Chapter 5160:1-6 Long-Term Care

5160:1-6-01 Medicaid: eligibility for medicaid payment for long-term care (LTC) services.

(A) This rule describes how an individual is determined eligible for medicaid payment for long-term care (LTC) services.

(B) Before an individual can receive medicaid payment for LTC services, the individual must:

(1) Be eligible for medical assistance in accordance with Chapter 5160:1-3, 5160:1-4, 5160:1-5, or 5160:1-6, as applicable; and

(2) Meet any non-financial eligibility requirements required for the type of LTC services requested; and

(3) Not be subject to a restricted medicaid coverage period, in accordance with rule 5160:1-6-06.5 of the Administrative Code.

(C) An individual receiving medicaid payment for LTC services may be subject to post-eligibility treatment of income in accordance with rules 5160:1-6-07 and 5160:1-6-07.1 of the Administrative Code.

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02

5160:1-6-01.1 Medicaid: definitions relating to eligibility for long-term care services.

(A) For purposes of this chapter the following definitions apply unless otherwise stated.

(1) "Baseline date" means the first date the individual both is an institutionalized individual and has applied for medical assistance. An individual only has one baseline date.

(2) "Community spouse" (CS) means an individual who is not receiving medicaid payment for long-term care (LTC) services and is married to an institutionalized spouse.

(3) "Community spouse resource allowance" (CSRA) means the amount of a couple's combined countable resources that the community spouse can keep and do not have to be made available for the care of the institutionalized spouse.

(4) "Continuous period of institutionalization" means:

(a) Thirty consecutive days of being an inpatient in a medical institution;

(b) Thirty consecutive days of being in receipt of home and community-based (HCBS) waiver or program of all-inclusive care for the elderly (PACE) services; or

(c) Determined eligible for and in need of HCBS waiver or PACE services for at least thirty consecutive days.

(5) "Dependent family member" means a natural, adoptive, or step-child, parent, or sibling of the institutionalized individual who is or could be claimed as a dependent for the most recent federal tax year by the institutionalized individual, the institutionalized individual's spouse, or the couple.

(6) "Excess shelter allowance standard" (ESA standard) is thirty per cent of the current minimum monthly maintenance needs allowance (MMMNA) standard.

(7) "Family allowance" (FA) means a required deduction in the computation of patient liability to provide for the needs of dependent family members who reside with the community spouse.

(8) "Family maintenance needs allowance" (FMNA) means a required deduction in the computation of patient liability to provide for the needs of dependent family members residing in the community when there is no community spouse.

(9) "Family maintenance needs allowance standard" means the current Ohio works first payment standard for the same number of applicable dependent family members.

(10) "First continuous period of institutionalization" means the first day of the first month, that began on or after September 30, 1989, in which the individual had a continuous period of institutionalization as defined in paragraph (A)(4) of this rule. This is also called the snapshot date.

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

(12) "Home and community-based services" (HCB services or HCBS) means services provided under a waiver authorized in accordance with 42 U.S.C. 1396n(c) (as in effect October 1, 2016).

(13) "Improper transfer" means a transfer or disposal of an asset any time after the look-back date for less than fair market value.

(14) "Income" is defined in rules 5160:1-3-03.1 and 5160:1-4-01 of the Administrative Code.

(15) "Individual" means the person requesting or receiving LTC services.

(16) "Institutionalized individual" means an individual who is:

(a) An inpatient in a long-term care facility (LTCF); or

(b) Eligible for enrollment in an HCBS waiver by using the special income level (SIL) described in rule 5160:1-6-03.1 of the Administrative Code.

(17) "Institutionalized spouse" (IS) means an individual who is:

(a) In a medical institution and expected to be there for at least thirty consecutive days; or

(b) Eligible for an HCBS waiver or PACE and expected to be in need of such services for at least thirty consecutive days; and

(c) Married to someone who is not in a medical institution, or eligible for enrollment in an HCBS waiver, or receiving PACE services.

(18) "Look-back date" means the date that is sixty months before the individual's baseline date.

(19) "Long-term care facility" (LTCF) means a nursing facility, intermediate care facility for individuals with intellectual disabilities (ICF-IID), or medical institution with respect to whom payment is made based on a level-of-care provided in a nursing facility.

(20) "Long-term care (LTC) services" means care provided to medicaid eligible individuals in a medical institution as defined in paragraph (A)(21) of this rule, through an HCBS waiver, or through PACE.

(21) "Medical institution" means a hospital or LTCF that provides medical care, including nursing and convalescent care, as defined in 42 C.F.R. 435.1010 (as in effect October 1, 2016).

(22) "Minimum monthly maintenance needs allowance standard" (MMMNA standard) is one hundred fifty per cent of the federal poverty level (FPL) for a family unit size of two members. The MMMNA standard is updated annually in accordance with 42 U.S.C 1396r-5(d).

(23) "Monthly income allowance" (MIA) means a required deduction in the computation of patient liability to provide for the needs of the community spouse.

(24) "Personal needs allowance" (PNA) means a required deduction in the computation of patient liability for needs of the individual.

(25) "Program of all-inclusive care for the elderly" (PACE) means the program administered by the department of aging in accordance with Chapter 173-50 of the Administrative Code.

(26) "Restricted medicaid coverage period" (RMCP) means the period of time an institutionalized individual is ineligible for medicaid payment of LTC services because of an improper transfer.

(27) "Special income level" (SIL) means three hundred per cent of the current supplemental security income (SSI) payment standard. The SSI payment standard is also referred to as the federal benefit rate (FBR).

(28) "Standard utility allowance" (SUA) is the amount used in lieu of the actual amount of utility costs.

(29) "Transfer" means any action or failure to act which has the effect of changing an ownership interest in an asset from one person to another person or entity, or of preventing an ownership interest that the person would otherwise have enjoyed. This includes any direct or indirect method of disposing of an interest in property.

(30) "Uncompensated value" means the difference between the fair market value at the time of the transfer (less any outstanding loans, mortgages, or other encumbrances on the asset at issue) and the amount received for the resource.

(31) "Valuable consideration" means that an individual receives in exchange for his or her right or interest in an asset, some act, object, service, or other benefit which has tangible and/or intrinsic value to the individual that is roughly equivalent to or greater than the value of the transferred asset.

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
Rule Amplifies: 5160.02 , 5163.02

5160:1-6-01.8 [Rescinded] Medicaid: continuing care communities, life care communities and philanthropic long-term care facilities.

Effective: 9/1/2017
Five Year Review (FYR) Dates: 05/31/2017
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02
Prior Effective Dates: 9/3/77, 10/26/78, 5/1/79, 9/21/79, 2/21/80, 6/18/89, 10/1/02, 10/1/06, 1/1/16, 12/12/16

5160:1-6-02 Medicaid: special resource rules when an individual is requesting or receiving medicaid payment for long-term care (LTC) services.

(A) This rule describes the application of resource rules only when an individual is requesting or receiving medicaid payment for long-term care (LTC) services.

(B) Individuals requesting or receiving medicaid payment for LTC services are subject to the following resource rules:

(1) The home equity limit as described in rule 5160:1-6-02.1 of the Administrative Code.

(2) Evaluation of any qualified long-term care insurance policy as described in rule 5160:1-6-02.2 of the Administrative Code.

(3) Evaluation of any entrance fee when the individual is residing in a continuing care retirement community, life care community, or a philanthropic long-term care facility as described in rule 5160:1-6-02.3 of the Administrative Code.

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02

5160:1-6-02.1 Medicaid: home equity limit for individuals requesting or receiving medicaid payment for long-term care (LTC) services.

(A) This rule describes the treatment of the home equity limit for individuals requesting or receiving medicaid payment for long-term care (LTC) services.

(B) Definition. "Home equity limit' means the maximum amount of equity which an individual could have in his or her home and become or remain eligible for LTC services. The home equity limit of five hundred sixty thousand dollars will increase annually by the percentage increase in the consumer price index for all urban consumers (CPI-U) in accordance with section 5163.32 of the Revised Code.

(C) An individual shall not be eligible for LTC services if the individual's equity interest in his or her home, as defined in rule 5160:1-3-05.13 of the Administrative Code, exceeds the home equity limit.

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

(1) The individual's spouse; or

(2) The individual's child who is under the age twenty-one; or

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

(E) The home equity limit is applicable even when an individual is a recipient of qualified long-term care partnership (QLTCP) benefits, as described in rule 5160:1-6-02.2 of the Administrative Code. A QLTCP exclusion cannot offset or reduce home equity for the purposes of this rule.

(F) An individual who has been in receipt of LTC services since before January 1, 2006, without a break in eligibility for such services, is not subject to the home equity limit.

(G) The individual will not be subject to a denial or termination of LTC services because of the home equity if the individual demonstrates that the denial or termination will result in an undue hardship.

(1) An undue hardship exists when denial or termination of LTC services would deprive the individual of:

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

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

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

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

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

(H) Nothing in this rule shall be construed as preventing an individual from using a reverse mortgage or home equity loan to reduce the total equity interest in the home.

Replaces: 5160:1-3- 05.13

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
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, 9/1/07, 10/2/14, 8/1/16

5160:1-6-02.2 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 assets or resources are disregarded in eligibility determinations and at estate recovery in the amount of insurance benefit payments made to or on behalf of the individual who is a beneficiary of 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 October 1, 2016), for the disregard of assets or 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 October 1, 2016); 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) Upon the request for, or renewal of, a determination of eligibility for medicaid payment of long-term care (LTC) services, an individual's resources will be disregarded up to the dollar amount of insurance benefit payments made to or on behalf of the individual who is a beneficiary of a QLTCP policy.

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

(2) An individual may request a determination of eligibility for medicaid payment of LTC services before exhausting the benefits of a QLTCP policy. If an individual requests and is determined eligible for medicaid payment of LTC services before the QLTCP policy is exhausted, the QLTCP insurer must make payment for medical care to the maximum extent of its liability before medicaid funds may be used to pay providers for covered LTC services.

(3) If an individual has requested and been determined eligible for medicaid payment of LTC services, then he or she accumulates additional resources, the individual continues to be eligible for medicaid payment of LTC services to the extent that the total value of all disregarded resources does not exceed the individual's QLTCP disregard plus the applicable resource limit.

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

(E) Improper transfers of assets, as described in rule 5160:1-6-06 of the Administrative Code, are treated as follows when there is a QLTCP disregard.

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

(2) If an individual becomes eligible for medicaid payment of LTC services 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 assets plus the value of the transferred assets 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 asset is considered part of the individual's QLTCP disregard.

(b) If the value of the individual's remaining countable assets plus the value of the transferred assets 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 5160:1-6-06.5 of the Administrative Code.

Replaces: 5160:1-3- 02.8

Effective: 11/1/2017
Five Year Review (FYR) Dates: 11/01/2022
Promulgated Under: 111.15
Statutory Authority: 5162.03, 5162.21, 5163.02, 5164.86
Rule Amplifies: 5162.03, 5162.21, 5163.02, 5164.86
Prior Effective Dates: 9/1/2007, 12/1/2014

5160:1-6-02.3 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) "Entrance fee" means a payment generally required for admission to a CCRC or life care community and may vary in amount based on the type of housing accommodations and/or type of care.

