 9/1/94, 11/7/02, 10/1/06, 11/1/13

5160:1-3-05.19 Medicaid: real or personal property essential to self-support.

(A) This rule describes exclusions when real or personal property is essential to an individual's means of self-support.

(B) Definition.

(1) "Basic daily living needs", for the purpose of this rule, means any food, basic clothing, basic shelter, and any medical care that are not provided by medicaid. Items for entertainment or leisure are not basic daily living needs.

(2) "Maximum allowable equity" means an individual's equity in income-producing property, up to a maximum of six thousand dollars.

(C) Categories of property essential to self-support.

(1) Property used in a trade or business, government permits that represent authority granted by a government agency to engage in an income-producing activity, or property used by an individual as an employee for work.

(a) Is excluded as a resource regardless of value or rate of return.

(b) Government permits includes any permit, license, or similiar instrument issued by a federal, state, or local government agency.

(c) Personal property used by an employee for work include farm machinery, tools, safety equipment, uniforms, etc.

(2) Nonbusiness real or personal property used to produce goods or services essential to basic daily living needs.

(a) Up to six thousand dollars of the equity value is excluded, regardless of rate of return.

(b) Any portion of the property's equity value in excess of six thousand dollars is a countable resource.

(c) Nonbusiness property used to produce goods or services include growing produce or livestock solely for personal consumption in the individual's household or perform activities essential to the production of food solely for home consumption.

(3) Nonbusiness income-producing property.

(a) Up to six thousand dollars of the equity value is excluded as a resource if the property produces a net annual return equal to at least six per cent of the excluded equity.

(b) Any portion of the property's equity value in excess of six thousand dollars is a countable resource.

(c) If the property produces less than a six per cent return, the exclusion can only apply if the lower return is for reasons beyond the individual's control and there is a reasonable expectation that the property will again produce a six per cent return. Otherwise, none of the equity value is excluded under this section.

(d) If the earnings decline was for reasons beyond the individual's control, up to twenty-four months can be allowed for the property to resume producing a six per cent return. The twenty-four month period begins with the first day of the tax year following the one in which the return dropped to below six per cent.

(e) If the tax return shows that the activity has operated at a loss for the two most recent years or longer, the property cannot be excluded unless the individual submits current receipts and records to show that it currently is producing a six per cent return.

(f) If an individual owns more than one piece of income-producing property, the six per cent return requirement applies individually to each property and the six thousand dollar equity value limit applies to the total equity value of all the properties meeting the six per cent return requirement.

(g) If all properties meet the six per cent test but the total equity value exceeds six thousand dollars, that portion of the total equity value in excess of six thousand dollars is a countable resource.

(D) For any of the exclusions to apply, the property must be in current use.

(E) Property not in current use. If the property is not in current use, it must be for reasons beyond the individual's control and there must be a reasonable expectation that the use will resume within twelve months of last use.

(1) If an individual alleges that self-support property is not in current use because of a disabling condition of the individual, the individual must provide a treating physician's, advanced practice registered nurse's (APRN), or physician assistant's (PA) signed statement describing the nature of the condition, the date the individual ceased the self-support activity, and the date the physician, APRN, or PA will allow the individual to resume the activity, if at all.

(2) If the individual does not intend to resume the self-support activity, the property is a countable resource in the month after the month of last use.

(3) If, after property has been excluded because an individual intends to resume self-support activity, the individual decides not to resume such activity, the exclusion ceases to apply as of the date of the change of intent. The property is a resource in the following month.

(F) Individual responsibilities. The individual shall:

(1) Provide a copy of the tax return for the tax year prior to application or reapplication to be used to determine the net income earned for the individual from the income-producing property.

(2) Provide pertinent documents and a signed statement if the individual alleges owning a government license, permit, or other property that represents government authority to engage in an income-producing activity, and has value as a resource. The statement shall include:

(a) The type of license, permit or other property;

(b) The name of the issuing agency, if appropriate;

(c) Whether the law requires such license, permit, or property for engaging in the income-producing activity at issue; and

(d) How the license, permit, or other property is being used; or

(e) Why it is not being used.

(3) Provide a statement if the individual alleges owning items used in his or her work as an employee. The statement shall include:

(a) The name, address, and telephone number of the employer;

(b) A general description of the items;

(c) A general description of the individual's duties; and

(d) Whether the items are currently being used.

(G) Administrative agency responsibilities. The administrative agency shall:

(1) Determine whether the property qualifies under one of the three categories identified in paragraph (C) of this rule if the individual asserts his or her property is essential for self-suppport.

(2) Determine whether to exclude equity in nonbusiness income-producing property described in paragraph (C)(3) of this rule as follows:

(a) Determine the individual's maximum allowable equity in the property.

(b) Multiple the individual's maximum allowable equity by six per cent.

(c) Establish the net annual income the property produces for the individual.

(i) If the income to the individual is equal to or greater than the six per cent calculated in paragraph (G)(2)(b) of this rule, then the maximum allowable equity is not counted as a resource.

(ii) If the income to the individual is less than the six per cent calculated in paragraph (K)(G)(b) of this rule, then the individual's entire equity is counted as an available resource.

(d) If there is more than one potentially excluded property, the six per cent return requirement applies individually to each property and the six thousand dollars equity value limit applies to the total equity value of all the properties meeting the six per cent return requirement.

(3) Determine whether to exclude equity in property that provides either a product or a service that supplies basic daily living needs for the individual.

(a) If the property does provide basic daily living needs for the individual, then the individual's equity up to a maximum of six thousand dollars shall not be counted as a resource. Any equity in excess of six thousand dollars shall be counted as a resource.

(b) If the property does not provide basic daily living needs for the individual, then the entire equity is a countable resource.

(4) Apply only the provision that is most beneficial to the individual if the individual's property falls under more than one of the categories in paragraph (C) of this rule.

(5) Request any other documentation necessary to fully and adequately distinguish between the income from the income-producing property, and income from other sources.

(6) Consider the individual's entire equity as a countable resource if the individual fails to cooperate with providing the appropriate documentation.

Replaces: 5160:1-3-33

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 10/1/95, 11/7/02

5160:1-3-05.20 Medicaid: deeming of resources.

(A) This rule describes the deeming of resources from spouse to spouse or parent(s) to a child who are living in the same home when determining eligibility for medical assistance.

(B) Definitions.

(1) "Child", for deeming purposes, means and individual under age eighteen who lives in the home with one or both parents and is neither married nor head of household. The deeming of parental resources applies through the month in which the child becomes eighteen years old. An eligible or ineligible child's resources are never deemed to parent(s) or sibling(s).

(2) "Eligible child" means a child in the home who has applied for medical assistance for the aged, blind, or disabled, and who meets all the applicable non-financial and financial eligibility criteria.

(3) "Eligible spouse" means the member of a married couple who has applied for medical assistance for the aged, blind, or disabled, and who meets all the applicable non-financial and financial eligibility criteria.

(4) "Parent" means a natural or adoptive father or mother living in the same home as the eligible child. The resources of a stepparent who lives with the eligible child is deemed to the child only when the natural or adoptive parent also lives in the home with the stepparent and child. If the natural or adoptive parent divorces a stepparent and the child is living with the stepparent, the stepparent is not a parent or spouse for deeming purposes.

(5) "Spouse" means a person who is legally married to another under Ohio law.

(C) Only the resources of the individual's spouse or the parent(s) of a child are considered for purposes of deeming resources.

(D) In deeming resources from one spouse to the other, only the resources of those two individuals are considered. In deeming resources from a parent to a child, only the resources of the parent are considered.

(E) Spouse to spouse deeming.

(1) When an eligible individual and their spouse live together, all resources are combined and the couple is permitted resources in the amount described in rule 5160:1-3-05.1 of the Administrative Code in addition to what is exempt as described in rule 5160:1-3-05.14 of the Administrative Code. The couple's resource limitation is not affected by whether the spouse of the eligible individual is eligible or ineligible for medical assistance.

(F) Parent to child deeming.

(1) The resource limit for a child is described in rule 5160:1-3-05.1 of the Administrative Code in addition to what is excluded as described in rule 5160:1-3-05.14 of the Administrative Code.

(2) The resources of a child consist of whatever resources the child has in his or her own right plus whatever resources are deemed to the child from his or her parent(s).

(3) In determining the amount of resources to be deemed to an otherwise eligible child, the resources of the child and of the parents are computed separately and both the child and the parents are each allowed all of the resource exclusions they would normally be eligible for in their own right. Only one home and one automobile are excluded.

(a) For purposes of deeming, it does not matter whether the parent(s) is or is not eligible for medical assistance.

(b) After the exclusions are applied, only the countable resources over the resource exclusion of the parent(s) living in the home are deemed to the child when there is only one child.

(i) When there is one parent in the home the parental resource exclusion is one thousand five hundred dollars.

(ii) When both parents are in the home the parental resource exclusion is two thousand two hundred fifty dollars.

(c) When there is more than one eligible child, the resources available for deeming are shared equally among the eligible children.

(d) None of the parents' resources are deemed to any other ineligible children.

(4) A child is not eligible for medical assistance if his or her own countable resources plus the value of the parents' resources deemed to the child exceed the resource limit for a child described in rule 5160:1-3-05.1 of the Administrative Code.

(G) When the individual is not living in a home with a spouse or parent(s) only the resources of the individual are considered. Such an individual is subject to the resource limit for an individual described in rule 5160:1-3-05.1 of the Administrative Code.

(1) When an eligible individual and spouse are no longer living together, each person is considered as an individual living alone beginning the month after separation. The individual resource limit, as described in rule 5160:1-3-05.1 of the Administrative Code, is then applicable.

(a) For the month of separation, the spouses are treated as an eligible couple or as an eligible individual and ineligible spouse living together in the same household with a resource limit for a couple described in rule 5160:1-3-05.1 of the Administrative Code.

(b) In the month after the month of separation, resources are computed separately because each person is now considered to be an individual without a spouse.

(2) Spouses or parents and children who are separated because of placement in a medical institution have resources considered in accordance with the policy contained in Chapter 5160:1-3 of the Administrative Code.

Replaces: 5160:1-3-34

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 2/15/85 (Emer.), 5/14/85 (Emer.), 6/10/85, 1/1/91, 7/1/94, 10/1/95, 10/1/96 (Emer.), 12/15/96

5160:1-3-06 Medicaid: social security administration reporting alleged transfer of resources by supplemental security income (SSI) applicants to the Ohio department of job and family services (ODJFS).

(A) When an individual applies for supplemental security income (SSI) benefits, the social security administration (SSA) must inform the individual of the medicaid policy regarding transfer of resources and inquire whether or not the individual has transferred any resources

(B) The SSA obtains from all SSI applicants the following information regarding an alleged resource transfer and provides this information to the Ohio department of job and family services (ODJFS):

(1) A description of the resources transferred (e.g., real estate, automobile, stocks, cash, etc.);

(2) The name of the party to whom the resource was transferred;

(3) The amount of compensation received or expected;

(4) The approximate value of the transferred resource;

(5) The date the resource was transferred;

(6) Whether the applicant was the sole owner of the resource and, if not, the names of any co-owners;

(7) The relationship of the applicant, if any, to the individual to whom the resource was transferred.

(C) The ODJFS will forward the information to the county department of job and family services (CDJFS) in which the individual resides.

(D) The CDJFS will review the alleged transfer of resources and, if the individual is a medicaid applicant or recipient, determine or redetermine continued medicaid eligibility in accordance with Chapter 5101:1-39 of the Administrative Code.

(E) The CDJFS will provide appropriate notice of the medicaid determination to the applicant in accordance with Chapter 5101:6-2 of the Administrative Code, and document in CRIS-E running record comments (CLRC) the effect, if any, on medicaid eligibility.

Eff 8-9-90; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.011 , 5111.01
Rule amplifies: RC 5111.01 , 5111.011
R.C. 119.032 review dates: 5/20/2002 and 10/01/2007

5160:1-3-06.1 Medicaid: treatment of income and resources of institutionalized individuals.

(A) This rule describes the treatment of income and resources for institutionalized individuals when determining eligibility for medical assistance.

(B) Institutionalized individual with no spouse.

(1) Individuals at least age twenty-one who have no spouse.

(2) Only the income and resources of the individual and any contributed income and resources are considered in the eligibility and post-eligibility determinations.

(C) Institutionalized children.

(1) For the month in which a child enters the institution, the child is considered living with the family. The income and resources of the parent(s) is considered available to the child in the month of institutionalization.

(2) The month following the month of institutionalization, the child is treated as an individual living alone. The child's own income and resources and any contributed income and resources are considered in the eligibility and post-eligibility determinations.

(D) Institutionalized couples.

(1) Institutionalized couples shall be treated as individuals the month following the month of institutionalization. Only income and resources that are attributable to the individual are applied to the individual. This policy applies to all couples regardless of their living arrangement in the medical institution.

(2) Couples who enter the medical institution in the same month are treated as a couple the month of entering the facility. The month after the month of entering the medical institution, they are treated as individuals.

(E) Institutionalized individual with a community spouse.

(1) Spouses separated by a continuous period of institutionalization are considered to be living apart the month the institutionalized spouse (IS) enters the institution. Only the income and resources deemed to the IS and any income and resources actually contributed to the IS are considered available in the IS's financial eligibility and post-eligibility determinations.

(2) A continuous period of institutionalization is defined as an admission to a medical institution (or receipt of home and community-based waiver services) for a period of at least thirty consecutive days.

(3) The continuous period of institutionalization may include a combination of institutionalization in a hospital setting and a long term care facility (and/or receipt of home and community-based waiver services).

(4) Continuity of institutionalization is broken by any absences from the institution for thirty consecutive days or non-receipt of home and community-based waiver services for thirty consecutive days.

(5) A continuous period of institutionalization is also established when an individual is admitted to a medical institution or begins receiving waiver services under an HCBS waiver and is "likely to remain" or "likely to receive waiver services" for a period of at least thirty consecutive days.

(a) Individuals are considered likely to remain or likely to receive waiver services, even though they do not actually remain or continue to receive waiver services, when it is determined that the individual is likely to remain or likely to receive waiver services for thirty consecutive days.

(b) For a hospitalized individual, a physician's, advanced practice registered nurse's (APRN), or physician assistant's (PA) statement verifying that the individual is likely to remain at least thirty consecutive days is required.

(c) A continuous period of institutionalization in an LTCF must be certified by a physician's, APRN's, or PA's statement or the completed ODM 03697 "Patient Care And Plan of Treatment (rev. 7/2014). The ODM 03697 must provide sufficient information that institutionalization is reasonably expected to continue for at least thirty consecutive days.

(d) The approval notice of HCBS waiver services shall be used to verify the individual is likely to receive waiver services for a period of at least thirty consecutive days.

(e) A continuous period of institutionalization is also established if the individual dies prior to the thirtieth consecutive day when it is determined that the individual would have likely continued to remain institutionalized or in receipt of HCBS waiver services.

(6) The continuous period of institutionalization may include a combination of institutionalization in a hospital setting and a long term care facility and/or receipt of home and community-based waiver services.

(7) In accordance with rule 5160:1-3-06.3 of the Administrative Code, spousal impoverishment provisions are not implemented until the individual has actually been institutionalized for thirty consecutive days; however, the continuous period begins the date the individual was institutionalized or began receiving HCBS waiver services.

Replaces: 5160:1-3-22

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 9/3/77, 12/31/77, 3/1/79, 10/1/79, 12/179/79, 1/21/80, 9/1/82, 12/7/83, 7/25/84 (Temp.), 10/1/84, 10/1/88 (Emer.), 12/20/88, 1/1/90 (Emer.), 4/1/90, 4/1/91, 10/1/02

5160:1-3-06.2 Medicaid: resource assessment.

(A) This rule defines how resources, existing at the beginning of the first continuous period of institutionalization, are identified and assessed for purposes of determining medicaid eligibility.

(B) Definitions.

(1) "Continuous period of institutionalization" means an admission to a medical institution, receipt of home and community based waiver services, or receipt of services under a program of all inclusive care for the elderly, for a period of at least thirty consecutive days.

(2) "Institutionalized" describes an individual who receives long-term care (LTC) services in a medical institution, a long-term care facility, under a home and community based services (HCBS) waiver program or under program of all inclusive care for the elderly (PACE) for at least thirty consecutive days.

(3) "Resource assessment" means the process where the resources of both the institutionalized spouse and the community spouse are assessed to determine the couple's total countable resources existing at the beginning of the first continuous period of institutionalization.

(C) Documentation of ownership and current value of the couple's countable resources shall be completed in accordance with Chapter 5160:1-3 of the Administrative Code. The only resource exclusions for the resource assessment and the determination of countable resources at the time of application are:

(1) The homestead property.

(2) One automobile, regardless of value.

(3) Household goods and personal effects.

(4) The value of any burial space and/or irrevocable preneed funeral contract (including the interest that accumulates) for the individual, spouse, or any other member of the immediate family.

(5) Resources in a plan for achieving self-support (PASS) account.

(6) Property that is essential to self-support in accordance with rule 5160:1-3-05.19 of the Administrative Code.

(7) Assistance provided pursuant to a federal statute, on account of a catastrophe, which is to be declared a major disaster by the president, for a period of nine months beginning the date the funds are received.

(8) Any underpayment of supplemental security income (SSI) or social security benefits is excluded for the first six months following the month of receipt.

(9) Assistance paid with respect to the dwelling unit occupied by the individual and/or spouse for subsidized housing.

(10) Victim's assistance payments paid by a fund established by the state to aid victims of crime as compensation, for expenses incurred or losses suffered as a result of a crime for a period of nine months beginning the month after the month in which the payment is received.

(11) Relocation assistance provided by the state or local government for a period of nine months beginning the month after the month in which the payment is received.

(12) If the total face value of all life insurance policies on any individual is one thousand five hundred dollars or less, the policies are totally excluded from being counted as resources. If the total face value of all policies on an individual exceeds one thousand five hundred dollars, the entire cash surrender value of such policies must be counted as resources. Term and burial insurance policies, for which no cash value accumulates, are not used in determining whether the total value of all policies is over one thousand five hundred dollars.

(D) Administrative agency responsibilities.

(1) A resource assessment shall be completed when one member of a couple is applying for services under an HCBS waiver or PACE. When both members of a couple are applying for services under an HCBS waiver or PACE, a resource assessment is not completed. Individuals who had a resource assessment completed previously due to LTCF placement, or other institutionalization, will not have another resource assessment completed.

(a) When the first continuous period of institutionalization began under a HCBS waiver program or under community based PACE, the date of the first continuous period of institutionalization for resources assessment purposes is the date the individual is authorized by the HCBS waiver agency or PACE agency to receive services.

(b) After the completion of the resource assessment, there shall be no deeming of spousal resources to the individual receiving services under HCBS waiver program or PACE. The individual's countable resources cannot exceed the resource standard of one thousand five hundred dollars for HCBS waiver or PACE.

(2) All individuals entering an LTCF on or after January 1, 1990, who have a spouse in the community, shall be provided with a notice concerning the individual's right to a resource assessment. The LTCF is responsible for ensuring that all individuals receive this notice upon entering the facility.

(3) The purpose of the resource assessment is to aid in the determination of the amount of resources that may be transferred from the institutionalized spouse to the community spouse should an application be filed in conjunction with the request for an assessment of resources or filed at a later date. Additionally, the resource assessment aids in the determination of whether or not resources were recently transferred.

(4) One resource assessment is completed per individual member in a couple when one spouse is institutionalized, returns home and then subsequently the other spouse becomes institutionalized.

(5) If an institutionalized individual marries someone in the community, the resource assessment is based on the date of the marriage.

(6) The administrative agency shall only accept the first period of continuous institutionalization from another state and not the resource assessment. A new resource assessment must be completed when the individual becomes a resident of Ohio and meets the definition of institutionalized as defined in paragraph (B) of this rule.

(7) A resource transferred prior to the individual becoming institutionalized is not included on a resource assessment. A transfer made by either spouse must be evaluated in accordance with Chapter 5160:1-3 of the Administrative Code. If an improper transfer has occurred, a period of restricted coverage must be imposed in accordance with the applicable regulations.

(8) All individuals requesting a resource assessment shall have the assessment completed by the administrative agency within forty-five days of the request (additional time may be allowed if the administrative agency determines it is necessary).

(a) The request may be made by either member of a couple or by an authorized representative of either spouse.

(b) Receipt of a request for a resource assessment from an LTCF, with the individual's or the individual's spouse's signature, indicates the beginning of the forty-five days.

(c) The assessment shall be determined using the couple's countable resources as of the beginning of the first continuous period of institutionalization that occurs on or after January 1, 1990.

(d) Each member of the couple and the authorized representative of either spouse must be provided with a copy of the ODM 04076 "Resource Assessment Worksheet" (rev. 7/2014). A copy must also be retained by the administrative agency.

(9) When a resource assessment is requested that is not in conjunction with a medicaid application, a fee of fifty dollars shall be charged upon request for the resource assessment to the individual requesting the assessment.

(a) A copy of the resource assessment shall be given to the community spouse and the institutionalized spouse and authorized representative, if applicable.

(b) A copy shall also be retained by the administrative agency for a period of up to three years.

(c) The assessment shall be used if the institutionalized spouse applies for medicaid at a later date.

(d) If an institutionalized spouse does not have a resource assessment completed at the time of the first continuous period of institutionalization, and requests one at a later date, the resources of the institutionalized spouse and the community spouse shall be recorded to reflect the circumstances as they were at the beginning of the first continuous period of institutionalization.

(e) There is no right to a state hearing on an assessment not filed in conjunction with a medicaid application. However, should a medicaid application be filed subsequent to the resource assessment, either spouse or the authorized representative of either spouse, may request a state hearing to contest the assessment.

(f) If documentation is not provided timely, the requesting party shall be advised via the appropriate county generated or electronic eligibility system notice that the assessment cannot be completed. Subsequently, if another resource assessment is requested that is not in conjunction with a medicaid application, a fee of fifty dollars shall be charged. Any documentation collected by the administrative agency shall be retained by the administrative agency.

(10) When a resource assessment is requested in conjunction with a medicaid application, there is no fee for the assessment. Additionally, either spouse or the authorized representative may request a state hearing regarding the resource assessment.

(11) All resources determined available at the beginning of the first continuous period of institutionalization shall be used in the resource assessment. Resources transferred prior to the first continuous period of institutionalization shall not be used to complete the resource assessment. Resources transferred after the first continuous period of institutionalization shall be used in the resource assessment because they would have been available at the point of the first period of institutionalization. The administrative agency shall determine improper resource transfers and the periods of ineligibility or restricted coverage in accordance with Chapter 5160:1-3 of the Administrative Code.

(12) Antenuptial agreements, prenuptial agreements, and any other similar agreements or contracts entered into in contemplation or marriage shall be disregarded when conducting a resource assessment.

Replaces: 5160:1-3-35

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02
Rule Amplifies: 5160.02
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 10/1/90, 2/7/91 (Emer.), 5/1/91, 7/1/92, 9/1/94, 10/1/02, 7/1/05, 10/1/06

5160:1-3-06.3 Medicaid: treatment of resources for institutionalized individuals with a spouse in the community.

(A) This rule describes the treatment of resources owned by institutionalized individuals with a community spouse.

(B) Definitions.

(1) "Community spouse" means an individual who is not in a medical institution or nursing facility and has an institutionalized spouse; however, when both spouses are requesting or receiving services under a home and community based services (HCBS) waiver program or program of all inclusive care for the elderly (PACE), neither spouse is considered to meet this definition.

(2) "Institutionalized spouse" means an individual who receives long-term care services in a medical institution, a long-term facility, under a HCBS waiver program, or under PACE for at least thirty consecutive days.

(3) "Spousal resource maximum" means the maximum amount of a couple's countable resources allowed for use by the community spouse.

(4) "Spousal resource minimum" means the minimum amount of a couple's countable resources allowed for use by the community spouse.

(C) If the institutionalized spouse applies for medical assistance at any time, the amount of resources that were allocated to the community spouse as a result of the resource assessment is used to determine the amount of current resources that is allocated to the institutionalized spouse and community spouse.

(1) A resource assessment is completed based upon the beginning of the first continuous period of institutionalization, not the date(s) of application for medical assistance.

(2) Only one resource assessment is completed per couple regardless of how often an individual has been institutionalized or has applied for medical assistance.

(3) At the time of application for medical assistance a determination of the institutionalized spouse's and community spouse's current combined resources is computed. The community spouse is entitled to the amount of resources that were allocated to the community spouse by the resource assessment.

(D) The calculation used to determine the amount of resources that can be transferred includes two key terms: the spousal resource minimum and the spousal resource maximum. The spousal resource minimum and spousal resource maximum are described in section 1924 of the Social Security Act (as in effect on February 1, 2014) and are adjusted annually.

(E) The budgeting methodology used to determine the institutionalized spouse's resource eligibility is outlined in rule 5160:1-3-06.4 of the Administrative Code.

(F) Administrative agency responsibilities. The administrative agency shall:

(1) Determine the amount of resources that may be transferred from the institutionalized spouse to the community spouse, in order to:

(a) Determine if the institutionalized spouse is resource eligible; and

(b) Protect a portion of the resources for the use of the community spouse.

(2) Give the institutionalized spouse a period of protected eligibility, in accordance with rule 5160:1-3-06.5 of the Administrative Code, to give the couple time to complete any necessary resource transfers once eligibility is established.

Replaces: 5160:1-3-36

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 1/1/91 (Emer.), 4/1/91, 1/1/92
(Emer.), 3/30/92, 2/12/93 (Emer.), 5/13/93, 3/18/94, 9/1/94, 4/1/96, 5/1/97, 4/1/98 (Emer.), 6/1/98, 4/1/99, 1/1/00 (Emer.), 4/1/00, 1/1/01, 5/12/02

5160:1-3-06.4 Medicaid: resource budgeting methodology for institutionalized individuals with a spouse in the community.

(A) This rule outlines the resource budgeting methodology used to:

(1) Determine the amount of resources that may be transferred from the institutionalized spouse to the community spouse; and

(2) Protect a portion of the combined countable resources for the community spouse.

(B) Definitions.

(1) "Community spouse" is defined in rule 5160:1-3-06.3 of the Administrative Code.

(2) "Institutionalized spouse" is defined in rule 5160:1-3-06.3 of the Administrative Code.

(3) "Spousal resource maximum" is defined in rule 5160:1-3-06.3 of the Administrative Code.

(4) "Spousal resource minimum" is defined in rule 5160:1-3-06.3 of the Administrative Code.

(5) "Undue hardship" is defined in rule 5160:1-3-07.2 of the Administrative Code.

(C) The ODM 04077 "Resource Transfer Worksheet" (rev. 7/2014) shall be used to calculate the amount of resources that may be transferred from the institutionalized spouse to the community spouse.

(1) Determine the spousal share of the resources by dividing the total countable resources established the date of the first continuous period of institutionalization on the ODM 04076 "Resource Assessment Worksheet" (rev. 7/2014) by two.

(2) Determine the couple's current combined countable resources as of the date of application for medical assistance. This may differ from the amount established by the ODM 04076 (depending on whether the assessment was completed concurrently with the application for long-term care medical assistance).

(3) The community spouse resource allowance is the greatest of the following:

(a) The community spousal share or the community spousal resource maximum (in accordance with rule 5160:1-3-6.3 of the Administrative Code) whichever is less; or

(b) The spousal resource minimum (in accordance with rule 5160:1-3-6.3 of the Administrative Code); or

(c) The allocation of resources specified in a current court order or by a state hearing decision.

(4) Deduct the community spouse resource allowance (the amount determined in paragraph (C)(3) of this rule) from the couple's current combined countable resources. The remaining amount is the countable resources of the institutionalized spouse and is to be used only for the benefit of the institutionalized spouse and/or community spouse.

(a) If this remaining amount is equal to or less than the resource limit for one, (pursuant to rule 5160:1-3- 05.1 of the Administrative Code), resource eligibility potentially exists and the transfer of resource provisions specified in Chapter 5160:1-3 of the Administrative Code are followed.

(i) To determine the amount of resources that must be transferred to the community spouse, deduct the individual medicaid resource limit from the amount of resources in the institutionalized spouse's name only and/or held jointly by both spouses.

(ii) The institutionalized spouse may then transfer up to the amount of the community spouse's resource allowance less the amount that is solely in the name of the community spouse.

(iii) The remaining assets are considered available to the institutionalized spouse.

(iv) These remaining resources must only be used for the benefit of the institutionalized spouse and/or community spouse.

(b) If the remaining amount is over the resource limit for one, resource eligibility does not exist at this time. The ODM 07332 "Notice of Denial of Your Application for Medicaid: In Cases Involving Community Spouses" (rev. 7/2014) or the appropriate electronic eligibility system notice must be issued.

(i) Resource eligibility will exist when the combined countable resources of the couple are reduced to the greatest of the following:

(a) The community spouse resource allowance plus individual resource limit for one; or

(b) The allocation of resources described in paragraph (C)(3)(c) of this rule (subsequent to the medicaid denial) plus the individual resource limit for one.

(ii) Resource eligibility will otherwise exist if the administrative agency determines that undue hardship exists. Reference rule 5160:1-3-07.2 of the Administrative Code for a determination of when an undue hardship exists.

(5) The resource budgeting computation can be revised if the administrative agency determines inaccurate information was provided or an error was made at any step in the resource budgeting computation.

(6) The community spouse resource allowance may be increased by an amount sufficient to generate additional income to the community spouse, if both of the following conditions are met:

(a) All available income of the institutionalized spouse has been allocated to the community spouse and the income of the institutionalized spouse is not adequate to raise the income of the community spouse to the established minimum monthly maintenance needs allowance; and

(b) A state hearing decision, in accordance with rule 5101:6-7-02 of the Administrative Code, has determined the original community spouse resource allowance, in relation to the amount of income it generates, is not adequate to raise the income of the community spouse to the established minimum monthly maintenance needs allowance.

(D) When the institutionalized spouse is determined to have resources in excess of the individual resource limit, the institutionalized individual is ineligible for medical assistance due to excess resources; however, the institutionalized spouse must be found eligible for medical assistance if all of the following conditions exist:

(1) The institutionalized spouse's own resources are at or below the individual resource limit; and

(2) The community spouse will not cooperate in making resources available to the institutionalized spouse after a resource assessment has been completed; and

(3) The institutionalized spouse, or other person standing in place of the institutionalized spouse, has assigned his or her rights to support from the community spouse to the state. If the institutionalized spouse lacks the ability to execute an assignment due to a physical or mental impairment, the state will bring a support proceeding against the community spouse as provided for in sections 5160.37 and 5160.38 of the Revised Code; and

(4) All other medicaid eligibility requirements have been met.

