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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
 
Qualified Long-Term Care Insurance Partnership Program
 
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 Delaware Title XIX Medicaid State Plan and the Division of Social Services Manual regarding implementation of a Qualified Long-Term Care Insurance Partnership Program.
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 November 30, 2011.
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 PROPOSAL
 
The proposed amends the Delaware Title XIX Medicaid State Plan and the Division of Social Services Manual regarding implementation of a Qualified State Long-Term Care Insurance Partnership Program.
 
Statutory Authority
Deficit Reduction Act of 2005 (Public Law 109-171), enacted on February 8, 2006
 
Background
Section 6021 amends section 1917(b) of the Social Security Act (the Act) to provide for Qualified State Long-Term Care (LTC) Insurance Partnership programs, and permits an exception to estate recovery provisions with respect to individuals who receive benefits under LTC insurance policies sold in States that implement a Partnership program.
Section 6021(a)(1)(A)(iii) defines the term “Qualified State LTC Partnership” to mean an approved State plan amendment (SPA) that provides for the disregard of resources, when determining estate recovery obligations, in an amount equal to the LTC insurance benefits paid to, or on behalf of, an individual who has received medical assistance. A policy that meets all of the requirements specified in a Qualified State LTC Partnership SPA is referred to as a “Partnership policy.”
 
Summary of Proposal
The proposed amendment provides incentive to individuals who purchase a Qualified Long-Term Care Partnership Policy by allowing the policyholder a disregard of assets or resources in an amount equal to the insurance benefit payments paid for the beneficiary once the policy holder has exhausted their long-term care benefits. The dollar amount paid by the policy for their care is also exempt from the recovery of medical assistance received by the participant (Estate Recovery). Individuals will not be eligible for Medicaid to meet their long-term care needs until the policyholder has exhausted the long-term care benefits provided by their Qualified LTC Partnership Policy.
Delaware’s Department of Insurance would approve long-term care insurance policies and ensure that insurance agents are trained and certified. Insurers authorized to offer long-term care insurance will be obligated to disclose the existence of the Qualified Long-Term Care Insurance Partnership Program.
This amendment provides for the disregard of resources in an amount equal to the insurance benefit payments made to or on behalf of an individual who is a beneficiary under a long-term care insurance policy, in accordance with the provisions of Section 6021 of the Deficit Reduction Act of 2005. The disregard will be in the form of one dollar of assets retainable for every dollar in benefits paid under a long-term care insurance policy if the policyholder received Medicaid benefits while or after accessing the long-term care insurance benefits.
The provisions of these amendments are subject to approval by the Centers for Medicare and Medicaid Services (CMS).
 
Fiscal Impact Statement
The intent of a Qualified Long-Term Care Insurance Partnership Program (QLTCIP) is to reduce the burden of long-term expenses on Medicaid by providing incentives to purchase long-term care insurance. The fiscal impact of implementation is an indeterminable decrease in expenditures. There may be costs associated with the establishment of the QLTCIP program, such as: developing training programs; preparation of annual reports; and, potential reduction in Medicaid estate recovery proceeds. However, these costs are expected to more than offset by the fact that long-term care insurance policies will initially be paying for services rather than Medicaid. Exact dollar amounts are indeterminable because the number of people who will participate in the Program is unknown.
 
DMMA PROPOSED REGULATION #11-46a
REVISION:
Page 53b
 
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT
 
State/Territory: DELAWARE
 
 
1917(b)(1)(C) (4) X If an individual covered under a long-term care insurance
policy received benefits for which assets or resources
were disregarded as provided for in Attachment 2.6-A,
Supplement 8c (State Long-Term Care Insurance
Partnership) the State does not seek adjustment or
recovery from the individual’s estate for the amount of
assets or resources disregarded.
 