(3) "Philanthropic long-term care facility" means a not-for-profit long-term care facility.

(C) Eligibility for medical assistance for individuals residing in a 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 medical assistance, if all other eligibility requirements for medical assistance are fulfilled, when 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 5160:1-6 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 shall be considered an available resource to the individual, in accordance with 42 U.S.C. 1396p (as in effect October 1, 2016), 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, when other resources or income of the individual are 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: 5160:1-6- 01.8

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02
Prior Effective Dates: 9/3/77, 10/26/78, 5/1/79, 9/21/79, 2/21/80, 6/18/89, 10/1/02, 10/1/06, 1/1/16, 12/12/16

5160:1-6-03 Medicaid: special income rules that may apply when an individual is requesting medicaid payment for long-term care services.

(A) The following income rules only apply when an individual, regardless of age, is seeking medicaid payment for long-term care services.

(1) An individual ineligible for base eligibility due to excess income shall have his or her income eligibility determined using the special income level (SIL), in accordance with rule 5160:1-6-03.1 of the Administrative Code.

(2) If an individual's countable income is greater than the SIL, as determined in rule 5160:1-6-03.1 of the Administrative Code, the individual may establish a qualified income trust (QIT), in accordance with rule 5160:1-6-03.2 of the Administrative Code to become income eligible for medical assistance.

(B) These rules do not describe what is considered income for the purposes of determining eligibility for medical assistance.

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
Rule Amplifies: 5160.02 , 5163.02

5160:1-6-03.1 Medicaid: determining financial eligibility for medical assistance using the special income level.

(A) This rule describes how to determine financial eligibility for medical assistance using the special income level (SIL). This rule does not describe how to determine non-financial eligibility criteria for medical assistance or for medicaid payment of long-term care services.

(B) An individual, regardless of age, who is ineligible under base medicaid due to excess income may be income eligible for medical assistance if his or her income is less than or equal to the SIL. The SIL is equal to three hundred per cent of the current supplemental security income (SSI) benefit payment rate for an individual.

(C) An individual who is income eligible under the SIL must also meet the resource requirements in rules 5160:1-3-05.1 and 5160:1-6-04 of the Administrative Code, as applicable, before his or her application for medical assistance can be approved.

(D) Only an individual who has been institutionalized for a continuous period of institutionalization, as defined in rule 5160:1-6-01.1 of the Administrative Code, may have his or her income eligibility determined using the SIL.

(E) If the individual is eligible under the SIL, eligibility for medical assistance will begin the first day of the month in which the continuous period of institutionalization began, and last, assuming all other eligibility criteria are met, until the individual is no longer institutionalized or receiving home and community-based services (HCBS) or program of the all-inclusive care for the elderly (PACE) services.

(F) If the individual is eligible under the SIL, the administrative agency shall calculate a patient liability in accordance with rules 5160:1-6-07 and 5160:1-6-07.1 of the Administrative Code, as applicable. The individual must pay the calculated patient liability to the long-term care (LTC) provider as applicable.

(G) If an individual's countable income is greater than the SIL, the individual may establish a qualified income trust (QIT) in accordance with rule 5160:1-6-03.2 of the Administrative Code to reduce his or her countable income to or below the SIL.

(H) Determine whether an individual's income is at or below the SIL as follows:

(1) Total only the individual's gross income, earned and unearned as defined in rule 5160:1-1-01 of the Administrative Code (do not include parental or spousal income), then exclude the following income types:

(a) Payments not considered income, in accordance with 20 C.F.R. 416.1103 (as in effect on October 1, 2016), which includes veterans administrative aid and attendance.

(b) 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 October 1, 2016).

(c) Japanese and Aleutian restitution payments, under the provisions of section 105 of Pub. L. No. 100-383 (as in effect October 1, 2016), by individuals of Japanese ancestry.

(d) Agent Orange settlement payments under the provisions of the Agent Orange Compensation Exclusion Act, Pub. L. No. 101-201 (as in effect October 1, 2016), received on or after January 1, 1989.

(e) Department of defense payments to certain persons captured and interned in North Vietnam, in accordance with the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1998, under provision 606 of Pub. L. 105-78 and provision 657 of Pub. L. No. 104-201 (as in effect on October 1, 2016).

(f) Radiation exposure compensation payments under the provisions of the Radiation Exposure Compensation Act, Pub. L. No. 101-426 (as in effect October 1, 2016).

(g) Veterans affairs payments made to or on behalf of:

(i) Certain Vietnam veterans' natural children regardless of their age or marital status, for any disability resulting from spina bifida suffered by such children under provision 421 of Pub. L. No. 104-204 ( 38 U.S.C. 1805(d) ; as in effect October 1, 2016);

(ii) Certain Korea service veterans' natural children regardless of their age or marital status, for any disability resulting from spina bifida suffered by such children under provision 102 of the Veterans Benefits Act of 2003, P.L. 108-183 (as in effect October 1, 2016);

(iii) Women Vietnam veterans natural children regardless of their age or marital status, for certain birth defects under provision 401 of Pub. L. No. 106-419 ( 38 U.S.C. 1833(c) ; as in effect October 1, 2016).

(h) Payments made to Native Americans as listed in section IV of 20 C.F.R. 416 Subpart K Appendix (as in effect on October 1, 2016).

(i) Residential state supplement (RSS) benefits to individuals, in accordance with rule 5160:1-5-01 of the Administrative Code.

(j) Payments received under the provisions of a state "Victims of Crime Program" per 42 U.S.C 10602(c) (as in effect October 1, 2016), for a period of nine months beginning with the month following the month of receipt.

(k) Payments made from any fund established pursuant to a class settlement in the case of Susan Walker v. Bayer Corporation, 96-C-5024 (N.D. Ill), per section 4735 of the Balanced Budget Act of 1997, Pub. L. No. 105-33 (as in effect October 1, 2016).

(l) 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 October 1, 2016).

(m) Assistance (other than wages or salaries) under the Older Americans Act of 1965 under 92 Stat. 1515, 42 U.S.C. 3020a (as in effect October 1, 2016).

(n) Student financial assistance from a program funded under Title IV of the Higher Education Act (HEA) of 1965 or Bureau of Indian Affairs (BIA) per the Higher Education Technical Amendments Act of 1987 ( 20 U.S.C. 1087uu ) (as in effect October 1, 2016).

(o) Monies in an individual development account (IDA) as provided by the Assets for Independence Act, as amended in 2002 ( Pub. L. No. 107-110, 42 U.S.C. 604(h)(4) ), listed as exclusion (xxiv) (as in effect October 1, 2016).

(p) Foster care subsidies under title IV-B or title-XX and adoption assistance subsidies under title IV-E per 42 U.S.C. 673(b) (as in effect October 1, 2016).

(q) Assistance under the Child Care and Development Block Grant Act of 1990 ( 20 USC 9858q; as in effect October 1, 2016).

(r) Assistance or services received through the Domestic Volunteer Services under 42 U.S.C. 66 per 42 U.S.C. 5044(f) (as in effect October 1, 2016).

(s) Assistance or services received through the Supplemental Nutrition Act Program per 7 U.S.C. 2017(b) ; the School Lunch Program per 42 U.S.C. 1760(e) ; the Child Nutrition Act per 42 U.S.C. 1780(b) ; and the Nutrition Program for Elderly (Title VII) per 42 U.S.C. 3020a(a) (as in effect October 1, 2016).

(t) Payments made under the Disaster Relief and Emergency Assistance Act per 42 U.S.C. 5155(d) (as in effect October 1, 2016).

(u) Assistance, with respect to the dwelling unit occupied by such individual (or such individual and spouse), under the United States Housing Act of 1937, the National Housing Act, section 101 of the Housing and Urban Development Act of 1965, title V of the Housing Act of 1949, or section 202(h) of the Housing Act of 1959 per 42 U.S.C. 1382a (as in effect October 1, 2016).

(v) Relocation assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 in accordance with 42 U.S.C. 4636 (as in effect on October 1, 2016) provided to individuals displaced by any federal or federally-assisted project or state or local government or through a state-assisted or locally-assisted project in the acquisition of real property.

(w) The first two thousand dollars per calendar year received as compensation for participation in clinical trials that meet the criteria detailed in section 1612(b) of the Social Security Act ( Pub. L. 111-255 ) (as in effect October 1, 2016).

(2) Compare the individual's gross countable income computed in paragraph (H)(1) of this rule to the SIL.

(3) If the individual's countable income is less than or equal to the SIL then the individual is income eligible for medical assistance.

Replaces: 5160:1-3- 04.2

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02
Rule Amplifies: 5163.02
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, 7/1/05

5160:1-6-03.2 Medicaid: use of qualified income trusts (QIT).

(A) This rule sets forth the requirements that must be met in order to establish and use a qualified income trust (QIT) (also referred to as a Miller trust) to become eligible for medicaid payment of long-term care services.

(B) Definitions

(1) "Beneficiary" is defined in rule 5160:1-3-05.2 of the Administrative Code.

(2) "Grantor" is defined in rule 5160:1-3-05.2 of the Administrative Code.

(3) "Individual" is defined in rule 5160:1-6- 01.1 of the Administrative Code.

(4) "Irrevocable trust" is defined in rule 5160:1-3-05.2 of the Administrative Code.

(5) "Primary beneficiary" means the "individual" as defined in paragraph (B)(3) of this rule.

(6) "Qualified Income Trust" (QIT) means a trust that allows an individual whose income is over the special income level (SIL), as described in rule 5160:1-6-03.1 of the Administrative Code, to have some or all of his or her income not be counted when determining medicaid eligibility by placing income in the trust.

(7) "QIT account" means the account that holds the income placed into a QIT.

(8) "Trustee" is defined in rule 5160:1-3-05.2 of the Administrative Code.

(C) A QIT can only be used to establish medicaid eligibility by an individual whose income is above the SIL, who is eligible for LTC services covered by the Ohio medicaid program, and who is subject to the calculation of patient liability under rules 5160:1-6-07 and 5160:1-6-07.1 of the Administrative Code.

(D) A QIT must be a valid trust under the law of Ohio or another state and meet the following requirements:

(1) The trust must be irrevocable.

(2) Only the individual's income can be placed into the QIT.

(3) The source(s) of income placed into the QIT must be identified.

(4) The individual cannot transfer or assign to the trust his or her right to receive income.

(5) No other property or resources, except for any interest earned on the trust corpus, can be placed into the QIT.

(6) The trust document must provide that the trust shall terminate upon the death of the primary beneficiary, at which point the remaining trust property shall be distributed to the Ohio department of medicaid or its successor up to an amount equal to the total medical assistance paid on behalf of the primary beneficiary; the trustee is prohibited from repaying other persons or creditors prior to this distribution.