(E) Prior to the final decision to approve or deny medical assistance, the community spouse must be given notice of the responsibility to cooperate in making resources available to the institutionalized spouse and legal action may be taken against the community spouse for refusing to do so. If the community spouse refuses to cooperate, medical assistance must be approved, provided that all other eligibility factors and the conditions stated in paragraph (D) of this rule have been met. The administrative agency must refer the case to the state attorney general's office, who must attempt to recover funds from the community spouse for any medical payments paid by medicaid up to the institutionalized spouse's allocated share of the couple's assets. However, recovery cannot reduce the remaining resources of the community spouse below the community spouse resource allowance. That amount remains protected for the community spouse. Section 5160.37 of the Revised Code authorizes the administrative agency to pursue recovery of medicaid payments made on behalf of the institutionalized spouse.

(1) When it is determined an institutionalized spouse has resources in excess of the individual resource limit due to resources in the name of the community spouse, the administrative agency must send a notice to the community spouse and a copy sent to the institutionalized spouse advising the community spouse of the amount of resources that must be made available to the institutionalized spouse. A copy of the completed ODM 04076 and a copy of the ODM 04077 must accompany the notice. The community spouse must complete and return the notice within ten calendar days of the mailing date.

(2) If the community spouse returns the notice within ten calendar days of the mailing date with the block checked indicating the community spouse will cooperate, the administrative agency must deny the application due to excess resources of the institutionalized spouse.

(3) If the community spouse fails to return the notice or returns the notice indicating that he or she will not cooperate and the institutionalized spouse meets the requirements of paragraph (D) of this rule, the administrative agency must take the following actions:

(a) Medical assistance for the institutionalized spouse must be approved; and

(b) The ODM 07403 "Community Spouse Resource and Income Information Form" (rev. 7/2014) must be completed. This notice must be completed as soon as possible after the ten calendar days have passed. The administrative agency must attempt to document all pertinent information regarding the resources and income of the community spouse on this form. A copy of the ODM 07403 must be retained in the individual's record. The original ODM 07403 and copies of all pertinent documentation must be sent to the collections enforcement section of the office of the attorney general.

(c) If all other eligibility requirements are met, the institutionalized spouse must remain eligible for medical assistance while legal action proceeds.

(4) The administrative agency must apply the provisions set forth in this rule to institutionalized applicants who exceed the resource limit solely due to resources of the community spouse.

(F) In unusual circumstances a resource assessment cannot be completed due to the non-cooperation of the community spouse.

(1) When the community spouse refuses or fails to cooperate, the institutionalized spouse or other person standing in place of the institutionalized spouse must assign rights to support from the community spouse to the state.

(2) If all other eligibility factors have been met, and the institutionalized spouse is cooperating in obtaining the necessary verifications from his or her spouse, the administrative agency must approve the institutionalized spouse for medical assistance until the verifications are obtained.

(3) Undue hardship does not exist when the institutionalized spouse has transferred assets to the community spouse and the community spouse refuses to cooperate in completing a resource assessment or making the resources available to the institutionalized spouse.

Replaces: 5160:1-3- 36.1

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 6/1/90 (Emer.), 8/1/90, 10/1/90
(Emer.), 12/24/90, 1/1/91 (Emer.), 4/1/91, 1/1/92 (Emer.), 3/30/92, 2/12/93 (Emer.), 5/13/93, 9/1/94, 11/7/02, 7/1/03, 9/20/03, 10/1/06

5160:1-3-06.5 Medicaid: transfer of resources for institutionalized spouses with a spouse in the community.

(A) This rule describes the transfer of resources for institutionalized spouses with a spouse in the community.

(B) Once eligibility has been established, resources not used to determine eligibility for an institutionalized spouse, in accordance with rule 5160:1-3-6.4 of the Administrative Code, must be legally transferred to the community spouse when not already in the name of such person.

(1) The institutionalized spouse is entitled to a period of protected eligibility while the resources are being transferred legally to the community spouse.

(2) The period of protected eligibility is twelve months or one year from the month in which the eligibility determination is completed.

(3) The resource transfer must take place no later than the twelfth month after the month of the eligibility determination and authorization.

(4) Resources being transferred do not count for the purpose of determining continuing eligibility for the institutionalized spouse.

(C) If the institutionalized spouse comes into additional resources, during a period of protected eligibility, those resources will be exempt when at least one of the following conditions exist:

(1) The new resources combined with other resources the institutionalized spouse intends to retain, do not exceed the resource limit for one person; and/or

(2) The institutionalized spouse intends to transfer the new resources to the community spouse whose resources are below what have been protected through the resource assessment. If the original amount of protected resources for the community spouse was less than the spousal resource allowance, the institutionalized spouse may transfer to the community spouse the amount which will bring the community spouse's resources up to the determined spousal resource allowance.

(D) If the institutionalized spouse fails to transfer resources to the community spouse within the protected period of eligibility, eligibility for the institutionalized spouse shall be determined counting all of the resources in the institutionalized spouse's name.

(E) Eligibility requirements for community spouses and other family members do not change when it is determined that a transfer of resources from the institutionalized spouse to the community spouse has occurred.

(1) Resources are considered in accordance with the rules in Chapter 5160:1-3 of the Administrative Code that would apply to each individual.

(2) Those resources that the institutionalized spouse intends to transfer to the community spouse are considered to be available to the community spouse during the institutionalized spouse's protected eligibility period.

(F) Administrative agency responsibilities. The administrative agency shall:

(1) Determine if additional resources received by the institutionalized spouse, during the protected period of eligiblity, can be transferred to the community spouse.

(2) Take the appropriate actions necessary if the institutionalized spouse has resources which exceed the individual resource standard.

(3) Determine resource eligibility for each month of the retroactive period in accordance with rule 5160:1-1-51 of the Administrative Code. Deduct from the current countable resources the community spouse resource allowance for each month of the retroactive period.

(a) This method of determining resource eligibility is used since there is no protected period of medicaid eligibility to transfer resources to a community spouse because the couple was unaware that such transfers may be allowed to ensure eligibility for the institutionalized spouse.

(b) This does not apply for retroactive periods associated with subsequent applications for the same period of institutionalization.

Replaces: 5160:1-3- 36.2

Effective: 11/02/2014
Five Year Review (FYR) Dates: 11/02/2019
Promulgated Under: 111.15
Statutory Authority: 5160.02 , 5163.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 6/1/90 (Emer.), 8/1/90, 1/1/92, 7/1/95, 10/1/02

5160:1-3-07 Medicaid: transfer of resources.

(A) This rule defines the treatment of a transfer of resources.

(B) Definitions.

(1) "Administrative agency" means the county department of job and family services, the Ohio department of job and family services, or other entity that determines eligibility for a medical assistance program.

(2) "Assets" are defined in rule 5101:1-39-05 of the Administrative Code.

(3) The "baseline date" means the first date upon which the individual has both applied for medicaid and is institutionalized.

(a) When an individual is already a medicaid recipient and becomes institutionalized, the baseline date is the first day of institutionalization.

(b) The baseline date for individuals already in receipt of medicaid and applying for a home and community-based services waiver (HCBS) is the signature date on the JFS 02399 "Request for Home and Community-based Services (HCBS)" (rev. 1/2006), if the administrative agency receives the signed and dated form within five working days from the date of the signature on the JFS 02399. If the administrative agency receives the JFS 02399 after the fifth working day, the baseline date shall be the date the administrative agency received the JFS 02399.

(c) The baseline date for individuals not in receipt of medicaid, who are applying for HCBS, is the signature on the JFS 02399 if both of the following conditions are met:

(i) A signed and dated JFS 02399 is received within five working days from the date of the signature on the JFS 02399; and

(ii) A signed and dated JFS 07200 "Request for Cash, Food Stamp, and Medical Assistance" (rev. 10/2006) is received within thirty calendar days from the signature date on the JFS 02399.

(d) The baseline date for individuals, who are not in receipt of medicaid and are applying for the program of all inclusive care for the elderly (PACE), is the signature date on the JFS 02398 (rev. 8/1999) "Program of All Inclusive Care for the Elderly (PACE) Referral" if both of the following conditions are met:

(i) A signed and dated JFS 02398 is received within five working days from the date of the signature on the JFS 02398; and

(ii) A signed and dated JFS 07200 is received within thirty calendar days from the signature date on the JFS 02399.

(4) "Fair market value" is defined in rule 5101:1-39-05 of the Administrative Code.

(5) An "improper transfer" means a transfer on or any time after the look-back date, as defined in paragraph (B)(9) of this rule, of a legal or equitable interest in a resource for less than fair market value for the purpose of qualifying for medicaid, a greater amount of medicaid, or for the purpose of avoiding the utilization of the resource to meet medical needs or other living expenses.

(6) "Income" is defined in rule 5101:1-39-08 of the Administrative Code.

(7) "Individual," as used in this rule, includes the applicant/recipient of a medical assistance program, as well as:

(a) The applicant/recipient's spouse;

(b) A person, including a court or administrative body, with legal authority to act in place of, or on behalf of, the individual or the individual's spouse; and

(c) Any person, including a court or administrative body, acting at the direction or upon request of the individual or the individual's spouse.

(8) "Long term care facility (LTCF)" means a medicaid-certified nursing facility, skilled nursing facility, or intermediate care facility for persons with mental retardation as defined in division 5101:3 of the Administrative Code.

(9) The "look-back date" means the earliest date on which a penalty for transferring assets for less than fair market value can be assessed. The look-back date is sixty months prior to the baseline date.

(a) When an individual has multiple periods of institutionalization or has made multiple applications for medicaid, whether the applications were approved or denied, the look-back date is based on the first date upon which the individual has both applied for medicaid and is institutionalized.

(b) Each individual has only one look-back date regardless of the number of times the individual has been institutionalized, applied for medicaid, transferred assets, or been eligible for medicaid.

(10) The "look-back period" begins with the baseline date and ends with the look-back date.

(a) Transfers during the look-back period must be examined to determine whether the transfer was improper and subject to a restricted medicaid coverage period.

(b) Improper transfers that occur prior to February 8, 2006 and during the look-back period are subject to a restricted medicaid coverage period if either of the following conditions exist:

(i) The improper transfer, other than a transfer of a trust, was made within thirty-six months prior to the baseline date; or

(ii) The improper transfer of a trust was made within sixty months prior to the baseline date. The treatment of a trust is defined in rule 5101:1-39-27.1 of the Administrative Code.

(c) Improper transfers that occur on or after February 8, 2006 and during the look-back period are subject to a restricted medicaid coverage period.

(d) Transfers after the baseline date must be examined to determine if they are improper and subject to a restricted medicaid coverage period .

(11) "Resources" are defined in rule 5101:1-39-05 of the Administrative Code.

(12) "Restricted medicaid coverage" means the period of time an individual is ineligible for nursing facility payments, a level of care in any institution equivalent to that of nursing facility services and home or community-based services furnished under a waiver and PACE.

(13) A "spouse" means a person who is considered legally married to another under Ohio law.

(14) A "transfer" means any action or failure to act which has the effect of changing an ownership interest of an asset from the individual to another person, or of preventing an ownership interest the individual would otherwise have enjoyed. This includes any direct or indirect method of disposing of an interest in property.

(C) The following types of transfers are presumed to be improper transfers for less than fair market value:

(1) Any transfer that reduces the individual's resources and brings the value of their remaining resources within the resource limitation;

(2) Any transfer that has the effect of safeguarding future eligibility by divesting the individual of property that could otherwise be sold and the proceeds then used to pay for support and medical care for the individual;

(3) Any transfer of income-producing real property; or

(4) Any transfer by an individual of an exempt home as defined in Chapter 5101:1-39 of the Administrative Code, whether prior to or after the medicaid application date.

(5) For an asset to be considered transferred for fair market value or to be considered to be transferred for valuable consideration, the consideration received for the asset must have a monetary value.

(6) A transfer for love and consideration is not considered a transfer for fair market value. Clear and convincing evidence is required to rebut the presumption that it is an improper transfer.

(D) Rebutting the presumption of an improper transfer.

(1) The individual may rebut the presumption established under paragraph (C) of this rule. The individual must first provide a full written accounting and documentation of the transfer which clearly explains the following:

(a) The purpose for transferring the resource; and

(b) The attempts to dispose of the resource at fair market value; and

(c) The reasons for accepting less than fair market value for the resource; and

(d) The individual's relationship, if any, to the person to whom the resource was transferred.

(2) The individual has the burden of rebutting the presumption of improper transfer by clear, convincing, and credible evidence.

(a) The evidence may include, but is not limited to: any documentary evidence such as contracts, realtor agreements, sworn statements, third party statements, medical records, financial records, court records, and relevant correspondence.

(b) Evidence which is provided must be reviewed by the administrative agency to determine if it is clear, convincing and credible.

(c) Evidence that is not clear, convincing and credible does not rebut the presumption of an improper transfer.

(3) The occurrence after a transfer of the resources of one or more of the following, while not conclusive, may indicate resources were transferred exclusively for some purpose other than establishing medicaid eligibility:

(a) Traumatic onset of disability or blindness (e.g., due to traffic accident); or

(b) Diagnosis of a previously undetected disabling condition.

(4) If the presumption of improper transfer is not overcome by the individual's rebuttal, the administrative agency must restrict medicaid coverage if the individual is otherwise eligible for medicaid.

(E) The following transfers for less than fair market value shall not be considered an improper transfer:

(1) The individual may transfer the home, as defined in rule 5101:1-39-31 of the Administrative Code, that is still considered the principal place of residence in accordance with Chapter 5101:1-39 of the Administrative Code to any of the following individuals:

(a) The individual's spouse, provided:

(i) The transfer is for the sole benefit of the spouse; and

(ii) The individual's spouse does not subsequently transfer the home for less than fair market value; and

(iii) Any transfer of the home by the spouse on or after the look-back date shall be reviewed by the administrative agency under the transfer of resources provisions in this rule; and

(iv) The amount of the transfer is equal to one hundred per cent of the value of the property established by the county auditor at the time of the transfer, less any amount or portion of the property that is not transferred.

(b) His or her child under the age of twenty-one;

(c) His or her child age twenty-one or over who is blind or permanently and totally disabled as defined in Chapter 5101:1-39 of the Administrative Code.

(d) The individual's adult child who was residing in the home for at least two years immediately before the date the individual becomes institutionalized, and who provided care to the individual which permitted the individual to reside at home, rather than in an institution or facility. A JFS 03697 "Level of Care (LOC) Assessment" (rev. 4/2003) must be completed to determine if the individual would have required institutionalization from the beginning and throughout the two-year period if the adult child had not provided personal care.

(e) The individual's sibling who has an equity interest (must be a documented, legal interest) in the home and was residing in the home for at least one year immediately before the individual became institutionalized.

(2) The individual may transfer resources other than a home, subject to paragraph (F) of this rule, as follows:

(a) To the individual's spouse or to another for the sole benefit of the individual's spouse.

(b) From the individual's spouse to another for the sole benefit of the individual's spouse.

(c) To the individual's child, or to a trust established solely for the benefit of the individual's child, who is blind or permanently and totally disabled as defined in Chapter 5101:1-39 of the Administrative Code.

(d) To a trust established for the sole benefit of an individual under sixty-five years of age who is blind or permanently and totally disabled as defined in Chapter 5101:1-39 of the Administrative Code.

(F) As used in this rule, a "transfer for the sole benefit" is a transfer that cannot, under any circumstance, benefit any individual or entity except the spouse, blind or disabled child, or disabled individual, at the time of the transfer or at any time after the transfer.

(1) In order for a transfer to be considered for the sole benefit of the spouse, blind or disabled child, or disabled individual, the entity that receives or holds the transferred resource must, by the explicit terms of a contract, trust, or other binding instrument, be required to expend all of the transferred resources for the benefit of the individual during that individual's life expectancy. When the contract, trust or other binding instrument does not contain such a requirement, the provisions governing transfers for the sole benefit do not apply. A transfer for the sole benefit of the spouse, blind or disabled child or disabled individual in which there is a provision within the trust, contract or other binding instrument to expend all of the transferred resources may provide for other beneficiaries.

(2) A trust may provide for reasonable compensation for a trustee to manage the trust, as well as for reasonable costs associated with managing the trust or managing the property held in the trust. In determining what is reasonable, the administrative agency shall consider the amount of time and effort involved in managing the trust, as well as the prevailing rate of compensation for trustees administering trusts of similar size and/or complexity.

(G) Any transfer between spouses in order to comply with the medicaid community spouse resource allowance (CSRA) computed pursuant to Chapter 5101:1-39 and Chapter 5101:6-7 of the Administrative Code may not be applied inconsistently with the rules setting limits on the CSRA or the minimum monthly maintenance needs allowance (MMMNA).

(1) Any amount of a couple's resources exceeding the CSRA must be used for the benefit of the institutionalized spouse and/or community spouse.

(2) Any amount of a couple's resources exceeding the CSRA may not be transferred to the community spouse or to another for the sole benefit of the community spouse unless permitted in a hearing decision issued under Chapter 5101:6-7 of the Administrative Code.

(3) Any amount of a couple's resources exceeding the CSRA may not be converted to another form for the purpose of generating additional income for the community spouse unless permitted in a hearing decision issued under Chapter 5101:6-7 of the Administrative Code.

(4) Transfers in excess allowed by this rule, must be presumed an improper transfer.

(H) Verification of property transfers.

(1) The administrative agency shall determine at the time of application, reapplication or upon discovery whether the individual executed a transfer of real or personal property and, if so, whether the transfer was an improper transfer.

(2) The administrative agency shall initiate an inquiry regarding potential improper transfers if any source of information tends to show a transfer has occurred.

(3) The individual is obligated to obtain documentation verifying any transfer and the details of any exchanges or transactions; however the administrative agency, if requested, shall assist the individual in their attempt to obtain documentation verifying any transfer and the details of any exchanges or transactions. Appropriate documentation may include but is not limited to the following:

(a) Deeds and mortgage statements.

(b) True and correct copies of federal income and gift tax returns that have been filed singly or jointly during the five tax years prior to the application.

(i) At reapplication, the individual may be required to update the returns by providing true and correct copies of all federal and/or state income and gift tax returns, amended tax returns, and schedules that have been filed since the initial application or last reapplication.

(ii) If the individual has not retained copies of federal income and gift tax returns and schedules, the individual must secure copies from the internal revenue service, the preparer of the returns, the accountant completing the return, or any other source where the returns are on file.

(iii) If the individual states that they have not filed federal tax returns for some or all of the required years, the individual's statement is sufficient as long as there is no available information to the contrary.

(iv) When there is some indication that the individual received income or made a substantial gift during any of those years, the individual must provide copies of tax returns or must provide a statement from the internal revenue service confirming the individual did not file tax returns for those years.

(4) The administrative agency shall utilize tax returns only to assist in establishing whether the individual executed an improper transfer.

(5) The administrative agency must retain copies of the tax returns and schedules in the individual's case record. The original returns provided by the individual shall be returned subsequent to verification of any transfers of real or personal property. The tax returns, schedules, and all information contained in them shall be kept confidential in order to meet the protection requirements of the individual's right to privacy.

(I) Restricted medicaid coverage due to improper transfers.

(1) If any individual, as defined in paragraph (B)(7) of this rule, applying for or in receipt of LTCF services, HCBS or PACE, improperly transfers resources, the individual, who is applying for or in receipt of LTCF services, HCBS or PACE will be eligible only for restricted medicaid coverage.

(a) The restricted medicaid coverage period is set by the terms of this rule unless otherwise specified or qualified by the provision of another rule.

(b) If the presumption of improper transfer is not overcome by the individual's rebuttal, the administrative agency shall approve restricted medicaid coverage if the individual meets all other eligibility requirements.

(2) The administrative agency must scrutinize all medicaid individuals for improper transfers since an individual may enter a LTCF or qualify for HCBS or PACE at a later date.

(3) If the administrative agency determines that a non-institutionalized medicaid individual improperly transferred resources, the administrative agency shall employ a tracking system to keep an account of these individuals should they apply at a later date for LTCF payment assistance, HCBS or PACE. If the individual enters a LTCF or is in receipt of HCBS or PACE within sixty months from the date of the improper transfer, a restricted medicaid coverage period shall be calculated in accordance with this rule.

(J) Calculating the restricted medicaid coverage period.

(1) For improper transfers of resources that occur prior to February 8, 2006, the period of restricted medicaid coverage is determined as follows:

(a) Divide the total uncompensated value of the transferred resources as of the date of application by the average monthly private pay rate for a LTCF at the later of the date of application or the date of the transfer. There is no limit to the amount of time a period of restricted coverage may run.

(b) The period of restricted coverage begins the first day of the month the resources were transferred unless the exception in paragraph (J)(1)(c) of this rule applies.

(c) When an additional improper transfer occurs prior to February 8, 2006 and during an existing period of restricted medicaid coverage, the penalty period for the additional improper transfer cannot begin until the existing penalty period has expired.

(2) For improper transfers of resources that occur on or after February 8, 2006, the period of restricted medicaid coverage is determined as follows:

(a) Add the total uncompensated value of all improperly transferred resources.

(b) Divide the total uncompensated value of all improperly transferred resources by the average monthly private pay rate for a nursing facility in Ohio in effect at the date of application. This quotient is the total restricted medicaid coverage period in months.

(c) Multiply the average monthly private pay rate for a nursing facility in Ohio by the number of whole months determined in paragraph (J)(2)(b) of this rule. The product is the whole months' improper transfer amount.

(d) Subtract the whole months' improper transfer amount determined in paragraph (J)(2)(c) of this rule from the total uncompensated value of all improperly transferred resources. The remainder is the partial month restricted coverage amount for the final month of restricted medicaid coverage period. The number of whole months from paragraph (J)(2)(c) of this rule and the partial restricted coverage month in paragraph (J)(2)(d) of this rule are added together for the total number of months of restricted medicaid coverage.

(e) The final partial month amount determined in paragraph (J)(2)(d) will be added to the patient liability in the first month of eligibility for payment for long term care services, HCBS, or PACE. Reference rule 5101:1-39-24 of the Administrative Code for the determination of the patient liability.

(f) There is no time limit for a period of restricted medicaid coverage to run.

(g) The administrative agency shall not round down, or otherwise disregard, any fractional restricted medicaid coverage period.

(K) Determining the beginning date of a restricted medicaid coverage period.

(1) For improper transfers that occur prior to February 8, 2006:

(a) The restricted medicaid coverage period begins the first day of the month assets were transferred for less than fair market value unless the exception in paragraph (K)(1)(b) of this rule applies.

(b) The penalty period for additional improper transfers, occurring during an existing restricted medicaid coverage period, cannot begin until the existing penalty period has expired.

(2) For improper transfers that occur on or after February 8, 2006, the restricted medicaid coverage period begins the later of:

(a) The first day of the month during or after which assets were transferred for less than fair market value; or

(b) The date on which the individual is eligible for medical assistance and would otherwise be receiving long term care services in a LTCF, under an HCBS waiver program, or under the PACE program, based on an approved application for such care but for the application of the penalty period.

(c) If additional improper transfers occur during an existing restricted medicaid coverage period, the period must be recalculated to include the uncompensated value of the additional improperly transferred resources.

(L) Notification.

(1) The administrative agency shall deny or terminate medicaid payment to the facility, HCBS waiver or PACE eligibility by using the appropriate form or an electronic eligibility system equivalent when an improper transfer has occurred.

(2) The administrative agency shall issue the appropriate form or an electronic eligibility system equivalent to authorize all other medicaid covered services.

(3) The denial or the termination notice shall note the date medicaid payment to the facility shall start if all other eligibility criteria is met.

(4) The administrative agency must issue proper notice and hearing rights outlined in division 5101:6 of the Administrative Code.

(M) Assets transferred for less than fair market value are returned to the individual.

(1) When all assets transferred are returned to the individual, no penalty for transferring assets can be assessed.

(2) Return of the assets in question to the individual leaves the individual with assets which must be counted in determining eligibility during the original restricted medicaid coverage period. Counting those assets as available may result in the individual being ineligible for medicaid for some or all of the original restricted medicaid coverage period, as well as for a period of time after the assets are returned. The administrative agency must redetermine eligibility for each month in the restricted medicaid coverage period and include the returned assets as an available resource unless the asset would have otherwise been considered an exempt asset. If an exemption does not apply, the asset is considered available to the individual until the total countable assets have been reduced to the appropriate resource limit.

(3) To void imposition of a restricted medicaid coverage period, all of the assets in question or their fair market value equivalent must be returned. If the asset was sold by the individual who received it, the full market value of the asset must be returned to the transferor, either in cash or another form that is commensurate with the original value.

(4) When only part of the asset or its equivalent value is returned, a restricted medicaid coverage period can be modified but not eliminated. For the purpose of computing an overpayment under rule 5101:1-38-20 of the Administrative Code, the returned asset or its equivalent must be considered an available asset beginning in the month the asset was originally transferred.

(N) Undue hardship.

(1) The individual, otherwise eligible for medical assistance, will not be subject to restricted medicaid coverage resulting from an improper transfer if restricted medicaid coverage will result in an undue hardship.

(2) An undue hardship exists when application of the restricted medicaid coverage would deprive the individual of the following:

(a) Medical care such that the individual's health or life would be endangered; or

(b) Food, clothing, shelter, or other necessities of life.

(3) Individual responsibilities.

(a) To be considered for an undue hardship, the individual must request the undue hardship in writing.

(b) An undue hardship exemption may be requested by the following:

(i) The individual;

(ii) The authorized representative; or

(iii) With the consent of the individual or authorized representative, the nursing facility in which the individual resides.

(c) The individual must document, to the satisfaction of the administrative agency, a good faith attempt was made to recover or make the resource available.

(d) The individual or facility making the request for an undue hardship exemption has the burden of proving all elements and requirements by clear, convincing, and credible evidence, including that an undue hardship exists or will exist and that a good faith effort was made to recover or make the resources available.

(e) When the individual resides in a LTCF, the individual or facility making the request for an undue hardship must prove the individual is in jeopardy of losing the food or shelter due to a planned discharge resulting from the imposition of a restricted medicaid coverage period. The individual will not be found to be in jeopardy unless both of the following are established:

(i) The individual or the individual's representative must first exhaust all legal remedies and appeals to challenge the planned discharge; and

(ii) The facility must document that it has exhausted all legal remedies to collect, reconvey, or recover the improperly transferred assets, including but not limited to actions authorized under section 1336.01 of the Revised Code, or any other similar law of another jurisdiction. The facility is not required to pursue a legal action if it can document the cost of such an action would exceed the gross value of the assets subject to recovery in a legal action.

(4) Administrative agency responsibilities.

(a) The administrative agency shall provide notice to the individual of the:

(i) Availability of an undue hardship.

(ii) Decision of a request for an undue hardship exemption due to a transfer of assets that results in a restricted coverage period during which medicaid payment for long term care services will not be made.

(b) The administrative agency, may on its own initiative, consult with the county prosecutor to determine whether a civil or criminal action may be brought to recover the transferred assets or to compel restitution.

Replaces: 5101:1-39-07

Effective: 10/20/2006
R.C. 119.032 review dates: 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 7/1/82, 7/15/84, 1/1/85 (Emer.), 4/1/85, 11/1/86 (Emer.), 12/22/86, 7/1/87 (Emer.), 8/3/87, 1/1/90 (Emer.), 4/1/90, 10/1/90, 4/1/95 (Emer.), 6/11/95, 3/15/96 (Emer.), 6/1/96, 11/7/02

5160:1-3-07.1 Medicaid: disposal of resources for Ohio department of mental retardation and developmental disabilities and/or Ohio department of mental health assistance groups.

(A) Medicaid assistance groups may have received or continue to receive services from the Ohio department of mental retardation and developmental disabilities (ODMR/DD) and/or the Ohio department of mental health (ODMH). ODMR/DD and ODMH provide for any and all personal needs, e.g., recreational activities and services necessary to assure a better quality of life for individuals under their care. Many of these services are not covered by medicaid and exceed the individual's available personal income. ODMR/DD and ODMH maintain records and documentation of expenses incurred on an individual's behalf that fall outside of the scope of medicaid coverage and exceed the individual's available income. When an individual receives a lump-sum payment or available resources are identified. ODMR/DD and ODMH seek reimbursement for appropriately incurred expenses.

(B) When ODMR/DD and/or ODMH are acting on behalf of the individual as the responsible party, legal guardian, etc., the appropriate department may dispose of the resource by increasing the individual's resources to the resource limit, establishing an irrevocable burial agreement, and purchasing any personal items deemed necessary to better the individual's quality of life. After these expenses, ODMR/DD and/or ODMH will reimburse their department for funds expended on behalf of the individual and provide documentation of these expenses to the CDJFS.

(C) If the individual's responsible party, legal guardian, etc., is not a representative of ODMR/DD and/or ODMH, the representative is also afforded the opportunity of increasing resources to the resource limit, establishing an irrevocable burial agreement, and purchasing necessary personal items. Again, documentation of these expenses shall be provided to the CDJFS. After such expenses, the responsible party, legal guardian, etc., must properly dispose of any excess resource to maintain continued medicaid eligibility.

(D) The CDJFS shall notify the responsible party of the options available to appropriately dispose of excess resources. One option is reimbursement to ODJFS for medicaid expenses. However, the options of reimbursing ODJFS, ODMR/DD, or ODMH or terminating medicaid and paying privately for the medical expenses remain with the responsible party.

(E) The CDJFS shall review necessary documentation for the reimbursement to ODMR/DD or ODMH to assure that the recipient did, in fact, receive fair and equitable value for the resources. If the documentation verifies the individual received fair and equitable value, the CDJFS shall accept these expenditures as valid. Valid expenses and reimbursements to ODMR/DD and/or ODMH shall not be considered an improper transfer of resources.

Eff 4-1-89 (Emer.); 6-18-89; 11-7-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
Replaces: 5101:1-39- 07.6
R.C. 119.032 review dates: 11/07/2007

5160:1-3-08 Medicaid:income.

(A) This rule defines how income is treated for the purpose of determining eligibility for medical assistance for aged, blind, or disabled individuals.

(B) Definitions:

(1) "Administrative agency" is the county department of job and family services, the Ohio department of job and family services (ODJFS), or other entity that determines eligibility for a medical assistance program.

(2) "Community spouse" means an individual who is not in a medical institution or nursing facility and has an institutionalized spouse, except that neither of two spouses, married to each other, who both request or receive services under a home and community-based services (HCBS) waiver program or program of all inclusive care for the elderly (PACE) is considered to meet this definition.

(3) "Income" means cash, income in-kind, or something of value which is received, available, and attributable to an individual. Income may be in the form of cash, including checks and money orders for in-kind items. In-kind income is not cash, but is actually food, shelter, or something which can be used to get food or shelter. Income is divided into two categories: earned income and unearned income. Earned income consists of wages and net earnings from employment or self-employment. Unearned income includes all other income.

