DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Medicaid and Medical Assistance

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512)

PROPOSED

PUBLIC NOTICE

Medicaid for Workers with Disabilities

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is proposing to amend the Title XIX Medicaid State Plan and the Division of Social Services Manual (DSSM) related to the implementation of the Medicaid Buy-In program for the working disabled.

Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Planning & Policy Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to 302-255-4425 by April 30, 2008.

The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons.

SUMMARY OF PROPOSED AMENDMENT

The proposed amends the Title XIX Medicaid State Plan and the Division of Social Services Manual (DSSM) to implement a Medicaid Buy-In (MBI) program and to comply with federal law to ensure federal financial participation as it relates to the MBI Program for working individuals with disabilities. This program will allow disabled individuals receiving Medicaid to return to the workplace without losing their Medicaid coverage, by paying a monthly premium, if applicable.

Statutory Authority

• 1902(a)(10)(A)(ii)(XIII) of the Social Security Act, Working disabled individuals who buy into Medicaid;

• 1902(a)(10)(A)(ii)(XV) of the Social Security Act, Working disabled individuals who buy into Medicaid under TWWIIA (Ticket to Work and Work Incentives Improvement Act of 1999) Basic Coverage Group;

• 1916(g) of the Social Security Act, Premiums - Working Disabled Individuals; and,

• Balanced Budget Act (BBA) of 1997, Section 4733, State Option To Permit Workers With Disabilities To Buy Into Medicaid.

Background

BBA Eligibility Group

Section 4733 of the Balanced Budget Act of 1997 (BBA) allows States to provide Medicaid coverage to working individuals with disabilities who, because of their earnings, cannot qualify for Medicaid under other Statutory provisions. Section 4733 allows States to provide Medicaid coverage to these individuals by creating a new optional categorically needy eligibility group.

Summary of Proposed Amendment

Congress enacted the Medicaid Buy-In option for states in the Balanced Budget Act of 1997 (§4733) and enhanced the option in the Ticket to Work and Work Incentive Improvement Act of 1999 (P.L. 106-170, 42 USC 1396 et seq.). The purpose of this amendment is to adopt rules for Delaware’s MBI program, as in effect on June 1, 2008. The Division of Medicaid and Medical Assistance (DMMA) proposes to amend Attachment 2.2-A, Page 23e and Attachment 2.6-A, Pages 12c through 12o of the State Medicaid Plan; amend section DSSM 14900; and, propose new Section 17900 of the DSSM to add a new Medicaid categorically needy eligibility group: Medicaid  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic Buy-In Basic Coverage Group. All references in the rules to Medicaid for Workers with Disabilities (MWD) mean the Medicaid Buy-In Program.

Section-by-Section Summary:

Section 17900 provides a general description of the Medicaid for Workers with Disabilities (MWD) program and the eligibility effective date. The requirements for applying and providing information are provided in §17901, General Eligibility Requirements. The eligibility requirement related to citizenship is contained in §17902, Alien Status. An individual must meet the age requirement under 17903, Age Requirement. The disability requirement for clients is described in §17904, Disability Requirement and the employment requirement the individual must meet is found in §17905, Employment Requirement. Sections 17905 through 17908, Income, explains what income is considered as well as what is excluded. The deeming policy for income is explained in §17909, Deeming of Income. §17910, Financial Eligibility Determination, describe the income tests used to determine financial eligibility. Retroactive Eligibility provisions are contained in Section 17911 and, finally, §17912 implements the monthly cost-sharing requirements for all months of eligibility.

The provisions of the proposed amendments to establish Medicaid for Workers with Disabilities (MWD) eligibility requirements, including the monthly cost-sharing requirements, are subject to approval by the Centers for Medicare & Medicaid Services (CMS).

DMMA PROPOSED REGULATION #08-11

REVISIONS:

Revision: ATTACHMENT 2.2-A

PAGE 23d

OMB NO.:

State/Territory:

Citation Groups Covered

B. Optional Groups Other Than the Medically Needy

(Continued)

1902(a)(10)(A) [ ] 23. BBA Work Incentives Eligibility Group

(ii) (XIII) of the Act Individuals with a disability whose net family

income is below 250 percent of the Federal

poverty level for a family of the size involved and

who, except for earned income, meet all criteria

for receiving benefits under the SSI program.