(Break in Continuity of Sections)
 
REVISION: Supplement 8b to ATTACHMENT 2.6-A
Page 1
 
STATE PLAN UNDER TITLE OF THE SOCIAL SECURITY ACT
 
State: DELAWARE
 
MORE LIBERAL METHODS OF TREATING RESOURCES
UNDER SECTION 1902 (r) (2) OF THE ACT
 
/ / Section 1902(f) State / X / Non-Section 1902 (f) State
 
D. Qualified State Long-Term Care Insurance Partnership
 
1. A resource disregard is given to an individual who has purchased a qualified long-term care insurance policy and
has used such policy to pay for certain medical costs as approved or covered under Delaware Medicaid as follows:
a. Long-term nursing care in nursing facilities. 42 CFR 440.40
b. Home and community-based services (HCBS) as defined in the Delaware HCBS Waiver for the elderly
and disabled (Elderly & Disabled Waiver DE.0136).
2. The amount of the disregard is equal to the dollar amount of insurance benefits that have been paid by the long-
term care insurance company in accordance with the provisions of Section 6021 of the Deficit Reduction Act of
2005.
3. Such disregard is in effect for the lifetime of the individual who has purchased the long-term care insurance policy
and used the policy to pay for long-term careservices.
4. Persons eligible for a resource disregard are categorically needy individuals in nursing facilities and home and
community-based waiver programs under the special income level (250%) defined at 1902(a)(10)(A)(ii)(V).
5. Effective November 1, 2011, Delaware shall accept all of the reciprocity standards as promulgated pursuant to
Section 6201(b) of Public Law 109-171 with respect to all other states agreeing to participate under such
reciprocity standards.
6. Resources disregarded under this provision are not subject to recovery of medical payments made on behalf of the
individual.
 
 
NEW:
Supplement 8c to ATTACHMENT 2.6-A
Page 1
 
STATE PLAN UNDER TITLE OF THE SOCIAL SECURITY ACT
 
State: DELAWARE
 
STATE LONG-TERM CARE INSURANCE PARTNERSHIP
 
1902(r)(2) The following more liberal methodology applies to individuals who are
1917(b)(1)(C) eligible for medical assistance under one of the following eligibility groups:
Individuals who meet the requirements under the following sections of the Social Security Act:
Categorically needy individuals in nursing facilities and home and community-based
waiver programs under the special income level (250%) defined at 1902 (a)(10)(A)(ii)(V).
 
An individual who is a beneficiary under a long-term care insurance policy that meets the
requirements of a “qualified State long-term care insurance partnership” policy
(partnership policy) as set forth below, is given a resource disregard as described in this
amendment. The amount of the disregard is equal to the amount of the insurance benefit
payments made to or on behalf of the individual. The term “long-term care insurance
policy” includes a certificate issued under a group insurance contract.
 
X The State Medicaid Agency (Agency) stipulates that the following requirements will be
satisfied in order for a long-term care policy to qualify for a disregard. Where appropriate,
the Agency relies on attestations by the State Insurance Commissioner (Commissioner) or
other State official charged with regulation and oversight of insurance policies sold in the
state, regarding information within the expertise of the State’s Insurance Department.
The policy meets the requirements of the long-term care insurance model regulation and long-term care insurance model Act promulgated by the National Association of Insurance Commissioners (as adopted as of October 2000) as those requirements are set forth in section 1917(b)(5)(A) of the Social Security Act.
The insured individual was a resident of a Partnership State when coverage first became effective under the policy. If the policy is later exchanged for a different long-term care policy, the individual was a resident of a Partnership State when coverage under the earliest policy became effective.
 
NEW:
Supplement 8c to ATTACHMENT 2.6-A
Page 2
 
STATE PLAN UNDER TITLE OF THE SOCIAL SECURITY ACT
 
State: DELAWARE
 
STATE LONG-TERM CARE INSURANCE PARTNERSHIP CONTINUED
 
The Commissioner requires the issuer of the policy to make regular reports to the Secretary that include notification regarding when benefits provided under the policy have been paid and the amount of such benefits paid, notification regarding when the policy otherwise terminates, and such other information as the Secretary determines may be appropriate to the administration of such partnerships.
 
The State does not impose any requirement affecting the terms or benefits of a partnership policy that the state does not also impose on non-partnership policies.
 
The State Insurance Department assures that any individual who sells a partnership policy receives training, and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of long-term care.
 
The Agency provides information and technical assistance to the Insurance Department regarding the training described above.
 