Reference rule 5101:1-39-15 of the Administrative Code for the treatment of earned income and rule 5101:1-39-16 of the Administrative Code for the treatment of unearned income.

(4) An "individual" is an applicant for or recipient of a medical assistance program.

(5) "Institutionalized" describes an individual who receives long term care services in a medical institution, a long term care facility, under an HCBS waiver program, or under PACE.

(C) Administrative agency responsibilities.

(1) Eligibility for medical assistance is dependent in part upon the amount of income available or received by the individual.

(2) A basic tenet of medical assistance is all income must be considered in determining the need of an individual. Potential income must be explored prior to approving medical assistance. An individual who does not avail himself/herself of potential income is presumed to fail to do so in order to make himself/herself eligible for medical assistance. Such non-utilization of income constitutes ineligibility unless good cause can be shown. Such incomes include but are not limited to:

(a) Retirement, survivors, disability insurance (RSDI);

(b) Prouty benefits;

(c) Railroad retirement;

(d) Veterans benefits;

(e) Other public/private retirement benefits;

(f) Supplemental security income (SSI).

(D) Income is counted on a monthly basis. Gross income, prior to any deductions, exemptions or exclusions, that can be reliably anticipated is considered available in calculating countable income for a month. Thus, when an individual is receiving a pension or is regularly employed or self-employed, the expected amount of income is counted. For example, wages are counted as earned income in the calendar month in which they are paid even if all of the work which produced the wages are performed in a prior month. If the time of receipt of the income is at the employee's discretion, the employee must avail himself of such wages. If the payment of wages are deferred at the employee's request, the administrative agency must determine when the wages would normally have been paid and allocate them accordingly. The administrative agency must assume the wages were payable in equal segments throughout the applicable period and determine eligibility accordingly. Self-employment earnings may vary from the general rule. To determine appropriate allocation of self-employment earnings, the administrative agency must reference rule 5101:1-39-15 of the Administrative Code.

(E) Under certain circumstances, the amount of income which must be determined as available to an individual may be greater than an individual will receive or have for his own use. When an individual has been court-ordered to pay child support and/or spousal support to a former spouse, these payments must not be deducted from countable income to the individual. When the child support/spousal support is paid directly to the former spouse or child's guardian by the employer or benefit payer, the income continues to be determined available income to the medical assistance applicant/recipient.

(F) Court ordered income deductions must be considered available income to the medical assistance individual. A division of marital property in a divorce settlement is not a considered a court ordered income deduction in the context of this paragraph.

(G) Deductions due to a repayment of an overpayment, loan, or other debt must be considered as available income unless the amount being withheld to reduce a previous overpayment was included when determining the amount of unearned income for a previous month in the determination of medical assistance eligibility.

(H) Income exemptions and income disregards in the determination of medical assistance eligibility are identified in rules 5101:1-39-18 and 5101:1-39-26 of the Administrative Code. Income exemptions in the determination of patient liability are identified in rules 5101:1-39-24 and 5101:1-39-24.1 of the Administrative Code.

(I) Garnishments and liens placed against earned or unearned income of an individual must not be deducted from countable income, regardless of the purpose for the garnishment or lien.

(J) Allocated income is considered available in calculating countable income for a month. Allocated income is income that is/was received and is intended to cover a period greater than one month. Income which cannot be anticipated is not included in advance of its receipt but is counted when it becomes available.

(K) When an eligible individual resides with an ineligible spouse or parent(s), a portion of the ineligible spouse's or parent's income must be deemed as attributable income to an eligible individual. Attributable income is assumed to be available to an eligible individual. The deeming of income is subject to conditions and limitations.

Reference rule 5101:1-39-19 of the Administrative Code for the medical assistance deeming of income provisions.

(L) When income in-kind is received, the administrative agency must determine whether in-kind support and maintenance is being received in accordance with rule 5101:1-39-17 of the Administrative Code.

(M) Receipt of cash, income in-kind, or something of value in a particular month is income to the individual for that month. Any portion of the income which is retained by an individual into the next month becomes a resource.

(N) The individual's statements of source and amount of income are subject to verification. At the time of application/reapplication, the individual and household member(s) whose income affects the individual, must be required to submit documents which verify all sources of income. If necessary, the administrative agency must obtain a signed release of information and contact other sources to verify income.

(O) An individual's report of income is subject to verification when a review is conducted by the ODJFS quality assurance review section.

(P) The individual has the burden of verifying the sources and amounts of income, and has the responsibility of reporting income changes to the administrative agency.

(Q) When an individual claims to have no income at the time of application/reapplication, the administrative agency must review the application/reapplication for inconsistencies requiring resolution. It is the individual's responsibility to support the claim of no income. However, if verification is not available and the individual has cooperated in trying to obtain it, the administrative agency may process the case based on the individual's statement as long as there is no evidence to cast doubt on the income allegations. Reference rule 5101:1-38-02 of the Administrative Code for additional information on acceptable verification.

(R) The following items are not income. This list is not all inclusive:

(1) An individual may derive non-cash benefits from personal services which are not income. A personal service performed for an individual is not income to the individual where the service is not convertible to cash.

(2) An individual may derive non-cash benefits from medical or social services which are not income.

(3) Any amount of income tax refunded to an individuals. The money must be treated as a resource subject to the resource limitation.

(4) Payments made on behalf of an individual under credit life or credit disability policies directly to loan companies, mortgage companies, etc., are not considered income.

(5) Money an individual borrows or money received as the repayment of the principal of a bona fide loan is not considered income. Any interest received on the money loaned is unearned income. If the proceeds of the loan are retained in the month following the month of receipt, they are counted as a resource.

(6) A bill paid directly to a creditor or vendor by a third party unless payment is for food or shelter.

(7) The amount of a premium payment for supplementary medical insurance paid by a third party on behalf of a beneficiary.

(8) The amount of money a third party pays to a long-term care facility to supplement the medical assistance per diem in order to maintain a private room for the individual in accordance with the provisions outlined in rule 5101:3-3-52 of the Administrative Code.

(9) Increases in the value of a pre-need burial contract and prepaid burial vaults which result from accrual of interest or from appreciation in the value of burial arrangements.

(10) An arrearage of child support which is payable to an individual on behalf of an adult child unless the individual retains the income and does not give it to the adult child.

(11) Assistance received in accordance with a federal statute (e.g., Federal Disaster Relief Act of 1974) due to fire, flood, hurricane, theft, or similar disaster which deprives an individual of food, furniture, personal items, or shelter is not income. Interest received on this assistance is not counted for a nine-month period beginning the date assistance is received. The exclusion of the interest on disaster assistance as income may extend an additional nine months when the individual shows good cause that circumstances beyond his control prevented his using the disaster assistance within the initial nine month period. All disaster assistance and accrued interest retained after the applicable period are considered a resource subject to resource standards.

(12) Proceeds of casualty insurance from loss of an exempt resource. Casualty insurance proceeds do not count as a resource if the individual replaces the exempt resource within nine months of the date of receipt of the proceeds. When the individual intends to replace or repair the exempt resource but circumstances beyond his control prevent replacement or repair within the nine-month period, an extension of up to an additional nine months may be granted. All casualty insurance proceeds and accrued interest retained after the applicable period are considered a resource subject to resource standards.

(S) Other applicable income which is exempt or disregarded is outlined in rule 5101:1-39-18 of the Administrative Code.

Replaces: 5101:1-39-08

Effective: 10/01/2006
R.C. 119.032 review dates: 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.012
Rule Amplifies: 5111.01 , 5111.012
Prior Effective Dates: 9/3/77, 12/31/77, 3/1/79, 10/1/79, 12/7/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 8/1/85, 10/1/88 (Emer), 12/20/88, 9/1/92, 10/1/02, 7/1/05

5160:1-3-10 Medicaid: eligibility through the spenddown process.

(A) Overview of the spenddown process

This rule sets forth the spenddown process for the medicaid program for the aged, blind or disabled (ABD).

(1) An individual is not eligible for the ABD medicaid program if the individual's "countable monthly income" as defined in paragraph (C)(2) of this rule exceeds the medicaid need standard applicable to the individual, even though the individual meets all the other eligibility requirements of the ABD medicaid program. However, the individual may be able to become eligible for medicaid for a month through the "spenddown process" as provided in this rule. An individual who is subject to the spenddown process is referred to as a "spenddown assistance group (SAG)" as defined in paragraph (B) of this rule. To assist the SAG in making informed decisions about the spenddown process, the CDFJS should, at every application and redetermination, discuss with the SAG the various ongoing and delayed spenddown medical expenses the SAG may use in the spenddown process, the methods for satisfying spenddown and provide the SAG a copy of JFS 08500.

(a) A SAG may become eligible for medicaid for the entire month, without any monthly spenddown amount, if the SAG and/or family member as defined in paragraph (C)(5) of this rule, has sufficient medical insurance premiums, nursing facility (NF) or intermediate care facility for the mentally retarded (ICF-MR) costs, except as provided in paragraph (E) or past unpaid medical bills (UPMB), as provided in paragraphs (D) to (F) of this rule. If the SAG and/or family member does not have such expenses that are sufficient, the SAG may become eligible for medicaid for all or part of the month by satisfying a "monthly spenddown amount" for the month.

(b) If the SAG has a monthly spenddown amount as calculated under paragraph (D) of this rule, the SAG may become eligible for medicaid for all, or part, of the month by satisfying spenddown for the month. The SAG may satisfy spenddown by using one of two methods. The method the SAG chooses determines whether the SAG is eligible for medicaid for the entire month or for only part of the month.

(i) The SAG may use the "pay-in" method of satisfying spenddown for a month as provided in paragraph (G) of this rule. If the SAG does so, the SAG is eligible for medicaid for the entire month.

(ii) The SAG may use the "current incurred medical expenses (or incurred)" method of satisfying spenddown for a month as provided in paragraph (H) of this rule. If the SAG does so, the SAG is eligible for medicaid for the month starting on the date in the month on which the SAG and/or family member incurred the current medical expense that, combined with any other current incurred medical expenses for the month, equals or exceeds the monthly spenddown amount for the month.

(iii) The CDJFS may permit the SAG to combine the use of both the pay-in method and the incurred method in the same month as provided in paragraphs (G) and (H) of this rule. If the CDJFS permits the SAG to combine methods, and the SAG does so, the SAG is eligible for the month as provided in paragraphs (G)(2)(b) and (H)(2)(b) of this rule.

(iv) If the SAG does not satisfy spenddown for a month, the SAG is not eligible for medicaid for the month but may be eligible for any future month in which the SAG satisfies spenddown.

(c) The spenddown process is repeated monthly.

(d) The spenddown process is subject to the hearing rights and procedures set forth in division level 5101:6 of the Administrative Code.

(2) Any medical expenses of the SAG or family member that the CDJFS actually uses in the spenddown process as a basis for approving medicaid for the SAG for a month remain the obligation of the SAG or family member and shall not be submitted to medicaid for payment and are not payable by the medicaid program as provided in paragraphs (F)(9) and (H)(7) of this rule.

(3) The CDJFS must determine whether the medical expenses and/or pay-in submitted for spenddown have been or may be included as medical expenses in the SAG's food stamp budget, and whether the SAG is entitled to supplemental and/or increased recurring monthly food stamp benefits as provided in rule 5101:4-4-23(C) and division level 5101:4 of the Administrative Code.

(B) Spenddown assistance group (SAG)

(1) With the exceptions set forth in paragraph (C)(2) of this rule, an individual is subject to the spenddown process if he or she:

(a) Is age sixty-five or older, is blind, or has a disability, as defined in rule 5101:1-39-03 of the Administrative Code; and

(b) Has countable monthly income that exceeds the medicaid need standard applicable to the individual; and

(c) Is otherwise eligible for the ABD medicaid program.

(2) "Spenddown assistance group (SAG)" means an individual in a household who is subject to the spenddown process as provided in paragraph (B)(1) of this rule. The composition of a SAG is determined as follows.

(a) If a household contains a husband and wife both of whom are subject to the spenddown process as provided in paragraph (B)(1) of this rule, the husband and wife together are a two-person (couple) SAG.

(b) If a household contains a husband and wife only one of whom is subject to the spenddown process as provided in paragraph (B)(1) of this rule, the spouse who is subject to the spenddown process is a one-person (individual) SAG.

(c) Except as provided in paragraph (B)(2)(a) of this rule, each individual in a household who is subject to the spenddown process is his or her own separate one-person (individual) SAG. For example, if a household contains a mother and son, both of whom are subject to the spenddown process, the mother is her own one-person individual SAG, and the son, regardless of his age, is his own one-person individual SAG.

(d) There may be more than one SAG in a household.

(3) The CDJFS must determine whether a SAG is eligible for medicaid under any other medicaid category. If a SAG is eligible for medicaid under any other category, the SAG has the option to choose which category to accept. The CDJFS must explain and discuss this option with the SAG so that the SAG may make an informed decision.

(4) The monthly spenddown amount of a SAG, if any, is determined pursuant to paragraph (D) of this rule.

(5) For a SAG that must satisfy a monthly spenddown amount in order to become eligible for medicaid for a month as determined pursuant to paragraph (D) of this rule the following applies:

(a) The CDJFS shall not deny ABD medicaid for a SAG who is applying for medicaid and does not anticipate satisfying spenddown in the month of application, or in one or more future months. Instead, the CDJFS shall authorize the SAG as open/fail in CRIS-E, changing the SAG to open/pass in CRIS-E for any month in which the SAG satisfies spenddown.

(b) The CDJFS shall not propose to terminate ABD medicaid for a SAG that does not satisfy spenddown for one or more months. Instead, the CDJFS shall maintain the SAG as open/fail in CRIS-E, changing the SAG to open/pass for any month in which the SAG satisfies spenddown.

(C) Definition of terms used in the spenddown process

(1) "Aged, blind or disabled (ABD) medicaid program" means the program set forth in Chapter 5101:1-39 of the Administrative Code. In CRIS-E the medicaid categories applicable to SAGs are: MA-A (medicaid for the aged); MA-B (medicaid for the blind); and MA-D (medicaid for the disabled). The spenddown process only applies to those categories of medicaid.

(2) "Countable monthly income" means the income of the SAG as determined under Chapter 5101:1-39 of the Administrative Code.

(a) As provided in rule 5101:1-39-41 of the Administrative Code:

(i) A supplemental security income (SSI) recipient (including an SSI recipient who is no longer in receipt of SSI cash payments) who is eligible for medicaid under Section 1619 of the Social Security Act (1619-eligible person) is not subject to the spenddown process. The 1619-eligible person shall not have a spenddown amount, and cannot be a SAG, regardless of the amount of his or her countable monthly income.

(ii) When a 1619-eligible person lives with a spouse, neither the 1619-eligible person nor his or her spouse is subject to the spenddown process. The 1619-eligible person and his or her spouse shall not have a spenddown amount, and cannot be a SAG, regardless of the amount of their countable monthly income.

(b) As provided in rule 5101:1-39-38 of the Administrative Code:

(i) The RSDI income of certain adult disabled children is not included in countable monthly income.

(ii) The RSDI income of certain disabled widows or widowers is not included in countable monthly income.

(3) "Current incurred medical expenses" is defined in paragraph (H) of this rule.

(4) "Delayed spenddown eligibility" refers to the medicaid eligibility established under paragraphs (D)(4)(b), (G) and (H) of this rule.

(5) "Family member" means:

(a) If the SAG is a child who is under age eighteen, family member means any person:

(i) Who is a natural or adoptive parent of the SAG unless a court has eliminated such parent's duty of medical support to the SAG; or

(ii) Who lives with the SAG and is a sibling or half-sibling under age eighteen of the SAG; or

(iii) Who is a deceased parent of the SAG, provided the parent who lives with the SAG had a duty of medical support of the deceased parent at the time of his or her death; or

(iv) Who is a deceased sibling of the SAG, provided the sibling lived with the SAG at the time of his or her death, and a parent who lives with the SAG had a duty of medical support to the deceased sibling at the time of his or her death.

(b) If the SAG is a person age eighteen or older, family member means any person:

(i) Who is (or, if deceased, was) the spouse of the SAG unless a court has eliminated the SAG's duty of medical support to such spouse; or

(ii) Who is (or, if deceased, was) the natural or adopted child under age eighteen of the SAG unless a court has eliminated the SAG's duty of medical support to such child; or

(iii) Who is (or, if deceased, was) the former spouse of the SAG, provided a court has imposed on the SAG a duty of medical support to the former spouse.

(c) If the SAG is a married couple, family member means any person

(i) Who is (or, if deceased, was) the former spouse of a SAG provided a court has imposed on the SAG a duty of medical support to such former spouse; or

(ii) Who is (or, if deceased, was) the natural or adopted child under age eighteen of a SAG member unless a court has eliminated such SAG member's duty of medical support to such child.

(d) Family member does not include a step-parent, a step-child or a step-sibling.

(6) "Incurred" means that the SAG or family member has paid a medical bill or expense, or is liable for the bill or expense.

(7) "Incurred method of satisfying spenddown" is defined in paragraph (H) of this rule.

(8) "Incurred spenddown medical expense" and "delayed spenddown medical expense" refer to a current incurred medical expense as provided in paragraphs (D)(4)(b) and (H) of this rule.

(9) "Individual" means an individual or a married couple who is subject to the spenddown process in this rule.

(10) "Medicaid need standard" means the standard set forth in rule 5101:1-39-21 of the Administrative Code that is applicable to the SAG. The standard("individual need standard" or "couple need standard") applicable to the SAG is determined as follows.

(a) If a household contains a husband and wife both of whom are subject to the spenddown process, the husband and wife together are a two-person (couple) SAG as provided in paragraph (B)(2)(a) of this rule: the couple need standard is applicable to the SAG.

(b) If a household contains a husband and wife only one of whom is subject to the spenddown process, the spouse who is subject to the spenddown process is a one-person (individual) SAG as provided in paragraph (B)(2)(b) of this rule: the individual need standard is applicable to the SAG.

(c) Except as provided in paragraph (B)(2)(a) of this rule, each individual in a household who is subject to the spenddown process is his or her own separate individual SAG: the individual need standard is applicable to each SAG. For example, if a household contains a mother and son each of whom is subject to the spenddown process, each is an individual SAG, so the individual need standard is applicable to each of them.

(11) "Medical expense" or "medical bill" means an expense or bill for a medical item or service provided to the SAG or family member.

(a) The CDJFS may accept that medical expenses and bills submitted in the spenddown process are usually for items or services that were medically necessary. In an unusual situation a question may arise about whether an item or service was medically necessary. In such a situation the CDJFS will need to determine whether the item or service was medically necessary by following these steps:

(i) In order to make the determination the CDJFS must contact the SAG and assist the SAG in gathering relevant information from the medical provider and other appropriate persons about the medical necessity of the item or service.

(ii) If the medical provider of the item or service indicates that item or service was not medically necessary, the CDJFS may decline to use the item or service in the spenddown process in accordance with paragraph (A)(2)(d) of this rule.

(iii) If the medical provider of the item or service indicates that the item or service was medically necessary the CDJFS may use the item or services in the spenddown process in accordance with the other provisions of this rule. However, in an unusual situation, the CDJFS may question the provider's statement regarding medical necessity. In that case, the CDJFS must ask the ODJFS prior authorization unit (PAU) to determine whether the item or service was medically necessary.

(iv) If the PAU decides that the item or service was medically necessary, the CDJFS must use the item or services in the spenddown process in accordance with the other provisions of this rule. The PAU decision is for the sole purpose of determining whether the item or service was a medically necessary expense or bill in the spenddown process. The PAU decision is not for the purpose of determining whether to prior authorize the item or service under rule 5101:1-39-31 of the Administrative Code nor for the purpose of determining whether the item or service is payable by the medicaid program.

(v) If the PAU decides that the item or service was not medically necessary, the CDJFS may decline to use the item or service in the spenddown process in accordance with paragraph (A)(2)(d) of this rule.

(vi) The CDJFS must fully document the provider's statement, PAU decision, and all other information related to the CDJFS's decision in CRIS-E running record comments (CLRC) as well as in the hard copy record.

(b) Medical insurance premiums as defined in paragraph (C)(12) of this rule, and NF and ICF-MR costs of care that meet the requirements of paragraph (E) of this rule, are always considered medically necessary.

(12) "Medical insurance premiums" means payments or costs for insurance coverage for medical items or services such as health, dental, vision, long term care, hospital, prescriptions, etc.

(13) "Medically necessary" is defined in rules 5101:1-3-01 and 5101:1-3-011 of the Administrative Code.

(14) "Ongoing spenddown eligibility refers to the medicaid eligibility established under paragraphs (D)(2) to (D)(4)(a) of this rule.

(15) "Ongoing spenddown medical expense" refers to a medical insurance premium, NF or ICF-MR cost, or unpaid medical bills (UPMB) as provided in paragraphs (D) to (F) of this rule.

(16) "Pay-in method of satisfying spenddown" is defined in paragraph (G) of this rule.

(17) "Qualified individual-1 (QI-1)" means the program described in rule 5101:1-39-53.1 of the Administrative Code. The medicaid program pays the monthly medicare part B premium for a person who is eligible for QI-1.

(18) "Qualified medicare beneficiary (QMB)" means the program described in rule 5101:1-39-53.1 of the Administrative Code. The medicaid program pays the medicare cost-sharing expenses of a person who is eligible for QMB. The medicare cost-sharing expenses include the monthly medicare part A and part B premiums, annual coinsurance and all deductibles.

(19) "Satisfying spenddown" is defined in paragraphs (G) and (H) of this rule.

(20) "Specified low-income medicare beneficiary (SLMB)" means the program described in rule 5101:1-39-53.1 of the Administrative Code. The medicaid program pays the monthly medicare part B premium for a person who is eligible for SLMB.

(21) "Spenddown amount" or "monthly spenddown amount" means the dollar amount, if any, a SAG must satisfy in order to become eligible for medicaid for all or part of a month as provided in paragraphs (D)(4)(b), (G), and (H) of this rule.

(22) "Spenddown assistance group (SAG)" is defined in paragraph (B)(2) of this rule.

(23) "Subject to the spenddown process" is defined in paragraph (B)(1) of this rule.

(24) "Transportation expense" means a reasonable expense incurred by a SAG or family member for transportation that is needed to obtain a medically necessary item or service such as appointments with a doctor, clinic, hospital, mental health agency, or therapist, or a trip to a pharmacy for prescriptions or to a medical supplier for durable medical goods, etc.

(a) Transportation may be by public or private transportation, for example, private motor vehicle, bus, taxi, etc.

(b) Transportation expenses include but are not limited to the following:

(i) Charges for public transportation such as bus and/or taxi fare.

(ii) Standard mileage expense shall be the current state mileage reimbursement rate for the use of a private motor vehicle owned by the SAG or family member; or, the actual expense incurred by the SAG or family member for transportation by a private motor vehicle not owned by the SAG or family member. Reference CRIS-E table TMEP for the current state mileage reimbursement rate.

(iii) Expenses related to the transportation such as parking fees and tolls.

(iv) Overnight lodging expenses if overnight travel is needed to obtain the medical item or service. Actual expenses for meals when overnight travel is required; however, the meal allowance cannot exceed thirty dollars per person per day.

(v) Attendant care costs and/or the costs of a companion if a medical provider verifies that an attendant and/or companion is required due to the age, physical, and/or mental condition of the SAG or family member.

(vi) Expenses related to delivering a medical service or item to the SAG or family member such as a charge by a pharmacy for the delivery of prescriptions to the home of the SAG or family member, a charge by a medical supplier for delivery and set-up of air supplies in the home of the SAG or family member, a charge by a therapist for traveling to the home of the SAG or family member to provide therapy, etc.

(c) Transportation expenses do not include the cost of transportation actually provided to the SAG or family member through the CDJFS's enhanced medicaid transportation (EMT) program.

(d) Transportation expenses do not include any transportation expenses actually deducted from income as an "impairment-related work expense (IRWE)" as set forth in rule 5101:1-39-18 of the Administrative Code.

(e) The CDJFS may accept that transportation expenses submitted in the spenddown process are usually for transportation that was needed to obtain a medical service or item and that the cost is reasonable. In an unusual situation, a question may arise about whether a transportation expense was needed and/or reasonable. In such a situation, the CDJFS must determine whether the expense was needed and/or reasonable. In order to make the determination, the CDJFS must contact the SAG, and, if necessary, assist the SAG in gathering relevant information from the medical provider and other appropriate persons, concerning all of the relevant circumstances, including the following:

(i) The age, physical and mental condition and transportation needs of the person; and

(ii) The medical item or service for which the person needed the transportation; and

(iii) The suitability of the transportation alternatives reasonably available to the person; and

(iv) The reasonableness of the expense based on the circumstances; and

(v) Any other relevant factors.

(vi) After considering all of the above factors, if the CDJFS determines that the expense or a portion of the expense was not needed and/or not reasonable, the CDJFS may decline to use the expense, or the portion of the expense, determined to be unneeded and/or unreasonable in the spenddown process in accordance with paragraph (A)(2)(d) of this rule. The CDJFS must fully document its determination in CRIS-E running record comments (CLRC) and in the hard copy record.

(25) "Unpaid past medical bills (UPMB)" is defined in paragraph (F) of this rule.

(D) Determining monthly spenddown amount:

(1) Whenever the countable monthly income of a SAG exceeds the medicaid need standard applicable to the SAG, the CDJFS must follow paragraphs (D)(2) to (D)(5) of this rule to determine whether the SAG is eligible for medicaid without any spenddown amount and, if not, to calculate the monthly spenddown amount of the SAG.

(2) Determine the total amount of all monthly medical insurance premiums of the SAG and family members. Do not round down. Subtract that amount from the countable monthly income of the SAG. Round down the subtotal to the nearest whole dollar.

(a) If the remainder is equal to or less than the medicaid need standard applicable to the SAG, the SAG is eligible for medicaid for the entire month without any monthly spenddown amount.

(b) If the remainder exceeds the medicaid need standard applicable to the SAG, continue to the next step.

(c) A SAG who is eligible for QMB, SLMB or QI-1 has the option to decline such eligibility. If the individual accepts QMB, SLMB or QI-1 eligibility then the individual's medicare premium(s) is not deducted after the CDJFS obtains verification that the medicaid program has actually begun paying the premium(s). If the individual declines eligibility then the individual's medicare premium(s) is deducted at this step. The CDJFS must explain and discuss this option with the SAG so that the SAG may make an informed decision.

(3) Determine the total amount of the nursing facility (NF) or intermediate care facility for the mentally retarded (ICF-MR) cost of care of the SAG as provided in paragraph (E) of this rule. Do not round down. Subtract that amount from the remainder calculated in paragraph (D)(2) of this rule. Round down the subtotal to the nearest whole dollar.

(a) If the remainder is equal to or less than the medicaid need standard applicable to the SAG, the SAG is eligible for medicaid for the entire month without any monthly spenddown amount.

(b) If the remainder exceeds the medicaid need standard applicable to the SAG, continue to the next step.

(4) Determine the amount of the unpaid past medical bills (UPMB) of the SAG and family members as provided in paragraph (F) of this rule. Do not round down. Subtract that amount from the remainder calculated in paragraph (D)(3) of this rule. Round down the subtotal to the nearest whole dollar.

(a) If the remainder is equal to or less than the medicaid need standard applicable to the SAG, the SAG is eligible for medicaid for the entire month without any monthly spenddown amount.

(b) If the remainder exceeds the medicaid need standard applicable to the SAG, the remainder is the monthly spenddown amount of the SAG. In order to become eligible for medicaid for all or part of the month, the SAG must satisfy the monthly spenddown amount for the month as provided in paragraphs (G) and (H) of this rule.

(E) NF or ICF-MR cost of care used in determining monthly spenddown amount

(1) For the purposes of paragraph (D)(3) of this rule, the cost of care of a SAG who resides in a licensed NF or ICF-MR is determined as follows. The cost of care of a family member cannot be used in the spenddown process.

(a) If the facility is certified for the medicaid program, the SAG may use as a medical expense in the calculation at paragraph (D)(3) of this rule the medicaid per diem rate for the cost of care.

(b) If the facility is not certified for the medicaid program, the SAG may use as a medical expense in the calculation at paragraph (D)(3) of this rule the amount the facility requires the SAG to pay for the care received (private pay rate) when all of the following conditions are met:

(i) The facility has a current license from the Ohio department of health; and

(ii) The SAG's attending physician has provided a written statement to the CDJFS that care in the facility is medically necessary.

(2) If the SAG is subject to a period of restricted coverage due to an improper transfer of assets as provided in rule 5101:1-39-07 of the Administrative Code, the CDJFS shall not compute the following for the SAG:

(a) Patient liability budget, nor

(b) Monthly income allowance (MIA), nor

(c) Family allowance (FA), nor

(d) Family maintenance needs allowance (FMNA).

(F) Unpaid past medical bills (UPMB) used in determining monthly spenddown amount

(1) For the purposes of paragraph (D)(4) of this rule, the amount of unpaid UPMB to be subtracted is determined as follows.

(2) UPMB means an unpaid past medical bill, or a portion of a medical bill, as defined in paragraph (C)(11) of this rule, that:

(a) Is for a medical item or service provided to the SAG or a family member; and

(b) Is still owed, and is not subject to payment by a third party who is legally obligated to pay the bill (for example, private insurance, medicaid, medicare, or a person who is court-ordered to pay the expense, etc.); and

(c) Is not a NF or ICF-MR bill that is owed for services provided to a family member; and

(d) Has not been used in a previous month to meet the spenddown amount or as a UPMB as provided in paragraph (F)(9) of this rule; and

(e) Meets one of the criterion in paragraphs (F)(3) to (F)(7) of this rule.

(3) A UPMB is considered to have been "incurred":

(a) In the month during which the provider supplied the item or service to the SAG or family member; and

(b) By the SAG or family member to whom the provider supplied the item or service.

(4) The SAG is not required to pay, or provide evidence of paying, the UPMB.

(5) The UPMB that a SAG may apply in the spenddown process are:

(a) A UPMB incurred during a month in which the person receiving the item or service was not eligible for medicaid. If the SAG incurred the UPMB:

(i) The CDJFS must determine whether the SAG is retroactively eligible for medicaid for the month in which the SAG incurred the UPMB. The CDJFS shall explore retroactive eligibility (including eligibility through the spenddown process) under rule 5101:1-38-01.3 of the Administrative Code.

(ii) If the SAG is not retroactively eligible (even through the spenddown process) for the month in which the SAG incurred the UPMB, the SAG may apply the UPMB in the spenddown process.

(iii) If the SAG is retroactively eligible for medicaid (whether or not through the spenddown process) for the month in which the SAG incurred the UPMB, the SAG may apply the UPMB in the spenddown process only if the UPMB satisfies paragraph (F)(5)(c) of this rule.

