DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Medicaid and Medical Assistance

Statutory Authority: 31 Delaware Code,

Section 512 (31 Del.C. §512)

ORDER

Long Term Care Medicaid

Nature of the Proceedings

Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance initiated proceedings to amend the Division of Social Services Manual (DSSM) regarding the Medicaid Long Term Care Program. The proposal amends a rule in the Division of used to determine eligibility for medical assistance. Additionally, the proposed rule is technical in nature to change reference from the Division of Social Services to the Division of Medicaid and Medical Assistance. The Department’s proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.

The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the October 2005 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by October 31, 2005 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.

Summary of Proposed Amendment

Statutory Authority

• 42 CFR §435.907, Written Application

• 42 CFR §435.908, Assistance with Application

Summary of Proposed Change

DSSM 20103: Clarifies who is permitted to file an application for Long Term Care Medical Assistance to ensure that a person who is knowledgeable about the applicant’s finances completes the application. DMMA adds an eligibility determination requirement that a knowledgeable and responsible representative complete the application process for the applicant. This will enable the Social Worker to process the case in a more accurate and timely manner.

Additionally, the proposed rule is technical in nature to revise reference to the Division of Social Services to the Division of Medicaid and Medical Assistance.

Summary of Comments Received with Agency Response and Explanation of Changes

The Delaware Developmental Disabilities Council (DDDC), the Governor’s Advisory Council for Exceptional Citizens (GACEC) and, the State Council for Persons with Disabilities (SCPD) offered the following observations and recommendations summarized below. DMMA has considered each comment and responds as follows:

First, if there is a guardian or agent with a POA, it is unclear if the applicant is an optional attendee at the interview. To clarify that the representative substitutes for the applicant at the interview and covers the situation in which the guardian or agent with a POA is a non-relative, it would be clearer to modify the reference in the first sentence to read “…with the applicant, family member, or other representative”.

Agency Response: Often the applicant is unable to come in to the interview, so a family member may apply on their behalf DMMA has added clarifying language on this point.

Second, the standards for waiving an interview are unduly narrow. There must be medical inability to attend. There may be other reasons justifying waiver. For example, if the applicant were severely cognitively impaired (e.g. by Alzheimer’s), the applicant could physically appear but the interview would be meaningless. We recommend the following substitute for the sixth sentence in the second paragraph:

The interview can only be waived if the applicant is medically unable to come in for the interview, there is no family member, POA agent or Guardian medically unable to come in for the interview, or other good cause exists which obviates the usefulness of the interview (e.g. applicant lacks mental capacity to meaningfully participate in the interview).

Agency Response: DMMA has changed the language to read “or other good cause exists” and has amended the rules accordingly.

Third, since the application is not deemed complete until the interview is finished, we recommend a provision be added indicating that DMMA will use affirmative efforts (e.g. contact the applicant) to promptly schedule the interview. Otherwise, weeks may pass during which time the applicant (who may have limited sophistication) may believe the application is being processed.

Agency Response: This is an office practice already in place. No change will be made to the regulation because of this comment.

Fourth, the proposed regulation eliminates the current requirement that the applicant sign a form, which discloses the opportunity to avoid institutionalization by opting for community services (attached). The rationale for this change is unclear and may result in unnecessary nursing home admission since the applicant may be unaware of community-based options. It is our impression that the use of the form is at least encouraged, if not required, by CMS. If this form is no longer part of the application process, how will DMMA provide information to applicants about community alternatives to institutionalization?

Agency Response: Form HCBS 1 is actually signed by the client/representative at the medical evaluation by the Pre-Admission Screening (PAS) nurse and not at the interview.  Procedurally this gives SSI recipients, who do not come to the interview or file an application, the opportunity to see the form.

Findings of Fact

The Department finds that the proposed changes as set forth in the October 2005 Register of Regulations should be adopted.

THEREFORE, IT IS ORDERED, that the proposed regulation to amend the Division of Social Services Manual regarding financial eligibility determination for the Medicaid Long Term Care Program is adopted and shall be final effective December 10, 2005.

Vincent P. Meconi, Secretary, DHSS, November 17, 2005

DSS FINAL ORDER REGULATION #05-65

REVISIONS:

20103 Financial Eligibility Determination

This is the second step in the application process. A referral is passed to the LTC financial eligibility unit within two days of being referred to the Medicaid PAS unit.

An application for Medicaid is presumed to be made only when an interview is held with the applicant or his family member [who is applying on the applicant’s behalf]. Should anyone hold Power of Attorney or Guardianship over the applicant, he [also] must attend the interview [along with the applicant/family member,] unless his attendance is waived by the supervisor. and the In addition, the application form is must be signed listing those individuals for whom Medicaid coverage is being sought. The applicant or his representative must sign the An Application, Affidavit of Citizenship, and Responsibility Statement. and HCBS-1 Awareness Form must be signed by the applicant or his representative. The application date is considered the date of the interview unless the interview requirement is waived. The interview can only be waived if the applicant is medically unable to come in for the interview and there is no family member, POA [agent] or Guardian friend medically able to come in for the interview [or other good cause exists]. The unit Supervisor must approve the waiving of the interview requirement.

For cases in which the interview is waived, the application must be date stamped when it is received in the Division of Social Services Medicaid and Medical Assistance office. The stamped date sets the base for the timeliness of determination.

9 DE Reg. 996 (12/01/05)(Final)