(E) Distributions from the trust shall be in amounts and for the purposes necessary to maintain the individual's income eligibility for medicaid. In accordance with rules 5160:1-6-07 and 5160:1-6-07.1 of the Administrative Code, distributions from the trust shall be made in the following order, no later than the last day of the calendar month in which the income is placed in the QIT account:

(1) A monthly personal or maintenance needs allowance for the primary beneficiary;

(2) A maintenance allowance for the spouse, if any, of the primary beneficiary and, if applicable, a maintenance allowance for family dependents;

(3) Incurred medical expenses of the primary beneficiary. In accordance with rule 5160:1-6-07 of the Administrative Code, when income is used to help pay for LTC services or other medical care provided to the individual, the individual is considered to have received fair market value for the income placed in the trust, up to the amount actually paid for other medical care provided to the individual and to the extent that the payments purchased care at fair market value;

(4) The trustee may make payments in an amount up to fifteen dollars per month from the QIT account for bank fees, attorney fees, and other expenses required to establish and administer the trust. If fifteen dollars is insufficient to cover the cost to administer the trust, the individual can request that the payment amount be increased. Requests for an increased payment amount must be approved by the Ohio department of medicaid (ODM).

(F) The trust corpus is not counted as a resource available to the individual in determining his or her eligibility for medicaid.

(G) The establishment of the QIT must be documented, including the location of the QIT account, the QIT account number, and details about who has access to the QIT account. The title of the QIT account must clearly identify it as a QIT account in the name of the individual.

(H) If the individual's income cannot be automatically transferred or deposited into the QIT account each month, then the individual must provide ODM with documentation showing that the individual's income is being transferred or deposited into the QIT account on a monthly basis. Every effort should be made to have the individual's excess income transferred or deposited directly into the QIT account on a monthly basis.

(I) The properly executed QIT document, proof of the establishment of the QIT account, documentation of the required monthly deposit amount, and verification of monthly deposits from an income source or sources into the QIT account, including efforts to have income deposited directly into the QIT account, must be submitted along with the application for medicaid for an individual needing LTC services.

(J) Documentation of monthly deposits into the QIT must be presented at the individual's annual eligibility review or at the request of the administrative agency. If such documentation is not presented, any income that should have been placed into the QIT but was not will be considered available for purposes of determining the individual's medicaid eligibility for that month. Any medicaid payments made by the administrative agency during a period of ineligibility are subject to recovery under rule 5160:1-2-04 of the Administrative Code.

(K) The individual can elect to have all, or only a portion, of his or her income placed into the QIT account. Any income not placed into the QIT account will be counted as available to the individual when determining eligibility for medicaid.

(L) Income placed into the QIT is subject to the patient liability requirements as set forth in rules 5160:1-6-07 and 5160:1-6-07.1 of the Administrative Code. All income placed into a QIT is combined with any countable income not placed into the QIT to arrive at a base income figure to be used in the patient liability calculation. The base income figure is used for post-eligibility distributions.

(M) Distributions or payments from the QIT, other than as authorized by this rule, may be considered a transfer of assets for less than fair market value and subject to a penalty in accordance with rule 5160:1-6- 06.5 of the Administrative Code. When income placed into the QIT exceeds the amount paid out of the QIT in accordance with paragraph (E) of this rule, the excess income may be subject to penalties under the transfer of assets provisions as set forth in rule 5160:1-6- 06.5 of the Administrative Code.

(N) In accordance with rule 5160:1-3-03.1 of the Administrative Code, payments made from the QIT directly to the individual that are not authorized by paragraph (E) of this rule are counted as income to the individual in the month they are received.

(O) In accordance with rule 5160:1-3-03.8 of the Administrative Code, payments made from the QIT to a third-party to purchase something in-kind for the individual will be counted as unearned income to the individual in the month received. Payments to a third-party for something other than in-kind support and maintenance that are not authorized under paragraph (E) of this rule, are subject to the transfer of asset penalties as set forth in rule 5160:1-6- 06.5 of the Administrative Code.

Effective: 9/1/2017
Five Year Review (FYR) Dates: 8/1/2021
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
Rule Amplifies: 5160.02 , 5163.02
Prior Effective Dates: 8/1/16

5160:1-6-04 Medicaid: treatment of income and resources for an institutionalized spouse with a spouse in the community.

(A) This rule describes how to treat the income and resources of the institutionalized spouse (IS) and the community spouse (CS) for purposes of determining eligibility of the IS. When determining eligibility under this rule, the income and resources deeming provisions in Chapter 5160:1-3 of the Administrative Code do not apply.

(B) This rule only applies to the financial eligibility determination of the IS, who is:

(1) Requesting long-term care (LTC) payment of services, as described in rule 5160:1-6-01.1 of the Administrative Code, in a medical institution, or home and community-based services (HCBS) waiver, or program of all-inclusive care for the elderly (PACE), for a continuous period of institutionalization as defined in rule 5160:1-6-01.1 of the Administrative Code; and

(2) Married to someone who is not in a medical institution, eligible for an HCBS waiver, or receiving PACE services. This spouse is called the CS.

(C) Financial eligibility for the IS cannot be approved until:

(1) The IS's income is at or below the income limit applicable to the eligibility group for which he or she qualifies, as identified in Chapters 5160:1-3, 5160:1-4, 5160:1-5, and 5160:1-6 of the Administrative Code; and

(2) The couple's combined countable resources, if the IS is subject to a resource limit as described in the eligibility rules for the applicable medicaid category, are equal to or less than the community spouse resource allowance (CSRA), as determined in paragraph (E)(5) of this rule, plus two thousand dollars.

(D) Treatment of income.

(1) During any month in which the IS is eligible for LTC services in a medical institution, or HCBS waiver, or PACE, no income of the CS shall be considered available to the IS.

(a) If the IS's base eligibility is calculated using modified adjusted gross income (MAGI) budgeting methodology, determine the MAGI household composition and family size in accordance with rule 5160:1-4-01 of the Administrative Code, under which a married individual's household includes his or her spouse if the spouses file their tax returns jointly or are living together.

(b) When using MAGI budgeting methodology, the CS's income will not be included in the determination of household income.

(2) In determining each spouse's income, the following rules apply:

(a) If payment of income is made solely in the name of one spouse, the income shall only be considered available to that respective spouse, unless the income is from a trust or other instrument establishing ownership otherwise.

(b) If payment of income is made in the name of both spouses, with no trust or instrument establishing ownership otherwise, one-half of the income shall be considered available to each spouse.

(c) If payment of income is made in the name of both spouses and to another person, the income shall be considered available to each spouse in proportion to their interest. If the portion of interest is not specified, then one-half of the joint interest shall be considered available to each spouse.

(E) Treatment of resources.

(1) The IS, if subject to a non-MAGI budgeting methodology, is allowed to keep up to two thousand dollars in countable resources.

(2) A CS is allowed to keep a certain amount of the couple's combined countable resources called the community spouse resource allowance (CSRA).

(3) A CSRA must be calculated when an IS applies for LTC services; unless

(4) The IS has base eligibility under a MAGI category, in accordance with Chapter 5160:1-4 of the Administrative Code, since MAGI budgeting does not have a resource limit.

(5) The CSRA is calculated as follows:

(a) Total all of the couple's combined countable resources, in accordance with Chapter 5160:1-3 of the Administrative Code, which were owned on the IS's snapshot date. Beginning on or after September 30, 1989, the snapshot date is the earlier of:

(i) The first day of the month in which the individual was an IS and was in a medical institution for a continuous period of institutionalization;

(ii) The first day of the month in which the individual was an IS and is expected to be in a medical institution for a continuous period of institutionalization; or

(iii) The day that the IS applied for or requested HCBS or PACE services, so long as the IS meets the non-financial requirements to receive such services. If the IS ceases to meet the non-financial requirements for HCBS waiver or PACE enrollment, then the IS's base eligibility must be re-determined in accordance with Chapters 5160:1-3, 5160:1-4, or 5160:1-5 of the Administrative Code.

(b) The CSRA is the greatest of the following:

(i) One half of the total of the couple's combined countable resources or the community spouse maximum resource standard established annually by the centers for medicare and medicaid services (CMS); whichever is less;

(ii) The community spouse minimum resource standard established annually by CMS;

(iii) The amount established by a state hearing decision from a hearing requested under paragraphs (E)(11) and (E)(12) of this rule; or

(iv) The amount established under a court order.

(6) To determine if the IS is resource eligible deduct the CSRA from the total of the couple's current combined countable resources.

(a) If the remainder is less than or equal to two thousand dollars, the IS is resource eligible.

(b) If the remainder is greater than two thousand dollars, the IS is ineligible for medical assistance.

(7) If the CS fails to cooperate with the CSRA determination or refuses to make resources available to the IS as required by this rule, the IS shall not be ineligible because of resources determined in paragraph (E)(6) of this rule, if the countable resources that are solely owned by or titled to the IS are at or below two thousand dollars and one of the following conditions are met:

(a) The IS has assigned to the administrative agency any rights to support from the CS; or

(b) The IS lacks the ability to execute an assignment due to physical or mental impairment but the administrative agency has the right to bring a support proceeding against a CS without such assignment; or

(c) The administrative agency determines that a denial of eligibility would cause an undue hardship. An undue hardship exists when the denial or termination of services would deprive the individual of medical care such that the individual's health or life would be endangered or deprive the individual of life necessities such as food, clothing, or shelter.

(8) An undue hardship under paragraph (E)(7) of this rule will not be granted if the IS transferred resources to the CS and the CS refuses to make resources in an amount above the CSRA available to the IS.

(9) If applicable, once the IS's initial eligibility is approved, the IS has twelve months from the date that eligibility was approved to transfer any resources that are owned or titled in his or her name, up to the CSRA amount, solely into the name of the CS. If the IS fails to transfer such resources within the twelve month period, the IS's eligibility will be discontinued if the resources that remain in the IS's name are not at or below two thousand dollars.

(10) After the month in which the IS is determined eligible for medical assistance, no resources of the CS shall be considered available to the IS, for so long as the IS continues to remain eligible without a break in coverage.

(11) A CSRA calculation can be requested at any time by either spouse or by someone with the legal ability to act on the IS's behalf. If the request for a CSRA calculation is not a part of an application for medical assistance, there shall be a fee of fifty dollars charged to the individual requesting the calculation. A copy of the CSRA calculation will be maintained by the administrative agency.

(12) If either spouse considers the CSRA amount insufficient, either spouse or someone with the legal ability to act on his or her behalf can request a state hearing, in accordance with rule 5101:6-7-02 of the Administrative Code, regardless of whether the CSRA calculation is done in conjunction with an application for medical assistance.

(13) The CSRA may be increased to generate additional income to the CS if a hearing requested under rule 5101:6-7-02 of the Administrative Code results in a finding that all of the available income of the IS has been allocated to the CS and that income is not enough to bring the CS's income up to the minimum monthly maintenance needs allowance (MMMNA), as defined in rule 5160:1-6-01.1 of the Administrative Code.

Replaces: 5160:1-3- 06.1, 5160:1-3- 06.2, 5160:1-3- 06.3, 5160:1-3- 06.4, 5160:1-3- 06.5

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
Rule Amplifies: 5160.02 , 5163.02
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, 6/1/90 (Emer.), 8/1/90, 10/1/90 (Emer.), 12/24/90, 1/1/91 (Emer.), 2/7/91 (Emer.), 4/1/91, 5/1/91, 1/1/92 (Emer.), 3/30/92, 7/1/92, 2/12/93 (Emer.), 5/13/93, 3/18/94, 9/1/94, 7/1/95, 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, 10/1/02, 11/7/02, 7/1/03, 9/20/03, 7/1/05, 10/1/06, 11/2/14

5160:1-6-05 Medicaid: treatment of income and resources for spouses who are both seeking medicaid payment for long-term care (LTC) services.