(b) A UPMB incurred during a month in which the SAG did not satisfy the monthly spenddown amount even with the application of the bill.

(c) A UPMB for a medical item or service that was not paid, or payable, by medicaid regardless of whether the individual receiving the item or service was eligible for medicaid during the month in which the UPMB was incurred because the UPMB is for an item or service:

(i) That was not covered by medicaid; or

(ii) That was supplied by a provider who was not participating in medicaid; or

(iii) That was supplied by a medicaid provider who did not accept medicaid for UPMB; or

(iv) Items or services not covered by medicaid include, but are not limited to, state psychiatric hospital charges, transportation expenses, etc.

(6) For a SAG residing in a NF or ICF-MR:

(a) Any unpaid NF or ICF-MR costs incurred while the SAG was in a period of restricted coverage as the result of an improper transfer of assets as provided in rule 5101:1-39-07 of the Administrative Code cannot be used as a UPMB until the period of restricted coverage has expired.

(b) Any NF or ICF-MR costs that were used to satisfy spenddown liability during a period of restricted coverage, and that remain unpaid after the period of restricted coverage has expired, shall not be used as a UPMB. For example, the spenddown amount, not including the cost of care as a recurring medical expense, would be five hundred dollars and the individual does not pay any of the monthly cost of care during the period of restricted coverage. A statement is then presented showing the SAG owes the full amount of the cost of care for the month. The allowable past medical expense would be the cost of care less the five hundred dollars that had already been used in the spenddown budget as part of the ongoing medical expense.

(7) The CDJFS shall assist the SAG in choosing the amount of the UPMB to apply, and the month(s) for which to apply the UPMB, in the calculation at paragraph (D)(4) of this rule. To assist the SAG in making an informed decision, the CDJFS shall determine the minimum number of months for which the UPMB might be applied. To make this determination, the CDJFS shall:

(a) First, determine the combined total of all the UPMB of the SAG and family members;

(b) Then, divide the total UPMB by remainder calculated in paragraph (D)(3) of this rule;

(c) The quotient is the minimum number of months the UPMB would allow the SAG to obtain medicaid eligibility through the spenddown process without having to satisfy any monthly spenddown amount, assuming no changes in the countable monthly income, current incurred medical expenses of the SAG, the medicaid need standard applicable to the SAG, etc.

(8) The amount of the UPMB the CDJFS must subtract in the calculation in paragraph (D)(4) of this rule is:

(a) The amount of the UPMB the SAG chooses to subtract, or

(b) If the SAG does not choose an amount to subtract, the difference between the remainder calculated in paragraph (D)(3) of this rule and the medicaid need standard applicable to the SAG.

(9) A UPMB, or portion of a UPMB, that a CDJFS actually uses in the spenddown process as a basis for approving medicaid eligibility for the SAG for a month, cannot be used again in the spenddown process. However, a UPMB, or portion of a UPMB, that the CDJFS does not actually use in the spenddown process as a basis for approving medicaid eligibility for the SAG, can be used in a future month in the spenddown process.

(10) For each UPMB, the CDJFS shall document in the CRIS-E case record (CLRC) and in the hard copy case record:

(a) The name of the provider; the item or service provided; the date item or service was provided; the name of the SAG or family member, to whom the item or service was provided; the amount still owed for the item or service; and

(b) The month(s) for which the UPMB, or a portion of the UPMB, was actually used in the calculation in paragraph (D)(4) of this rule as a basis for approving medicaid eligibility for the SAG for a month.

(G) The pay-in method of satisfying monthly spenddown amount

This subsection applies if the SAG has a monthly spenddown amount as calculated in paragraph (D)(4) of this rule.

(1) At the SAG's option, the SAG may use the pay-in method of satisfying spenddown, described in paragraph (G) of this rule, for a month and use the incurred method of satisfying spenddown, described in paragraph (H) of this rule, for another month. At the CDJFS's option, the CDJFS may permit the SAG to combine the two methods in a single month as follows:

(a) After the SAG and/or family member have incurred an amount of current medical expenses for a month that is less than the SAG's spenddown amount for the month, the CDJFS may permit the SAG to pay-in the difference between the spenddown amount and the current incurred medical expenses (spenddown balance for the month).

(b) If the SAG pays-in the spenddown balance for the month, the SAG is eligible for medicaid for the month starting on the date in the month on which the SAG or family member incurred the last current medical expense for the month.

(c) To assist the SAG in making an informed decision about which method(s) to use, the CDJFS shall, at every application and reapplication, provide to, and review with, the SAG a copy of JFS 08500 as well as the CDJFS policies and procedures related to the spenddown process.

(2) At the SAG's option, the SAG may satisfy spenddown for a month by paying (or paying in) to the CDJFS the dollar amount of the spenddown amount for the month (pay-in spenddown). If the SAG does so, the SAG is eligible for medicaid for the entire month.

(3) A third-party (an individual, organization, agency, etc.) may pay-in on behalf of the SAG, or a group of SAGs, by making payments from the third party's funds, or other funds, directly to the CDJFS. Such payments are not considered income, are not included in countable monthly income to the SAG, and do not affect the medicaid eligibility of a SAG.

(4) The CDJFS must implement, and make available in writing, reasonable policies and procedures for administering the pay-in spenddown method. For example, the CDJFS policies and procedures must:

(a) Permit, and provide reasonable methods of accepting, payments by third parties (for example, individuals, agencies, programs, etc.) on behalf of individual SAGs and groups of SAGs.

(b) Ensure that, at the SAG's option, the SAG will receive a medicaid card for a month on or about the first day of the month by making its pay-in payment by a date chosen by the CDJFS near the end of the preceding month.

(i) If the CDJFS receives the SAG's pay-in payment before the CRIS-E cutoff date in the preceding month, the CDJFS will authorize the issuance of the medicaid card in CRIS-E (release the card) within two business days after the CRIS-E cutoff date; or

(ii) If the CDJFS receives the SAG's pay-in payment on or after the CRIS-E cutoff date in the preceding month, the CDJFS will release the card within two business days after the CDJFS received the SAG's pay-in payment.

(c) Ensure that, at the SAG's option, the SAG may pay-in for a month at anytime during the same month and that the CDJFS will release the card for the month within two business days after the CDJFS received the SAG's pay-in payment.

(d) Establish reasonable methods for accepting and accounting for pay-in payments, including for example: accepting cash payments, any necessary conditions for accepting checks or money orders, provisions for refunding or crediting unused pay-in amounts, etc.

(e) Establish provisions for refunding a SAG's pay-in payment for a month in the event the SAG:

(i) Becomes eligible for medicaid for the month other than through the spenddown process;

(ii) Becomes ineligible for medicaid for the month even through the spenddown process; or

(iii) Paid in a higher spenddown amount than required or the CDJFS made an error in calculating the monthly spenddown amount.

(f) In accordance with rule 5101:1-38-02 of the Administrative Code, issue a receipt to all SAGs and to third-parties who make pay-in payments stating:

(i) The date of receipt of the payment; and

(ii) The name of the person or entity from whom the payment was received; and

(iii) The name and case number/category/sequence number (case/cat/seq) of the SAG for whom the payment was made; and

(iv) The month of medicaid eligibility for which the pay-in payment will be used and the effective date of medicaid for the month; and

(v) The amount of the pay-in and the form in which it was paid (e.g., cash money order, check, etc.).

(5) The CDJFS must document in the CRIS-E running record comments (CLRC) and in the hard copy record the information required in paragraph (G)(5)(f) of this rule.

(H) The current incurred medical expenses (or, incurred) method of satisfying monthly spenddown amount

This subsection applies if the SAG has a monthly spenddown amount as calculated in paragraph (D)(4) of this rule.

(1) At the SAG's option, the SAG may use the incurred method of satisfying spenddown, described in paragraph (H) of this rule, for one month, and the pay-in method of satisfying spenddown, described in paragraph (G) of this rule, for another month. At the CDJFS's option, the CDJFS may permit the SAG to combine the two methods in a single month as follows:

(a) After the SAG and/or family member has incurred an amount of current medical expenses for the month that is less than the SAG's spenddown amount for the month, the CDJFS may permit the SAG to pay-in the difference between the spenddown amount and the current incurred medical expenses (spenddown balance for the month).

(b) If the SAG pays-in the spenddown balance for the month, the SAG is eligible for medicaid for the month starting on the date in the month on which the SAG or family member incurred the last current medical expense for the month.

(c) To assist the SAG in making an informed decision about which method(s) to use, the CDJFS shall at every application and reapplication provide to, and review with, the SAG a copy of JFS 08500 as well as CDJFS policies and procedures related to the spenddown process.

(2) At the SAG's option, the SAG may satisfy spenddown for a month by incurring a dollar amount of current medical expenses that equals the spenddown amount for the month (incurred spenddown). If the SAG does so, the SAG is eligible for medicaid for the month starting on the date in the month on which the SAG and/or family members incurred the current medical expenses that, combined with all other current incurred medical expenses for the month, equaled or exceeded the SAG's monthly spenddown amount for the month.

(3) "Current incurred medical expense" means a medical bill or a portion of a medical bill as defined in paragraph (C)(11) of this rule that meets the following requirements:

(a) It is for a medical item or service provided to the SAG or family member during the month for which the SAG is seeking to obtain medicaid eligibility through the spenddown process; and

(b) It is a bill the SAG or family member has already paid, or is liable for the payment; and

(c) It is a bill that meets the requirements of paragraphs (H)(4) to (H)(7) of this rule.

(d) A medical expense, or portion of an expense, that is "written off" by the provider is a current incurred medical expense for the month in which the item or service was provided even though the expense is written-off by the provider later in the same or a subsequent month.

(e) A medical expense, or a portion of a medical expense that is paid, or subject to payment, by a third party (such as HCAP, private or personal charity, etc.) that is not legally obligated to pay the expense, or the portion of the expense, for the SAG or family member is a current incurred medical expense for the month in which the item or service was provided even though the expense, or the portion of the expense, is paid by the third party later in the same or a subsequent month.

(f) A medical expense, or a portion of a medical expense, that is paid or subject to payment by a third party (such as private insurance, medicaid, medicare, or a person who is court-ordered to pay the expense, etc.) that is legally obligated to pay the expense, or a portion of the expense, for the SAG or family member is not an incurred medical expense.

(g) A medical expense, or portion of an expense, that is paid, or is subject to payment, by a public or private agency or program (for example, HCAP, local levy funds, etc. except medicaid or medicare) is a current incurred medical expense for the month in which the item or service was provided even if it is paid by the agency or program later in the same or a subsequent month.

(h) If an agency or program provides a direct medical service based on an "ability-to-pay" fee scale, or "sliding" fee scale, only the amount the SAG or family member is liable to pay the agency or program is a current incurred medical expense.

(i) A medicaid-covered expense that the CDJFS actually uses in the spenddown process as a basis for approving medicaid eligibility for a SAG for a month will not be paid, and is not payable, by the medicaid program but remains the legal obligation of the SAG.

(j) A current incurred medical expense includes a transportation expense as defined in paragraph (C)(24) of this rule incurred by the SAG or family member during the month for which the SAG is seeking to obtain medicaid eligibility through the spenddown process.

(k) A current incurred medical expense does not include any expense actually deducted from earned income as an "impairment-related work expense (IRWE)" as provided in rule 5101:1-39-18 of the Administrative Code.

(l) A current incurred medical expense does not include a "possible future medical expense," that is, an expense the SAG or family member has not yet incurred for a medical item or service that has not yet been provided to the SAG or family member.

(4) Current medical expenses covered by medicare.

The following criteria apply to each current medical expense covered by medicare that is incurred by a SAG or family members, who have medicare part A and/or part B coverage (person).

(a) If the medicare expense is one for which the individual does not have supplemental medicare coverage (for example, QMB, nationwide, American family, etc.), the amount of the current incurred medical expense shall be:

(i) One hundred per cent of each such medicare expense until the person's medicare deductible is met; and

(ii) Twenty per cent of the medicare approved rate if it is known, or if it is not known, twenty percent of the charge for each such expense after the person's medicare deductible is met.

(b) If the medicare expense is one for which the person has supplemental medicare insurance, the expense shall not be considered a current incurred medical expense.

(5) The SAG may apply the total dollar value of all current incurred medical expenses of the SAG and family members against the SAG's spenddown amount for the month.

(6) A current incurred medical expense for a month that the CDJFS actually uses in the spenddown process as a basis for approving medicaid eligibility for the SAG for a month, cannot be used again in the spenddown process. However, a current incurred medical expense for a month that the CDJFS does not actually use in the spenddown process as a basis for approving medicaid eligible for the month, can be used as a UPMB in the future in the spenddown process as long as the expense remains unpaid and meets the other requirements of paragraph (F) of this rule.

(7) Procedural requirements:

(a) The SAG must submit monthly to the CDJFS, by mail, facsimile, or in person, verification of the current incurred medical expenses the SAG wishes to apply against the SAG's spenddown amount for the month. Verifications may include, for example, unpaid bills, statements, invoices, paid receipts, etc.

(b) For each expense, the SAG must verify the name of the provider, the item or service provided, the date item or service was provided, the name of the SAG or family member to whom the item or service was provided, and the amount the SAG or family member paid or is liable to pay for the item or service.

(c) The CDJFS shall authorize the issuance of a medicaid card (release the card) for the month in CRIS-E within two business days after the SAG submits verification showing that current incurred medical expenses for the month satisfy the SAG's spenddown amount for the month.

(d) The CDJFS must document in CRIS-E running record comments (CLRC), and in the hard copy record, on a month-by-month basis:

(i) The information required by paragraph (H)(8)(b) of this rule concerning the current incurred medical expenses for the month; and

(ii) The date the CDJFS authorized the medicaid card for the month in CRIS-E, or the specific reason(s) the CDJFS did not authorize a medicaid card for the month.

Eff 9-3-77; 12-31-77; 3-1-79; 10-1-79; 12-7-79; 2-21-80; 10-10-84 (Emer.); 12-29-84; 4-1-86; 8-1-86 (Emer.); 10-3-86; 11-1-86 (Emer.); 12-22-86; 10-1-88; 12-20-88; 1-1-89 (Emer.); 4-1-89; 10-1-89 (Emer.); 12-16-89; 1-1-90 (Emer.); 4-1-90; 9-28-90 (Emer.); 12-24-90; 10-1-91; 1-1-93 (Emer.); 3-18-93; 9-10-93 (Emer.); 12-10-93; 12-1-97 (Emer.); 2-1-98; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01
Replaces: 5101:1-39-10, 5101:1-39- 10.1, 5101:1-39- 10.2, 5101:1-39- 10.3
R.C. 119.032 review dates: 10/01/2007

5160:1-3-11 Medicaid eligibility for persons living in state institutions for the mentally ill and mentally retarded.

(A) Medicaid eligibility is possible for persons who are residents of state institutions for the mentally ill and mentally retarded if the person meets the eligibility requirements of Chapter 5101:1-39 or 5101:1-40 of the Administrative Code. The CDJFS determines eligibility for medicaid applicants/recipients residing in state institutions and authorizes vendor payments when appropriate. The CDJFS in which the state institution is located has case responsibility with the exception of the temporary absence and inter-county transfer provisions set forth in rules 5101:1-37-02.3 and 5101:1-40-01 of the Administrative Code.

(B) Persons who are under the age of twenty-two or aged sixty-five or over and who reside in state institutions for the mentally ill in areas which are certified as Title XIX facilities are assumed to meet the limiting physical factor requirement of disability.

(C) Persons of any age who reside in state institutions for the mentally retarded in areas which are certified as Title XIX facilities are also assumed to meet the limiting physical factor requirement.

(D) Persons of any age who reside in state institutions for the mentally ill in areas certified as Title XIX intermediate care facilities for the mentally retarded (dual diagnosis units) are assumed to meet the limiting physical factor requirement.

(E) The budget procedure which includes deducting the cost of care in a state institution as a medical expense shall be used for eligibility determination as prescribed in rule 5101:1-39-10.1 of the Administrative Code.

(F) For Title XIX facilities where a vendor payment will be authorized, the cost of care will be the Title XIX vendor rate for that facility.

(G) For persons who live in sections not approved for vendor payment, the cost of care as set by the institution shall be used as a medical deduction.

Eff 9-3-77; 8-1-86 (Emer.); 10-3-86; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
R.C. 119.032 review dates: 5/20/2002 and 10/01/2007

5160:1-3-14.4 Medicaid: sheltered workshop earnings.

(A) When an individual receives remuneration for services performed in a sheltered workshop, it must be determined whether the services are provided for rehabilitative/therapeutic purposes or as an employee and whether the remuneration received is earned or unearned income. Two principles apply to earnings for services performed in a sheltered workshop.

(1) If services are performed for rehabilitation or therapeutic purposes and the intent of supervision and control over the individual is to rehabilitate him and prepare him for placement in outside employment, an employer/employee relationship does not exist. The remuneration realized from the services performed is considered unearned income.

(2) If services are performed as an employee, an employer/employee relationship exists. The remuneration realized from the services performed is considered earned income.

(B) The CDJFS must evaluate each individual's case to decide whether an employer/employee relationship exists. If deductions from gross earnings are made for federal, state, or local taxes, it shall be assumed the individual is an employee. His remuneration is considered earned income.

(C) When an individual is not participating in a rehabilitation program designed to place him in outside employment, the CDJFS shall determine if a rehabilitation plan exists. The purpose of the plan should be to rehabilitate the individual or train him for employment and should have a tentative ending date. If these elements do not exist in the plan, there may be an employer/employee relationship.

(D) An individual who has completed a training program but is still in the sheltered workshop due to the unavailability for outside employment is not considered participating in a rehabilitation program. He is actually an employee and payment for services performed is earned income.

Eff 9-3-77; 12-31-77; 3-1-79; 10-1-79; 1-3-80; 10-1-88 (Emer.); 12-20-88; 10-1-89 (Emer.); 12-16-89; 5-1-91 (Emer.); 6-17-91; 9-1-94; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
R.C. 119.032 review dates: 5/20/2002 and 10/01/2007

5160:1-3-15.1 Medicaid: treatment of rental income.

(A) Rent is a payment which an individual receives for the use of real or personal property, such as land, housing or machinery. Net rental income is gross rent less the ordinary and necessary expenses paid in the same taxable year. Ordinary and necessary expenses are those necessary for the production or collection of rental income. In general these expenses include interest on debts, state and local taxes on real and personal property and on motor fuel, general sales taxes and expenses of managing or maintaining property. Rental deposits are not income to the landlord while subject to return to the tenant. Rental deposits used to pay rental expenses become income to the landlord at the point of use. In determining net income do not consider rents received or expenses paid in months prior to medicaid eligibility. Expenses are deducted when paid, not when incurred. Net rental income is unearned income unless it is earned income from self-employment (e.g., someone who is in the business of renting properties).

(1) Depreciation or depletion of property is not a deductible expense. Examples of deductible expenses include:

(a) Interest and escrow portions of a mortgage payment (at the point the payment is made to the mortgage holder)

(b) Real estate insurance

(c) Repairs (i.e., minor correction to an existing structure)

(d) Property taxes

(e) Lawn care

(f) Snow removal

(g) Advertising for tenants

(2) Examples of nondeductible expenses:

(a) Principal portion of a mortgage payment

(b) Capital expenditures (i.e., an expense for an addition or increase in the value of property which is subject to depreciation for income tax purposes).

(B) In multiple family residences, if the units in the building are of approximately equal size, prorate allowable expenses based on the number of units designated for rent compared to the total number of units. If the units are not of approximately equal size, prorate allowable expenses based on the number of rooms in the rental units compared to the total number of rooms in the building. (The rooms do not have to be occupied.)

(C) For rooms in a single residence prorate allowable expenses based on the number of rooms designated for rent compared to the number of rooms in the house. Do not count bathrooms as rooms in the house. Basements and attics are counted only if they have been converted to living spaces (e.g., recreation rooms).

(D) For land, prorate expenses based on the percentage of total acres that are for rent.

(E) To verify income and expenses use documents in the individual's possession (e.g., bills, receipts, etc.) to verify the gross rent and the dates received, and the expense and the dates paid. Note: the individual's most recent federal tax return including "Schedule E" will be helpful in identifying past expenses and estimating future rental income.

(1) If no documents are available, obtain a signed statement explaining why no documents are available and providing an allegation of the gross rent and expenses paid for the period involved.

(2) If it cannot be determined whether an expense is allowable (e.g., whether it is an incidental repair or a capital expenditure) contact with the internal revenue service can be made.

(F) To determine the net countable income subtract the deductible expenses paid in a month from gross rent received in the same month. If deductible expenses exceed gross rent in a month, subtract the excess expenses from the next month's gross rent and continue doing this as necessary until the end of the tax year in which the expense is paid. If there are still excess expenses, subtract them from the gross rent received in the month prior to the month the expenses were paid and continue doing this as necessary to the beginning of the tax year involved. Do not carry excess expenses over to other tax years nor use them to offset other income.

(G) Absent evidence to the contrary, apportion net rental income in proportion to the percentage of ownership. If the gross rent is split between two joint owners before expenses are paid, deduct expenses paid by the medicaid applicant/recipient from his portion of the gross rent.

(H) Use evidence from the previous months to estimate net rental income for the next twelve months; however, deduct only predictable expenses (e.g., utilities, interest payments, taxes, etc.).

(I) If an unpredictable expense is reported at a later date (e.g., a repair) deduct it in the month paid. If the expense exceeds the rent for that month, recalculate the rest of the estimated period as necessary.

Eff 9-3-77; 12-31-77; 3-1-79; 10-1-79; 12-7-79; 1-3-80; 10-1-88 (Emer.); 12-20-88; 10-1-89 (Emer.); 12-16-89; 5-1-91 (Emer.); 6-17-91; 7-17-91; 9-1-94; 10-1-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.01 , 5111.011
Rule amplifies: RC 5111.01 , 5111.011
R.C. 119.032 review dates: 6/11/2002 and 10/01/2007

5160:1-3-15.2 Medicaid: treatment of sick pay.

(A) Sick pay is a payment made to or on behalf of an employee by an employer or a private third party for sickness or accident disability. Sick pay is either wages or unearned income. Payments to an employee under a worker's compensation law are neither wages nor sick pay.

(B) If an individual receives sick pay within six months after stopping work and the income is attributable to the employee's own income it is considered unearned income.

(C) If an individual receives sick pay within six months after stopping work and it is not attributable to the employee's own income, it is considered earned income (wages).

(D) If an individual receives sick pay more than six months after stopping work, it is considered unearned income.

(E) To determine the six months period after stopping work, begin with the first day of nonwork, include the remainder to the calendar month in which work stops, and include the next six full calendar months.

For example, if an individual stops work on May fifth, the six month period begins on May sixth and runs through November thirtieth.

R.C. 119.032 review dates: 4/16/2002 and 04/16/2007

Promulgated Under: 111.15

Statutory Authority: 5111.01, 5111.011

Rule Amplifies: 5111.01, 5111.011

Prior Effective Dates: 9/1/94

5160:1-3-17 Medicaid: in-kind support and maintenance.

(A) This rule defines how in-kind support and maintenance is valued for purposes of determining eligibility under the medicaid aged, blind, or disabled covered groups.

(B) Definitions.

(1) "Actual value" is the dollar amount that an individual paid for an item or service, or for his/her share of an item or service.

(2) "Administrative agency" is the county department of job and family services, the Ohio department of job and family services, or other entity that determines eligibility for a medical assistance program.

(3) "Current market value" is the dollar amount for which an item would sell on the local open market.

(4) "Household" is a personal place of residence in which individuals share common living quarters and who function as a single economic unit.

(5) "Individual" is the applicant or recipient of a medical assistance program.

(6) "In-kind support and maintenance" is unearned income in the form of food or shelter, or something that can be used to get food or shelter, that a person is given or receives because someone else pays for it.

(7) "Living in household of another" means that:

(a) The individual does not live in his/her own household; or,

(b) The person supplying the in-kind support and maintenance lives in the same household and is not the individual's spouse, minor child, or an ineligible person whose income is deemed to the individual; and/or,

(c) The individual does not own the shelter, does not rent the shelter, does not pay a prorated share of the household operating expenses, does not live in a public assistance household, or does not live in an non-institutional care situation.

(8) "Living in own household" means that:

(a) The individual has ownership interest or life estate in the home; or,

(b) The individual is liable for payment of any part of a rental charge; or,

(c) The individual pays a pro-rated share of living expenses; or,

(d) The individual lives in a non-institutional care situation; or

(e) The individual is not living in the household of another.

(9) "Non-institutional care situation" means that:

(a) The individual has been placed by a public or private agency under a specific program of protective placement; and,

(b) The placement is in a private household that is licensed or otherwise approved by the state to provide protective care; and,

(c) The placing agency retains responsibility for continuing supervision of the need for placement and of the services provided; and,

(d) The individual, the placing agency, or some other party pays for the services provided, or has a written agreement to pay for the services provided.

(10) "Presumed maximum value" is one-third the value of the "own household" medicaid need standard, as set forth in rule 5101:1-39-21 of the Administrative Code, plus twenty dollars.

(11) "Public assistance household" is a household in which all individuals receive some type of public income-maintenance payments, including but not limited to Ohio works first (OWF), SSI, disaster relief and emergency assistance, or state or local government assistance programs based on need.

(12) "Shelter" means room, rent, mortgage payments, real property taxes, heating fuel, gas, electricity, water, sewerage, and garbage collection services.

(C) In-kind support and maintenance received by an individual is exempt or disregarded if:

(1) It is identified as exempt or disregarded in accordance with rule 5101:1-39-18 of the Administrative Code; or,

(2) It is identified as exempt or disregarded in accordance with rule 5101:1-39-26 of the Administrative Code; or,

(3) It is received from another member of a public assistance household; or,

(4) The individual receives SSI and the social security administration (SSA) does not reduce the individual's SSI benefit because of in-kind support and maintenance.

(D) In-kind support and maintenance received by an individual is valued by applying the "household of another" medicaid need standard, as set forth in rule 5101:1-39-21 of the Administrative Code, when:

(1) The individual is a recipient of SSI benefits and receives the one-third reduction in the SSI benefit; or,

(2) The individual lives for an entire month in another person's household, and receives both food and shelter for the entire month from someone living in that household. If the individual receives in-kind support and maintenance but lives in his own household, or does not live for the entire month in another person's household, or does not receive all his food and shelter from another person in that household for the entire month, or receives in-kind support and maintenance from someone outside the household, in-kind support and maintenance is valued in accordance with paragraph (E) of this rule.

(E) In-kind support and maintenance received by an individual is valued by treating the in-kind support and maintenance as countable unearned income, using the presumed maximum value when the "household of another" medicaid need standard, described in paragraph (D) of this rule, does not apply. The individual shall be provided the opportunity to demonstrate that the presumed maximum value shall not be used, in accordance with paragraph (F) of this rule.

(F) In-kind support and maintenance received by an individual is valued by treating the in-kind support and maintenance as countable unearned income, using the current market value or actual value, whichever is less, when the individual demonstrates that:

(1) The current market value of any in-kind support and maintenance received, minus any payment the individual makes for them, is less than the presumed maximum value; or,

(2) The actual amount someone else pays for the individual's in-kind support and maintenance is less than the presumed maximum value.

(G) The administrative agency shall, for purposes of determining medicaid eligibility, determine the value of in-kind support and maintenance received by an individual in accordance with this rule.

Replaces: 5101:1-39-17

Effective: 07/01/2005
R.C. 119.032 review dates: 07/01/2010
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 5111.01 , 5111.012
Prior Effective Dates: 9/3/77, 12/31/77, 3/1/79, 10/1/79, 12/7/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 7/1/87 (Emer.), 8/3/87, 1/1/99

5160:1-3-18 Medicaid: income exemptions and disregards.

(A) "Countable income" is the total income in cash or in kind less the income exemptions and disregards outlined in the following section. Countable income is compared to the need standard in determining medicaid eligibility.

(1) "Exemptions" means items which are excluded from consideration as income. Exemptions are combined by category and subtracted from the gross income. The subtotal is rounded down to the nearest whole dollar.

(2) "Disregards" means the amounts of income deducted in determining eligibility. Disregards are combined by category and subtracted from the gross nonexempt income. The subtotal is rounded down to the nearest whole dollar.

(3) Income paid by public or private agencies or community groups which is either designed by law to be disregarded or given for a special purpose for medical or social services that are not food, shelter, or clothing, shall be disregarded.

(B) The following income exemptions are designated by law to be disregarded in whole or in part when determining countable income.

(1) Rural housing loans made by farmers home administration (FHA) to help individuals and families acquire and/or make needed improvements to a home or other property.

(2) The value of surplus commodities donated by the U.S. department of agriculture.

(3) Payment for subsidized adoption.

(4) Tax-exempt portions of payments received by Alaskan natives as a result of the Alaska Native Claims Settlement Act, Public Law 94-203.

(5) Payments made for supporting services or reimbursement of out-of-pocket expenses to volunteers participating in any program created as a result of Titles II and III, Section Section Section 418 of Public Law 93-113. Examples are foster grandparents program, retired senior volunteer program (RSVP), senior companions, senior health aides, service corps of retired executives (SCORE), and active corps of executives (ACE).

(6) Benefits received under Title VII, nutrition program for the elderly of the Older Americans Act of 1965, Public Law 92-258.

(7) The value of supplemental food assistance received under the Child Nutrition Act of 1966, as amended, and the special food service program for children under the National School Lunch Act, as amended, Public Law 92-433 and Public Law 93-150.

(8) Payments to individual volunteers receiving compensation under Title I of Domestic Volunteer Service Act of 1973, Public Law 93-113, Section 404(g). Examples of operating programs are Volunteers In Service to America (VISTA) and University Year for Action (UYA).

(9) Under the provisions of Public Law 95-171, assistance received as a result of a presidentially declared disaster which occurred on or after June 1, 1976, shall be excluded from countable income. For presidentially declared disasters which occurred after December 31, 1976, but before January 1, 1978, assistance can be excluded beginning January 1, 1978 only.

(10) Any cash (other than remuneration for sheltered employment and incentive payments) provided by a governmental medical or social services program is not income. To be considered "governmental" in this context, the program must be authorized by federal, state or local law to make payments for medical or social service purposes. Payment from a governmental program which is disbursed by a nongovernmental agency, is considered a payment from a governmental program for purposes of this section. Reimbursements for medical or social services already received that are not in excess of the medical or social services expenses are not considered income. Any amount of the reimbursement that is in excess of the medical or social services expenses incurred is considered unearned income.

(11) HUD (metropolitan housing authority) payments covering rent/utility bills which exceed the twenty-five per cent rent payment limitations stipulated by the Brooke Amendment.