See page 12c of Attachment 2.6-A.

1902(a)(10)(A) [ X ] 24. TWWIIA Basic Coverage Group - Individuals

(ii) (XV) of the Act with a disability at least 16 but less than 65

years of age whose income and resources do

not exceed a standard established by the State.

See page 12d of Attachment 2.6-A

1902(a)(10)(A) [ ] 25. TWWIIA Medical Improvement Group

(ii) (XVI) of the Act Employed individuals at least 16 but less than 65

years of age with a medically improved

disability whose income and resources do not

exceed a standard established by the State.

See page 12h of Attachment 2.6-A.

 Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic NOTE: If the State elects to cover this group, it

MUST also cover the Basic Coverage Group

described in no. 24 above.

Revision: ATTACHMENT 2.6-A

Page 12c

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) (i) Working Individuals with Disabilities - BBA

(ii) (XIII) of the Act

In determining countable income and resources

for working individuals with disabilities under the BBA,

the following methodologies are applied:

___ The methodologies of the SSI program.

___ The agency uses methodologies for treatment of

income and resources more restrictive than the

SSI program. These more restrictive

methodologies are described in Supplement 4

(income) and/or Supplement 5 (resources) to

Attachment 2.6-A.

___ The agency uses more liberal income and/or

resource methodologies than the SSI program.

More liberal methodologies are described in

Supplement 8a to Attachment 2.6-A. More

liberal resource methodologies are described in

Supplement 8b to Attachment 2.6-A.

Revision: ATTACHMENT 2.6-A

Page 12d

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) (ii) Working Individuals with Disabilities - Basic

(ii) (XV) of the Act Coverage Group - TWWIIA

In determining financial eligibility for working individuals

with disabilities under this provision, the following

standards and methodologies are applied:

___ The agency does not apply any income or

resource standard.

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NOTE: If the above option is chosen, no further

eligibility-related options should be elected.

X The agency applies the following income and/or

resource standard(s):

1. Income Standard: 275% of

the federal poverty level (FPL).

2. Resource Standard: No resource or

other asset eligibility criteria for Basic

Coverage Group – TWWIIA.

Revision: ATTACHMENT 2.6-A

Page 12e

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) Income Methodologies

(ii) (XV) of the Act (cont.)

In determining whether an individual meets the income

standard described above, the agency uses the following

methodologies.

X The income methodologies of the SSI program.

___ The agency uses methodologies for treatment of

income that are more restrictive than the SSI

program. These more restrictive methodologies

are described in Supplement 4 to Attachment

2.6-A.

___ The agency uses more liberal income

methodologies than the SSI program. More

liberal income methodologies are described in

Supplement 8a to Attachment 2.6-A.

Revision: ATTACHMENT 2.6-A

Page 12f

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A)

(ii) (XV) of the Act (cont.) Resource Methodologies

 Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic In determining whether the individual meets the resource

standard described above, the agency uses the following

methodologies.

Unless one of the following items is checked the agency,

under the authority of section 1902(r)(2) of the Act,

disregards all funds held in retirement funds and

accounts, including private retirement accounts such as

IRAs and other individual accounts, and employer-

sponsored retirement plans such as 401(k) plans, Keogh

plans, and employer pension plans. Any disregard

involving retirement accounts is separately described in

Supplement 8b to Attachment 2.6-A.

___ The agency disregards funds held in employer-

sponsored retirement plans, but not private

retirement plans.

___ The agency disregards funds in retirement

accounts in a manner other than those

described above. The agency’s disregards are

specified in Supplement 8b to Attachment 2.6-A.

There will be no resource or other asset

eligibility criteria for the Basic Coverage

Group – TWWIIA.

Revision: ATTACHMENT 2.6-A

Page 12g

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A)

(ii) (XV) of the Act (cont.) ___ The agency does not disregard funds in

retirement accounts.

__ The agency uses resource methodologies in

addition to any indicated above that are more

liberal than those used by the SSI program.

More liberal resource methodologies are

described in Supplement 8b to Attachment

2.6-A.

___ The agency uses the resource methodologies of

the SSI program.

___ The agency uses methodologies for treatment of

resources that are more restrictive than the SSI

program. These more restrictive methodologies

are described in Supplement 5 to Attachment

 Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic 2.6-A.