(A) This rule describes the treatment of income and resources for spouses who are both seeking medicaid payment for LTC services.

(B) If both spouses are expected to receive LTC services for less than thirty consecutive days, each spouse's eligibility must be determined in accordance with Chapter 5160:1-3 or 5160:1-4 of the Administrative Code and the rules in Chapter 5160:1-6 of the Administrative Code do not apply.

(C) If both spouses are likely to receive LTC services for more than thirty consecutive days, the following rules apply:

(1) If the spouses are no longer living together (for example, one spouse is residing in an medical institution and the other spouse is requesting enrollment in a home and community-based services (HCBS) waiver), determine each spouse's eligibility independently as follows:

(a) Determine if one or both spouses are eligible for base medicaid under Chapter 5160:1-4 of the Administrative Code.

(b) If a spouse is not eligible for base medicaid under Chapter 5160:1-4 of the Administrative Code, beginning the first month following the month the couple ceased to live together, treat the spouse as an individual and compare his or her income and resources to the individual income and resource standards in accordance with Chapter 5160:1-3 of the Administrative Code.

(c) If a spouse's income exceeds the individual income standard, then, if applicable, determine each spouse's eligibility under the special income level (SIL) as described in rule 5160:1-6-03.1 of the Administrative Code.

(2) If the spouses are living together in the community (for example, both spouses are requesting enrollment in an HCBS waiver):

(a) Determine if one or both spouses are eligible for base medicaid under Chapter 5160:1-4 of the Administrative Code.

(b) If one or both of the spouses are not eligible for base medicaid under Chapter 5160:1-4 of the Administrative Code, determine eligibility for one or both of the spouses in accordance with Chapter 5160:1-3 of the Administrative Code.

(c) If one or both of the spouses are not eligible for base medicaid under Chapter 5160:1-3 of the Administrative Code, then determine both spouse's eligibility independently under the SIL.

(D) If both spouses reside in, or are admitted to, the same room of a medical institution, then the following rules apply:

(1) Determine if one or both spouses are eligible for base medicaid under Chapter 5160:1-4 of the Administrative Code.

(2) If a spouse is not eligible for base medicaid under Chapter 5160:1-4 of the Administrative Code, the spouse may choose to be considered as a couple or as an individual for the purposes of applying the individual or couple income standards under Chapter 5160:1-3 of the Administrative Code, whichever is more advantageous to the individual.

(3) If a spouse's income exceeds the income standards in Chapter 5160:1-3 of the Administrative Code, then the spouse's eligibility will be determined under the SIL.

Replaces: 5160:1-3- 06.1

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
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, 11/2/14

5160:1-6-06 Medicaid: transfer of assets.

(A) This rule implements section 1917 of the Social Security Act (as in effect on October 1, 2016) and describes the treatment of transfers of assets when an institutionalized individual, as defined in rule 5160:1-6-01.1 of the Administrative Code, is seeking medicaid payment for long-term care (LTC) services. This rule, and rules 5160:1-6-06.1 to 5160:1-6-06.8 of the Administrative Code, only apply to institutionalized individuals.

(B) If the institutionalized individual (or his or her spouse) disposes of assets for less than fair market value on or after the look-back date specified in paragraph (C) of this rule, any such transfer will be presumed an improper transfer and will result in a restricted medicaid coverage period (RMCP) in accordance with rule 5160:1-6-06.5 of the Administrative Code.

(C) The look-back date is sixty months (five years) before the individual's baseline date, as defined in rule 5160:1-6-01.1 of the Administrative Code.

(1) If the individual is already eligible for medical assistance when he or she first became an institutionalized individual, the baseline date is the first day of institutionalization.

(2) If the individual is requesting enrollment in home and community-based (HCBS) waiver, the baseline date is the first date that the individual has both applied for medical assistance and requested enrollment on an HCBS waiver. These transfer of asset provisions only apply if the individual is eligible for medical assistance using the special income level (SIL).

(D) The following transfers are not considered improper:

(1) The title to the home was transferred to the institutionalized individual's spouse, child who is under the age of twenty-one, or child who is blind or disabled in accordance with section 1614 of the Social Security Act (as in effect on October 1, 2016).

(2) The title to the home was transferred to the institutionalized individual's child (other than a child described in paragraph (D)(1) of this rule) who:

(a) Provided care to the institutionalized individual which permitted the institutionalized individual to reside at home rather than in a long-term care facility (LTCF) or be enrolled in an HCBS waiver; and

(b) Resided in the home for a period of at least two years immediately before and on a continuous basis since the individual became an institutionalized individual; and

(c) Documents that he or she has fulfilled all of the requirements in paragraphs (D)(2)(a) to (D)(2)(c) of this rule by submitting the following:

(i) A written statement of the date that he or she moved into the home; and

(ii) A level of care assessment showing that the individual would have become institutionalized earlier without care provided by the child; and

(iii) A written statement from the individual's attending physician stating the kind and duration of care that was required to delay the individual's institutionalization; and

(iv) All relevant documentation of the care that delayed institutionalization and the role the child played in that care. This documentation may include (but is not limited to) one or more of the following:

(a) A written statement of the number of hours per day during which the child provided personal care, specifying the extent and type of care provided;

(b) A written statement of any part-time or full-time jobs performed by the child, and any schools or other similar institutions attended by the child, while providing care; or

(c) Written documentation from a service agency which provided care to the individual, the dates on which care was provided, and the extent and type of care provided.

(3) The title to the home was transferred to the institutionalized individual's sibling who has an equity interest in the home and who was residing in the institutionalized individual's home for a period of at least one year immediately before the date the individual was admitted into a LTCF or enrolled in an HCBS waiver.

(4) The assets were transferred to or from (i.e. between the spouses) the institutionalized individual and his or her spouse, or to another for the sole benefit of the institutionalized individual's spouse.

(5) The assets were transferred to the institutionalized individual's child who is blind or disabled in accordance with section 1614 of the Social Secuity Act (as in effect on October 1, 2016) (or to a trust, including an exempt trust described in rule 5160:1-3-05.2 of the Administrative Code), for the sole benefit of that child.

(6) The assets were transferred to a trust (including an exempt trust described in rule 5160:1-3-05.2 of the Administrative Code) created for the sole benefit of an individual under the age of 65 who is disabled, as defined in section 1614 of the Social Security Act (as in effect on October 1, 2016).

(7) The institutionalized individual's income transferred to a qualified income trust (QIT) in accordance with rule 5160:1-6-03.2 of the Administrative Code.

(E) For transfers described in paragraphs (D)(4) to (D)(6) of the is rule to be considered for the sole benefit of the individuals described in such paragraphs, the instrument or document must provide for the spending of the funds involved for the benefit of the individual on a basis that is actuarially sound based on the life expectancy of the individual involved. When the instument or document does not provide for such, any potential exemption from an RMCP, in accordance with rule 5160:1-6-06.5 of the Administrative Code, is void.

(F) Rebutting the presumption that a transfer was improper.

(1) The institutionalized individual, his or her spouse, or anyone acting on the institutionalized individual's behalf may make a satisfactory showing to the agency that the institutionalized individual or such individual's spouse intended to:

(a) Transfer the asset for fair market value or for other valuable consideration; or

(b) Transfer the asset exclusively for a purpose other than to qualify for medical assistance.

(2) The institutionalized individual, his or her spouse, or anyone acting on the institutionalized individual's behalf must provide a written explanation with supporting documentation which explains the following:

(a) The reason for transferring the asset for less than fair market value; and

(b) The attempts that were made to transfer the asset for fair market value; and

(c) The reasons for accepting less than fair market value for the asset; and

(d) The institutionalized individual's relationship to the person to whom the asset was transferred.

(e) The occurrence of one or more of the following after a transfer of the asset(s), while not conclusive, may indicate that the asset(s) was transferred exclusively for some purpose other than to qualify for medical assistance:

(i) Traumatic onset of disability or blindness (e.g., due to traffic accident); or

(ii) Diagnosis of a previously undetected disabling condition.

(f) Supporting documentation may include, but is not limited to, a contract, realtor agreements, sworn statements, third party statements, medical records, financial records, court records, and relevant correspondence.

(3) If the institutionalized individual proves to the agency that a transfer was not improper then no RMCP will be imposed with respect to that transfer.

(G) If the imposition of a RMCP would result in an undue hardship, the institutionalized individual can request an undue hardship exemption in accordance with rule 5160:1-6-06.6 of the Administrative Code.

(H) Verification of transfers.

(1) The administrative agency shall determine at the time of application, renewal or anytime upon discovery of a transfer whether the institutionalized individual executed an improper transfer.

(2) An institutionalized individual must inform the administrative agency of any transfers of real or personal property.

(3) The institutionalized individual must provide the administrative agency with documentation verifying any transfer and the details of any exchanges or transactions. If requested the administrative agency shall assist the institutionalized individual in gathering such documentation.

Replaces: 5160:1-3- 07.2

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02
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, 10/20/06, 1/1/16

5160:1-6-06.1 Medicaid: treatment of annuity purchases and transactions.

(A) This rule describes the treatment of annuity purchases and transactions when an institutionalized individual is requesting medicaid payment for long-term care (LTC) services.

(B) The institutionalized individual, or his or her spouse, must disclose any interest that he or she has in an annuity, regardless of whether the annuity is irrevocable or is treated as an asset to the institutionalized individual or his or her spouse.

(C) Failure to comply with paragraph (B) of this rule will result in a denial or termination of medical assistance for failure to cooperate as required by rule 5160:1-2-10 of the Administrative Code.

(D) Treatment of annuity purchases or transactions on or after February 8, 2006.

(1) Any purchase or annuity transaction, including annuities purchased by a spouse, shall be treated as an improper transfer subject to a restricted medicaid coverage period (RMCP) in accordance with rule 5160:1-6-06.5 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 institutionalized 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 institutionalized individual after the community spouse or minor or disabled child, or is named in the first position for the total amount of medical assistance furnished to the institutionalized individual if such spouse or a representative of such child disposes of any such remainder for less than fair market value.

(2) In addition to paragraph (D)(1) of this rule, if the annuity is purchased by or on behalf of an annuitant, as defined in rule 5160:1-3-05.3 of the Administrative Code, who has applied for medical assistance, the purchase of the annuity will be deemed an improper transfer subject to an RMCP even if the beneficiary naming requirements in paragraph (D)(1) of this rule are met, unless the annuity meets the conditions in either paragraph (2)(a) or (2)(b) of this rule:

(a) The annuity:

(i) Is an annuity described in subsection (b) or (q) of section 408 of the Internal Revenue Code of 1986 (as in effect on October 1, 2016); or

(ii) Is an annuity that was purchased with proceeds from:

(a) An account or trust described in subsection (a), (c), or (p) of section 408 of such code; or

(b) A simplified employee pension (within the meaning of section 408(k) of such code); or

(c) A Roth IRA described in section 408A of such code.