(12) Any wages, allowances, or reimbursement for transportation and attendant care costs when received by an eligible handicapped individual employed in a project under Title VI of the Rehabilitation Act of 1973 as added by Title II of Public Law 95-602.

(13) Retroactive payments paid as a result of a state hearing.

(14) Retroactive payments paid as a result of reconsideration of SSI benefits.

(15) Experimental housing allowance program payments made under annual contributions contracts entered into prior to January 1975, under Section 23 of the U. S. Housing Act of 1937, as amended. This program is designed to aid low-income families secure adequate housing.

(16) Home energy assistance (HEA), support and maintenance assistance (SMA), paid to clients in cash or in-kind per Public Law 97-377, Public Law 97-424, and Public Law 98-21.

(a) "Home energy assistance" means any assistance related to home energy (e.g., payment/vouchers for heating and/or cooling bills, weatherization, blankets, storm doors, etc.).

(b) "Support and maintenance assistance" means in-kind (noncash) assistance from a private nonprofit organization recognized by ODHS to meet food, clothing, or shelter needs (e.g., bags of groceries, clothing, payment of utility bills, etc.); or cash or in-kind assistance from a rate-of-return entity providing home energy, supplier of home heating oil or gas, or a municipal utility providing home energy.

(c) The assistance is only in-kind and is provided by a private nonprofit organization recognized by the ODHS; or it is cash or in-kind assistance furnished by a supplier of home heating oil or gas, an entity providing home energy whose revenues are primarily derived on a rate-of-return basis regulated by a state or federal governmental body, or a municipal utility providing home energy; and

(d) The assistance is provided on the basis of need for such support.

(17) Section 1612(b)(4)(A) of the Social Security Act provides for income, which is determined by SSA as necessary income to fulfill a plan for achieving self-support (PASS), to be exempt in accordance with the terms and duration of a SSA approved PASS.

The PASS program is offered by the SSA to applicants and recipients of SSI who have additional income (RSDI, veterans benefits, etc.) and are participating in a program administered by the rehabilitative services commission or other social agency.

The program allows SSI recipients to set aside a portion of their countable income each month. The amount set aside is deposited into a separate identifiable account, and it is to be used only for an occupational objective which is approved by SSA and the social agency. Training for employment and purchasing of a specially equipped automobile are examples of occupational objectives.

SSI matches the amount set aside and issues this amount to the recipient in the form of an increased SSI warrant.

(18) The payments under the provisions of the Agent Orange Compensation Exclusion Act ( Public Law 101-201 ) received on or after January 1, 1989 are not counted as income. The Agent Orange Compensation payments must be documented and identifiable from countable income. These payments are also not counted as income in the patient liability/post eligibility determinations.

Interest received on these funds banked with a financial institution is not exempt and is counted as unearned income in the month of receipt and as a countable resource the month after the month of receipt.

(19) The payments received under the provisions of Section Section Section 105 of Public Law 100-383 by individuals of Japanese ancestry is not counted as income. The payments must be documented and identifiable separate from countable income. These payments are also not counted as income in the patient liability/post eligibility determinations.

Interest received on these funds banked with a financial institution is not exempt and is counted as unearned income in the month of receipt and as a countable resource the month after the month of receipt.

(20) Effective August 1, 1994, the Nazi Persecution Victims Eligibility Act ( P.L. 103-286 ) excludes from income any payments made to individuals because of their status as victims of Nazi persecution. This provision supercedes previous provisions for the exclusion of certain payments made by the governments of Germany, Austria, and the Netherlands, insofar, as they are made to victims of Nazi persecution. For determinations made prior to August 1, 1994, payments to victims of Nazi persecution from the German, Austrian, and Dutch governments are excluded from income and resources.

Interest received on these funds banked with a financial institution is counted as unearned income in the month received and as a countable resource the month after the month of receipt.

(21) The payments under the provisions of the Radiation Exposure Compensation Act ( Public Law 101-426 ) is not counted as income. These payments must be documented and identifiable separate from countable income. These payments are also not counted as income in the patient liability/post eligibility determinations.

Interest received on these funds banked with a financial institution is not exempt and is counted as unearned income in the month after the month of receipt.

(22) Earned income tax credit (EITC) payments in the form of a refund of federal income tax or in the form of an advance payment by an employer are disregarded in the month of receipt and in the following month. The second month after the month of receipt funds, which have been retained, are counted as a resource.

Interest received on these funds banked with a financial institution is not exempt. The interest is counted as unearned income in the month received and as a countable resource the month after the month of receipt.

(23) The Austrian social insurance payments received under the provisions of the Austrian General Social Insurance Act, paragraphs 500 through 506, are not counted as income. The Austrian social insurance payments must be documented and identifiable from countable insurance. These payments are also not counted as income in the patient liability/post eligibility determinations.

Interest received on these funds banked with a financial institution is not exempt and is counted as unearned income in the month of receipt and as a countable resource the month after the month of receipt.

(24) Escrow accounts established and credited as the direct result of the assistance group's involvement in the family self-sufficiency program on or after May 13, 1992. These escrow accounts are only considered available when the assistance group is no longer receiving an federal, state, or other public assistance for housing.

Interest received on these funds banked with a financial institution is not exempt and is counted as unearned income in the month of receipt and as a countable resource the month after the month of receipt.

(25) VA aid and attendance and household allowances. When the individual who receives an allowance pays someone else to provide services, that payment is income (earned or unearned) to the person providing the services unless that individual is a person from whom income is deemed to the original recipient of the allowance.

(26) The value of any commercial transportation ticket for travel among the fifty states, the District of Columbia, Puerto Rico, Virgin Island, Guam, American Samoa, or the Northern Mariana Islands, which is received as a gift and is not converted to cash. This exclusion applies to tickets received by medicaid eligible individuals or their eligible spouses or by ineligible parents or spouses for whom income may be deemed to the eligible individual.

When a commercial transportation ticket that has been excluded is cashed, the cash received is income in the month of receipt and is a countable resource the month after the month of receipt.

(27) Effective March 1, 1995, basic health insurance, child care or child care allowances, auxiliary aid and services for disabled individuals and the national service educational award provided for individuals participating in a national service program established under the National and Community Service Trust Act of 1993 ( Public Law 103-82 ). Payments received as a living allowance shall be considered earned income.

(28) Payments received under the provisions of the "Ohio Victims of Crime Program" are not counted as income for medicaid financial eligibility and patient liability/post eligibility computations.

Interest received from these funds banked with a financial institution is not exempt and is counted as unearned income in the month of receipt and as a countable resource the month after the month of receipt.

(29) Many federal statutes provide for the exclusion from income and resources of certain payments made to members of Indian tribes and groups. Due to the number of statutes that affect medicaid eligibility, ODHS will exclude from income and resources for medicaid purposes any payments that are also excluded under the supplemental security income (SSI) program.

Any interest received on these payments banked with a financial institution is not exempt and is counted as unearned income in the month received and as a countable resource after the month of receipt.

Any resource that is purchased with these payments is not automatically exempt and must meet medicaid resource requirements.

(30) Cost-of-living subsidies received by OBRA waiver recipients from the Ohio department of mental retardation and developmental disabilities (MRDD) are not counted as income for the medicaid financial eligibility and patient liability/post eligibility computations.

(31) As a result of the settlement contained in H.B. 2015, none of the payments made from any fund established pursuant to a class settlement in the case of Susan Walker v. Bayer Corporation, et al, 96-C-5024 (N.D. Ill) shall be considered income or resources in determining eligibility and/or patient liability.

Interest received as a result of payments from this settlement is not excluded for income and resource purposes.

(32) A dedicated account in a financial institution, the sole purpose of which is to receive and maintain SSI past-due benefits which are required or allowed to be paid into such an account and the use of which is restricted by section 1631 (a)(2)(F) of the Social Security Act. Refer to rule 5101:1-39-26 of the Administrative Code for additional information on dedicated accounts.

(33) Section 4735 of the Balanced Budget Act of 1997 provides that none of the payments made from any fund established pursuant to a class action settlement in the case of "Factor VIII or IX Concentrate Blood Products Litigation," MDL 986 (NO. 93-C-7452, (N.D. Ill) are to be considered as income or resources in determining eligibility and/or patient liability.

Interest received as a result of payments from this settlement is not excluded for income and resource purposes. Use of the funds to purchase resources must be evaluated as to the exempt or nonexempt status of the resource.

(34) Compensation received for services by an individual appointed to a temporary position within the bureau of census established for purposes relating to the 2000 decennial census of the United States as specified in Section 3 of the Decennial Census Improvement Act of 1999 shall not cause a reduction in benefits provided through any program such as medicaid which is financed in whole or in part by federal funds. This income exemption applies only with respect to compensation for services performed during the calendar year 2000 and does not apply if the individual performing the service involved is appointed (or first appointed to any other temporary census position) prior to January 1, 2000.

Interest received on these funds when banked with a financial institution is not exempt and must be counted as unearned income in the month of receipt and as a countable resource in the months following the month of receipt.

(C) OWF, DA, SSI, RSS, social services, auxiliary warrants, and prevention, retention and contingency payments received by an assistance group are exempt when determining medicaid eligibility.

(D) Any individual, regardless of age, who receives a grant, scholarship or fellowship and pays tuition and/or fees to an educational institution, qualifies for an exemption.

(1) Effective July 1, 1993, all student financial assistance provided under programs in Title IV of the Higher Education Act or under the bureau of Indian affairs student assistance programs must be disregarded as income and resources in the determination of eligibility or level of benefits in the medicaid program.

(2) Grants, scholarships and fellowships, other than those provided in Title IV of the Higher Education Act, or under bureau of Indian affairs student assistance program, awarded by nonprofit agencies, private concerns or by local, state, federal, or foreign governmental units to enable an individual to further his education and training by scholastic or research work are exempted as income up to the amount necessary to cover the cost of the student's required tuition, fees and other expenses necessary to securing an education.

(a) Required tuition and fees include only those amounts billed by the educational institution. Other expenses necessary to securing an education include expenses for textbooks and educational materials, transportation to and from school, and any impairment-related expenses necessary to attend school or perform schoolwork, e.g., special prosthetic devices necessary to operate school machines or equipment.

(b) This exemption does not apply to aid received from relatives and friends or from amounts which in any way represent payments or compensations for services to any past, present or future employer. Any portion of a grant, scholarship or fellowship, (other than those provided in Title IV of the Higher Education Act, or under the bureau of Indian affairs student assistance program) which is used for general living expenses or for any purpose other than required tuition, fees and expenses necessary to secure the education is to be counted unearned income.

(E) A relocation assistance benefit paid by a public agency to a public assistance recipient who has been relocated as a result of a program of area redevelopment, urban renewal, freeway construction, or any other public development involving demolition or condemnation of existing housing, is exempt.

(F) Income which is received once in a while or unpredictably may be totally disregarded if such income amounts to ten dollars or less per month of earned income and twenty dollars or less per month of unearned income. If the infrequent or irregular income exceeds ten dollars per month (if earned income) or twenty dollars per month (if unearned income), this disregard does not apply. When this disregard does not apply, the entire amount of the income is counted. This disregard does not apply to income received regularly, e.g., once each month, regardless of the amount of such income.

(G) Payments made to an individual for a child placed in his home by a public or private nonprofit child placement or child care agency are totally exempt. The child need not be unrelated to the foster parent. The child must be currently living in the household of the foster parent for this exemption to apply.

(H) One-third of the child support payments received by or on behalf of a blind or disabled child from an absent parent is disregarded from the income of the blind or disabled child. The remaining two-thirds is unearned income of the blind or disabled child. This disregard applies only to voluntary or court-ordered support received from the blind or disabled child's absent parent directly or through the child support enforcement agency.

(1) Child support payments received by a medicaid-eligible aged, blind or disabled parent on behalf of a child(ren) are not income to the aged, blind or disabled parent.

(2) Child support arrearage payments received by a medicaid-eligible aged, blind or disabled parent on behalf of a child(ren) who is now an adult, are not counted as available income to the medicaid-eligible aged, blind, or disabled parent.

(I) Home produce used by the household for its own consumption is exempt. "Home produce" refers to farm and garden produce, e.g., vegetables, fruit, livestock, eggs, etc., usually grown or used by the household.

(J) The amount of income earned by a child who is a student regularly attending a school, college, etc., is exempt. "Earned income" refers to all payments made to the student as compensation for services and includes payment from neighborhood youth corps, work-study and similar programs, as are wages from regular employment and self-employment income.

(1) To qualify for an exemption the individual must be both:

(a) A child under age eighteen (to meet the definition of "child" he must be neither married nor the head of a household).

(b) A student regularly attending school, college, university or a course of vocational or technical training designed to prepare him for gainful employment. Regular attendance is defined as full-time attendance. The statement of the school official as to whether the child is a full-time student is acceptable.

(2) This exemption is available in addition to the exemption applicable to the receipt of a grant, scholarship or fellowship, and any other earned income exemption.

(3) The amount of earned income which can be exempted under this provision is one thousand two hundred dollars in a calendar quarter with an overall limit of one thousand six hundred twenty dollars per calendar year. This provision permits the student-child to earn a significant amount of earnings in one quarter, i.e., the summer months, to cover school expenses and not lose his medicaid eligibility as long as he stays within the yearly limit. This exemption applies only to a student-child's own earned income.

(K) Twenty dollars of any income, earned or unearned other than income paid on the basis of need is disregarded. Only one twenty-dollar disregard is applied per couple. This disregard shall be applied in the manner that is most advantageous to the individual. The general guidelines are as follows:

(1) If there is earned income only, apply the entire amount of the disregard to that income.

(2) If there is unearned income only, apply the entire amount of the disregard to that income.

(3) If there is both earned and unearned income, the disregard is first applied toward the unearned income. Any amount of the disregard remaining is then applied to the earned income.

(L) The disregard allowed from an eligible individual's earned income is sixty-five dollars plus one-half of the remaining income. The purpose of this disregard is to cover the work-related expenses including mandatory deductions, union dues, transportation, etc. An eligible couple shall receive only one sixty-five dollars and one-half of the remainder disregard. The earned income disregard is applied to the gross earnings except in cases of self-employment. Then the earned income disregards apply to the net income.

(M) Earnings which are used to pay for blind work expenses are excluded from income.

(1) Blind work expenses represent any earned income of a blind person which is used to meet any expenses reasonably attributable to earning the income.

(2) The expenses are deducted from earned income if the blind person is under age sixty-five, or is sixty-five or older and received SSI due to blindness for the month before attaining age sixty-five.

(3) The exclusion applies only to earned income. Expenses in excess of the earned income an individual receives during the month are never deducted from unearned income.

(4) The exclusion is applied to earned income immediately after applying any portion of the twenty dollars general income disregard which has not been deducted from unearned income and all other earned income exclusions except the exclusion of income used to fulfill an approved plan for achieving self-support (PASS).

(5) The cost for any work-related item paid by a blind person may be deducted regardless of any nonwork benefit that may be derived from the item or the item's relationship to the person's blindness. A blind individual can claim the amount withheld for federal, state, and local income taxes even though other factors may affect his tax liability (e.g., Number of dependents, business loss, etc.).

(6) Examples of items that can be deducted include, but are not limited to, a dog guide and the attending costs of maintaining the dog (food, license, veterinary services, etc.), Union dues, professional association dues, other fees, transportation to and from work (mileage is twenty-eight cents per mile), vehicle modification, training to use an impairment-related item or an item which is reasonably attributable to work, social security taxes (but not social security taxes withheld from sick pay), mandatory pension contributions, meals consumed during work hours, attendant care services, structural modifications to the individual's home to create a work space or to allow the individual to get to and from work, medical devices, or prostheses.

(7) The following items cannot be deducted from earned income as an exclusion: in-kind payments, expenses deducted under other sections (e.g., PASS), expenses which will be reimbursed, life maintenance expenses (e.g., meals consumed outside of work hours, self-care items, general educational development, savings plans such as IRA's or voluntary pensions, life and health insurance premiums, items furnished by others that are needed in order to work or expenses claimed on a self-employment tax return).

(8) Documentation is required for any exclusions that are being claimed. If documentation cannot be obtained, the CDHS shall accept the individual's allegation of the expense amount if the amount appears reasonable (e.g., lack of receipts for dog food, etc.).

(N) Workers' compensation payments are awarded to an injured employee or his survivor(s) under the federal and state worker compensation laws. The payments may be made by a federal and state agency, an insurance company, or an employer.

(1) The worker's compensation payment, less any expenses incurred in obtaining the payment, is considered unearned income.

(2) Any portion of a workers' compensation award or payment that the authorizing or paying agency or employer designates for medical expenses or legal or other expenses attributable to obtaining the award is not income. The expenses may be past, current, or future. The workers' compensation payments designated for such expenses may be received in a lump sum or as a continuing payment. If the award notice includes monies designated for expenses, but does not specify the amount designated, verification from the paying agency or employer must be obtained.

(3) If an individual alleges having incurred expenses that exceed amounts designated for expenses as stated above, or for which no amount was designated, the expenses must be verified by the applicant/recipient as an essential factor in obtaining the payment. If an individual is claiming medical expenses related to the injury, he must verify that the expenses will not be paid directly to the paying agency or employer.

(4) There is no resource exclusion that applies to workers' compensation payments that have been deducted from income. Any monies excluded above are excluded in the month of receipt and are considered a countable resource the month after the month of receipt.

(O) Impairment-related work expenses are expenses for items or services which are directly related to enabling a person with a disability to work and which are necessarily incurred by that individual because of a physical or mental impairment.

(1) The need for an impairment-related item or service is established where an individual's disability is sufficiently severe to result in functional limitations requiring assistance in order for him or her to work.

(2) A payment for a service or item is excludable when the individual is disabled (but not blind) and is under age sixty-five or received SSI as a disabled individual for the month before attaining age sixty-five and:

(a) The severity of the impairment requires the individual to purchase or rent items and services in order to work; and,

(b) The expense is reasonable; and,

(c) The cost is paid in cash (including checks or other forms of money such as money orders, credit and/or charge cards) by the individual and is not reimbursable from another source (e.g., Medicare, private insurance); and,

(d) The payment is made in a month the individual receives earned income for a month in which he both worked and received the services or used the item, or, the individual is working but makes a payment before the earned income is received.

(3) This exclusion only applies to earned income. Exclusions in excess of the earned income an individual receives during the month are never deducted from unearned income.

(4) In some cases there may be a question as to whether the amount which the individual paid or is paying for a service or item is within "reasonable limits." If there is a question that the amount is unrealistic or the cost of the service or item on its face appears unrealistic (e.g., payment of three hundred dollars for a pair of wooden crutches), the CDHS should contact other sources in the community who provide the same item or service to ascertain the standard costs for such an item or service. When the inquiries to other sources provide cost information establishing that the cost the individual paid is unreasonable, i.e., exceeds standard costs, then the highest standard cost figure secured from the sources contacted, not to exceed the actual amount paid, should be used as the deductible amount. Documentation should be placed in the case file.

(a) No deduction is allowed to the extent that payment has been or will be made by another source. No deduction will be allowed to the extent that the individual has been, could be or will be reimbursed for such cost by any other source (such as through a private insurance plan, medicare or medicaid, or other plan or agency).

(b) The individual must verify the need for the item or service with the prescribing physician or other prescribing source. It must be verified that the services or items used are actually required to control the disabling condition, or are necessary for the person to travel to and from work, or that they are essential for the individual to perform the physical and/or mental demands of the job.

(c) In order to obtain a well-founded opinion from the prescribing source as to whether an impaired individual needs an item or service to enable them to work, it will be necessary to obtain a thorough description of the physical and mental activities required in the individual's job.

(d) When the individual is claiming a deduction for IRWE, the CDHS must document in the case record the individual's description of the impairment(s), the physical and/or mental activities required for the job, the services or impairment-related items prescribed and who is providing the service and/or item.

(e) The CDHS must also obtain a statement from the provider as to what impairment(s) the item is required, would the individual have the functional capacity to perform the demands and duties of his/her job without the item, and the amount and date the individual paid for the item.

(f) The individual must provide proof that he or she paid for the item or service. A verifying statement signed by the individual and copies of canceled checks or paid receipts, etc., would be adequate to prove payment. The proof must also include a statement that no reimbursement will be received for the IRWE and that no agency or other source is underwriting the expense for the individual.

(g) Whenever services (attendant care, transportation) are involved, the case record must contain documentation as to whether or not the provider of the service is a family member. If the provider is a family member, the following documentation must also be included on the statement completed by the individual and the attendant: a statement of the attendant's duties and periods of time when performed, certification that services have been rendered and that payment in cash (including checks or other forms of money, but not payment "in kind") is being received from the individual, evidence that payment is made on a regular basis (e.g., canceled checks), a statement which establishes the history of the individual's need for an attendant, i.e., information which establishes prior ongoing employment of an attendant before the issue of IRWE became relevant to the impaired individual, and a statement which establishes how the family member suffers an economic loss by serving as attendant (e.g., identify the job which the attendant relinquished, or document the reduction of hours in other remunerative work, and record the date that work stopped or hours were reduced). A family member is anyone who is related to the individual by blood, marriage, or adoption, whether or not that person lives with the individual.

(h) The exclusion is applied to earned income in the following sequence: immediately after deducting any portion of the twenty-five dollar general income disregard which has not been deducted from unearned income and the sixty-five dollar earned income exclusion and immediately before deducting one-half of the remaining earned income.

(i) If the cost of an item has been deducted in figuring net earnings from self-employment, it cannot be deducted as a work expense.

(j) If a medical or transportation expense is allowed as an IRWE, that same expense cannot be used to meet the individual's spenddown. Only transportation expenses that are medically necessary for the treatment of a disability or illness are allowed as a spenddown expense.

(k) The following are some types of expenses that are not deductible: union dues, professional association dues, licenses, income taxes, social security taxes, mandatory and voluntary pension contributions, meals consumed during work hours.

(1) Training and/or nonmedical equipment/services must be for an impairment-related item or service in order to be deductible.

(2) The costs of routine medical services are not deductible unless the medical services are necessary to control the disabling condition so as to enable the individual to work.

(l) The following are types of expenses that may be considered as deductions for impairment-related work expenses:

(1) Rentals or leases - the allowable deductible amount is the actual monthly charge that does not exceed the standard or normal rental or lease charge for the same or similar items in the individual's community.

(2) Transportation costs which the impaired individual necessarily incurs because of his or her impairment are deductible as specified below:

(a) Modified vehicles - where structural or operational modifications are made to a vehicle (e.g., a handbrake is specially installed on an automobile for the individual whose impairment involves the legs, or an electric lift is added to a van for the individual who is wheel-chair confined), without which the impaired individual could not get to and from work, the actual cost of the modification (but not the cost of the vehicle) is deductible if paid by the impaired individual.

(b) In addition to the cost of modification, the operating costs of a modified vehicle which are directly related to work (and for travel to and from place of employment) are also deductible. For the purpose of IRWE, the determination of operating costs of a vehicle is based upon the class of that vehicle and on a mileage rate corresponding to that class. Operating costs include: depreciation, finance charges, gas and oil (including taxes), maintenance and repairs, parts and tires, tolls and parking, insurance, licenses, title, registration and inspection fees, and local, state and federal taxes. These operating costs are based on data compiled by the federal highway administration. Additional deductions for the cost of any of the above items are not permitted.

(c) Use the following chart to determine the allowable mileage rates for various vehicles.

Vehicle Class Allowable

----------------------------------------------- Mileage Rate

------------------------

(cents per mile)

------------------------

Subcompact 28.9

Compact 29.5

Intermediate 33.4

Full-sized car 37.9

Compact pickup 30.6

Full-sized pickup 35.1

Minivan 35.3

Full-sized van 44.8

Unknown 31.5

(d) Determine the monthly operating cost as follows: calculate the individual's daily mileage cost to and from work according to the rates shown above. Multiply the daily mileage cost by the number of days worked per week to obtain the weekly amount. Multiply the weekly amount by 4.3 to determine the monthly amount.

(3) An individual has a deductible transportation expense when a physician verifies that the individual, because of his or her impairment requires a special means of travel to and from work, and the individual's situation appears to warrant deduction of the expense. Evaluation of special transportation situations must be based on two factors: the availability of public transportation in the individual's community, and the individual's capacity to drive a vehicle to work. Public transportation means standard public forms of transit designed for use by the general public. If the individual can use public transportation and his or her impairment does not prevent getting to and from, and traveling on, public transit, transportation expenses may not be deducted as IRWE. If the individual cannot use public transportation because of physical or mental limitations resulting from impairment, when the need and payment are verified, the following special travel expenses may be deducted: the cost of a trip to and from work by taxicab; or the cost of the impaired individual's driving an unmodified vehicle to and from work (at the rate stated above); or the cost of paying another person (not a cab driver) to drive the individual to and from work in his or her own vehicle. The vehicle operating costs (as indicated above) are deductible, in addition to any reasonable amount paid the driver. If the driver is a family member, the payment in cash or by check for the service must be verified.

(4) Attendant care - attendant care services are those forms of physical assistance which help an impaired individual meet his or her essential personal needs at home or at work, such as bathing, toileting, dressing, cooking, eating, communicating, traveling to and from work, and similar personal needs. However, in many cases the attendant may perform services which do not fall under one of the above categories of personal needs. Therefore, the total amount paid to the attendant each month should not be deducted, but only the amount which covers those services related to assisting the individual to prepare for work, getting the individual to and from work, helping the individual on the job, and assisting the individual immediately upon returning home from work. In order to determine the amount to be deducted as an IRWE for attendant care services, prorate the attendant's earnings as follows: determine the number of hours spent each day by the attendant in providing the specified allowable services, divide the attendant's monthly earnings by the total number of hours worked in a month (or divide the weekly earnings by the number of hours worked in a week) in order to ascertain the hourly wage, multiply the number of allowable attendant care hours by the hourly wage to arrive at daily attendant care expenses, multiply the amount of allowable daily attendant care expenses by the number of work days in the month to arrive at the deductible expense for attendant care services for the month.

Eff 9-3-77; 12-31-77; 3-1-79; 10-1-79; 12-1-79; 1-3-80; 3-1-84; 10-1-88 (Emer.); 12-20-88; 7-1-89 (Emer.); 9-23-89; 10-1-89 (Emer.); 12-16-89; 2-7-91 (Emer.); 5-1-91; 7-18-91; 10-1-91; 1-1-92; 4-1-92; 6-1-92 (Emer.); 8-13-92; 10-1-92 (Emer.); 12-21-92; 8-18-93 (Emer.); 11-1-93; 3-1-94 (Emer.); 4-18-94; 7-1-94; 10-7-94; 1-1-95; 4-1-95; 7-1-96 (Emer.); 9-1-96; 5-1-97; 10-31-97 (Emer.); 1-26-98; 3-1-98 (Emer.); 5-1-98; 9-10-99
Rule promulgated under: RC 111.15 .
Rule authorized by: RC 5101.01 , 5101.011
Rule amplifies: RC 5101.01 , 5101.011
RC 119.032 REVIEW DATE: 1/26/03

5160:1-3-19 Medicaid: deeming of income.

(A) Introduction.

(1) When an eligible individual resides in the same household with his or her ineligible spouse, or a child under age eighteen resides in the same household with his or her parent(s), a portion of the income and resources of such spouse or parent are included in determining the individual's eligibility for medicaid for the aged, blind or disabled.

(2) The basis for the deeming of income lies in the concept that a husband and wife, and parents of children under age eighteen, who are living together have a responsibility for each other to share income and resources. However, it is unrealistic and inequitable to assume that all of one individual's income and resources are totally available to the other person. This provision sets forth a formula for calculating the amount of income that the ineligible spouse or parent is responsible to deem to an otherwise-eligible spouse or child. This formula is utilized instead of determining support and maintenance in accordance with rule 5101:1-39-17 of the Administrative Code.

(B) Definitions:

(1) "Allocation," for the purpose of this rule, means an amount deducted from income subject to deeming, which is considered to be set aside for the support of certain individuals other than the eligible individual.

(2) "Child," for deeming purposes, means an individual under age eighteen who lives in a household with one or both parents and is neither married nor head of household. The deeming of parental income applies through the month in which the child becomes eighteen years old. An eligible or ineligible child's income and/or resources are never deemed to parent(s) or sibling(s).

(3) "Deemed income" means income attributed to another person whether or not the income is actually available to the person to whom it is deemed.

(4) "Deemor" means an individual whose income and/or resources are subject to deeming. Such individuals include ineligible parents, sponsors of aliens, ineligible spouses, and essential persons. It does not matter whether these individuals have sufficient income or resources to deem; they are still considered to be deemors. The type of income such an individual receives does not exclude him or her from this definition.

(5) "Eligible child" means a child in the household who has applied for medicaid for the aged, blind or disabled, and who meets all of the applicable non-financial and financial medicaid eligibility criteria.

(6) "Eligible parent" means a parent in the household who has applied for medicaid for the aged, blind or disabled, and who meets all of the applicable non-financial and financial medicaid eligibility criteria.

(7) "Eligible spouse" means the member of the married couple who has applied for medicaid for the aged, blind or disabled, and who meets all of the applicable non-financial and financial medicaid eligibility criteria.

(8) "Household" means the eligible individual, the individual's spouse, any of the couple's children or the children of either member of the couple, the eligible child, the eligible child's parent(s), other children of the parent(s), or the eligible individual and the individual's essential person.

(a) A household does not exist if an individual or a group of individuals does not have a residence. In such a case, only the eligible individual's income is used to determine medicaid eligibility.

(b) If a child is born in an institution (e.g., a hospital) the child is a member of the household at the time of birth unless the parents have completed the required paperwork to give the child up for adoption or the child has been placed in the temporary custody of a public children's services agency.

(c) An eligible individual or an ineligible spouse or parent who is temporarily absent, as defined in rule 5101:1-37-01 of the Administrative Code, is still considered to be a member of the household for deeming purposes.

(9) "Individual" has the same meaning as in rule 5101:1-37-01 of the Administrative Code.

(10) "Ineligible child" means a child in the household who does not meet all of the eligibility criteria for medicaid for the aged, blind or disabled.

(11) "Ineligible parent" means an eligible child's parent who does not meet all of the eligibility criteria for medicaid for the aged, blind or disabled.

(12) "Ineligible spouse" means an eligible individual's husband or wife who does not meet all of the eligibility criteria for medicaid for the aged, blind or disabled.

(13) "Parent" means a natural or adoptive father or mother living in the same household as the eligible child. The income of a stepparent who lives with the eligible child is deemed to the child only when the natural or adoptive parent also lives in the household with the stepparent and the child. If the natural or adoptive parent divorces a stepparent and the child is living with the stepparent, the stepparent is not a parent or spouse for deeming purposes.