There will be no resource or other asset

eligibility criteria for the Basic Coverage

Group – TWWIIA.

Revision: ATTACHMENT 2.6-A

Page 12h

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) (iii) Working Individuals with Disabilities

(ii) (XVI) of the Act Employed Medically Improved Individuals -TWWIIA

In determining financial eligibility for employed medically

improved individuals under this provision, the following

standards and methodologies are applied:

____ The agency does not apply any income or

resource standard.

NOTE: If the above option is chosen, no further

eligibility-related options should be elected.

____ The agency applies the following income and/or

resource standard(s):

_____% FPL – Income Standard

Revision: ATTACHMENT 2.6-A

Page 12i

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) Income Methodologies

(ii) (XVI) of the Act (cont.)

In determining whether an individual meets the income

standard described above, the agency uses the following

methodologies.

____ The income methodologies of the SSI program.

____ The agency uses methodologies for treatment of

income that are more restrictive than the SSI

program. These more restrictive methodologies

are described in Supplement 4 to Attachment 2.6-A.

 Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic

____ The agency uses more liberal income

methodologies than the SSI program. More

liberal methodologies are described in

Supplement 8a to Attachment 2.6-A.

Revision: ATTACHMENT 2.6-A

Page 12j

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A)

(ii) (XVI) of the Act (cont.) Resource Methodologies

In determining whether the individual meets the resource

standard described above, the agency uses the following

methodologies.

Unless one of the following items is checked the agency,

under the authority of section 1902(r)(2) of the Act,

disregards all funds held in retirement funds and

accounts, including private retirement accounts such as

IRAs and other individual accounts, and employer-

sponsored retirement plans such as 401(k) plans, Keogh

plans, and employer pension plans. Any disregard

involving retirement accounts is separately described in

Supplement 8b to Attachment 2.6-A.

____ The agency disregards funds held in employer-

sponsored retirement plans, but not private

retirement plans.

____ The agency disregards funds in retirement

accounts in a manner other than those listed

above. The agency’s disregards are specified in

Supplement 8b to Attachment 2.6-A.

Revision: ATTACHMENT 2.6-A

Page 12k

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) ____ The agency does not disregard funds in (ii)(XVI) of the Act (cont.)

retirement accounts.

____ The agency uses resource methodologies in

 Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic  Warning - Cannot convert linked graphic addition to any indicated above that are more

liberal than those used by the SSI program.

More liberal resource methodologies are

described in Supplement 8b to Attachment

2.6-A.

____ The agency uses the resource

methodologies of the SSI program.

____ The agency uses methodologies for

treatment of resources that are more

restrictive than the SSI program. Thes

more restrictive methodologies are

described in Supplement 5 to

Attachment 2.6-A.

Revision: ATTACHMENT 2.6-A

Page 12l

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) Definition of Employed - Employed Medically

(ii) (XVI) and 1905(v)(2) Improved Individuals – TWWIIA

of the Act

____ The agency uses the statutory definition of

“employed”, i.e., earning at least the minimum

wage, and working at least 40 hours per month.

____ The agency uses an alternative definition of

“employed” that provides for substantial and

reasonable threshold criteria for hours of work,

wages, or other measures. The agency’s

threshold criteria are described below:

Revision: ATTACHMENT 2.6-A

Page 12m

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10)(A) (ii) (XIII), Payment of Premiums or Other Cost Sharing Charges

(XV), (XVI), and 1916(g)

of the Act

For individuals eligible under the BBA eligibility group

described in No. 23 on page 23d of Attachment 2.2-A:

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X The agency requires payment of premiums or

other cost-sharing charges on a sliding scale

based on income. The premiums or other cost-

sharing charges, and how they are applied, are

described below:

Revision: ATTACHMENT 2.6-A

Page 12n

OMB No.:

State/Territory:

Citation Condition or Requirement

1902(a)(10) (A) (ii) (XIII), For individuals eligible under the Basic Coverage Group

(XV), (XVI), and 1916(g) described in No. 24 on page 23d of Attachment 2.2-A,

of the Act (cont.) and the Medical Improvement Group described in No. 25

on page 23d of Attachment 2.2-A:

NOTE: Regardless of the option selected below, the

agency MUST require that individuals whose annual

adjusted gross income, as defined under IRS statute,

exceeds $75,000 pay 100 percent of premiums.