(b) The annuity meets all of the following requirements:

(i) The annuity is irrevocable and non-assignable; and

(ii) The annuity is 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 (as in effect on October 1, 2016). For an annuity to be considered actuarially sound, the total amount of proceeds shall 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 is paid to the remainder beneficiary; and

(iii) The annuity provides for payments in equal amounts during the term of the annuity with no deferral and no balloon payments made.

(E) Transactions which occur on or after February 8, 2006, with respect to an annuity purchased prior to February 8, 2006, may subject the annuity to the requirements in paragraph (D) of this rule.

(1) Such transactions include any action taken by the institutionalized individual that changes the course of payments to be made by the annuity or the treatment of income or principal of the annuity. The actions include additions of principal, elective withdrawals, requests to change the distribution of the annuity, elections to annuitize the contract and similar actions taken by the institutionalized individual after February 8, 2006.

(2) Routine changes and automatic events that do not require any action or decision after the effective date of enactment are not considered transactions that would subject the annuity to the requirements in paragraph (D) of this rule. Routine changes could be notification of an address change, death, divorce of a remainder beneficiary, or other similar transactions.

(F) Annuities purchased prior to February 8, 2006, are not subject to the requirements of this rule unless the requirements in paragraph (E) of this rule are met.

(G) If an annuity purchase or transaction is deemed improper then the full purchase price of the annuity is subject to an RMCP in accordance with rule 5160:1-6-06.5 of the Administrative Code. For an annuity purchase or transaction to be deemed improper the purchase or transaction must have occurred after the look-back date.

Replaces: 5160:1-3- 05.3

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02
Prior Effective Dates: 5/1/97, 10/28/02, 10/1/06, 1/15/15, 1/1/16, 8/1/16

5160:1-6-06.2 Medicaid: treatment of transfers involving a trust.

(A) This rule describes when transfers, by an institutionalized individual or his or her spouse, involving a trust are considered improper and subject to a restricted medicaid coverage period (RMCP) in accordance with rule 5160:1-6-06.5 of the Administrative Code.

(B) This rule does not affect whether the contents of the trust or payments or distributions from a trust are considered resources or income to the institutionalized individual for purposes of determining base eligibility under Chapters 5160:1-3, 5160:1-4, and 5160:1-5 of the Administrative Code.

(C) This rule applies to any revocable or irrevocable trust, as defined in rule 5160:1-3-05.2 of the Administrative Code, that contains assets of the institutionalized individual or his or her spouse, that was established (other than by will) on or after the look-back date by:

(1) The institutionalized individual; or

(2) The institutionalized individual's spouse; or

(3) A person, including a court or administrative body, with legal authority to act in place of or on behalf of the institutionalized individual or his or her spouse; or

(4) A person, including any court or administrative body, acting at the direction or upon the request of the institutionalized individual or his or her spouse.

(D) In the case of a trust that meets the requirements of paragraph (C) of this rule, only the assets of the institutionalized individual or his or her spouse that are in the trust, are subject to the provisions of this rule.

(E) This rule shall apply without regard to:

(1) The purposes for which the trust was established;

(2) Whether the trustees have or exercise any discretion under the trust;

(3) Any restrictions on when or whether distributions may be made from the trust; or

(4) Any restrictions on the use of distributions from the trust.

(F) Unless otherwise permitted under this chapter, any payments or distributions from a revocable or irrevocable trust that are not made to the institutionalized individual or for the benefit of the institutionalized individual shall be considered improperly transferred and subject to an RMCP.

(G) In the case of an irrevocable trust:

(1) Unless otherwise permitted under this chapter, if no payment can be made to the institutionalized individual or for the institutionalized individual's benefit, the assets of the trust will be considered improperly transferred and subject to an RMCP in accordance with rule 5160:1-6-06.5 of the Administrative Code.

(2) When determining the date that the assets of the trust were improperly transferred, the date of transfer is the date of the establishment of the trust or the date that payments or distributions to the individual were prohibited, whichever date is later.

(3) When determining the value of the transferred asset under this provision, the value of the trust is its value on the date when the trust was established or the date that payments or distributions to the individual were prohibited, whichever date is later.

(4) If any additional assets of the institutionalized individual or his or her spouse are added to the trust, such transfers will be considered separate improper transfers subject to an RMCP.

(H) This rule shall not apply to any of the following trusts:

(1) A special needs trust as described in rule 5160:1-3-05.2 of the Administrative Code, except when such a trust is added to or otherwise augmented after the individual reaches age sixty-five. Any such addition or augmentation by the individual, with his or her assets, after age sixty-five is considered an improper transfer and subject to a RMCP.

(2) A qualified income trust (QIT) as described in rule 5160:1-3-05.2 of the Administrative Code.

(3) A pooled trust as described in rule 5160:1-3-05.2 of the Administrative Code.

(4) A supplemental services trust as described in rule 5160:1-3-05.2 of the Administrative Code.

Replaces: 5160:1-3- 05.2

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
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, 10/1/89 (Emer.), 12/16/89, 10/1/91, 9/1/92, 2/1/95 (Emer.), 4/27/95, 7/1/96, 11/7/02, 10/1/06, 1/15/15, 8/1/16

5160:1-6-06.3 Medicaid: transfers involving life estates.

(A) This rule describes the treatment of transfers involving life estates when an institutionalized individual is requesting medicaid payment for long-term care services.

(B) The following steps must be taken to determine whether a transfer involving a life estate, as defined in rule 5160:1-3-05.17 of the Administrative Code, was an improper transfer in accordance with rule 5160:1-6-06 of the Administrative Code:

(1) Review the life estate instrument to determine the nature of the life estate and the rights, responsibilities, and/or restrictions placed on the life estate owner and/ or the remainderman, as defined in rule 5160:1-3-05.17 of the Administrative Code.

(2) Determine the effective date of the creation of a life estate in accordance with rule 5160:1-3-05.17 of the Administrative Code.

(3) Calculate the fair market value of a life estate in accordance with rule 5160:1-3-05.17 of the Administrative Code.

(C) Life estates established with an institutionalized individual's property.

(1) If the life estate was established within the applicable look-back period and the terms of the establishing instrument prohibit the life estate from being sold or transferred, the fair market value of the life estate will be presumed improperly transferred.

(2) If an institutionalized individual improperly transferred ownership of his or her home but retained a life estate in the home, the improper transfer amount, with respect to the home transfer, is the difference between the fair market value of the home and the fair market value of the life estate.

(D) Life estates held by an institutionalized individual.

(1) An institutionalized individual's purchase of a life estate interest in another individual's home within the applicable look-back period is presumed to be an improper transfer unless the institutionalized individual resided in the home for a period of at least one year after the date of purchase. If such purchase is deemed improper, the fair market value of the life estate will be the improper transfer amount.

(2) Where the purchase price of a life estate in another individual's home is greater than the fair market value of the life estate, the amount of the difference will be considered improperly transferred, even if the individual resided in the home for at least one year.

(E) If an institutionalized individual transfers or sells a life estate held by the institutionalized individual within the applicable look-back period, the institutionalized individual must receive fair market value, calculated in accordance with rule 5160:1-3-05.17 of the Administrative Code, for the life estate. If the institutionalized individual receives less than fair market value for the life estate, the fair market of the life estate will be presumed improperly transferred.

Replaces: 5160:1-3- 05.17

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
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, 11/2/14

5160:1-6-06.4 Medicaid: transfers involving promissory notes, property agreements, and loans.

(A) This rule describes how to treat transfers involving promissory notes, property agreements, and loans held by an institutionalized individuals, or his or her spouse, when the institutionalized individual is requesting medicaid payment for long-term care (LTC) services.

(B) Assets used to purchase or obtain a promissory note, property agreement, or loan are considered to be improperly transferred unless the the purchase of the note, agreement or loan was for fair market value and the terms of the promissory note, property agreement, or loan:

(1) Have 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 on October 1, 2016);

(2) Provide for payments to be made in equal amounts during the term of the promissory note, property agreement, or loan, with no deferral and no balloon payments made; and

(3) Prohibit cancellation of the balance upon the lender's death; and

(4) Allow for the transfer or sale of the note, agreement, or loan.

(C) If the promissory note, property agreement, or loan does not satisfy the requirements in paragraph (B) of this rule, the value of such note, agreement, or loan shall be its outstanding balance as of the date the institutionalized individual request medicaid payment for LTC services and must be considered improperly transferred in accordance with rule 5160:1-6-06 of the Administrative Code.

(1) Any resulting restricted medicaid coverage period (RMCP) shall not be reduced based upon anticipated, estimated, or projected future payments made under the note, agreement, or loan.

(2) For any resulting RMCP to be reduced because of a repayment, the promissory note, property agreement, or loan must be repaid in full.

(D) If an institutionalized individual transfers or sells a promissory note, property agreement, or loan for an amount less than the outstanding balance of such note, agreement, or loan, the difference will be considered improperly transferred as of the note, agreement, or loan's sale date.

(E) The institutionalized individual may rebut the finding that the purchase or transfer of a promissory note, property agreement or loan is improper by providing at least one of the following:

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

(a) Be clearly identified; and

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

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

(2) Documentation clearly showing the institutionalized individual received payments under the terms of the note or 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 note or agreement; or

(3) Documentation clearly showing that the lower price of the note or agreement was accepted by the institutionalized individual as payment of a debt owed by the institutionalized individual to the purchaser.

Replaces: 5160:1-3- 05.5

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
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, 8/1/86 (Emer.), 10/3/86, 11/1/86 (Emer.), 12/22/86, 10/1/91, 7/1/94, 9/1/94, 5/1/97, 11/7/02, 10/1/06, 10/2/14, 1/1/16, 9/12/16

5160:1-6-06.5 Medicaid: restricted medicaid coverage period.

(A) This rule describes how to calculate and apply a restricted medicaid coverage period (RMCP), which is the period of time that long-term care (LTC) services will not be paid for by medicaid because the institutionalized individual improperly transferred an asset.

(B) The length of an institutionalized individual's RMCP shall be equal to:

(1) The total value of all the improperly transferred assets divided by the monthly average private pay rate (APPR) for nursing facility services in Ohio. The resulting whole number is the number of full months of restricted coverage. If there is a remaining fractional amount, calculate a partial month of restricted coverage.

(2) To determine the partial month of restricted coverage (PMRC):

(a) Multiply the APPR by the number of full months of restricted coverage, then;

(b) Subtract that amount from the total value of the improperly transferred assets, then;

(c) The remainder is the amount of the PMRC.

(C) If an institutionalized individual is subject to an RMCP, the RMCP will begin with the later of:

(1) The first day of a month during or after which assets have been transferred for less than fair market value; or

(2) The date on which the individual is eligible for medical assistance and would otherwise be receiving LTC services paid for by the medicaid program but for the imposition of the RMCP.

(a) The RMCP cannot begin until the expiration of any already existing RMCP.

(b) Once the RMCP is imposed, it will not stop but will continue to run even if the individual subsequently stops receiving LTC services.

(c) The RMCP shall not be rounded down or otherwise disregard any PMRC.