(14) "Sponsor" means an individual who signs an affidavit of support agreeing to support an alien as a condition of the alien's admission for permanent residence in the U.S. An alien may have more than one sponsor. For deeming purposes, a sponsor does not include an organization such as the congregation of a church or a service club, or an employer who only guarantees employment for an alien upon entry but does not sign an affidavit of support.

(15) "Sponsored alien," for purposes of this rule, means an alien whose sponsor as described in paragraph (B)(14) of this rule is the ineligible spouse or parent in the household being considered.

(16) "Spouse" means a person who is legally married to another under Ohio law.

(C) In accordance with 20 C.F.R. 416.1161 (as in effect on March 1, 2013), when determining the income of an ineligible spouse, parent or sponsor of an alien, or of an ineligible child in the household, the following items shall not be considered income:

(1) Income excluded by federal laws other than the Social Security Act;

(2) Any public income-maintenance (PIM) payments, as defined in 20 C.F.R. 416.1142(a) (as in effect on March 1, 2013), received by the ineligible spouse or parent(s), or by an ineligible child in the household, and any income which was counted or excluded in figuring the amount of that payment;

(3) Any of the income of the ineligible spouse or parent that is used to determine the amount of a PIM payment to someone else;

(4) Any portion of a grant, scholarship, fellowship, or gift used or set aside to pay tuition, fees or other necessary educational expenses;

(5) Money received for providing foster care to an ineligible child;

(6) The value of food assistance and the value of foods donated by the department of agriculture;

(7) Food raised and consumed by members of the household;

(8) Tax refunds on income, real property, or food purchased by the family;

(9) Income used to fulfill an approved plan for achieving self-support (PASS), as defined in 20 C.F.R. 416.1181 (as in effect on March 1, 2013);

(10) The amount of court-ordered child support payments paid by a household member for a child outside the home.

(11) The value of in-kind support and maintenance;

(12) Alaska longevity bonus payments made to an individual who is a resident of Alaska and who, prior to October 1, 1985, met the twenty-five-year residency requirement for receipt of such payments in effect prior to January 1, 1983, and was eligible for supplemental security income (SSI);

(13) Disaster assistance as described in 20 C.F.R. 416.1150 and 416.1151 (as in effect on March 1, 2013);

(14) Income received infrequently or irregularly, as defined in 20 C.F.R. 416.1112(c)(2) and 416.1124(c)(6) (as in effect on March 1, 2013);

(15) Blind work expenses of the ineligible spouse or parent;

(16) Income of the ineligible spouse or ineligible parent which was paid under a federal, state, or local government program to provide the eligible individual with chore, attendant or homemaker services;

(17) Certain support and maintenance assistance as described in 20 C.F.R. 416.1157(c) (as in effect on March 1, 2013);

(18) Housing assistance as provided in 20 C.F.R. 416.1124(c)(14) (as in effect on March 1, 2013);

(19) The value of a commercial transportation ticket as described in 20 C.F.R. 416.1124(c)(16) (as in effect on March 1, 2013). However, if such a ticket is converted to cash, the cash is income in the month the spouse or parent receives the cash;

(20) Refunds of federal income taxes and advances made by an employer relating to an earned income tax credit, as provided in 20 C.F.R. 416.1112(c) (as in effect on March 1, 2013);

(21) Payments from a fund established by a state to aid victims of crime, as described in 20 C.F.R. 416.1124(c)(17) (as in effect on March 1, 2013);

(22) Relocation assistance, as described in 20 C.F.R. 416.1124(c)(18) (as in effect on March 1, 2013);

(23) Combat pay received from one of the uniformed services pursuant to 37 U.S.C. 310 (as in effect on March 1, 2013);

(24) Impairment-related work expenses, as described in 20 CFR 404.1576 (as in effect on March 1, 2013), incurred and paid by an ineligible spouse or parent, if the ineligible spouse or parent receives disability benefits under title II of the act;

(25) Interest earned on excluded burial funds and appreciation in the value of excluded burial arrangements which are left to accumulate and become part of separate burial funds, and interest accrued on and left to accumulate as part of the value of agreements representing the purchase of excluded burial spaces, as described in 20 C.F.R. 416.1124(c) (9) and (15) (as in effect on March 1, 2013);

(26) Interest and dividend income from a countable resource or from a resource excluded under a federal statute other than section 1613(a) of the Social Security Act (as in effect on March 1, 2013); and

(27) Earned income of a student as described in 20 C.F.R. 416.1112(c)(3) (as in effect on March 1, 2013).

(D) If the eligible spouse or parent(s) is/are receiving Ohio works first (OWF) or SSI payments, then the payments themselves and any of the OWF- or SSI-eligible individual's own income that was used to compute eligibility for such payments are not considered available for deeming. The income of a spouse or parent not in receipt of OWF or SSI is considered available and must be deemed even if the income was used to determine the OWF, or SSI payment for another member of the household.

(E) When an individual is living in the same household with an ineligible spouse who has income, perform the following steps to calculate the amount of income to deem to the individual:

(1) Determine the ineligible spouse's income, applying any appropriate exclusions listed in paragraph (C) of this rule;

(2) Deduct the appropriate allocation for each ineligible child in the household and for each eligible alien sponsored by the ineligible spouse:

(a) The allocation amount is the current SSI federal benefit rate (FBR) for a couple minus the current FBR for an individual.

(b) The allocation for each ineligible child in the household or sponsored alien is reduced by the amount of that child's or alien's income, minus any appropriate exclusions listed in paragraph (C) of this rule.

(c) The ineligible child or sponsored alien allocation(s) must first be taken from the ineligible spouse's unearned income; any remaining allocation amount will be subtracted from the ineligible spouse's earned income.

(3) If the ineligible spouse's remaining income after subtracting the ineligible child or sponsored alien allocation is less than or equal to the current FBR for a couple minus the current FBR for an individual:

(a) Do not deem any income to the individual;

(b) Compare the individual's own income to the current medicaid need standard for an individual.

(4) If the ineligible spouse's remaining income after subtracting the ineligible child or sponsored alien allocation is greater than the current FBR for a couple minus the current FBR for an individual, treat the spouses as if they were an eligible couple:

(a) Combine both spouses' post-allocation earned and unearned incomes;

(b) Subtract the twenty-dollar general disregard from the unearned income; if there is less than twenty dollars of unearned income, subtract the rest of the disregard from the earned income;

(c) Subtract sixty-five dollars from the earned income, then subtract one-half of the remaining earned income.

(d) If the couple's countable income is less than or equal to the current medicaid need standard for a couple, the individual is financially eligible for medicaid.

(e) If the couple's countable income is greater than the current medicaid need standard for a couple, the individual is subject to spenddown provisions as defined in rule 5101:1-39-10 of the Administrative Code.

(F) When an eligible child or children reside(s) with an ineligible parent or parents, perform the following steps to calculate the amount of income to deem to the child(ren):

(1) Determine the income of the ineligible parent(s), applying any appropriate exclusions listed in paragraph (C) of this rule;

(2) Deduct the appropriate allocation for each ineligible child in the household and for each eligible alien sponsored by the ineligible parent:

(a) There is no allocation for an ineligible child receiving PIM payments as described in paragraph (C)(2) of this rule;

(b) The allocation amount is the current FBR for a couple minus the current FBR for an individual.

(c) The allocation for each ineligible child or sponsored alien in the household is reduced by the amount of that child's or sponsored alien's income minus any appropriate exclusions listed in paragraph (C) of this rule.

(d) The ineligible child or sponsored alien allocation(s) must first be taken from the unearned income of the ineligible parent(s); any remaining allocation amount will be subtracted from the earned income of the ineligible parent(s).

(3) Subtract the twenty-dollar general disregard from the unearned income of the ineligible parent(s); if there is less than twenty dollars of unearned income, subtract the rest of the disregard from the earned income of the ineligible parent(s).

(4) Subtract sixty-five dollars from the earned income of the ineligible parent(s), then subtract one-half of the remaining earned income.

(5) Combine the ineligible parents' remaining earned and unearned income.

(6) Subtract the appropriate parental living allowance:

(a) There is no parental living allowance deducted for any parent who receives PIM payments as described in paragraph (C)(2) of this rule;

(b) If two parents (or one parent and a step-parent) reside in the household with the child(ren), subtract the current FBR for a couple;

(c) If one parent resides in the household with the child(ren), subtract the current FBR for an individual;

(d) If both natural or adoptive parents and a step-parent reside in the household with the child(ren), subtract both the current FBR for a couple and the current FBR for an individual.

(7) Divide the remaining income by the number of eligible children the household, and deem the resulting amount to each child.

(8) Any income deemed to a child from an ineligible parent is added to the child's own unearned income.

(9) Subtract the twenty-dollar general disregard from the child's unearned income; if the child has less than twenty dollars of unearned income, subtract the remainder of the disregard from the child's earned income.

(10) Subtract sixty-five dollars from the child's earned income, then subtract one-half of the remaining earned income.

(11) Combine the child's earned and unearned income.

(12) If the result is less than or equal to the current medicaid need standard for an individual, the child is financially eligible for medicaid.

(13) If the result is more than the current medicaid need standard for an individual, the child is subject to spenddown provisions as defined in rule 5101:1-39-10 of the Administrative Code.

(G) When a household comprises an ineligible spouse/parent, an eligible spouse, and one or more children, the ineligible spouse/parent's income is deemed both to the eligible spouse and to the eligible child(ren).

(1) Determine the income of the ineligible spouse/parent, applying any appropriate exclusions listed in paragraph (C) of this rule;

(2) Deduct the appropriate allocation for each ineligible child in the household and for each eligible alien sponsored by the ineligible spouse/parent;

(3) If the ineligible spouse's remaining income after subtracting the ineligible child or sponsored alien allocation is less than or equal to the current FBR for a couple minus the current FBR for an individual:

(a) Do not deem any income to the eligible spouse or child(ren);

(b) Compare the eligible spouse's and children's own income to the current medicaid need standard for an individual.

(4) If the ineligible spouse/parent's remaining income after subtracting the ineligible child or sponsored alien allocation is greater than the current FBR for a couple minus the current FBR for an individual:

(a) Round down the ineligible spouse/parent's income to the nearest dollar;

(b) Divide the result by the number of eligible individuals (spouse and child(ren)) and round down to the nearest dollar;

(c) Deem the resulting quotient to each eligible individual.

(5) Any income deemed to an eligible individual from an ineligible spouse/parent is added to the eligible individual's own unearned income.

(6) Subtract the twenty-dollar general disregard from each eligible individual's unearned income; if the individual has less than twenty dollars of unearned income, subtract the rest of the disregard from the individual's earned income;

(7) Subtract sixty-five dollars from the eligible individual's earned income, then subtract one-half of the individual's remaining earned income.

(8) Compare the eligible spouse's resulting countable income to the current medicaid need standard for couples:

(a) If the eligible spouse's resulting countable income is less than or equal to the current medicaid need standard for couples, the eligible spouse is financially eligible for medicaid.

(b) If the eligible spouse's resulting countable income is greater than the current medicaid need standard for couples, the eligible spouse is subject to spenddown provisions as defined in rule 5101:1-39-10 of the Administrative Code.

(9) Compare each eligible child's final countable income to the current medicaid need standard for an individual:

(a) If the eligible child's resulting countable income is less than or equal to the current medicaid need standard for an individual, the eligible child is financially eligible for medicaid.

(b) If the eligible child's resulting countable income is greater than the current medicaid need standard for an individual, the eligible child is subject to spenddown provisions as defined in rule 5101:1-39-10 of the Administrative Code.

(H) Refer to rule 5101:1-2-35 of the Administrative Code for sponsor-to-alien deeming requirements.

Replaces: 5101:1-39-19

Effective: 03/01/2013
R.C. 119.032 review dates: 03/01/2018
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 12/31/77, 3/1/79, 10/1/79, 12/7/79, 1/3/80, 2/15/85 (Emer), 5/14/85 (Emer), 6/10/85, 10/1/88 (Emer), 12/20/88, 1/1/91, 1/1/92, 7/1/92, 8/18/93 (Emer), 11/1/93, 3/1/94 (Emer), 4/18/94, 4/1/95 (Emer), 6/11/95, 10/1/95, 10/1/96 (Emer), 12/15/96, 10/1/02

5160:1-3-21 Medicaid: standards and allocations.

(A) Following is a chart of the monthly income levels or need standards applied in the medicaid program for aged, blind, or disabled assistance groups. For an eligible individual, countable income is compared to the appropriate individual need standard. For an eligible couple, countable income is compared to the appropriate couple need standard. For an eligible individual with an ineligible spouse, countable income is compared to the appropriate individual need standard. Effective January 1, 2002 the standards are:

Individual Need Standard

Own household $ 472.00

Household of another $ 315.00

Institutionalized individual (Special income $ 1635.00 level)

Couple Need Standard

Own household $ 817.00

Household of another $ 545.00

(B) The qualified medicare beneficiary QMB need standard is increased annually each April by the increase of the federal poverty level. The QMB need standard is one hundred per cent of the federal poverty level.

The annual social security administration cost-of-living adjustments (COLA) are to be disregarded as income for the first three months (January, February, and March) for QMB eligibility determinations. The COLA is treated as countable income when the QMB need standard is increased each April.

(C) The qualified working disabled individual (QWDI) need standard is increased annually each February by the increase of the federal poverty level. The QWDI need standard is two hundred per cent of the federal poverty level.

(D) The specified low-income medicare beneficiary (SLMB) need standard is increased annually each April by the increase of the federal poverty level. Effective January 1, 1995, the SLMB need standard is one hundred twenty per cent of the federal poverty level.

The annual social security administration COLA is disregarded as income for the first three months (January, February, and March) for SLMB eligibility determinations. The COLA is treated as countable income when the SLMB need standard is increased each April.

(E) The following is a chart of the monthly income allocations applied in the deeming process:

Ineligible spouse $ 163.00

Ineligible parent $ 325.00

Two ineligible parents $ 488.00

Each ineligible child $ 163.00

Work expense deduction for an ineligible spouse or parent $ 65.00

(F) The following are the most commonly used deductions from income in the medicaid program:

General income disregard $ 20.00

Earned income disregard $ 65.00 and 1/2 remainder

Eff 9-3-77; 12-31-77; 3-1-79; 10-1-79; 12-7-79; 1-3-80; 7-1-80; 8-1-81; 7-1-82; 12-1-82; 7-1-83 (Temp); 9-24-83; 1-1-85 (Emer.); 4-1-85; 5-1-85 (Emer.); 7-31-85; 1-1-86 (Emer.); 4-1-86; 1-1-87 (Emer.); 3-20-87; 1-1-88 (Emer.); 2-1-88 (Emer.); 3-21-88; 1-1-89 (Emer.); 4-1-89; 5-1-89 (Emer.); 7-8-89; 1-1-90 (Emer.); 4-1-90; 4-2-90 (Emer.); 6-22-90; 1-1-91 (Emer.); 4-1-91; 4-2-91 (Emer.); 6-17-91; 1-1-92 (Emer.); 3-20-92; 4-1-92 (Emer.); 6-30-92; 1-1-93 (Emer.); 3-18-93; 3-25-93; 6-11-93; 9-1-93; 3-18-94; 2-1-95; 4-1-95 (Emer.); 6-11-95; 4-1-96; 1-1-97 (Emer.); 2-9-97; 12-3-97 (Emer.); 2-1-98; 1-8-99 (Emer.); 4-1-99; 1-1-00 (Emer); 4-1-00; 6-2-01; 5-12-02
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.011
Rule amplifies: RC 5111.01 , 5111.01.1
R.C. 119.032 review dates: 3/16/2006

5160:1-3-22 [Rescinded] Medicaid: treatment of income and resources of institutionalized individuals.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 12/31/77, 3/1/79, 10/1/79, 12/17/79, 1/21/80, 9/1/82, 12/7/83, 7/25/84 (Temp.), 10/1/84, 10/1/88 (Emer.), 12/20/88, 1/1/90 (Emer.), 4/1/90, 4/1/91

5160:1-3-22.7 Medicaid: retirement and income supplementing accounts (RISAs).

(A) This rule defines how retirement and income supplementing accounts (RISAs) are treated for purposes of determining medicaid medical assistance eligibility.

(B) Definitions.

(1) "Administrative agency" is means the county department of job and family services, the Ohio department of job and family services, or other entity that determines eligibility for a medical assistance program.

(2) A "Community community spouse" is means an individual who an individual who is not in a medical institution or nursing facility and has an institutionalized spouse, except that neither of two spouses, married to each other, who both request or receive services under a home and community-based services (HCBS) waiver program or program of all inclusive care for the elderly (PACE) is considered to meet this definition.:

(a) Is not in a medical institution or nursing facility; and,

(b) Has an institutionalized spouse.

(3) An "Individual individual" is means:

(a) An applicant for or recipient of medicaid medical assistance; and,

(b) Includes, for the purposes of this rule, the community spouse of either an institutionalized individual or an individual who requests or receives long term care services under home and community-based services (HCBS) under the special home and community-based services waiver covered group or PACE.

(4) "Institutionalized" describes means an individual who is likely to be in a medical institution or nursing facility for at least thirty consecutive days or who is eligible for and receives HCBS under the special home and community-based services waiver covered group. receives long term care services in a medical institution, a long term care facility, under an HCBS waiver program, or under PACE.

(5) "Retirement and income supplementing accounts (RISAs)" are plans designed to provide unearned income to supplant or supplement earned income. RISAs may include, but are not limited to such plans as: public and private pension, disability, or retirement plans; defined benefit employer pension planplans, profit sharing pension planplans, 403 (b) pension planplans, money purchase pension planplans, employee stock ownership plan, individual retirement account accounts (IRA); KEOGH pension planplans, Roth IRAIRAs, simplified employee pension plan plans (SEP-IRA), and 401k pension planplans; or any other pension or retirement plan plans authorized under 401, 403, 408 of the Internal Revenue Code (IRC) as outlined in 26 U.S.C, as in effect on March 9, 2002, or any subsequently enacted IRC provisions providing for a pension or retirement plan. or any other similar financial vehicles administered by an individual, employer, or union. A RISA converted into an annuity shall be considered in accordance with rule 5101:1-39-22.8 of the Administrative Code.

(C) RISAs treated as a resource.

(1) A RISA is a countable resource if the individual or the community spouse has an ownership interest in the RISA and the legal ability to convert it to cash. This determination shall be made by reference to documentation describing the RISA and/or a letter from the plan administrator. Self defined retirement plans such as an IRA or KEOUGH KEOGHplan are examples of this type of RISA.

(2) If there is a financial penalty imposed by the plan administrator in order to convert the account to cash, the amount of the countable resource is the net amount payable to the individual after deducting the penalty. The amount payable may not be further reduced by the amount of any tax incurred by the individual as a result of the conversion of the account to cash.

(3) A RISA is not a resource if an individual must terminate employment in order to obtain any lump sum or payment.

(4) If the RISA is determined to be a non-countable resource, then the RISA shall be evaluated as a potential source of unearned income.

(5) A RISA determined to be a resource in accordance with paragraph (C) of this rule, which is owned by an ineligible spouse or parent of a non-institutionalized individual who is otherwise eligible for medicaid, shall not be considered available to the non-institutionalized individual.

(D) RISAs treated as income.

(1) The RISA shall be evaluated as a potential source of unearned income only after it is determined to be a non-countable resource.

(2) A RISA in which an individual has the legal ability to receive regular guaranteed lifetime payments will be treated as a source of unearned income rather than as a resource. A defined benefit employer pension plan is an example of this type of RISA.

(3) The individual is required to obtain the maximum available amount of payment from the plan. If the maximum available amount of payment requires the individual's spouse to consent to a waiver of the spouse's survivor benefits, the individual must document a good faith attempt to obtain that consent, and whether consent was obtained or refused. If consent is not obtained, the individual must elect the minimum spousal survivor benefit required by the plan.

(4) If allowed in the plan, the individual may elect a lesser payment in favor of retaining a minimum survivor benefit for a child who can be documented to be blind or disabled, as defined in rule 5101:1-39-03 of the Administrative Code.

(E) Administrative agency responsibilities.

(1) The administrative agency shall must evaluate any RISA of which the individual is a beneficiary.

(2) The administrative agency shall obtain the summary plan description or other document describing the rights and benefits under the RISA. A letter from the plan administrator may also be obtained to make the determinations required under this rule.

(3) The administrative agency must assist with obtaining verification in accordance with rule 5101:1-38-02 of the Administrative Code.

(F) Individual responsibilities.

(1) An individual is required to provide all available documentation to aid the administrative agency in evaluating any RISA of which the individual is a beneficiary.

(2) As a condition of medicaid medical assistance eligibility, the administrative agency shall require applicants and recipients to take all necessary steps to obtain any pensions, retirement, and disability benefits to which they are entitled, unless they can show good cause for not doing so. Pensions, retirement and disability benefits include, but are not limited to, veterans' compensation and pensions, old age, survivors, and disability insurance (OASDI) benefits, railroad retirement benefits, and unemployment compensation. An individual must access is required to avail him/herself of potential income prior to approval of medicaid medical assistance, in accordance with rule 5101:1-39-08 of the Administrative Code.

(G) Hearing rights.

(1) The administrative agency must issue proper notice and hearing rights as outlined in division 5101:6 of the Administrative Code.

Effective: 10/01/2006
R.C. 119.032 review dates: 07/14/2006 and 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.11
Rule Amplifies: 5111.01 , 5111.11
Prior Effective Dates: 1/1/93, 7/1/94, 12/1/2004

5160:1-3-22.8 Medicaid: the disclosure and treatment of annuities for recipients or applicants for medical assistance programs.

(A) This rule describes the treatment of annuities for recipients or applicants for medical assistance programs.

(B) Definitions.

(1) "Actuarially sound annuity" means a product designed to pay off the entire asset value over the actual or expected annuitant's lifetime.

(2) "Annuitant" means the individual who is entitled to receive payment from an annuity.

(3) "Annuitized" means an annuity providing payments to the individual or other entity.

(4) An "annuity" provides fixed, periodic payments, either for life or a term of years. When an individual purchases an annuity, he or she generally pays to the entity issuing the annuity a lump sum of money, in return for which he or she is promised regular payments of income for certain amounts. These payments may continue for a fixed period of time or for as long as the individual (or another designated beneficiary) lives. The annuity typically contains a remainder clause under which, if the annuitant dies, the contracting entity converts whatever is remaining in the annuity into a lump sum and pays it to a designated beneficiary.

(5) "Asset" means all income and resources of the individual and of the individual's spouse, including any income or resources that the individual or such individual's spouse is entitled to but does not receive.

(6) "Balloon payment" means a lump sum equal to the initial premium minus any distribution paid out prior to the end of the annuity period.

(7) "Community spouse" is an individual who is not in a medical institution or nursing facility and has an institutionalized spouse, except that neither of two spouses, married to each other, who both request or receive services under a home and community-based services (HCBS) waiver program or program of all inclusive care for the elderly (PACE) is considered to meet this definition.

(8) "Individual" means an applicant for or recipient of a medical assistance program.

(9) "Institutionalized" describes an individual who receives long term care services in a medical institution, a long term care facility, under an HCBS waiver program, or under PACE.

(10) "Remainder beneficiary" means the individual or entity who will receive the lump sum upon the death of the annuitant or the term of the annuity has expired.

(11) "Spouse" means a person who is considered legally married to another person under Ohio law.

(12) "Transaction" means any action taken by the individual or community spouse that changes the treatment of the income or principal of the annuity.

(C) Eligibility criteria.

(1) For any annuity purchased or annuity transaction completed on or after February 8, 2006, the purchase or transaction must be treated as the disposal of an asset for less than fair market value as outlined in rule 5101:1-39-07 of the Administrative Code unless:

(a) The state of Ohio is named as the remainder beneficiary in the first position for the total amount of medical assistance furnished to the individual; or

(b) The state of Ohio is named as such a beneficiary in the second position for the total amount of medical assistance furnished to the individual after the community spouse or minor or disabled child, and is named in the first position for the total amount of medical assistance furnished to the individual if such spouse or a representative of such child disposes of any such remainder for less than fair market value.

(2) The following annuity purchases are not considered a disposal of an asset for less than fair market value for any annuity purchased on or after February 8, 2006:

(a) An annuity described in subsection (b) or (q) of section 408 of the Internal Revenue Code of 1986 as in effect on August 31, 2005; or

(b) An annuity purchased with proceeds from:

(i) An account or trust described in subsection (a), (c), or (p) of section 408 of such code,

(ii) A simplified employee pension (within the meaning of section 408(k) of such code); or

(iii) a Roth IRA described in section 408A of such code; or

(3) For any annuity purchased on or after February 8, 2006, the purchased annuity must be irrevocable, non-assignable, and actuarially sound as determined by the life expectancy tables published by the office of the actuary of the social security administration in accordance with 26 C.F.R. 20.2031 -7, subpart E as in effect on April 1, 2005; and provides for payments in equal amounts during the term of the annuity with no deferral and no balloon payments made.

(a) For an annuity to be considered actuarially sound, the total amount of proceeds must be designed to be dispersed in equal monthly payments with no anticipated lump sum payment. The only allowable lump sum payment is the refund provided when the annuitant dies prior to the end of the guaranteed period and paid to the remainder beneficiary.

(b) The purchased annuity must not have a balloon payment provision unless the balloon payment designation is for the community spouse.

(c) Any annuity not providing fixed, monthly payments will be treated as a countable resource. Once annuitized, the annuity will be considered an exempt resource.

(d) Any fixed, monthly payment received from the annuity will be considered as unearned income to the named annuitant as outlined in rule 5101:1-39-16 of the Administrative Code.

(4) Treatment of annuities purchased prior to February 8, 2006.

(a) At any time, any person may use assets of an applicant/recipient to purchase an annuity that names the applicant/recipient as the owner and annuitant under the following conditions.

(i) The annuity must be purchased from a bank, insurance company, or other person engaged in the business of the sale of commercial annuities to the public.

(ii) The annuity may not make payments to other persons during the applicant/recipient's life.

(iii) The annuity must provide for all payments to be made during the life of the annuitant. To make this determination, the administrative agency shall use the life expectancy tables published by the office of the actuary of the social security administration in accordance with 26 C.F.R. 20.2031-7 , subpart E as in effect on April 1, 2005. If the table indicates that the annuitant will not live as long as the guaranteed period of the annuity, there is an improper transfer. The amount improperly transferred is the sum of all payments that can be made after the expected end of the life of the annuitant. The administrative agency shall determine the penalty in accordance with the rules governing improper transfers unless one of the exceptions in rule 5101:1-39-07 of the Administrative Code is met. The applicant/recipient may also rebut a finding of an improper transfer by establishing that the annuity provides the spouse is the remainder beneficiary, and all remaining payments will occur during the spouse's life as determined by the life expectancy tables published by the office of the actuary of the social security administration in accordance with 26 C.F.R. 20.2031 -7, subpart E as in effect on April 1, 2005.

(b) At any time before the first continuous period of institutionalization of the applicant/recipient, any person may use any amount of assets of a couple or of the applicant/recipient to purchase an annuity that names only the spouse of the applicant/recipient as the owner and annuitant under the following conditions.

(i) The annuity must be purchased from a bank, insurance company, or other person engaged in the business of the sale of commercial annuities to the public.

(ii) The annuity must be purchased before the applicant/recipient's "first continuous period of institutionalization" as defined in rule 5101:1-39-22 of the Administrative Code.

(iii) The annuity may not make payments to other persons during the spouse's life.

(iv) To make this determination, the administrative agency shall use the life expectancy tables published by the office of the actuary of the social security administration in accordance with 26 C.F.R. 20.2031-7 , subpart E as in effect on April 1, 2005. If the table indicates that the annuitant will not live as long as the guaranteed period of the annuity, the annuity is considered an improper transfer. The amount improperly transferred is the sum total of all payments that can be made after the expected end of the life of the annuitant. The administrative agency shall determine the penalty in accordance with the rules governing improper transfers unless one of the exceptions in rule 5101:1-39-07 of the Administrative Code is met. The applicant/recipient may also rebut a finding of an improper transfer by establishing that the annuity provides the spouse is the remainder beneficiary, and all remaining payments will occur during the spouse's life as determined by the life expectancy tables.

(c) At any time before the first continuous period of institutionalization, an applicant/recipient may purchase an annuity naming both the applicant/recipient and the spouse as the owners and annuitants under the following conditions.

(i) The annuity must be purchased from a bank, insurance company, or other person engaged in the business of the sale of commercial annuities to the public.

(ii) The annuity may not make payments to persons other than the applicant/recipient or the spouse while either live.

(iii) The annuity may designate a remainder beneficiary only if all annuity payments are expected to be made during the life of either or both of the annuitants. To make this determination, the administrative agency shall use the life expectancy tables published by the office of the actuary of the social security administration in accordance with 26 C.F.R. 20.2031 -7, subpart E as in effect on April 1, 2005.

(iv) If the table indicates that the annuitants will not live as long as the guaranteed period of the annuity, the annuity is considered an improper transfer. The amount improperly transferred is the sum total of all payments that can be made under the annuity reduced by the total of all payments that will be paid to the annuitants during their lives as determined by the table.

(d) At any time after the applicant/recipient's first continuous period of institutionalization, any part of the community spouse resource allowance established under rule 5101:1-39-36.1 or 5101:6-7-02 of the Administrative Code may be used to purchase an annuity for the benefit of any person without an adverse effect on the medicaid eligibility of the institutionalized spouse. However, if the community spouse uses part or all of the community spouse resource allowance to purchase an annuity, and later applies for medicaid, the community spouse as the applicant/recipient will also need to independently satisfy the requirements of this rule.

(e) At any time after the applicant/recipient's first continuous period of institutionalization, the community spouse resource allowance may be combined with resources in excess of the community spouse resource allowance for the purpose of purchasing an annuity naming both spouses as annuitants. Such a combined purchase is not an improper transfer under the following conditions.

(i) The annuity must be purchased from a bank, insurance company, or other person engaged in the business of the sale of commercial annuities to the public.

(ii) The annuity may not make payments to persons other than the applicant/recipient or the spouse while either live.

(iii) The annuity may designate a remainder beneficiary only if all annuity payments are expected to be made during the life of either or both of the annuitants. To make this determination, the administrative agency shall use the life expectancy tables published by the office of the actuary of the social security administration in accordance with 26 C.F.R. 20.2031 -7, subpart E as in effect on April 1, 2005.

(iv) If the table indicates that the annuitants will not live as long as the guaranteed period of the annuity, the annuity is considered an improper transfer. The amount improperly transferred is the sum of all payments that can be made under the annuity reduced by the sum of all payments that will be paid to the annuitants during their lives as determined by the table.

(v) The periodic payments must be equivalent to each respective spouse's contribution to the original purchase of the annuity. The community spouse must receive a periodic payment that is commensurate with a pro rata contribution to the purchase of the annuity. The amount of the transfer is the total value of all excess payments that are expected to be made over the life of the annuity.