X The agency requires individuals to pay

premiums or other cost-sharing charges on a

sliding scale based on income. For individuals

with net annual income below 450 percent of the

Federal poverty level for a family of the size

involved, the amount of premiums cannot

exceed 7.5 percent of the individual’s income.

The premiums or other cost-sharing charges,

and how they are applied, are described on

page 12o.

Revision: ATTACHMENT 2.6-A

Page 12o

OMB No.:

State/Territory:

Citation Condition or Requirement

Sections 1902(a) (10) (A) Premiums and Other Cost-Sharing Charges

(ii) (XV), (XVI), and 1916(g)

of the Act (cont.)

For the Basic Coverage Group and the Medical

Improvement Group, the agency’s premium or other

cost-sharing charges, and how they are applied, are

described below.

Individuals eligible for Medicaid under this section

must pay a monthly premium subject to the

following premium structure:

Cost Sharing Schedule

Percentage of FPL

Monthly Premium Amount

101% - 125%

$25

126% - 150%

$35

151% - 175%

$45

176% - 200%

$60

201% - 225%

$75

226% - 250%

$90

251% - 275%

$105

DMMA PROPOSED REGULATIONS #08-11b

REVISIONS:

14900 Enrollment In Managed Care

On May 17, 1995, Delaware received approval from the Health Care Financing Administration (HCFA) (in 2000 on June 14, 2001, HCFA was renamed Centers for Medicare and Medicaid Services [CMS]) for a Section 1115 Demonstration Waiver that is known as the Diamond State Health Plan. The basic idea behind this initiative is to use managed care principles and a strong quality assurance program to revamp the way health care is delivered to Delaware's most vulnerable populations. The Diamond State Health Plan is designed to provide a basic set of health care benefits to current Medicaid beneficiaries as well as uninsured individuals in Delaware who have income at or below 100% of the Federal Poverty Level (FPL). The demonstration waiver will mainstream certain Medicaid recipients into managed care to increase and improve access to medical service while improving cost effectiveness and slowing the rate of growth in health care costs.

Effective July 1, 2002, a Medicaid only managed care organization, Diamond State Partners, is implemented. Individuals may enroll in either the Diamond State Health Plan or Diamond State Partners

The majority of the Medicaid population receiving non institutional services will be enrolled into the Diamond State Health Plan or Diamond State Partners. Recipients in the cash assistance programs (TANF/AFDC, SSI, and GA) as well as the TANF/AFDC-related groups, SSI-related groups, and poverty level groups will be included in the managed care program. The following individuals cannot enroll in Diamond State Health Plan or Diamond State Partners:

a. Individuals entitled to or eligible to enroll in Medicare

b. Individuals residing in a nursing facility or intermediate care facility for the mentally retarded (ICF/MR)

c. individuals covered under the home and community based waivers

d. non lawful and non qualified non citizens (aliens)

d. e. individuals who have Military Health Insurance For Active Duty, Retired Military, and their dependents

e. f. individuals eligible under the Breast and Cervical Cancer Group.

f. g. presumptively eligible pregnant women

h. individuals eligible under Medicaid for Workers with Disabilities

(Break in Continuity of Sections)

17900 Medicaid for Workers with Disabilities

The Ticket to Work and Work Incentives Improvement Act of 1999 established an optional categorically needy eligibility group under Section 1902(a)(10)(A)(ii)(XV) of the Social Security Act. This eligibility group provides Medicaid coverage to certain employed individuals with disabilities. The rules in this section set forth the eligibility requirements under this group entitled Medicaid for Workers with Disabilities (MWD). The implementation date for MWD is June 1, 2008.

17901 General Eligibility Requirements

The Medicaid rules at Section 14000 of the Division of Social Services Manual (DSSM) also apply to MWD except as provided in this section.

17902 Alien Status

MWD does not provide state-funded benefits to qualified aliens subject to the 5-year bar under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, P.L. 104-193) or to legally residing nonqualified aliens.

17903 Age Requirement

The individual must be at least 16 but less than 65 years old.