(d) Any PMRC will applied as follows:

(i) If an individual has a patient liability, the PMRC will be added to the institutionalized individual's patient liability in the first month of eligibility for LTC services. See rules 5160:1-6-07 to 5160:1-6-07.2 of the Administrative Code for the determination of the patient liability.

(ii) If an individual does not have a patient liability, the individual is responsible for paying his or her LTC provider the PMRC amount in the first month of eligibility for LTC services.

(D) If a court has entered an order against an institutionalized individual for the support of his or her spouse, an RMCP shall not apply to amounts of assets transferred pursuant to such order for the support of the spouse or a family member.

(E) Any improper transfer by a spouse that results in an RMCP period for the institutionalized individual shall be applied as follows.

(1) If the spouse becomes an institutionalized individual, any remaining months of the RMCP shall be apportioned between the spouses.

(2) If one spouse ceases to be institutionalized, any remaining months of the RMCP that has been applicable to both spouses must be served by the spouse that continues to be institutionalized.

(F) When all of the assets that were improperly transferred are returned to the institutionalized individual, no RMCP will be imposed.

(1) Return of the assets in question to the institutionalized individual leaves the institutionalized individual with assets which must be counted in determining eligibility for medical assistance during the original RMCP.

(a) Counting those assets as available may result in the institutionalized individual being ineligible for medical assistance for some or all of the original RMCP, as well as for a period of time after the assets are returned.

(b) The administrative agency must determine eligibility for each month in the RMCP and include the returned assets as an available resource unless the asset would have otherwise been considered an excluded asset.

(c) If an exclusion does not apply, the asset is considered available to the institutionalized individual until the total countable assets have been reduced to the appropriate resource limit.

(2) If the asset was sold by the person who received it, the full market value of the asset must be returned to the institutionalized individual, either in cash or another form that is commensurate with the original value. A return of any amount less than the total value of all of the improperly transferred assets will have no effect on the RMCP as calculated in this rule.

(3) For the purpose of computing an overpayment under rule 5160:1-2-04 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.

(G) If a RMCP resulting from improper transfer would result in an undue hardship the institutionalized individual can request an undue hardship exemption in accordance with rule 5160:1-6-06.6 of the Administrative Code.

Replaces: 5160:1-3- 07.2

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
Rule Amplifies: 5160.02 , 5163.02
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, 10/20/06, 1/1/16

5160:1-6-06.6 Medicaid: undue hardship exemption.

(A) This rule describes an undue hardship exemption for institutionalized individuals who are subject to a restricted medicaid coverage period (RMCP) described in rule 5160:1-6-06.5 of the Administrative Code.

(B) The institutionalized individual will not be subject to a RMCP if the imposition of the RMCP would cause an undue hardship.

(C) An undue hardship exists if the imposition of the RMCP would deprive the institutionalized individual of:

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

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

(D) An undue hardship exemption may be requested by:

(1) The institutionalized individual; or

(2) The institutionalized individual's spouse; or

(3) A person, including a court or administrative body, with legal authority to act in place of or on behalf of the institutionalized individual or his or her spouse; or

(4) A person, including any court or administrative body, acting at the direction or upon the request of the institutionalized individual or his or her spouse.

(E) Any request for an undue hardship exemption must be made in writing and include the information and documentation necessary to demonstrate to the administrative agency that:

(1) An undue hardship exists;

(2) The institutionalized individual currently has no alternative income or resources available to provide the medical care or food, clothing, shelter, or other necessities of life that the institutionalized individual would be deprived of due to the imposition of the RMCP; and

(3) A good faith effort to pursue all reasonable means to recover the transferred asset or the fair market value of the transferred asset was made, unless documentation provided shows that the cost of any such action would exceed the gross value of the assets subject to recovery. These actions may include:

(a) Seeking the advice of an attorney and pursuing legal or equitable remedies such as asset freezing, assignment, or injunction; or seeking modification, avoidance, or nullification of a court order, financial instrument, promissory note, loan, mortgage or other property agreement, or other similar transfer agreement; and

(b) Cooperating with any attempt to recover the transferred asset or the fair market value of the transferred asset.

(4) If the institutionalized individual resides in a LTCF, in addition to the requirements in paragraphs (E)(1) to (E)(3) of this rule, the institutionalized individual must also show that:

(a) The LTCF has planned to discharge the institutionalized individual as a result of the imposition of the RMCP; and

(b) The institutionalized individual has exhausted all administrative remedies to challenge the planned discharge.

(F) An undue hardship exemption shall not be granted if the institutionalized individual, or his or her spouse, or anyone acting on their behalf, made the improper transfer after a previous request for a hardship exemption.:

(G) Administrative agency responsibilities.

(1) The administrative agency shall provide notice to the institutionalized individual of the:

(a) Availability of an undue hardship exemption; and.

(b) Any approval or denial of any request for an undue hardship exemption.

(2) The administrative agency, on its own initiative, may 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: 5160:1-3- 07.2

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5163.02, 5160.02
Rule Amplifies: 5160.02 , 5163.02
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, 10/20/06, 1/1/16

5160:1-6-06.7 Medicaid: allegations of asset transfers by the social security administration.

(A) This rule describes the social security administration's (SSA) reporting requirements to the Ohio department medicaid (ODM) of alleged transfer of assets by supplemental security income (SSI) applicants.

(B) When an individual applies for SSI benefits, the SSA requests information from the applicant about any asset transfers and reports the information to ODM.

(C) ODM forwards the information to the county department of job and family services (CDJFS), in which the individual resides, to determine if any such transfers were improper in accordance with rule 5160:1-6-06 of the Administrative Code.

Replaces: 5160:1-3- 07.1

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02
Prior Effective Dates: 8/9/90, 10/1/02, 1/15/15

5160:1-6-06.8 Medicaid: disposal of assets of individuals receiving services from the Ohio department of developmental disabilities and/or Ohio department of mental health and addiction services.

(A) This rule describes the disposal of assets of individuals receiving services from the Ohio department of developmental disabilities (DODD) and/or Ohio department of mental health and addiction services (ODMHAS) and in receipt of medical assistance.

(B) Individuals in receipt of medical assistance may have received or continue to receive services from the DODD and/or the ODMHAS.

(1) DODD and ODMHAS 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.

(2) DODD and ODMHAS maintain records and documentation of expenses incurred on an individual's behalf that fall outside of the scope of coverage for medical assistance and exceed the individual's available income.

(3) When an individual receives a lump-sum payment or available assets are identified, DODD and ODMHAS seek reimbursement for appropriately incurred expenses.

(C) When DODD and/or ODMHAS are acting on behalf of the individual as the responsible party, legal guardian, etc., the appropriate department may dispose of the asset by increasing the individual's assets to the resource limit described in rule 5160:1-3-05.1 of the Administrative Code, establishing an irrevocable burial contract in accordance with rule 5160:1-3-05.6 of the Administrative Code, or purchasing any personal items deemed necessary to better the individual's quality of life. After these expenses, DODD and/or ODMHAS will reimburse their department for funds expended on behalf of the individual and provide documentation of these expenses to the administrative agency

(D) If the individual's responsible party, legal guardian, etc., is not a representative of DODD and/or ODMHAS, the representative is also afforded the opportunity of increasing assets to the resource limit, establishing an irrevocable burial contract in accordance with rule 5160:1-3-05.6 of the Administrative Code, and purchasing necessary personal items. Documentation of these expenses shall be provided to the administrative agency. After such expenses, the responsible party, legal guardian, etc., must properly dispose of any excess assets to maintain continued eligibility for medical assistance.

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

(1) Notify the responsible party of the options available to appropriately dispose of excess assets. One option is reimbursement to ODM for medicaid expenses. However, the options of reimbursing ODM, DODD, or ODMHAS or terminating eligibility for medical assistance and paying privately for the medical expenses remain with the responsible party.

(2) Review necessary documentation for the reimbursement to DODD or ODMHAS to assure that the individual did, in fact, receive fair market value for the assets.

(a) If the documentation verifies the individual received fair market value, the administrative agency shall accept these expenditures as valid.

(b) Valid expenses and reimbursements to DODD and/or ODMHAS shall not be considered an improper transfer of assets.

Replaces: 5160:1-3- 07.3

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02
Prior Effective Dates: 4/1/89 (Emer.), 11/7/02, 1/15/15

5160:1-6-07 Medicaid: post-eligibility treatment of income for individuals in medical institutions.

(A) This rule describes how to calculate an institutionalized individual's post-eligibility treatment of income (PETI), commonly referred to as patient liability or share of cost. This rule only applies to an individual residing in a medical institution who does not have a base eligibility category which uses modified adjusted gross income (MAGI) budgeting methodology in accordance with Chapter 5160:1-4 of the Administrative Code.

(B) The administrative agency will reduce its payment to a medical institution, for services provided to an institutionalized individual, by the amount of the individual's patient liability calculated in accordance with this rule.

(C) The individual must pay the patient liability amount to the medical institution.

(D) Patient liability must be recalculated when there is a change in circumstances that affects the patient liability amount.

(E) Medical institutions are required to refund to the institutionalized individual any overpayments of patient liability paid by the institutionalized individual, such as when retroactive patient liability adjustments are made.

(F) For purposes of this rule, patient liability is calculated in the following order:

(1) Total the individual's gross monthly earned and unearned income, including SSI payments. In the case of an institutionalized spouse, include any income attributed to the institutionalized spouse in accordance with rule 5160:1-6-04 of the Administrative Code.

(2) Exclude the following payments from the individual's gross monthly income:

(a) 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 October 1, 2016).

(b) Japanese and Aleutian restitution payments, under the provisions of section 105 of Pub. L. No. 100-383 (as in effect October 1, 2016), by individuals of Japanese ancestry.

(c) Agent Orange settlement payments under the provisions of the Agent Orange Compensation Exclusion Act, Pub. L. No. 101-201 (as in effect October 1, 2016), received on or after January 1, 1989.

(d) Department of defense payments to certain persons captured and interned in North Vietnam, in accordance with the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1998 (as in effect on October 1, 2016).

(e) Radiation exposure compensation payments under the provisions of the Radiation Exposure Compensation Act, Pub. L. No. 101-426 (as in effect October 1, 2016).

(f) Veterans affairs payments made to or on behalf of:

(i) Certain Vietnam veterans' natural children regardless of or age or marital status, for any disability resulting from spina bifida suffered by such children under provision 421 of Pub. L. No. 104-204 ( 38 U.S.C. 1805(d) ; as in effect October 1, 2016);

(ii) Certain Korea service veterans' natural children regardless of their age or marital status, for any disability resulting from spina bifida suffered by such children under provision 102 of the Veterans Benefits Act of 2003, P.L. 108-183 (as in effect October 1, 2016);

(iii) Women Vietnam veterans' natural children regardless of their age or marital status, for certain birth defects under provision 401 of Pub. L. No. 106-419 ( 38 U.S.C. 1833(c) ; as in effect October 1, 2016).

(g) Veterans administration pensions, including aid and attendance benefits, up to the amount of ninety dollars per month, paid to veterans or their surviving spouse, if any, who are residing in a nursing facility or are receiving HCBS waiver services. This exclusion applies to:

(i) A veteran without a spouse or dependent minor or disabled child; and

(ii) A veteran's surviving spouse without a dependent minor or disabled child.