(f) At any time after the applicant/recipient's first continuous period of institutionalization, the purchase of an annuity for the benefit of a community spouse with the institutionalized spouse's share of resources as established under rule 5101:1-39-36.1 of the Administrative Code is an improper transfer unless permitted as a result of a hearing conducted under rule 5101:6-7-02 of the Administrative Code.

(g) Any annuity provided for under paragraphs (C)(4)(a) to (C)(4)(k) of this rule that has not been annuitized shall be considered an available resource when completing a resource assessment.

(i) An annuity that is making payments in accordance with the provisions in paragraphs (C)(4)(a) to (C)(4)(k) of this rule, at the time of application for medicaid, will not be considered an available resource. However, any payments will be considered unearned income to the annuitant.

(ii) An annuity that is not making payments in accordance with the provisions in paragraphs (C)(4)(a) to (C)(4)(k) of this rule, is considered an available resource if the terms of periodic payments can be changed to conform with the provisions in paragraphs (C)(4)(a) to (C)(4)(k) of this rule.

(h) If an annuity contains a balloon payment provision, the life expectancy tables published by the office of the actuary of the social security administration in accordance with 26 C.F.R. 20.2031 -7, subpart E as in effect on April 1, 2005 may not be used. The value of the balloon payment is considered an improper transfer unless rebutted by the applicant/recipient. To rebut the presumption, the applicant must produce clear and convincing medical evidence that the annuitant is expected to actually live past the date of the balloon payment.

(i) Private annuity agreements are those not purchased from a bank, insurance company, or other person or entity engaged in the business of the sale of commercial annuities to the public. Assets or resources transferred, used, or otherwise exchanged for a private annuity agreement are considered an improper transfer. However, this is a rebuttable presumption subject to the rules governing improper transfers as delineated in paragraph (D) of rule 5101:1-39-07 of the Administrative Code.

(j) For the purposes of this rule, any improper transfer shall be considered to have occurred on the date of the purchase of the annuity, or on the date after which the terms of periodic payments can no longer be changed to conform with the provisions in paragraphs (C)(4)(a) to (C)(4)(k) of this rule, whichever is later.

(k) If the applicant/recipient or the community spouse is the annuitant of an annuity in which neither individual, at any time, held an ownership interest in the funds used to establish the annuity will not result in an improper transfer if the owner of the annuity fails to make the payments available.

(D) Administrative agency responsibilities.

(1) The administrative agency must request from the individual a disclosure of any annuity ownership the individual or community spouse has in an annuity for any annuity purchased on or after February 8, 2006 as outlined in rule 5101:1-38-01.2 of the Administrative Code.

(2) The administrative agency must explain as part of the application process or upon discovery, such provisions which require the state of Ohio to become a remainder beneficiary for any annuity purchased on or after February 8, 2006.

(3) The administrative agency must verify the remainder beneficiary designation in accordance with rule 5101:1-38-02 of the Administrative Code for any annuity purchased on or after February 8, 2006.

(E) Individual responsibilities.

(1) The individual is required to supply verification in accordance with Chapter 5101:1-38 of the Administrative Code.

(2) The individual applying for or receiving long term care services in a long term care facility, under a HCBS waiver program, or under PACE must disclose any annuity owned by either the institutionalized individual or community spouse.

(3) The individual applying for or receiving long term care services in a long term care facility, under a HCBS waiver program, or under PACE, or the community spouse must designate the state of Ohio as the remainder beneficiary for any annuity purchased on or after February 8, 2006, as follows:

(a) The state of Ohio is named as the remainder beneficiary in the first position; or

(b) The state of Ohio is named beneficiary in the second position after the community spouse or minor or disabled child and is named in the first position if such spouse or a representative of such a child disposes of any such remainder for less than fair market value.

(c) The individual is required to provide verification of the remainder beneficiary designation. Failure to provide verification will result in termination or denial for medical assistance as outlined in rule 5101:1-38-02 of the Administrative Code.

(F) Hearing rights.

(1) The administrative agency must issue proper notice and hearing rights as outlined in division 5101:6 of the Administrative Code.

Replaces: 5101:1-39- 22.8

Effective: 10/01/2006
R.C. 119.032 review dates: 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 5/1/97, 10/28/2002

5160:1-3-23 Medicaid: income computations for determining eligibility using the special income level.

(A) This rule defines how the administrative agency shall compute income for purposes of determining medicaid eligibility for coverage of long term care services in a long term care facility, under a home and community-based services (HCBS) waiver program, or under the program of all-inclusive care for the elderly (PACE), using the special income level.

(B) Definitions.

(1) "Administrative agency" is the county department of job and family services, the Ohio department of job and family services (ODJFS), or other entity that determines eligibility for a medical assistance program.

(2) "Community spouse" is an individual who is not in a medical institution or nursing facility and has an institutionalized spouse. Neither of two spouses, married to each other, who both request or receive services under an HCBS waiver program or PACE is considered to meet this definition.

(3) "Home and community-based services (HCBS)" are defined in accordance with rule 5101:1-38-01.6 of the Administrative Code.

(4) "HCBS waiver program" is, in accordance with rule 5101:1-38-01.6 of the Administrative Code, a medicaid program, approved by the centers for medicare and medicaid services(CMS), that waives certain statutory requirements otherwise needed for medicaid coverage of services.

(5) An "individual" is an applicant for or recipient of medicaid.

(6) "Institutionalized" describes an individual who receives long term care services either in a long term care facility, under an HCBS waiver program, or under PACE for at least thirty consecutive days.

(7) A "long term care facility (LTCF)" is a medicaid-certified nursing facility, skilled nursing facility, or intermediate care facility for persons with mental retardation as defined in division-level designation 5101:3 of the Administrative Code.

(8) "Long term care services" are medicaid-funded, institutional or community-based, medical, health, psycho-social, habilitative, rehabilitative, and/or personal care services that may be provided to medicaid-eligible individuals, as defined in rule 5101:3-3-15 of the Administrative Code.

(9) "PACE State Administering Agency (SAA)" is the state agency that has signatory authority on the PACE program agreement with the centers for medicare and medicaid services (CMS) and the PACE organization.

(10) "Program of all-inclusive care for the elderly (PACE)" is a medicaid program, approved by the CMS, for certain elderly individuals.

(11) The "special income level" is an amount, in accordance with rule 5101:1-39-21 of the Administrative Code, equal to three hundred per cent of the current supplemental security income(SSI) payment standard for an individual.

(C) The administrative agency shall:

(1) Determine medical assistance eligibility in accordance with the eligibility rules contained in Chapters 5101:1-37 to 5101:1-42 of the Administrative Code, including the individual's eligibility for medicaid buy-in and low-income medicare assistance programs, in accordance with rules 5101:1-38-03 and 5101:1-39-01.1 of the Administrative Code.

(2) Determine if the individual meets the income criterion for medicaid eligibility for coverage of long term care services in a long term care facility, under an HCBS waiver program, or under PACE, using the special income level by utilizing the following procedure:

(a) Total all gross income, earned and unearned, of the individual, in accordance with Chapter 5101:1-39 of the Administrative Code; then,

(b) Compare the individual's gross income, earned and unearned, to the special income level, in accordance with rule 5101:1-39-21 of the Administrative Code.

(i) The individual meets the income criterion for medicaid eligibility using the special income level if the individual's gross income is equal to or less than the special income level. If the individual meets this income criterion, the administrative agency shall determine the amount of patient liability, if any, in accordance with rule 5101:1-39-24 of the Administrative Code.

(ii) The individual does not meet the income criterion for medicaid eligibility using the special income level if the individual's gross income is greater than the special income level. If the individual's gross income is greater than the special income level, the administrative agency shall compute the individual's countable income in accordance with rule 5101:1-39-20 of the Administrative Code, applying applicable exemptions and disregards in accordance with rules 5101:1-39-18 and 5101:1-39-26 of the Administrative Code, and subtracting the individual's medical insurance premiums, remedial/recurring medical expenses, unpaid past medical expenses and medicaid cost of care in accordance with rule 5101:1-39-10 of the Administrative Code; then, compare the countable income to the medicaid need standard in rule 5101:1-39-21 of the Administrative Code.

(a) The assistance group meets the medicaid need standard income criterion if the countable income is equal to or less than the medicaid need standard. If the assistance group meets the medicaid need standard criterion, the administrative agency shall determine the amount of patient liability, if any, in accordance with rule 5101:1-39-24 of the Administrative Code.

(b) The assistance group does not meet the medicaid need standard income criterion if the countable income exceeds the medicaid need standard. If the assistance group does not meet the medicaid need standard criterion, the administrative agency shall determine medicaid eligibility using the spenddown provisions in accordance with rule 5101:1-39-10 of the Administrative Code. Individuals found eligible under spenddown provisions are not eligible for medicaid coverage of long term care services, including services provided under HCBS waiver programs and PACE.

(3) The administrative agency shall process requests for coverage of long term care services in accordance with this rule and division-level designation 5101:3 of the Administrative Code.

(4) The administrative agency shall issue proper notice and hearing rights as outlined in division-level designation 5101:6 of the Administrative Code.

(D) The ODJFS, or its designee, shall determine, in accordance with this rule and division-level designation 5101:3 of the Administrative Code, if the individual requesting medicaid coverage of long term care services meets the level of care requirements for coverage of long term care services.

Replaces: 5101:1-39-95, 5101:1-39- 22.2

Effective: 07/01/2005
R.C. 119.032 review dates: 07/01/2010
Promulgated Under: 119.03
Statutory Authority: 173.40 , 5111.01 , 5111.871
Rule Amplifies: 173.40 , 5111.01 , 5111.012 , 5111.205 , 5111.87 , 5111.871 , 5111.91
Prior Effective Dates: 6-1-88 (Emer.), 8-1-88 (Emer.), 10-30-88, 1-1-90 (Emer.), 3-1-90 (Emer.), 3-30-90 (Emer.), 4-1-90, 6-29-90, 7-1-90, 10-1-90, 1-1-91 (Emer.), 4-1-91, 1-1-92 (Emer.), 3-20-92, 5-1-92 (Emer.), 7-1-92, 8-14-92 (Emer.), 11-1-92, 5-1-93, 9-1-93, 7-1-94, 1-1-95 (Emer.), 3-20-95, 10-1-95, 4-1-96, 1-1-97 (Emer.), 2-9-97, 12-31-97 (Emer.), 2-1-98, 4-1-99, 1-1-00, 1-1-01, 5/12/02

5160:1-3-24 Medicaid: determining patient liability.

(A) This rule defines how income is treated for purposes of determining patient liability for individuals receiving long term care services in a long term care facility, under a home and community-based services (HCBS) waiver program, or under the program of all-inclusive care for the elderly (PACE).

(B) Definitions.

(1) "Administrative agency" means the county department of job and family services, the Ohio department of job and family services (ODJFS), or other entity that determines eligibility for a medical assistance program.

(2) "Community spouse" means an individual who is not in a medical institution or nursing facility and has an institutionalized spouse, except that neither of two spouses, married to each other, who both request or receive services under an HCBS waiver program or PACE is considered to meet this definition.

(3) The "excess shelter allowance (ESA)" means the community spouse's expenses for the principal place of residence, including: rent or mortgage payment (including principal and interest), taxes and insurance, any required maintenance charge for a condominium or cooperative, and, if applicable, the established standard utility allowance, minus the ESA standard.

(4) The "excess shelter allowance standard" means thirty per cent of the minimum monthly maintenance needs allowance (MMMNA) standard.

(5) "Family allowance" means a deduction in the computation of patient liability, for needs of certain dependent family members residing with a community spouse. The family allowance, calculated separately for each family member, is one-third of the MMMNA standard, less the gross amount of the monthly income of the family member, then rounded down to the nearest whole dollar.

(6) The "family allowance need standard" means one-third of the MMMNA. The family allowance need standard is adjusted annually in accordance with the federal poverty level (FPL).

(7) "Family maintenance needs allowance" means a deduction in the computation of patient liability for needs of certain dependent family members when there is no community spouse. The family maintenance needs allowance is the family maintenance needs allowance standard for the total number of dependent family members, less the gross combined monthly income of the family members, then rounded down to the nearest dollar.

(8) The "family maintenance needs allowance standard" means the Ohio works first payment standard for the same number of applicable dependent family members.

(9) "Family member" means a natural, adoptive, or step-child or parent or sibling of the individual who:

(a) For the purpose of determining a family allowance:

(i) Is claimed as a dependent by the institutionalized spouse, the community spouse, or the couple, for the most recent federal tax year, or, if a tax return was not filed, could be claimed as a dependent; and

(ii) Is residing with the community spouse.

(b) For the purpose of determining a family maintenance needs allowance:

(i) Is claimed as a dependent by the institutionalized individual for the most recent tax year, or, if a tax return was not filed, could be claimed as a dependent; and

(ii) Has resided with the institutionalized individual immediately preceding the institutionalized individual's admission to the nursing facility or is residing with the individual who is enrolled in an HCBS waiver or PACE.

(10) The "federal poverty level (FPL)" means a set of guidelines, issued each year by the United States department of health and human services (HHS), as a poverty measure for administrative purposes such as determining financial eligibility for certain federal programs.

(11) "Home and community-based services (HCBS)" are defined in accordance with rule 5101:1-38-01.6 of the Administrative Code.

(12) "HCBS waiver agency" means the ODJFS, or its designee that performs administrative functions related to an HCBS waiver program, in accordance with rule 5101:1-38-01.6 of the Administrative Code and division 5101:3 of the Administrative Code.

(13) An "individual" means an applicant for or recipient of a medical assistance program.

(14) "Institutionalized", for the purpose of this rule, describes an individual who receives long term care services in a medical institution, a long term care facility, intermediate care facility for the mentally retarded (ICF-MR), under an HCBS waiver program, or under PACE.

(15) "Institutionalized spouse" means an individual who:

(a) Receives long term care services in a medical institution, a long term care facility, intermediate care facility for the mentally retarded (ICF-MR), under an HCBS waiver program, or under PACE for at least thirty consecutive days; and

(b) Is married to a spouse who is not in a medical institution or a nursing facility.

(16) A "long-term care facility (LTCF)" means a medicaid-certified nursing facility, skilled nursing facility, or intermediate care facility for persons with mental retardation as defined in division 5101:3 of the Administrative Code.

(17) "Long-term care services" mean medicaid-funded, institutional or community-based, medical, health, psycho-social, habilitative, rehabilitative, and/or personal care services that may be provided to medicaid-eligible individuals, as defined in rule 5101:3-3-15 of the Administrative Code.

(18) "Medicaid cost of care" means:

(a) For an individual in a LTCF, the medicaid per diem rate for each LTCF; or

(b) For an individual receiving services under an HCBS waiver program, the medicaid cost of care for waiver-approved services in accordance with the individual's plan of care, or

(c) For an individual receiving services under PACE, the PACE capitated rate.

(19) The "minimum monthly maintenance needs allowance (MMMNA)" means the MMMNA standard plus the excess shelter allowance (ESA).

(a) Except in accordance with rule 5101:6-7-02 of the Administrative Code, the MMMNA must not exceed the MMMNA cap which is updated annually by the same percentage increase in the consumer price index.

(b) The MMMNA may be increased in accordance with rule 5101:6-7-02 of the Administrative Code.

(20) The "minimum monthly maintenance needs allowance standard" means one hundred fifty per cent of the federal poverty level (FPL) for a family unit of two members.

(21) "Monthly income allowance" for a community spouse means a deduction in the computation of patient liability for needs of the community spouse. The monthly income allowance is the MMMNA minus the community spouse's monthly income.

(22) "Patient liability" means the individual's financial obligation toward the medicaid cost of care.

(23) "Personal needs allowance" means a required deduction in the computation of patient liability, for needs of the individual. The personal needs allowance for individuals who request or receive services under an HCBS waiver program is referred to as a "special individual maintenance needs allowance." Personal needs allowance retained beyond the month of allocation is treated as a resource and subject to resource requirements of Chapter 5101:1-39 of the Administrative Code.

(24) "Program of all-inclusive care for the elderly (PACE)" means a medical assistance program, approved by the centers for medicare and medicaid services (CMS), for certain elderly individuals.

(25) The "special income level" means an amount, in accordance with rule 5101:1-39-21 of the Administrative Code, equal to three hundred per cent of the current supplemental security income(SSI) payment standard for an individual.

(26) The "special individual maintenance needs allowance" means a required deduction in the computation of patient liability, for needs of the individual who requests or receives HCBS under an HCBS waiver program in accordance with rule 5101:1-38-01.6 of the Administrative Code, or for the needs of the individual living in a community setting who requests or receives services under the PACE. The special individual maintenance needs allowance is sixty-five per cent of the special income level, in accordance with rule 5101:1-39-21 of the Administrative Code.

(27) A "spouse" means a person legally married to another under Ohio law.

(28) The "standard utility allowance" means an amount that is used in lieu of the actual amount of utility costs; the standard utility allowance is applicable if the community spouse is responsible for payment toward the cost of gas, electric, coal, wood, oil, water, sewage, or telephone for the residence.

(C) Administrative agency responsibilities.

(1) The administrative agency must determine medicaid eligibility in accordance with the eligibility rules contained in Chapters 5101:1-37 to 5101:1-42 of the Administrative Code,

(2) The administrative agency must determine the individual's patient liability by utilizing the following procedure, in sequence, subsequent to notification of an appropriate level of care, and, if applicable, HCBS waiver agency approval or PACE site approval:

(a) Total all income, earned and unearned, of the individual, without applying any exemptions or disregards; then

(b) Exclude the following as income for the purposes of determining patient liability:

(i) German reparation payments, Austrian social insurance payments, and Netherlands reparation payments, in accordance with the Nazi Persecution Victims Eligibility Act, Pub. L. No. 103-286 or provisions of the Austrian General Social Insurance Act, paragraphs 500 through 506, as in effect on August 1, 1994.

(ii) Japanese and Aleutian restitution payments, under the provisions of section 105 of Pub. L. No. 100-383, as in effect on August 10, 1988, by individuals of Japanese ancestry.

(iii) Agent Orange settlement payments under the provisions of the Agent Orange Compensation Exclusion Act, Pub. L. No. 101-201, as in effect on January 1, 1989, received on or after January 1, 1989.

(iv) Radiation exposure compensation payments under the provisions of the Radiation Exposure Compensation Act, Pub. L. No. 101-426, as in effect on October 15, 1990.

(v) Veterans administration reduced pensions under 38 U.S.C. 5503 , as in effect on November 10, 2005, up to the amount of ninety dollars per month, paid to veterans in a nursing facility. This reduced pension applies to the following individuals:

(a) A veteran without a spouse or child; and

(b) A veteran's surviving spouse without a child.

(vi) Seneca nation settlement act of 1990 payments under the provisions of the Seneca Nation Settlement Act of 1990, Pub. L. No. 101-503, as in effect on November 3, 1990, received on or after November 3, 1990.

(vii) SSI benefits received under authority of sections 1611(e)(1)(E) and

(G) of the SSA, Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, as in effect on December 22, 1987, for institutionalized individuals, during the first three full months of institutionalization. The administrative agency must not retroactively redetermine patient liability determinations, made under the continued benefit provision, if the recipient's actual stay exceeds the expected stay of ninety days or less.

(viii) Residential state supplement (RSS) benefits to institutionalized individuals, in accordance with rule 5101:1-17-05 of the Administrative Code.

(ix) Payments received under the provisions of a state "Victims of Crime Program", Pub. L. No. 103-322, as in effect on September 13, 1994.

(x) Cost-of-living subsidies, including, but not limited to, start-up funds and one-time or other housing allowances, provided by Ohio department of mental retardation and developmental disabilities (ODMR/DD) or county boards of mental retardation and developmental disabilities to individuals enrolled in a medicaid waiver administered by the ODMR/DD pursuant to section 5111.871 of the Revised Code.

(xi) Payments made from any fund established pursuant to a class settlement in the case of Susan Walker v. Bayer Corporation, et al, 96-C-5024 (N.D. Ill), per section 4735 of the Balanced Budget Act of 1997, Pub. L. No. 105-33, as in effect on August 5, 1997.

(xii) Payments made from any fund established pursuant to a class action settlement in the case of "Factor VIII or IX concentrate blood products litigation," MDL986, no. 93-C-7452 (N.D. Ill), per section 4735 of the Balanced Budget Act of 1997, Pub. L. No. 105-33, as in effect on August 5, 1997.

(xiii) In the case of an individual who has no spouse, only the income of that individual is considered in the patient liability determination.

(xiv) For the month following the month of institutionalization, an institutionalized child is treated as an individual living alone. Only the child's own income is considered in the patient liability determinations.

(xv) Spouses separated by a continuous period of institutionalization, are considered to be living apart starting in the month the institutionalized spouse enters the institution. Only the income allocated to the institutionalized spouse is considered available in the patient liability determination.

(xvi) Effective through December 31, 2005, neither the six hundred dollar credit nor any discount savings arising from the medicare-approved drug card must be counted as income in the patient liability budget process.

(c) The administrative agency must subtract the appropriate personal needs allowance for the needs of the individual. Appropriate personal needs allowances are:

(i) For individuals who are nursing facility or ICF-MR residents and have no earned income: forty dollars;

(ii) For individuals who are nursing facility or ICF-MR residents and have earned income: forty dollars plus up to an additional sixty-five dollars of gross earnings received as a result of employment, up to a combined maximum of one hundred five dollars;

(iii) For HCBS waiver eligible individuals who have no earned income: the special individual maintenance needs allowance;

(iv) For HCBS waiver eligible individuals who have earned income: the special individual maintenance needs allowance plus up to an additional sixty-five dollars of gross earnings received as a result of employment.

(d) The administrative agency must compute and subtract a monthly income allowance for the individual's community spouse, if applicable, utilizing the following steps, except in the case that two spouses, married to each other, are both eligible for and receiving services under a HCBS waiver program or PACE:

(i) Total housing expenses of the community spouse: rent, mortgage payment (including principal and interest), taxes and insurance, condominium or cooperative required maintenance charges, and (if applicable) the established standard utility allowance, rounding the total down to the nearest whole dollar; then,

(ii) Subtract the excess shelter allowance standard;

(iii) The remainder is the excess shelter allowance (ESA);

(iv) Add the ESA and the MMMNA standard to determine the MMMNA (this amount must not exceed the cap on the MMMNA);

(v) Subtract the community spouse's total gross income from the lesser of the MMMNA or the cap on the MMMNA;

(vi) The remainder, (rounded down to the nearest whole dollar), is the monthly income allowance for the community spouse, unless the amount of court ordered support is greater, in which case the court ordered amount is used as the monthly income allowance.

(vii) All available income of the institutionalized spouse must be transferred to the community spouse and determined insufficient to meet the monthly income allowance before a substituted community spouse resource allowance is considered in accordance with rule 5101:6-7-02 of the Administrative Code.

(viii) The monthly income allowance from an institutionalized individual to a community spouse who is either an HCBS waiver-eligible individual or a PACE eligible individual must be treated as unearned income to the community spouse in the determination of eligibility for medical assistance and patient liability.

(e) The administrative agency must compute and subtract, if applicable, a family allowance for each family member, utilizing the following steps: An institutionalized spouse and an HCBS waiver eligible spouse or a PACE eligible spouse, married to each other, the family allowance must be deducted in the patient liability calculation of only one of the individuals. The family allowance provided from the institutionalized spouse must be treated as unearned income.

(i) For each family member, multiply the MMMNA standard by one-third; then

(ii) Subtract that family member's gross monthly income; then

(iii) Round the result down to the nearest dollar.

(iv) The remainder is the family allowance for that family member.

(v) The family allowances for each family member are added together to determine the total family allowance.

(f) The administrative agency must compute and subtract, if applicable, a family maintenance needs allowance utilizing the following steps:

(i) Subtract the combined monthly income of the family members from the family maintenance needs allowance standard; then

(ii) Round the result down to the nearest dollar.

(iii) The remainder is the family maintenance needs allowance.

(g) The administrative agency must subtract the individual's medical expenses not subject to third party payment, including:

(i) Medicaid, medicare, or other health insurance premiums;

(ii) Insurance deductibles, coinsurance, or copayments;

(iii) Necessary medical or remedial care, recognized under Ohio law, but not covered by medicaid and not subject to third party payment;

(iv) Unpaid past medical expenses.

(h) The remainder is the individual's patient liability for a full month of institutionalization.

(i) The administrative agency must prorate the patient liability when the individual is institutionalized for less than a full month. To calculate a prorated patient liability, the administrative agency must:

(i) Determine the per diem patient liability by dividing the patient liability for a full month of institutionalization by the number of days in the month for which the prorated payment is to be determined.

(ii) Determine the actual number of days of institutionalization in the month for which the prorated payment is to be determined, including the first date of institutionalization. The date of discharge or the date of death is not included in this calculation.

(iii) Multiply the actual number of days of institutionalization by the per diem amount, rounding down to the nearest dollar. This is the individual's prorated patient liability.

(3) The administrative agency must recalculate the patient liability when notified of changes that may affect the patient liability amount.

(4) The administrative agency must notify the institution, HCBS waiver agency, or PACE site of the patient liability, changes to patient liability, and retroactive patient liability adjustments.

(5) The administrative agency must provide written notification to the individual of the determination of medical assistance eligibility, changes to patient liability, and the amount of patient liability, if applicable.

(6) The administrative agency must issue proper notice and hearing rights as outlined in division 5101:6 of the Administrative Code.

(D) The individual must pay the patient liability amount to the entity as directed.

(E) The long-term care facility must:

(1) Accept the patient liability amount from the individual.

(2) Refund overpayments of patient liability to the individual, such as when retroactive patient liability adjustments are made.

(F) The HCBS waiver agency must notify the individual as to whom to make patient liability payment.

(G) The PACE site must notify the individual as to whom to make patient liability payment.

(H) The administrative agency must provide appropriate notice to the individual, and the individual's community spouse, if applicable, including the monthly income allowance (MIA) and appeal rights, the amounts deducted in the calculation of patient liability, and the determination of ownership and availability of income.

(I) The administrative agency must issue proper notice and hearing rights as outlined in division 5101:6 of the Administrative Code.

Replaces: 5101:1-39-24

Effective: 12/01/2006
R.C. 119.032 review dates: 11/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 5111.01
Prior Effective Dates: 6/1/88 (Emer.), 8/1/88 (Emer.), 10/30/88, 1/1/90 (Emer.), 3/1/90 (Emer.), 3/30/90 (Emer.), 4/1/90, 6/29/90, 7/1/90, 10/1/90, 1/1/91 (Emer.), 4/1/91, 1/1/92 (Emer.), 3/20/92, 5/1/92 (Emer.), 7/1/92, 8/14/92 (Emer.), 11/1/92, 5/1/93, 9/1/93, 7/1/94, 1/1/95 (Emer.), 3/20/95, 10/1/95, 4/1/96, 1/1/97 (Emer.), 2/9/97, 12/31/97 (Emer.), 2/1/98, 4/1/99, 1/1/00, 1/1/01, 5/12/02, 7/01/05

5160:1-3-24.1 Medicaid: income and patient liability determinations for individuals under the assisted living home and community based waiver.

(A) For individuals enrolled in the assisted living waiver, this rule defines how the administrative agency will:

(1) Compute income to determine medicaid eligibility, and

(2) Determine patient liability.

(B) Definitions. All definitions found in rules 5101:1-39-23 and 5101:1-39-24 of the Administrative Code apply to the content of this rule, with the following additions:

(1) "Assisted living facility" means a facility certified by the Ohio department of aging in accordance with rule 173-39-02 of the Administrative Code.

(2) "Assisted living waiver (ALW)" means the home and community based services waiver approved by the federal centers for medicare and medicaid services (CMS). The waiver provides an alternative to nursing facility placement for persons aged twenty-one and over who require intermediate or skilled care. Services and eligibility criteria for the waiver are found in rules 5101:3-1-06.5 and 5101:3-33-02 to 5101:3-33-07 of the Administrative Code.

(3) "Assisted living waiver maintenance needs allowance (ALMNA)" means the amount equal to the supplemental security income (SSI) federal benefit rate, which is a required deduction in the computation of patient liability for those enrolled in the ALW. This amount is to be used for the needs of an individual enrolled in the ALW. For these individuals, the ALMNA is used in lieu of the special individual maintenance needs allowance found in rule 5101:1-39-24 of the Administrative Code.

(4) "Personal needs allowance" for individuals enrolled in the ALW is a required deduction in the computation of patient liability. It is the total of the ALMNA plus up to sixty-five dollars for those individuals who receive earnings from employment.

(5) "SSI federal benefit rate" means the monthly amount issued by the social security administration to individuals receiving SSI cash payments. It is adjusted each year effective the first of January.

(C) The administrative agency must:

(1) Determine medical assistance eligibility in accordance with the eligibility rules contained in Chapters 5101:1-37 to 5101:1-42 of the Administrative Code, including the individual's eligibility for medicaid buy-in and low-income medicare assistance programs, in accordance with rules 5101:1-38-03 and 5101:1-39-01.1 of the Administrative Code.

(2) Process requests for enrollment into the ALW in accordance with this rule, and rules 5101:1-38-01.6 and 5101:3-33-04 of the Administrative Code.

(3) Determine if the individual meets the income criteria for medicaid eligibility for coverage of services under the ALW program, using the same methodology found in rule 5101:1-39-23 of the Administrative Code.

(4) Determine patient liability in accordance with the methodology found in rule 5101:1-39-24 of the Administrative Code, with the following exceptions:

(a) Calculate the personal needs allowance by using the following methodology:

(i) Determine the current SSI federal benefit rate.

(ii) For individuals who have no earned income, the SSI federal benefit rate amount is the ALMNA.

(iii) For individuals who have earned income as a result of employment, the ALMNA is the total of the following two amounts:

(a) The SSI federal benefit rate, and

(b) Up to a maximum of sixty-five dollars of the gross earnings received as a result of employment.

(iv) The ALMNA is used as the personal needs allowance for ALW eligible individuals in the calculation of patient liability.

(b) The remainder, after subtracting all other applicable exemptions and deductions listed in rule 5101:1-39-24 of the Administrative Code, is the individual's patient liability.

(D) The individual must pay the patient liability amount to the facility in accordance with rule 5101:1-39-24 of the Administrative Code.

(E) The administrative agency must issue proper notice and hearing rights as outlined in division 5101:6 of the Administrative Code.

Replaces: 5101:1-39- 24.1

Effective: 09/15/2006
R.C. 119.032 review dates: 09/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 173.40 , 5111.01 , 5111.89
Prior Effective Dates: 7/1/06 (Emer)

5160:1-3-26 [Rescinded] Medicaid: resource exemption.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 10/1/06

5160:1-3-27 Medicaid: liquid assets as resources.