17904 Disability Requirement

The individual must be disabled as defined under the Supplemental Security Income (SSI) program except that being engaged in substantial gainful activity will not preclude a determination of disability. The disability requirement is met if there is currently in effect a decision by the Social Security Administration (SSA) that the individual is disabled. If there is no SSA decision currently in effect, a contractor who is competent to perform a disability determination will be used.

17905 Employment Requirement

The individual must be engaged in paid employment and document Federal Insurance Contributions Act (FICA) withholding from income.

17906 Income

The definition of income is the same definition used by the SSI program. Refer to DSSM 20200-20200.9 and 20210-20210.15 for a detailed description of income.

17907 Unearned Income Exclusion

Unearned income is excluded up to $800.00 per month for the individual. There is no $800.00 per month unearned income exclusion for a spouse who is not applying for MWD. This unearned income exclusion will be increased annually by the Cost of Living Adjustment (COLA) announced by the SSA in the Federal Register.

17908 Earned Income Exclusions

Monthly earned income exclusions are applied in the following order:

1. Earned income of disabled student children (under age 18) up to the student earned income exclusion monthly limit, but not more than the student earned income exclusion yearly limit. These limits are updated annually by the Social Security Administration.

2. $20.00 general income exclusion

3. $65.00 of earned income

4. Earned income of disabled individuals used to pay impairment-related work expenses. Expenses must be directly related to the individual’s impairment. These are the costs paid by the individual for certain items and services that he or she needs in order to work even though such items and services are also needed for normal daily activities. Examples include but are not limited to the cost of certain attendant care services, dog guide, modified audio/visual equipment, specialized keyboards, and vehicle modification. The expense cannot be one that a similar worker without a disability would have, such as uniforms. The expenses are subject to reasonable limits. The amount paid will be considered reasonable if it does not exceed the standard or normal cost for the same item or service in the individual’s community.

5. One-half of remaining earned income

17909 Deeming of Income

The term deeming identifies the process of considering another person's income for the eligibility determination. Deeming provisions recognize some measure of family responsibility as they apply from spouse-to-spouse or parent-to-child. The deeming provisions of the SSI program at 20 CFR Part 416, Subpart K, Deeming of Income, are used for the eligibility determination. The Federal Benefit Rate is used in the SSI program for the deeming calculation. The income standard of 275% of the Federal Poverty Level (FPL) will be substituted for the Federal Benefit Rate in the MWD deeming calculation.

17910 Financial Eligibility Determination

There are two income tests used to determine financial eligibility:

1. If the monthly unearned income of the individual exceeds $800.00, the individual is ineligible. This unearned income limit will be increased annually by the Cost of Living Adjustment (COLA) announced by the SSA in the Federal Register.

2. Countable income must be at or below 275% of the Federal Poverty Level for the appropriate family size (individual or couple).

17911 Retroactive Eligibility

The individual may be found eligible for up to three months prior to the month of application as described at DSSM 14920-14920.6 provided the premium requirements under MWD are met. Eligibility cannot be retroactive prior to June 1, 2008.

17912 Premium Requirements

Individuals with countable income over 100% FPL are required to pay a monthly premium to receive coverage. Countable income is the same amount that is used to determine eligibility. When a husband and wife are both MWD eligible, a monthly premium is assessed on each spouse.

The monthly premium will be based on a sliding scale as follows:

Percentage of FPL

Monthly Premium

101-125%

$25

126-150%

$35

151-175%

$45

176-200%

$60

201-225%

$75

226-250%

$90

251-275%

$105

Exception to sliding scale: An individual or couple whose adjusted gross annual income (as determined under the IRS statute) exceeds $90,008 must pay the highest premium amount listed on the sliding scale. This adjusted gross annual income amount will increase each year by the COLA.

A premium is assessed the month an individual is added for coverage including any months of retroactive eligibility. Eligibility for a month is contingent upon the payment of the premium. Payments that are less than one month’s premium will not be accepted.

A monthly premium notice for ongoing coverage will be sent to the individual. The premium is due by the 20th of the month for the next month’s coverage. When the premium is not received by the date due, action will be taken to terminate eligibility under MWD. If the premium is received by the last day of the month, eligibility under MWD will be reinstated.

Coverage continues pending a fair hearing decision if the fair hearing request is filed within the timely notice period, even if the individual is not paying premiums that are due.

11 DE Reg. 1316 (04/01/08) (Prop.)