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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJuly 2016

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Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance initiated proceedings to amend the Delaware Social Services Manual (DSSM) by adding a provision regarding long-term care eligibility, specifically, to add language that allows the spousal impoverishment regulation to be waived in instances of undue hardship. 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 May 2016 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by May 31, 2016 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
§1924(a)(3)(b) of the Social Security Act, Methodology and standards for determining and evaluating income and resources for institutionalized spouses
42 CFR 435.602(c), Financial responsibility of relatives and other individuals
In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to provide input on the undue hardship provision. Comments were to be received by 4:30 p.m. on May 31, 2016.
First, DMMA should consider an increase in the $25,000 resource cap adopted in 1993. Consistent with the attachment, $25,000 in 1993 is equivalent to $41,199 in 2016. If raised, there would be less need to consider a waiver.
Agency Response: DMMA thanks the Council for its comment. However DMMA has an Undue Hardship provision in place to protect against a finding of ineligibility for long-term care (LTC) as a result of the calculation of a couple’s countable resources at DSSM 20950, which states the following:
Second, the proposed standard is unduly limiting. Medical expenses can qualify for consideration in the “undue hardship” determination only if the individual would die without the medical care. CMS is more expansive, authorizing an “undue hardship” waiver if the person’s health would be endangered. See, e.g, the attached CMS Deficit Reduction Act (DRA) summary and conforming Pennsylvania policy. Thus, if the loss of medical care would result in excessive pain; loss of a limb; partial paralysis; exacerbation of a diagnosed mental health condition (e.g. depression; schizophrenia); or other deterioration in health, the DMMA workers should be able to consider such effects. Moreover, it would be preferable to modify the third sentence as follows: “Without limitation, undue hardship also exists when application....life.” There should be some recognition that genuine hardship may be presented by factors beyond a short list. For example, a blind individual with an aging seeing-eye dog may need funds for dog food and expensive veterinary care.
Agency Response: DMMA thanks the Council for its comment. However, DMMA respectfully disagrees with the statement that the undue hardship eligibility policy provisions are unduly limiting. DMMA believes that this proposed eligibility policy provides additional protections for married individuals in difficult situations. This policy provides additional protections to this population that did not previously exist under prior spousal impoverishment regulations. DMMA believes that this proposed change in eligibility policy will prevent this group of individuals from being determined ineligible for LTC services due to circumstances beyond their control.
THEREFORE, IT IS ORDERED, that the proposed regulation to amend the Delaware Social Services Manual (DSSM) by adding a provision regarding long-term care eligibility, specifically, to add language that allows the spousal impoverishment regulation to be waived in instances of undue hardship, is adopted and shall be final effective July 11, 2016.
Last Updated: December 31 1969 19:00:00.
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