DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Medicaid and Medical Assistance

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

PROPOSED

PUBLIC NOTICE

Long Term Care Medicaid

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 a rule in the Division of Social Services Manual (DSSM) used to determine eligibility for medical assistance to close a potential loophole in excluded resources.

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, Policy and Program Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 by May 31, 2006.

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 Changes

Statutory Authority

Social Security Administration Program Operations Manual System (POMS) - POMS Section SI 01130.300, Life Insurance

Summary of Proposed Changes

DSSM 20310.7.2: The Deficit Reduction Act of 2005 attempts to close loopholes in the Long Term Care Medicaid Program. Currently, Term Life Insurance, regardless of the amount of the face value, is excluded as a resource for applicants applying for Long Term Care Medicaid. It is a potential pathway by which resources could be placed in order to shelter assets. This allows individuals to become eligible for Long Term Care sooner. DMMA proposes that the State of Delaware become the beneficiary in the first position on all Term Life Insurance policies over $10,000.00 in face value. Should there be other burial resources, then there will be no $10,000.00 allowance.

Long Term Care Medicaid

DMMA PROPOSED REGULATIONS #06-15

REVISIONS:

20310 Resource Exclusions

20310.1 Place of Residence/Real Property

An applicant/recipient's principal place of residence and any land that adjoins is excluded if certain conditions are met.

20310.1.1 Intent to Return

The principal place of residence may be excluded if the individual intends to return home after any length of time.

Temporary Institutionalization - If the attending physician has certified that a recipient is likely to return to his own home within a definite period (not to exceed 2 months) up to $75.00 per month may be protected for maintenance of the home.

20310.1.2 Spouse and/or Dependent Relative

If the applicant/recipient's home is used by a spouse and/or dependent relative during the individual's absence it may be excluded.

20310.2 Jointly Owned Real Property

Jointly owned real property may be excluded if the sale would cause undue hardship, due to loss of housing, to a co-owner.

20310.3 Attempts to Sell

Real property may be excluded when an individual has made reasonable but unsuccessful efforts to sell throughout a 9-month period of conditional benefits, as long as the individual continues to make reasonable efforts to sell it. (See DSSM 20360)

20310.4 Indian Lands

Any lands that are restricted allotted Indian lands are excluded.

20310.5 Automobiles

One automobile, regardless of value, if, for the individual or a member of the individual's household (member of a household is one who receives food, clothing and shelter at the applicant's residence at time of institutionalization) if it fits the exclusions listed in Sections 20310.5.1 -20310.5.4.

20310.5.1 Employment

The automobile is excluded if necessary for employment.

20310.5.2 Medical Use

If the automobile is necessary for the medical treatment of a specific or regular medical problem, it may be excluded.

20310.5.3 Modifications

An exclusion may be used if the vehicle is modified for operation by or transportation of a disabled person.

20310.5.4 Essential Daily Activities

The automobile may be excluded if it is necessary because of climate, terrain, distance, or similar factors to provide necessary transportation to perform essential daily activities.

20310.6 Joint Ownership

If the automobile is jointly owned and if a co-owner refuses to sell it may be excluded.

20310.7 Life Insurance

20310.7.1 Face Value

20310.7.2 Death Benefits

20310.7.1 Face Value

Life insurance is excluded if the total face value of the policies is $1500 or less and the individual has no revocable designated burial funds.

(See Section 20340.1.3 Relation to Burial Allowance for the relationship between life insurance and the burial allowance)

20310.7.2 Death Benefits

The face value of term or death benefit only policies that do not generate a cash surrender value and burial insurance policies are excluded for eligibility. Term, death benefit policies or burial insurance with a face value equal to or greater than $10,000.00 must designate the State of Delaware as the beneficiary in the first position. The State will retain the amount no greater than the Medicaid expenditures. In situations where there are other burial funds available to cover the burial expenses, there will be no $10,000.00 allowance. Naming the State of Delaware as the Beneficiary is a condition of eligibility.

20310.8 Burial Exclusions

20310.8.1 Designated Burial Funds

20310.8.2 Burial Spaces for Relatives

20310.8.3 Burial Space Items

20310.8.4 Burial Site Services

20310.8.5 Prepaid Burial Contract

20310.8.1 Designated Burial Funds

Burial funds in the amount of $1500 that are separately identifiable and are clearly designated for burial expenses will be excluded.

20310.8.2 Burial Spaces for Relatives

A burial space or burial space item is excluded if held for the burial of the applicant/recipient, his/her spouse, or any other member of his/her immediate family. Immediate family includes parents, adoptive parents, minor or adult children (including adoptive and stepchildren) siblings (including adoptive and step) and the spouses of these relatives. If the relative's relationship to the recipient is by marriage only, the marriage must be in effect in order for the burial space exclusion to continue to apply. For example, a burial space held for a sister-in-law is no longer excludable if she and the recipient's brother divorce.

20310.8.3 Burial Space Items

A burial plot, gravesite, crypt, mausoleum, urn, niche, or other repository customarily and traditionally used for the deceased's bodily remains, vaults, headstones, markers, or plaques if pre-paid are excluded.

20310.8.4 Burial Site Services

The opening and closing of the gravesite and the care and maintenance of the gravesite if prepaid are excluded.

20310.8.5 Prepaid Burial Contract

A prepaid burial contract (sometimes funded by a life insurance policy) that cannot be revoked and cannot be sold without significant hardship is excluded.

20310.9 Retroactive Social Security Administration Lump Sum

The unspent portion of retroactive SSI and Title II Retirement, Survivors, and Disability insurance (RSDI) benefits is excluded from resources for the six calendar months following the month of receipt.

20310.10 Reparations

German Reparation payments must not be considered available in the eligibility or post eligibility treatment of income and resources. They can no longer be applied toward the personal needs allowance, community spouse income allowance, family member allowance nor cost of care. If German reparations payments are retained beyond the month of receipt, they must be considered exempt resources whether received while the person was in the community or after becoming institutionalized. These funds should be kept separate from other income and resources. Interest earned on these resources must be considered available income.

9 DE Reg. 239 (8/1/05)

20310.11 Disaster Assistance Funds

Any unspent Federal disaster assistance funds are excluded for 9 to 18 months.

20310.12 Agent Orange Payments

Any unspent Agent Orange settlement payments are excluded.

20310.13 Victims Compensation Payments

Victims compensation payments from a State established fund are excluded from resources for a period of 9 months after the month of receipt.

20310.14 Radiation Exposure Compensation

Any unspent Radiation Exposure Compensation Trust Fund Payments are excluded.

20310.15 Unspent Cash for Medical or Social Services

The unspent cash paid to an individual to help the individual pay for a medical or social service is not a resource for 1 full calendar month following the month of receipt.

20310.16 Netherlands' Act for Victims of Persecution

Any unspent payments from the Netherlands' Act on Benefits for Victims of Persecution 1940-1945 (WUV) are excluded.

20310.17 Earned Income Tax Credit

EITC (Earned Income Tax Credit) payments are excluded from resources in the month following the month of receipt.

9 DE Reg. 1683 (05/01/06)(Prop.)