(h) Payments made to Native Americans as listed in section IV of 20 C.F.R. 416 Subpart K Appendix (as in effect on October 1, 2016).

(i) 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 October 1, 2016), 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.

(j) Residential state supplement (RSS) benefits to institutionalized individuals, in accordance with rule 5160:1-5-01 of the Administrative Code.

(k) Payments received under the provisions of a state "Victims of Crime Program", per 42 U.S.C 10602(c) (as in effect October 1, 2016).

(l) Payments made from any fund established pursuant to a class settlement in the case of Susan Walker v. Bayer corporation, 96-C-5024 (N.D. Ill), per section 4735 of the Balanced Budget Act of 1997, Pub. L. No. 105-33 (as in effect October 1, 2016).

(m) 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 October 1, 2016).

(n) Assistance (other than wages or salaries) under the Older Americans Act of 1965 under 92 Stat. 1515, 42 U.S.C. 3020a (as in effect October 1, 2016).

(o) Student financial assistance from a program funded under Title IV of the Higher Education Act (HEA) of 1965 or Bureau of Indian Affairs (BIA) per the Higher Education Technical Amendments Act of 1987 ( 20 U.S.C. 1087uu ; as in effect October 1, 2016).

(p) Monies in an individual development account (IDA) as provided by the Assets for Independence Act, as amended in 2002 ( Pub. L. 107-110, 42 U.S.C. 604(h)(4) ), listed as exclusion (xxiv) (as in effect October 1, 2016).

(q) Foster care subsidies under title IV-B or title-XX and adoption assistance subsidies under title IV-E per 42 U.S.C. 673(b).

(r) Assistance under the Child Care and Development Block Grant Act of 1990 ( 20 USC 9858q; as in effect October 1, 2016).

(s) Assistance or services received through the domestic volunteer service under 42 U.S.C. 66 per 42 U.S.C. 5044(f) (as in effect October 1, 2016).

(t) Assistance or services received through the Supplemental Nutrition Act Program per 7 U.S.C. 2017(b) ; the school lunch program per 42 U.S.C. 1760(e) ; the Child Nutrition Act per 42 U.S.C. 1780(b) ; and the nutrition program for elderly (Title VII) per 42 U.S.C. 3020a(a) (as in effect October 1, 2016).

(u) Payments made under the Disaster Relief and Emergency Assistance Act per 42 U.S.C. 5155(d) (as in effect October 1, 2016).

(v) Assistance, with respect to the dwelling unit occupied by such individual (or such individual and spouse), under the United States Housing Act of 1937, the National Housing Act, section 101 of the Housing and Urban Development Act of 1965, title V of the Housing Act of 1949, or section 202(h) of the Housing Act of 1959 per 42 U.S.C. 1382a (as in effect October 1, 2016).

(w) Relocation assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 in accordance with 42 U.S.C. 4636 (as in effect on October 1, 2016) provided to individuals displaced by any federal or federally-assisted project or state or local government or through a state-assisted or locally-assisted project in the acquisition of real property.

(x) The first two thousand dollars per calendar year received as compensation for participation in clinical trials that meet the criteria detailed in section 1612(b) of the Social Security Act ( Pub. L. 107-110 ) (as in effect October 1, 2016).

(3) Subtract a personal needs allowance (PNA) of fifty dollars. If the individual has earned income, subtract up to an additional sixty-five dollars from the earned income amount.

(4) If the individual has a community spouse, subtract the monthly income allowance (MIA) for the community spouse.

(a) The MIA of the community spouse is calculated as follows:

(i) Determine the excess shelter allowance (ESA):

(a) Total and round down to the nearest dollar the community spouse's expenses for the principal place of residence, as defined in rule 5160:1-3-05.13 of the Administrative Code, including any rent or mortgage payment (including principal and interest), current property taxes, insurance, and any required maintenance charge for a condominium or cooperative; then

(b) If the community spouse is responsible for payment towards the cost of gas, electric, coal, wood, oil, water, sewage, or telephone service for the residence, add in the standard utility allowance; then

(c) Subtract the ESA standard.

(d) The remainder is the ESA.

(ii) Add the ESA, calculated in paragraph (a) above, to the minimum monthly maintenance needs allowance (MMMNA) standard to determine the MMMNA. Except in accordance with a hearing decision under rule 5101:6-7-02 of the Administrative Code, the MMMNA must not exceed the MMMNA cap which is updated annually.

(iii) Subtract the community spouse's gross monthly income from the lesser of the MMMNA, calculated in paragraph (F)(4)(a)(ii) of this rule, or the MMMNA cap. If a hearing decision under rule 5101:6-7-02 of the Administrative Code results in a MMMNA that is greater than the MMMNA cap, use the amount established in the hearing decision. The remainder, rounded down to the nearest dollar, is the MIA.

(b) If there is court ordered support that is greater than the MIA calculated above, the court ordered amount is used as the MIA.

(c) If the community spouse's income is still below the MMMNA after all of the institutionalized spouse's income is allocated to the community spouse, the community spouse resource allowance can be increased in accordance with rules 5160:1-6-04 and 5101:6-7-02 of the Administrative Code, to generate additional income for the community spouse.

(5) If the individual has dependent family members, subtract either the family allowance (FA) or the family maintenance needs allowance (FMNA). The FA does not apply if there is a FMNA.

(a) Subtract a FA if the institutionalized individual has family members residing with his or her spouse in the community. The FA is calculated as follows.

(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 allowance amount for that family member.

(v) The allowances for each family member are added together to determine the FA.

(b) Subtract a FMNA if the institutionalized individual has dependent family members who resided with the institutionalized individual immediately before the individual was admitted to a medical institution. The FMNA does not apply if there is a spouse in the community. The FMNA is calculated as follows.

(i) Subtract the combined monthly income of the dependent family members from the FMNA; then

(ii) Round the result down to the nearest dollar.

(iii) The remainder is the FMNA.

(6) The following types of health care costs shall be subtracted from the institutionalized individual's patient liability. Any requests for subtraction of these costs must include documentation that clearly shows the type of medical expense, the amount the individual is responsible for paying, and the date the service or item was provided to the individual.

(a) Health insurance premiums (including medicaid and medicare premiums) and coinsurance, insurance deductibles and copayments, that are incurred by:

(i) The institutionalized individual;

(ii) The institutionalized individual's spouse; or

(iii) The institutionalized individual's minor or disabled child.

(b) The cost of any of the institutionalized individual's incurred expenses for medical care, recognized under Ohio law, but not covered by medicaid and not subject to third-party payment. These unpaid past medical expenses, and any request to subtract such expenses from the patient liability, must meet the following criteria:

(i) The service must have been medically necessary as determined by the administrative agency.

(ii) Expenses for medical care shall not have been incurred while serving a restricted medicaid coverage period (RMCP) per rule 5160:1-6-06.5 of the Administrative Code. Expenses that were incurred while serving an RMCP shall not count as unpaid past expenses and shall not be subtracted from the patient liability calculation.

(iii) The request for the subtraction of incurred expenses for medical care can only be initiated by either the institutionalized individual or person or entity who has the legal ability to act on the individual's behalf, including the institutionalized individual's authorized representative. A request for a deduction cannot be initiated by a medical services provider or supplier, unless such provider or supplier is also the institutionalized individual's authorized representative.

(7) Subtract the payment to a financial institution in an amount up to fifteen dollars per month, or the amount approved by the administrative agency, to administer a qualified income trust (QIT) account in accordance with rule 5160:1-6-03.2 of the Administrative Code.

(8) The remainder, rounded down to the nearest dollar, is the individual's monthly patient liability, for a full month of institutionalization.

(9) If the institutionalized individual is institutionalized for less than a full month due to date of admission, death, or discharge from the medical institution, the patient liability amount is prorated for that month. Prorated patient liability amounts are calculated as follows:

(a) 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.

(b) 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 in the month. The date of discharge or the date of death is not included in this calculation.

(c) Multiply the actual number of days of institutionalization by the per diem amount, rounding down to the nearest dollar. This is the institutionalized individual's prorated patient liability amount.

(G) The individual will receive written notification of the amount of patient liability for which he or she is responsible. Such notice will explain how the individual can request a hearing if he or she disagrees with the patient liability amount.

(H) If applicable, the individual will receive written notification of the MIA, FA, or FMNA that were calculated in accordance with this rule. Such notice will explain how the individual can request a hearing if he or she disagrees with those amounts.

Replaces: 5160:1-3- 04.3

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5163.33
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, 12/01/06, 11/1/13, 1/1/16

5160:1-6-07.1 Medicaid: post-eligibility treatment of income for individuals receiving services through a home and community-based services (HCBS) waiver or the program of all-inclusive care for the elderly (PACE).

(A) This rule describes the process for calculating an individual's post-eligibility treatment of income (PETI), commonly referred to as patient liability or share of cost when the individual is not living in a medical institution. This rule only applies to an individual who is both eligible for medical assistance under the special income level (SIL) as described in rule 5160:1-6-03.1 of the Administrative Code and receiving HCBS waiver or PACE services.

(B) The administrative agency will reduce its payment to the HCBS waiver or PACE providers identified in paragraph (C) of this rule for services provided to the individual by the amount of the individual's patient liability calculated in accordance with this rule.

(C) The individual must pay the patient liability amount to his or her providers identified by the HCBS waiver or PACE administrative agency.

(D) Patient liability must be recalculated when there is a change in circumstances that affects the patient liability amount.

(E) Providers are required to refund to the individual any overpayments of patient liability paid by the individual, such as when retroactive patient liability adjustments are made.

(F) For purposes of this rule, the following definitions apply:

(1) "Assisted living waiver maintenance needs allowance (ALMNA)" is an amount equal to the current supplemental security income (SSI) federal benefit rate (FBR).

(2) "Special individual maintenance needs allowance (SIMNA)" is sixty-five per cent of the special income level.

(G) For purposes of this rule, patient liability is calculated in the following order:

(1) Total the individual's gross monthly earned and unearned income, including SSI payments. In the case of an institutionalized spouse, include any income attributed to the institutionalized spouse in accordance with rule 5160:1-6-04 of the Administrative Code.

(2) Exclude the following payments from the individual's gross monthly income:

(a) 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 October 1, 2016).

(b) Japanese and Aleutian restitution payments, under the provisions of section 105 of Pub. L. No. 100-383 (as in effect October 1, 2016), by individuals of Japanese ancestry.

(c) Agent Orange settlement payments under the provisions of the Agent Orange Compensation Exclusion Act, Pub. L. No. 101-201 (as in effect October 1, 2016), received on or after January 1, 1989.

(d) Department of defense payments to certain persons captured and interned in North Vietnam, in accordance with the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1998 (as in effect on October 1, 2016).

(e) Radiation exposure compensation payments under the provisions of the Radiation Exposure Compensation Act, Pub. L. No. 101-426 (as in effect October 1, 2016).