"Liquid assets" are those resources which are in cash or payable in cash upon demand. The total value of liquid assets is considered a countable resource and must be evaluated against the resource limitation.

(A) There is no sublimit upon liquid assets. A person may have liquid assets worth up to the resource limitation, i.e., one thousand five hundred dollars for an individual and two thousand two hundred fifty dollars for a person and his spouse.

(B) When the value of liquid assets is combined with all other countable resources and the resource limitation is exceeded, the individual or couple is not eligible for medicaid.

Replaces part of rule 5101:1-39-27; Eff 9-3-77; 2-1-79; 10-1-79; 1-3-80; 12-1-84 (Emer.); 2-10-85; 5-3-85 (Emer.); 8-1-85; 9-1-85 (Emer.); 11-25-85
Rule promulgated under: RC 111.15
Rule authorized by: RC 5111.02

5160:1-3-27.1 Medicaid: trusts.

(A) This rule defines the treatment of a trust for determining eligibility for medical assistance programs.

(B) Definitions.

(1) "Administrative agency" means the county department of job and family services, the Ohio department of job and family services, or other entity that determines eligibility for medical assistance programs.

(2) "Baseline date" means the first date upon which the individual has both applied for medicaid and is institutionalized.

(a) When an individual is a medicaid recipient and becomes institutionalized, the baseline date is the fist day of institutionalization.

(b) The baseline date for individuals applying for a home and community-based services waiver (HCBS) is the signature date on the JFS 02399 "Request for Medicaid Home and Community-Based Services (HCBS)" (rev. 1/2006).

(3) "Beneficiary" means any person benefiting in some way from the trust. The beneficiary can be the grantor or another person. There may be more than one beneficiary of a trust.

(4) "Grantor" means any person who creates a trust. For purposes of this rule, the term grantor includes:

(a) An individual;

(b) An individual's spouse;

(c) A person, including a court or administrative body, with legal authority to act in place of, or on behalf of, an individual or the individual's spouse; and

(d) A person, including a court or administrative body, acting at the direction or upon the request of an individual or the individual's spouse.

(5) "Individual" means an applicant for or recipient of a medical assistance program.

(6) "Irrevocable trust" means a trust that cannot be revoked by the grantor or terminated by a court. A trust terminating only upon the occurrence of an event outside the control or direction of the beneficiary or the grantor is irrevocable.

(7) "Legal instrument or device similar to a trust" means any legal instrument, device, or arrangement that is not called a trust under state law, but is similar to a trust. This includes, but is not limited to, escrow accounts, investment accounts, partnerships, contracts and other similar arrangements. To constitute a legal instrument or device similar to a trust, all of the following must be present.

(a) There must be a person holding, managing, retaining, or administering the property. For the purposes of this rule, the person holding, managing, retaining or administering the property is referred to as the trustee.

(b) The trustee must have an equitable, legal, or fiduciary duty to hold, manage, retain, or administer the property for the benefit of another person. For the purposes of this rule, this other person is referred to as the beneficiary.

(c) The trustee must hold identifiable property for the beneficiary.

(8) "Payment" means any disbursal from the principal or income of the trust. A payment may include actual cash, non-cash or property disbursements, or the right to use and occupy real property.

(9) "Payments to or for the benefit of the individual" means any payment to any person resulting in any direct or indirect benefit to the individual.

(10) "Person" has the same meaning as set forth in section 1.59 of the Revised Code and includes an individual, corporation, business trust, estate, trust, partnership and association.

(11) "Revocable trust" means a trust that can be revoked by the grantor or the beneficiary. For the purposes of the medicaid program, the following trusts are "revocable trusts" even if the terms of the trust state it is irrevocable:

(a) A trust providing the trust can be terminated only by a court; or

(b) A trust terminating upon the happening of an event, if the event can occur at the direction or control of the grantor, the beneficiary, or the trustee.

(12) "Testamentary trust" means a trust that is established by a will. This type of trust does not take effect until after the death of the person (testator) who created the trust.

(13) "Trust", for the purpose of this rule, means any arrangement in which a grantor transfers property (real or personal) to a trust with the intention that it be held, managed, or administered by a trustee(s) for the benefit of the grantor or certain designated individuals (beneficiaries). In this rule, the term trust includes any legal instrument or device that is similar to a trust.

(14) "Trustee" means any person who manages a trust. A trustee manages a trust's principal and income for the benefit of the beneficiaries.

(C) The five categories of trusts.

(1) Category one: self-settled trusts established before August 11, 1993, also referred to as medicaid qualifying trusts.

(a) A trust, or legal instrument or device similar to a trust, falls under this category if it meets all the following criteria:

(i) The trust was established before August 11, 1993;

(ii) The trust was not established by a will;

(iii) The trust was established by the individual;

(iv) The individual is or may become the beneficiary of all or part of the trust; and

(v) Payment from the trust is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.

(b) The amount of the trust deemed to be an available resource to the individual is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the individual, assuming the full exercise of discretion by the trustee or trustees. The maximum amount includes only amounts that may be, but are not, distributed from either the income (interest) or principal of the trust.

(c) Amounts actually distributed to the beneficiary for any purpose are treated under the rules governing income.

(d) The availability of a trust in this category will be considered whether or not:

(i) The medicaid qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for medicaid, QMB, SLMB, QI-1, or covered families and children medicaid; and

(ii) The trustee actually exercises discretion.

(e) If any real or personal property is transferred to a medicaid qualifying trust that is not distributable to the individual, the transfer is an improper transfer subject to the rules prohibiting the improper transfer of resources.

(f) The baseline date and the regulations relating to transfers of assets are defined in rule 5101:1-39-07 of the Administrative Code. The following are look-back periods for transfers of assets involving trusts under this category.

(i) For revocable trusts: the distribution is an improper transfer when a portion of the trust is distributed to someone other than the individual, and the distribution is not for the benefit of the individual. The look-back period is sixty months from the baseline date. The transfer is considered to have taken place on the date upon which the payment, to someone other than the individual, was made.

(ii) For irrevocable trusts: when a portion of the trust is not distributable to the individual, it is an improper transfer. The look-back period is sixty months from the baseline date. The transfer is considered to have been made on the date the trust was established, or, if later, the date upon which payment to the individual was foreclosed. The value of these assets is not reduced by any payments from the trust made from these unavailable assets at a later date.

(iii) For irrevocable trusts: when some or all of the trust can be disbursed to, or for the benefit of, the individual, any payment made to another person is an improper transfer. The look-back period is thirty-six months from the baseline date for improper transfers made prior to February 8, 2006. The look-back period is sixty months from the baseline date for improper transfers made on or after February 8, 2006. The transfer is considered to have been made on the date of payment to another person.

(2) Category two: self-settled trusts established on or after August 11, 1993.

(a) A trust, or legal instrument or device similar to a trust, falls under this category if it meets all of the following criteria:

(i) The assets of the individual were used to form all or part of the corpus of the trust;

(ii) The trust was not established by a will; and

(iii) The trust was established by the individual, the spouse of the individual, a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or on behalf of the spouse of the individual, or a person, including a court or administrative body, acting at the direction or upon the request of the individual or the spouse of the individual.

(b) Revocable trusts in this category are treated as follows.

(i) The corpus of the trust is considered a resource available to the individual.

(ii) Payments from the trust to, or for the benefit of, the individual are considered unearned income.

(iii) Any other payments from the trust are considered an improper transfer subject to the rules prohibiting the improper transfer of resources.

(c) Irrevocable trusts in this category are treated as follows.

(i) If there are any circumstances under which payment from the trust could be made to, or for the benefit of, the individual, the portion from which payments could be made is considered a resource available to the individual. The administrative agency shall not take into account when payments can be made. A payment that can be made only in the future satisfies this provision.

(ii) Any payments actually made to, or for the benefit of, the individual from either the corpus or income are considered unearned income.

(iii) If a payment is made to someone other than the individual, and such payment is not for the benefit of the individual, then such payment is considered an improper transfer subject to the rules prohibiting improper transfers.

(iv) If any portion of the trust could not, under any circumstance, be made to the individual, then either the establishment of the trust, or the subsequent event that forecloses payment to the individual, is considered an improper transfer subject to the rules prohibiting the improper transfer of resources.

(v) The date of the transfer is either the date of establishment of the trust, or the date of the occurrence of the event, whichever is later.

(vi) When determining the value of the transferred resource under this provision, the value of the trust is its value on the date when payment to the individual was foreclosed.

(vii) Any income earned, or other resources added subsequent to the foreclosure date, is added to the total value of the trust.

(viii) Any payments to, or for the benefit of, the individual after the foreclosure date but prior to the application date are subtracted from the total value. Any other payments are not subtracted from the value.

(ix) Any addition of resources after the foreclosure date is considered a separate transfer.

(d) Where a trust is funded with assets of another person or persons, as well as assets of the individual, the rule provisions governing this category of trust applies only to the portion of the trust attributable to the individual.

(e) The availability of a trust in this category is considered without regard to:

(i) The purpose for which a trust is established;

(ii) Whether the trustees have or exercise any discretion under the trust;

(iii) Any restrictions on when or whether distributions may be made from the trust; and

(iv) Any restrictions on the use of distributions from the trust.

(f) The following are look-back periods for transfers of assets involving trusts under this category. The baseline date and the regulations relating to transfers of assets are defined in rule 5101:1-39-07 of the Administrative Code.

(i) For revocable trusts: when a portion of the trust is distributed to someone other than the individual, and the distribution is not for the benefit of the individual, the distribution is an improper transfer. The look-back period is sixty months from the baseline date. The transfer is considered to have taken place on the date upon which the payment to someone other than the individual was made.

(ii) For irrevocable trusts: when a portion of the trust is not distributable to the individual it is an improper transfer. The look-back period is sixty months from the baseline date. The transfer is considered to have been made as of the date the trust was established, or, if later, the date upon which payment to the individual was foreclosed. The value of these assets is not reduced by any payments from the trust that may be made from these unavailable assets at a later date.

(iii) For irrevocable trusts: when some or all of the trust can be disbursed to, or for the benefit of, the individual, any payment that is made to another person is an improper transfer. The look-back period is thirty-six months from the baseline date for improper transfers made prior to February 8, 2006. The look-back period is sixty months from the baseline date for improper transfers made on or after February 8, 2006. The transfer is considered to have been made as of the date of payment to another person.

(3) Category three: exempt trusts. The principal or income from any one of these trusts is exempt from being counted as a resource.

(a) Special needs trusts are not countable resources. A trust qualifies as a special needs trust if the following conditions are met.

(i) The trust contains the assets of an individual under age sixty-five. The trust may also contain the assets of other individuals.

(ii) The individual is disabled as defined in rule 5101:1-39-03 of the Administrative Code.

(iii) The trust is established for the benefit of the individual by a parent, grandparent, legal guardian, or a court.

(iv) The trust requires, upon the death of the individual, the state will receive all amounts remaining in the trust, up to an amount equal to the total amount of medical assistance paid on behalf of the individual.

(v) When such a trust was established for a disabled individual under age sixty-five, the exception for the trust continues even after the individual becomes age sixty-five, provided the individual continues to be disabled as defined in rule 5101:1-39-03 of the Administrative Code. However, with the exception of income earned by the trust, such a trust cannot be added to or otherwise augmented after the individual reaches age sixty-five. Any such addition or augmentation by the individual, with his or her own assets, after age sixty-five is treated as a transfer of assets subject to the rules prohibiting the improper transfer of resources.

(vi) Cash distributions to the individual are counted as unearned income. All other distributions from the trust are treated under the rules governing in-kind income.

(vii) Transfers of assets to a special needs trust are not subject to the improper transfer provisions in rule 5101:1-39-07 of the Administrative Code. However, assets held prior to the transfer to this trust are countable assets and/or income.

(b) Qualifying income trusts (QIT) are not countable resources. A trust qualifies as a QIT only under all the following conditions and with the following limitations.

(i) The trust is composed only of pension, social security, and other income to the individual, including accumulated interest in the trust.

(a) No resources may be used to establish or augment the trust.

(b) The income must be received by the individual, and the right to receive income cannot be assigned or transferred to the trust.

(c) If an individual has irrevocably transferred or assigned to the trust his or her right to receive income, the trust will not meet this requirement of the rule and will not qualify as a QIT.

(ii) The trust requires that upon the death of the individual the state will receive all amounts remaining in the trust up to an amount equal to the total amount of medical assistance paid on behalf of the individual.

(iii) Income placed in a QIT is not counted in determining the individual's eligibility for medical assistance. Thus any income (e.g., VA pension, social security benefits, private pensions, etc.) can be placed directly into a QIT, by the recipient of the funds, without those funds adversely affecting the individual's eligibility for medical assistance. Income generated by the trust that remains in the trust is not income available to the individual.

(iv) All income placed in a QIT is combined with any countable income not placed in the trust to arrive at a base income figure to be used in post-eligibility calculations (i.e., patient liability or spenddown).

(a) The base income figure is used for post-eligibility deductions, including but not limited to, personal needs allowance, monthly income allowance, family allowance, and medical expenses not subject to third party payment. Any income remaining is used toward payment of the patient liability. Payments made from a QIT are not combined with the base income figure for the post-eligibility calculations.

(b) The base income figure is used when determining the spenddown budget for the individual. Any income remaining after allowable deductions permitted in rule 5101:1-39-10 of the Administrative Code is the individual's spenddown liability.

(c) Pooled trusts are not countable resources. A trust qualifies as a pooled trust only under all of the following conditions.

(i) The trust contains the assets of an individual of any age who is disabled as defined in rule 5101:1-39-03 of the Administrative Code.

(ii) A separate account is maintained for each beneficiary of the trust but, for purposes of investment and management of funds, the trust pools the funds in these accounts.

(iii) Accounts in the trust are established by the individual, the individual's parent, grandparent, or legal guardian, or a court solely for the benefit of individuals who are disabled.

(iv) To the extent that any amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust, the trust pays to the state the amount remaining in the account equal to the total amount of medical assistance paid on behalf of the beneficiary. To meet this requirement, the trust must include a provision specifically providing for such payment.

(v) Cash distributions to the individual are counted as unearned income. All other distributions from the trust are treated under the rules governing in-kind income.

(vi) Transfers of assets to a pooled trust are not subject to the improper transfer provisions in rule 5101:1-39-07 of the Administrative Code. However, assets held prior to the transfer to this trust are countable assets and/or income.

(d) Supplemental services trusts are not countable resources. A trust qualifies as a supplemental services trust only if it meets the requirements of section 1339.51 of the Revised Code.

(i) Any person may establish a trust under section 1339.51 of the Revised Code only for another person who is eligible to receive services through one of the following agencies: the department of mental retardation and developmental disabilities; a county board of mental retardation and developmental disabilities; the department of mental health; or a board of alcohol, drug addiction, and mental health services. The administrative agency cannot determine eligibility for another agency's program. An individual must provide documentation from one of these agencies establishing that the individual was determined to be eligible for services from that agency at the time of the creation of the trust. Alternatively, an individual may provide an order from a court of competent jurisdiction that states the individual was eligible for services from one of the agencies at the time of the creation of the trust.

(ii) At the time the trust is created, the trust principal does not exceed the maximum amount permitted. In 2006, the maximum amount permitted is two hundred twenty-two thousand dollars. The maximum amount each year thereafter is the prior year's amount plus two thousand dollars.

(iii) The administrative agency must review the trust to determine whether it complies with the remaining provisions of section 1339.51 of the Revised Code.

(iv) Payments from supplemental services trusts are disregarded as long as the payments are for supplemental services as defined by rule 5123:2-18-01 of the Administrative Code. All supplemental services must be purchased by the trustee, not through direct cash payments to the beneficiary.

(e) If a trust is represented to be an exempt trust, but the administrative agency determines that it does not meet the requirements for one of the exempt trusts, then it is not an exempt trust and will fall under one of the four other categories of trusts.

(4) Category four: trusts established by someone else for the benefit of the individual.

(a) A trust, or legal instrument or device similar to a trust, falls under this category if it meets the following criteria:

(i) The trust is created by someone other than the individual;

(ii) The trust names the individual as a beneficiary; and

(iii) The trust is funded with assets or property that the individual never held an ownership interest in prior to the establishment of the trust.

(b) Any portion of a trust in this category is an available resource only if the trust permits the trustee to expend principal, corpus or assets of the trust for the individual's medical care, care, comfort, maintenance, health, welfare, general well-being, or a combination of these purposes. The trust is still considered an available resource even if the trust contains any of the following types of provisions:

(i) Any provision prohibiting the trustee from making payments that would supplant or replace medicaid or public assistance, or other government assistance;

(ii) Any provision prohibiting the trustee from making payments that would impact or affect the individual's right or ability or opportunity to receive medicaid, or public assistance, or other government assistance; or

(iii) Any provision attempting to prevent the trust or its corpus or principal from counting as an available resource under this rule.

(c) A trust in this category normally considered as an available resource is not counted as an available resource under the following circumstances.

(i) If the trust contains a clear statement requiring the trustee to preserve a portion of the trust for another beneficiary or remainderman, then that portion of the trust is not counted as an available resource. Terms of a trust granting discretion to preserve a portion of the trust do not qualify as a clear statement requiring the trustee to preserve a portion of the trust.

(ii) If the trust contains a clear statement requiring the trustee to use a portion of the trust for a purpose other than the medical care, care, comfort, maintenance, welfare, or general well-being of the individual, then that portion of the trust is not counted as an available resource. Terms of a trust that grant discretion to limit the use of a portion of the trust do not qualify as a clear statement requiring the trustee to use a portion of the trust for a particular purpose.

(iii) If the trust contains a clear statement limiting the trustee to making fixed periodic payments, then the trust is not counted as an available resource; however, the payments are treated under the rules governing income. Terms of a trust that grant discretion to limit payments do not qualify as a clear statement requiring the trustee to make fixed periodic payments.

(iv) If the trust contains a clear statement requiring the trustee to terminate the trust if it is counted as an available resource, then it is not counted as an available resource. Terms of a trust granting discretion to terminate the trust do not qualify as a clear statement requiring the trustee to terminate the trust.

(v) If any person obtains a judgment from a court of competent jurisdiction expressly preventing the trustee from using part or all of the trust for the medical care, care, comfort, maintenance, welfare, or general well-being of the individual, then the trust or that portion subject to the court order is not counted as a resource.

(vi) If the trust is specifically exempt from counting as an available resource by this rule, another rule, the Revised Code, or the U.S. Code, it is not counted as a resource.

(vii) If the individual presents a final judgment from a court demonstrating that he or she was unsuccessful in a civil action against the trustee to compel payments from the trust, then it is not counted as an available resource.

(viii) If the individual presents a final judgment from a court demonstrating that in a civil action against the trustee the individual was only able to compel limited or periodic payments, then it is not counted as an available resource; however, the payments are treated under rules governing income.

(ix) If the individual provides written documentation showing the cost of a civil action brought to compel payments from the trust are cost prohibitive, then it is not counted as an available resource.

(d) For trusts under this category, even if the trust is not counted as an available resource, any actual payments from the trust to the individual are treated under the rules governing income. Payments to any person other than the individual are not income to the individual. Payment from the trust to any person other than the individual is not an improper transfer of assets.

(5) Category five: trusts established by will for the benefit of a surviving spouse.

(a) A trust, or legal instrument or device similar to a trust, can be established by the will of a deceased spouse.

(i) If there are any circumstances under which payment from the trust could be made to, or for the benefit of, the surviving spouse, the portion from which payments could be made is considered an available resource. The administrative agency shall not take into account when payments can be made. A payment that can be made only in the future satisfies this provision.

(ii) Any payments actually made to, or for the benefit of, the surviving spouse from either the corpus or income are considered unearned income.

(iii) If a payment is made to someone other than to the surviving spouse, and such payment is not for the benefit of the surviving spouse, then such payment is considered an improper transfer imputed to the surviving spouse subject to the rules prohibiting improper transfers.

(iv) If a payment is required to be made to someone other than to the surviving spouse, and such required payment is not for the benefit of the surviving spouse, then such amount is considered an improper transfer imputed to the surviving spouse subject to the rules prohibiting improper transfers.

(v) A surviving spouse is not subject to a penalty for improper transfers under this subsection of this rule if the surviving spouse elects to take against the will.

(D) This rule supersedes all previous rules governing trusts and the administrative agency shall apply it prospectively to all determinations and redeterminations of eligibility for all individuals. Any determination or redetermination made in accordance with this rule shall not be affected by or governed by any prior eligibility determinations made under former rules governing trusts nor shall this rule be applied retroactively to determine an individual's eligibility or liability for any prior period.

Replaces: 5101:1-39- 27.1

Effective: 10/01/2006
R.C. 119.032 review dates: 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011 , 5111.151
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 10/1/89 (Emer.), 12/16/89, 10/1/91, 9/1/92, 2/1/95 (Emer.), 4/27/95, 7/1/96, 11/07/02

5160:1-3-27.2 [Rescinded] Medicaid: cash and checking and savings accounts and time deposits.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 4/1/91, 9/1/94, 5/1/98

5160:1-3-27.3 [Rescinded] Medicaid: promissory notes, mortgages, stocks, bonds and loans.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 10/1/91, 9/1/94, 11/7/02

5160:1-3-27.4 [Rescinded] Medicaid: preneed funeral contracts.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/1/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 10/1/88 (Emer.), 12/20/88

5160:1-3-27.5 [Rescinded] Medicaid: lump-sum payments.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 9/1/86, 5/1/91 (Emer.), 7/1/91, 6/11/93, 9/1/94

5160:1-3-27.6 [Rescinded] Medicaid: dividends and interest.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 5/3/85 (Emer.), 8/1/85, 9/1/85 (Emer.), 11/25/85, 4/1/91

5160:1-3-28 [Rescinded] Household goods and personal effects as resources.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80

5160:1-3-29 [Rescinded] Automobiles and other modes of transportation as resources.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 4/1/89, 7/1/88 (Emer.), 9/1/88, 1/1/90 (Emer.), 4/1/90, 7/1/93

5160:1-3-30 [Rescinded] Medicaid: life insurance.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 11/1/87, 7/1/88 (Emer.), 9/1/88, 9/1/92, 8/13/02

5160:1-3-31 [Rescinded] Medicaid: treatment of the home.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.11 , 5111.18
Prior Effective Dates: 09/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 11/1/86 (Emer.), 12/22/86, 7/1/96 (Emer.), 9/1/96, 11/7/02, 10/1/06

5160:1-3-31.3 [Rescinded] Medicaid: exemption of property no longer the principal place of residence.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85, 11/1/86 (Emer.), 12/22/86, 5/1/94

5160:1-3-31.4 [Rescinded] Medicaid: home replacement exclusion.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 11/1/86 (Emer.), 12/22/86

5160:1-3-32 [Rescinded] Medicaid: life estates and life leases.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 7/1/88 (Emer.), 9/1/88, 1/1/90 (Emer.), 4/1/90, 4/1/91 (Emer.), 6/17/91, 9/1/94, 11/7/02, 10/1/06, 11/1/13

5160:1-3-32.1 Medicaid: Property property agreements.

(A) This rule describes the consideration of property agreements as resources.

(B) Definitions.

(1) "Administrative agency" means the county department of job and family services, the Ohio department of job and family services, or other entity that determines eligibility for a medical assistance program.

(2) "Arms length" describes an agreement made by two parties freely and independently of each other, and without some special relationship, such as being a relative, having another deal on the side, or one party having complete control of the other.

(3) "Assets" are defined in rule 5101:1-39-05 of the Administrative Code.

(4) "Individual" means an applicant for or recipient of a medical assistance program.

(5) "Look-back period" is defined in rule 5101:1-39-07 of the Administrative Code.

(6) "Property agreement" means a pledge or security of a particular property for the payment of a debt or the performance of some other obligation within a specified period.

(a) Property agreements on real estate are generally referred to as mortgages but also may be called land contracts, contracts for deed, deeds of trust, etc.

(b) Personal property agreements (e.g., pledges of crops, fixtures, inventory, etc.) are commonly known as chattel mortgages.

(7) "Negotiable instrument" means a written instrument that is signed by the maker or drawer that includes an unconditional promise or order to pay a specified sum of money, is payable on demand or at a definite time, and is payable to order or to bearer.

(C) Treatment of property agreements.

(1) The administrative agency must determine the effective date of a property agreement as follows. The recording date is the date the property agreement is recorded with the county auditor, county recorder, or other appropriate governmental agency charged with the responsibility of recording real estate transfers and titles. The date of signature is the date the person authorized to enter into the property agreement actually signed the instrument creating the agreement.

(a) For property agreements recorded within six months after the date of signature, the administrative agency must consider the date of signature to be the effective date of the agreement.

(b) If a property agreement is recorded more than six months after the date of signature, the individual must produce documentation from other sources verifying that the agreement was established on the date of signature rather than the date of recording. Such documentation may consist of financial records from lending institutions, tax records from governmental agencies, or records from other agencies or private or public institutions. The individual may provide statements from persons to whom the property was conveyed or from persons who participated in the establishment of the property agreement. The administrative agency must accept the statements of these persons only upon a finding that their statements are corroborated and credible. If the individual fails to produce documentation verifying the date of signature, the administrative agency must use the date of recording as the effective date of the agreement.

(c) If a transfer is not recorded at all, the individual must record the agreement. The individual must produce documentation evidencing the transfer. Such documentation may consist of financial records from lending institutions, tax records from governmental agencies, or records from other agencies or private or public institutions. The individual may provide statements from persons to whom the property was transferred or other persons who participated in the creation of the agreement. The administrative agency must accept the statements of these persons only upon a finding that their statements are corroborated and credible. If the individual fails to produce documentation verifying the date of signature, the administrative agency must use the date of recording as the effective date of the transfer.

(2) A copy of the property agreement must be obtained for the case record.

(3) For a negotiable property agreement, its value as a resource means its outstanding principal balance.

(a) The individual must receive fair market value as a result of arm's length negotiations.

(b) The fair market value of the property agreement at the time of the transfer must be equal to the fair market value of the property given by the individual in exchange for the property agreement.

(c) Fair market value is defined in the resource requirement rule in Chapter 5101:1-39 of the Administrative Code.

(d) To establish the fair market value of the property agreement, the individual must present documentation from two knowledgeable sources who are regularly engaged in the business of the public trade, sale, or exchange of the type of property agreement presented, attesting to the market value of the property agreement on the date of the transfer.

(4) For non-negotiable property agreements, if the terms of the agreement prohibit or prevent the sale of the agreement, then the assets given in exchange for the agreement will be deemed improperly transferred in accordance with the provisions in the transfer of resources rule in Chapter 5101:1-39 of the Administrative Code, if the exchange occurred within the applicable look-back period.

(a) The total value of resources improperly transferred is the value of the assets originally exchanged for the agreement, reduced by the sum total of any repayments made on or before the date of application for medicaid.

(b) The period of restricted coverage must not be reduced based upon anticipated, estimated, or projected future payments to be made under the agreement.

(c) The individual may seek a new eligibility determination and/or a recalculation of the restricted period of coverage based only upon actual repayments made under the terms of the agreement.

(d) If the sum total of all repayments made under the agreement are less than the original value of the assets given in exchange for the agreement, then the difference will be deemed improperly transferred if the exchange occurred within the applicable look-back period.

(5) If the individual sells a property agreement for an amount less than the value of assets given in exchange for the agreement, the difference will be deemed improperly transferred as of the date of the sale of the agreement. The individual may rebut the finding of an improper transfer by:

(a) Providing credible evidence from a knowledgeable source establishing that the market value at the time of sale of the agreement was less than its outstanding principal balance. The knowledgeable source must be clearly identified. The knowledgeable source must provide a written explanation regarding its opinion of the market value. The knowledgeable source must affirmatively indicate that the decreased market value was not caused in whole or part by the terms of the agreement and that the decrease in value was entirely outside the control of the individual or his or her representatives. Knowledgeable sources include anyone regularly engaged in the business of the public trade, sale, or exchange of commercial paper; or,

(b) The individual may provide documentation clearly showing that the individual received payments under the terms of the agreement prior to the sale, and such payments equal or exceed the difference between the sale price and the value of assets originally given in exchange for the agreement; or,

(c) The individual may provide documentation clearly showing that the lower sale price of the agreement was accepted by the individual as payment of a debt owed by the individual to the purchaser.

(6) If ownership of the property agreement is shared, documentation must be provided by the individual verifying the individual's proportionate share of the agreement.

Effective: 10/01/2006
R.C. 119.032 review dates: 07/14/2006 and 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 8/1/86 (Emer.), 10/3/86, 11/1/86 (Emer.), 12/22/86, 7/1/94, 5/1/97, 11/7/02

5160:1-3-32.2 [Rescinded] Medicaid: burial spaces.

Effective: 10/02/2014
Five Year Review (FYR) Dates: 07/01/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 12/1/84 (Emer.), 2/10/85

5160:1-3-33 [Rescinded] Real or personal property essential to self-support.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/3/77, 2/1/79, 10/1/79, 1/3/80, 10/1/95

5160:1-3-34 [Rescinded] Deeming of resources.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 9/37//, 2/1/79, 10/1/79, 1/3/80, 2/15/85 (Emer.), 5/14/85 (Emer.), 6/10/85, 1/1/91, 7/1/94, 10/1/95, 10/1/96 (Emer.)

5160:1-3-35 [Rescinded] Medicaid: resource assessment.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01
Rule Amplifies: 5111.01
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 10/1/90, 2/7/91 (Emer.), 5/1/91, 7/1/92, 9/1/94, 10/1/02, 7/1/05

5160:1-3-36 [Rescinded] Medicaid: treatment of resources for institutionalized individuals with a spouse in the community.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 1/1/91 (Emer.), 4/1/91, 1/1/92 (Emer.), 3/30/92, 2/12/93 (Emer.), 5/13/93, 3/18/94, 9/1/94, 4/1/96, 5/1/97, 4/1/98 (Emer.), 6/1/98, 4/1/99, 1/1/00 (Emer.), 4/1/00, 1/1/01

5160:1-3-36.1 [Rescinded] Medicaid: resource budgeting methodology for institutionalized individuals with a spouse in the community.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 6/1/90 (Emer.), 8/1/90, 10/1/90
(Emer.), 12/24/90, 1/1/91 (Emer.), 4/1/91, 1/1/92 (Emer.), 3/30/92, 2/12/93 (Emer.), 5/13/93, 9/1/94, 10/28/02, 9/20/03

5160:1-3-36.2 [Rescinded] Medicaid: transfer of resources for institutionalized spouses with a spouse in the community.

Effective: 11/02/2014
Five Year Review (FYR) Dates: 08/07/2014
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 6/1/90 (Emer.), 81/190, 1/1/92, 7/1/95