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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJune 2016

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Delaware Health and Social Services ("Department") / Division of Medicaid and Medical Assistance (DMMA) initiated proceedings to amend the Delaware Title XIX Medicaid State Plan and the Division of Social Services Manual (DSSM) regarding the Post-Eligibility Treatment of Institutionalized Individuals, specifically, standards for payment of personal needs allowance for individuals in from long-term care facilities. The Department's proceedings to amend its regulations were initiated pursuant to 29 Del.C. §10114 and its authority as prescribed by 31 Del.C. §512.
The Department published its notice of proposed regulation changes pursuant to 29 Del.C. §10115 in the April 2016 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by May 2, 2016 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
§1902(a)(50), (q) of the Social Security Act, A State Plan for medical assistance must
§1924(d)(1) of the Social Security Act, Allowances to be offset from income of institutionalized spouse
42 CFR §435.725, Post-eligibility treatment of income of institutionalized individuals in SSI States: Application of patient income to the cost of care
42 CFR §435.733, Post-eligibility treatment of income of institutionalized individuals in States using more restrictive requirements than SSI: Application of patient income to the cost of care
42 CFR §435.832, Post-eligibility treatment of income of institutionalized individuals: Application of patient income to the cost of care
Agency Response: DMMA thanks the Council for its comment. However, no change was made as a result of this comment.
Second, on p. 896, DMMA may wish to consider substituting "ICF/IID" for ICF/MR. See CMS attachment, Title 29 Del.C. §608, and DMMA references to ICF/IID at 19 DE Reg. 888, 889 and 892.
Agency Response: DMMA agrees with the Council's recommendation. The reference has been changed from ICF/MR to ICF/IID.
If the recipient regularly attends a rehab/educational program off the grounds of his nursing or her long-term care facility, including employment for the purpose of rehabilitation in a sheltered workshop off the grounds of the facility, $50.00 per month (rather than $44) will be protected;...
The reference is somewhat archaic given Title 19 Del.C. §§740-747 (Employment First Act) and could be interpreted as excluding PNA eligibility to participants in supported employment as well as day habilitation programs. It may violate public policy to limit PNA to participants (including group home and foster home residents) in sheltered workshops to the exclusion of participants in supported employment.
Agency Response: DMMA thanks the Council for its comment. However, no change was made as a result of this comment.
Agency Response: DMMA agrees with the Council's suggested revisions for this section of the eligibility policy. The following changes have been made and will be included in the final draft of this policy:
Agency Response: DMMA agrees with the Council's suggestion to reconsider this terminology. The following change has been made and to the regulation:
STATE: DELAWARE
Couples $88 $100
See Page 4 Addendum
Children $44 $50
Adults $44 $50
STATE: DELAWARE
d. $50/month for NF and ICF/[MR IID] residents engaging in frequent and regular rehabilitation out-of-facility activities.
e. For nursing facility residents who are participating in gainful employment, the following amounts, not to exceed the adult foster care rate (SSI benefit amount + $140), will be deducted from gross earned income:
i. Mandatory payroll deductions that are a condition of employment including, but not limited to:
* 1. Federal, State, and Local taxes
* 2. FICA
* 3. Union Dues
* 4. Insurance Premiums
* 5. Pension Contributions.
ii. Transportation costs as paid to and from employment.
Iii. Clothing and personal needs allowance of $75/month.
42 CFR §435.725; 42 CFR §435.733; 42 CFR §435.832
The total income to be used in the post-eligibility process will include all amounts that meet the definition of income. This includes both income that is counted for eligibility, and as well as income that is excluded for eligibility.
a) 20620.1.1 $44.00 $50.00 per month of available income is to be protected for the Medicaid recipients recipient's direct personal needs; or
b) 20620.1.2 If the recipient regularly attends a rehab/educational program off the grounds of his nursing or her long-term care facility, including employment for the purpose of rehabilitation in a sheltered workshop off the grounds of the facility, $50.00 per month (rather than $44) will be protected; or
c) 20620.1.3 For nursing long-term care facility residents who are participating in substantial gainful activity (SGA) (20 CFR 416.971), the following amounts, not to exceed the Adult Foster Care rate will be deducted from gross earned income:
20620.1.3.1 Mandatory payroll deductions that are a condition of employment including, but not limited to:
20620.1.3.2 If [monthly] earnings average more than [$700 a month the current SGA amount] in a calendar year, this is considered SGA and DSS [Department of Social Services (DSS) the Division of Medical Assistance (DMMA)] can allow a personal needs allowance of up to the AFC rate.
20620.1.3.3 If earnings average less than $300 a month in a calendar year, this is not ordinarily considered SGA and [DSS DMMA] can allow the $44 or $50 personal needs allowance.
20620.1.3.4 If average earnings are between $300 and [$700 the current SGA amount], [DSS DMMA] must consider other factors to determine whether or not the work constitutes SGA. Other factors include considering if the work is comparable to [unimpaired people persons without disabilities] in the community performing similar jobs.
42 CFR §435.725; 42 CFR §435.733; 42 CFR §435.832
a. 20995.1.1 Personal Needs Allowance for the institutional spouse
The personal needs allowance amount is $30 per month for SSI recipients, and $44 $50 per month for all others. If the institutionalized spouse is employed, personal needs may range from $50 up to the Adult Foster Care rate per month.
b. 20995.1.2 Community Spouse Income Allowance
The community spouse monthly income allowance is the amount of income necessary to bring the spouse's monthly otherwise available income up to:
20995.1.2.2 The total amount available to the community spouse may not exceed "Cap for Minimum Monthly Maintenance Standard. This standard usually changes each January based on the Consumer Price Index for Urban Consumers.
c. 20995.1.3 Family Allowance
d. 20995.1.4 Items for which protection of income has been approved by the Long Term Long-Term Care Operation's Administrator and/or incurred medical expenses of the institutionalized spouse.
Last Updated: December 31 1969 19:00:00.
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