(f) Veterans affairs payments made to or on behalf of:

(i) Certain Vietnam veterans' natural children regardless of or age or marital status, for any disability resulting from spina bifida suffered by such children under provision 421 of Pub. L. No. 104-204 ( 38 U.S.C. 1805(d) ; as in effect October 1, 2016);

(ii) Certain Korea service veterans' natural children regardless of their age or marital status, for any disability resulting from spina bifida suffered by such children under provision 102 of the Veterans Benefits Act of 2003, P.L. 108-183 (as in effect October 1, 2016);

(iii) Women Vietnam veterans' natural children regardless of their age or marital status, for certain birth defects under provision 401 of Pub. L. No. 106-419 ( 38 U.S.C. 1833(c) ; as in effect October 1, 2016).

(g) Veterans administration pensions, including aid and attendance benefits, up to the amount of ninety dollars per month, paid to veterans or their surviving spouse, if any, who are residing in a nursing facility or are receiving HCBS waiver services. This exclusion applies to:

(i) A veteran without a spouse or dependent minor or disabled child; and

(ii) A veteran's surviving spouse without a dependent minor or disabled child.

(h) Payments made to Native Americans as listed in section IV of 20 C.F.R. 416 Subpart K Appendix (as in effect on October 1, 2016).

(i) 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 October 1, 2016), 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.

(j) Residential state supplement (RSS) benefits to institutionalized individuals, in accordance with rule 5160:1-5-01 of the Administrative Code.

(k) Payments received under the provisions of a state "Victims of Crime Program", per 42 U.S.C 10602(c) (as in effect October 1, 2016).

(l) 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 October 1, 2016).

(m) 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 October 1, 2016).

(n) Assistance (other than wages or salaries) under the Older Americans Act of 1965 under 92 Stat. 1515, 42 U.S.C. 3020a (as in effect October 1, 2016).

(o) Student financial assistance from a program funded under Title IV of the Higher Education Act (HEA) of 1965 or bureau of Indian affairs (BIA) per the Higher Education Technical Amendments Act of 1987 ( 20 U.S.C. 1087uu ; as in effect October 1, 2016).

(p) Monies in an individual development account (IDA) as provided by the Assets for Independence Act, as amended in 2002 ( Pub. L. No. 107-110, 42 U.S.C. 604(h)(4) ), listed as exclusion (xxiv) (as in effect October 1, 2016).

(q) Foster care subsidies under title IV-B or title-XX and adoption assistance subsidies under title IV-E per 42 U.S.C. 673(b).

(r) Assistance under the Child Care and Development Block Grant Act of 1990 ( 20 USC 9858q; as in effect October 1, 2016).

(s) Assistance or services received through the domestic volunteer service under 42 U.S.C. 66 per 42 U.S.C. 5044(f) (as in effect October 1, 2016).

(t) Assistance or services received through the Supplemental Nutrition Act Program per 7 U.S.C. 2017(b) ; the school lunch program per 42 U.S.C. 1760(e) ; the Child Nutrition Act per 42 U.S.C. 1780(b) ; and the nutrition program for elderly (Title VII) per 42 U.S.C. 3020a(a) (as in effect October 1, 2016).

(u) Payments made under the Disaster Relief and Emergency Assistance Act per 42 U.S.C. 5155(d) (as in effect October 1, 2016).

(v) Assistance, with respect to the dwelling unit occupied by such individual (or such individual and spouse), under the United States Housing Act of 1937, the National Housing Act, section 101 of the Housing and Urban Development Act of 1965, title V of the Housing Act of 1949, or section 202(h) of the Housing Act of 1959 per 42 U.S.C. 1382a (as in effect October 1, 2016).

(w) Relocation assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 in accordance with 42 U.S.C. 4636 (as in effect on October 1, 2016) provided to individuals displaced by any federal or federally-assisted project or state or local government or through a state-assisted or locally-assisted project in the acquisition of real property.

(x) The first two thousand dollars per calendar year received as compensation for participation in clinical trials that meet the criteria detailed in section 1612(b) of the Social Security Act ( Pub. L. 107-110; as in effect October 1, 2016).

(3) Subtract the applicable personal needs allowance (PNA) as follows:

(a) For individuals receiving services under an HCBS waiver, other than the assisted-living waiver, the PNA is the SIMNA. If the individual has earned income, subtract up to an additional sixty-five dollars from the earned income.

(b) For individual receiving services under the assisted-living waiver the PNA is the ALMNA. If the individual has earned income, subtract up to an additional sixty-five dollars from the earned income.

(c) For individuals receiving PACE services and residing in the community, the PNA is the SIMNA.

(d) For individuals receiving PACE services and residing in an assisted-living facility, the PNA is the ALMNA.

(4) If the individual has a community spouse, subtract the monthly income allowance (MIA) for the community spouse.

(a) The MIA of the community spouse is calculated as follows:

(i) Determine the excess shelter allowance (ESA):

(a) Total and round down to the nearest dollar the community spouse's expenses for the principal place of residence, as defined in rule 5160:1-3-05.13 of the Administrative Code, including any rent or mortgage payment (including principal and interest), current property taxes, insurance, and any required maintenance charge for a condominium or cooperative; then

(b) If the community spouse is responsible for payment towards the cost of gas, electric, coal, wood, oil, water, sewage, or telephone service for the residence, add in the standard utility allowance.

(c) Subtract the ESA standard.

(d) The remainder is the ESA.

(ii) Add the calculated ESA to the minimum monthly maintenance needs allowance (MMMNA) standard to determine the MMMNA. Except in accordance with a hearing decision under rule 5101:6-7-02 of the Administrative Code, the MMMNA must not exceed the MMMNA cap which is updated annually.

(iii) Subtract the community spouse's gross monthly income from the lesser of the MMMNA, calculated in paragraph (G)(4)(a)(ii) of this rule, or the MMMNA cap. If a hearing decision under rule 5101:6-7-02 of the Administrative Code results in a MMMNA that is greater than the MMMNA cap, use the amount established in the hearing decision. The remainder, rounded down to the nearest dollar, is the MIA.

(b) If there is court ordered support that is greater than the MIA calculated above, the court ordered amount is used as the MIA.

(c) If the community spouse's income is still below the MMMNA after all of the institutionalized spouse's income is allocated to the community spouse, the community spouse resource allowance can be increased in accordance with rules 5160:1-6-04 and 5101:6-7-02 of the Administrative Code, to generate additional income for the community spouse.

(5) If the individual has dependent family members, subtract either the family allowance (FA) or the family maintenance needs allowance (FMNA), as calculated in rule 5160:1-6-06 of the Administrative Code. The FA does not apply if there is a FMNA.

(a) The FA is calculated as follows. Subtract a FA if the institutionalized individual has family members residing with his or her spouse in the community.

(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 allowance amount for that family member.

(v) The allowances for each family member are added together to determine the FA.

(b) The FMNA is calculated as follows. Subtract a FMNA if the institutionalized individual has dependent family members who resided with the institutionalized individual immediately before the individual was admitted to a medical institution. The FMNA does not apply if there is a spouse in the community.

(i) Subtract the combined monthly income of the dependent family members from the FMNA standard; then

(ii) Round the result down to the nearest dollar.

(iii) The remainder is the FMNA.

(6) The following types of health care costs shall be subtracted from the institutionalized individual's patient liability. Any requests for subtraction of these costs must include documentation that clearly shows the type of medical expense, the amount the individual is responsible for paying, and the date the service or item was provided to the individual.

(a) Health insurance premiums (including medicaid and medicare premiums) and coinsurance, insurance deductibles and copayments, that are incurred by:

(i) The institutionalized individual;

(ii) The institutionalized individual's spouse; or

(iii) The institutionalized individual's minor or disabled child.

(b) The cost of any of the institutionalized individual's incurred expenses for medical care, recognized under Ohio law, but not covered by medicaid and not subject to third-party payment. The unpaid past medical expenses, and any request to subtract such expenses from the patient liability, must meet the following criteria:

(i) The service must have been medically necessary as determined by the administrative agency.

(ii) Expenses for medical care shall not have been incurred while serving a restricted medicaid coverage period (RMCP) per rule 5160:1-6-06.5 of the Administrative Code. Expenses that were incurred while serving an RMCP shall not count as unpaid past expenses and shall not be subtracted from the patient liability calculation.

(iii) The request for the subtraction of incurred expenses for medical care can only be initiated by either the institutionalized individual or person or entity who has the legal ability to act on the individual's behalf, including the institutionalized individual's authorized representative. A request for a deduction cannot be initiated by a medical services provider or supplier, unless such provider or supplier is also the institutionalized individual's authorized representative.

(7) Subtract the payment to a financial institution in an amount up to fifteen dollars per month, or the amount approved by the administrative agency, to administer a qualified income trust (QIT) account in accordance with rule 5160:1-6-03.2 of the Administrative Code.

(8) The remainder, rounded down to the nearest dollar, is the individual's monthly patient liability, for a full month of HCBS or PACE services.

(9) The individual's patient liability will be prorated if the individual is enrolled in an HCBS waiver or PACE program for less than a full month. Prorated patient liability is calculated as follows:

(a) Determine the per diem patient liability amount 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.

(b) 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 in the month. The date of discharge or the date of death is not included in this calculation.

(c) Multiply the actual number of days of institutionalization by the per diem patient liability amount and round this number down to the nearest dollar. This is the individual's prorated patient liability.

(H) The individual will receive written notification of the amount of patient liability for which he or she is responsible. Such notice will explain how the individual can request a hearing if he or she disagrees with the patient liability amount.

(I) If applicable, the individual will receive written notification of the MIA, FA, or FMNA that were calculated in accordance with this rule. Such notice will explain how the individual can request a hearing if he or she disagrees with those amounts.

Replaces: 5160:1-3- 04.3, 5160:1-3- 04.4

Effective: 9/1/2017
Five Year Review (FYR) Dates: 09/01/2022
Promulgated Under: 111.15
Statutory Authority: 5160.02, 5163.02
Rule Amplifies: 5160.02, 5163.02
Prior Effective Dates: 5160:1-3- 04.4: 7/1/06 (Emer.), 9/15/06, 1/1/16
5160:1-3- 04.3: 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, 7/1/05, 12/1/06, 11/1/13, 1/1/16

5160:1-6-90 [Rescinded] Refugee medical assistance (RMA).

Effective: 3/23/2015
Five Year Review (FYR) Dates: 12/12/2014
Promulgated Under: 111.15
Statutory Authority: 5101.02, 5101.49
Rule Amplifies: 5101.02, 5101.49
Prior Effective Dates: 7/1/76, 12/31/77, 11/22/81, 10/21/82, 2/9/84 (Temp.), 5/1/84, 7/1/84, 7/2/84, 10/1/84 (Emer.), 12/27/84, 1/1/85 (Emer.), 4/1/85, 8/1/86 (EMer.), 10/3/86, 7/1/88, 1/1/89 (Emer.), 4/1/89, 11/1/89, 1/1/90 (Emer.), 4/1/90, 10/1/91 (Emer.), 12/20/91, 4/1/92, 10/1/93 (Emer.), 12/21/92, 9/1/94, 10/1/95, 1/1/96, 5/1/97, 7/1/98, 7/1/00, 10/8/00, 10/1/02