 
DMMA PROPOSED REGULATION #11-46b
REVISION:
 
(Policy Number Pending) Qualified State Long-Term Care Insurance Partnership
Program
 
This policy applies to Long-Term Care Insurance Partnership policies purchased on or after
November 1, 2011.
 
1. Defining a Qualified State Long-Term Care Insurance Partnership.
 
The Delaware Qualified State Long-Term Care (LTC) Insurance Partnership is a partnership between States that implement a Partnership program, private insurance companies that offer long term care insurance policies and State insurance departments. The term “Qualified State Long-Term Care Insurance Partnership” means an approved State plan amendment (SPA) that provides for the disregard of any assets or resources from Medicaid estate recovery in an amount equal to the insurance benefits paid by certain LTC insurance policies, where those benefits were disregarded in determining an individual’s Medicaid eligibility. The term “long-term care insurance policy” includes a certificate issued under agroup insurance contract.
 
Purchasing or owning a Qualified State Long-Term Care Insurance Partnership policy does not guarantee Medicaid eligibility. All other financial, non-financial and medical eligibility requirements must be met.
 
Policies must meet specific conditions and the State Insurance Commissioner must certify that a policy meets those conditions, in order for the State to apply the disregard from estate recovery.
 
The long-term care partnership policy is designed to do all of the following:
 
a. Provide incentives for individuals to insure against the costs of providing for their long-term care needs.
 
b. Provide a mechanism for individuals to qualify for coverage of the cost of their long-term care needs under
Medicaid without first being required to substantially exhaust their resources.
 
c. Reduce Medicaid expenditures by delaying or eliminating the need for Long-Term Care Medicaid.
 
2. Long-term care insurance policies purchased prior to November 1, 2011 are not Partnership policies.
 
3. Long-term care insurance policies purchased on or after November 1, 2011 may or may not be Partnership policies.
A long-term care partnership program policy means a policy that must meet all of the following requirements:
a. The policy must have been issued on or after November 1, 2011.
b. The covered individual must be a resident of a Qualified Partnership State when coverage first becomes effective.
If a policy is exchanged for another policy, the residency rule applies to the issuance date of the original policy.
c. The policy must meet the definition of a “qualified long-term care insurance policy” as stated in section 7702B(b) of
the Internal Revenue Code of 1986.
d. The policy must meet specific requirement of the National Association of Insurance Commissioners (NAIC) Long
Term Care Insurance Model Regulations Act and Model Act.
e. The policy must include inflation protection.
 
i. For purchasers under 61 years of age, compound annual inflation protection.
ii. For purchasers 61 to 76 years of age, some level of inflation protection; or
iii. For purchasers 76 years of age or older, inflation protection may be offered, but
is not required.
 
4. A Partnership policy allows for assets to be disregarded from eligibility.
The amount of the disregard is equal to the dollar amount of insurance benefits that have been paid to or on behalf of
the individual.
 
This amount is limited to the amount paid as of the month of application, even if additional benefits are available under
the terms of the policy.
 
5. Assets are also protected from the Medicaid Estate Recovery Program.
The amount of the assets disregarded in the eligibility process is not recoverable under the Medicaid estate recovery
program.
 
6. Disregarded assets are counted in the Spousal Resource Assessment.
The disregarded assets are included in determining the amount of the community spouse resource allowance in a
Spousal Impoverishment case.
 
However, the disregarded asset is not counted in determining the individual’s eligibility.
 
7. Reciprocity with other states.
DMMA will accept partnership policies issued in other States with qualified long-term care insurance partnership
programs.
 
8. Exhaustion of Benefits.
An individual who owns a Qualified State Long-Term Care Insurance Partnership policy can apply for Medicaid before
exhausting policy benefits.
 
The partnership policy is treated as a third party liability and Medicaid will pay for services not covered. Medicaid will be
payor of last resort.
 
9. Verification of the Partnership policy.
A Qualified State Long-Term Care Insurance Partnership policy must meet all relevant requirements of federal and
state law. Qualified partnership policies are certified by the Delaware Department of Insurance (DOI).
 
15 DE Reg. 621 (11/01/11) (Proposed)