Chapter 5160:1-6 Long-Term Care
(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).
(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 5160:1-3 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 03/16/2016), 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: 5160:1-3- 02.7
Five Year Review (FYR) Dates: 12/12/2021
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
(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.
(1) "Beneficiary" is defined in paragraph (B)(2) of rule 5160:1-3-05.2 of the Administrative Code.
(2) "Grantor" is defined in paragraph (B)(3) of rule 5160:1-3-05.2 of the Administrative Code.
(3) "Individual" is defined in paragraph (B)(33) of rule 5160:1-1-01.1 of the Administrative Code.
(4) "Irrevocable trust" is defined in paragraph (B)(4) of rule 5160:1-3-05.2 of the Administrative Code.
(5) Long-term care (LTC) services, for the purpose of establishing and using a QIT, means long-term care (LTC) services defined as:
(a) Inpatient care in an institution such as a nursing facility.
(c) Program for "All-Inclusive Care for the Elderly" (PACE) services in accordance with Chapter 5160-36 of the Administrative Code.
(6) "Primary beneficiary" means the "individual" as defined in paragraph (B)(3) of this rule.
(7) "Qualified Income Trust" (QIT) means a trust that allows an individual whose income is over the income limit for eligibility for medicaid payment of long-term care services to have some or all of his or her income not be counted when determining medicaid eligibility by placing income in the trust.
(8) "QIT account" means the account that holds the income placed into a QIT.
(9) "Trustee" is defined in paragraph (B)(12) of rule 5160:1-3-05.2 of the Administrative Code.
(C) A QIT can only be used to establish medicaid eligibility by an individual who is eligible for LTC services covered by the Ohio medicaid program, and who is subject to the calculation of patient liability under rule 5160:1-3-04.3 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 rule 5160:1-3-04.3 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 5160:1-3-04.3 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 to the QIT account each month, then the individual must provide ODM with documentation showing that the individual's income is being deposited into the QIT account on a monthly basis. Every effort should be made to have the individual's excess income deposited directly into the QIT account on a monthly basis. Efforts to have income deposited directly into the QIT account must be documented. If for some reason income cannot be deposited directly into the QIT account, the reason(s) must be documented and documentation that deposits of income to the QIT account are being made on a monthly basis must be provided to the administrative agency.
(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 rule 5160:1-3-04.3 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 5160:1-3-07 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 5160:1-3-07 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 5160:1-3-07 of the Administrative Code.
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