| 11 | 23 | | |
|---|
| 12 | 24 | | AN ACT CONCERNING MEDICAID ELIGIBILITY AND THE IDENTIFICATION AND RECOVERY OF ASSETS. |
|---|
| 13 | 25 | | |
|---|
| 14 | 26 | | Be it enacted by the Senate and House of Representatives in General Assembly convened: |
|---|
| 15 | 27 | | |
|---|
| 16 | 28 | | Section 1. Section 17b-261 of the 2012 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2012): |
|---|
| 17 | 29 | | |
|---|
| 18 | 30 | | (a) Medical assistance shall be provided for any otherwise eligible person whose income, including any available support from legally liable relatives and the income of the person's spouse or dependent child, is not more than one hundred forty-three per cent, pending approval of a federal waiver applied for pursuant to subsection (e) of this section, of the benefit amount paid to a person with no income under the temporary family assistance program in the appropriate region of residence and if such person is an institutionalized individual as defined in Section [1917(c)] 1917 of the Social Security Act, 42 USC [1396p(c)] 1396p(h)(3), and has not made an assignment or transfer or other disposition of property for less than fair market value for the purpose of establishing eligibility for benefits or assistance under this section. Any such disposition shall be treated in accordance with Section 1917(c) of the Social Security Act, 42 USC 1396p(c). Any disposition of property made on behalf of an applicant or recipient or the spouse of an applicant or recipient by a guardian, conservator, person authorized to make such disposition pursuant to a power of attorney or other person so authorized by law shall be attributed to such applicant, recipient or spouse. A disposition of property ordered by a court shall be evaluated in accordance with the standards applied to any other such disposition for the purpose of determining eligibility. The commissioner shall establish the standards for eligibility for medical assistance at one hundred forty-three per cent of the benefit amount paid to a family unit of equal size with no income under the temporary family assistance program in the appropriate region of residence. Except as provided in section 17b-277, the medical assistance program shall provide coverage to persons under the age of nineteen with family income up to one hundred eighty-five per cent of the federal poverty level without an asset limit and to persons under the age of nineteen and their parents and needy caretaker relatives, who qualify for coverage under Section 1931 of the Social Security Act, with family income up to one hundred eighty-five per cent of the federal poverty level without an asset limit. Such levels shall be based on the regional differences in such benefit amount, if applicable, unless such levels based on regional differences are not in conformance with federal law. Any income in excess of the applicable amounts shall be applied as may be required by said federal law, and assistance shall be granted for the balance of the cost of authorized medical assistance. The Commissioner of Social Services shall provide applicants for assistance under this section, at the time of application, with a written statement advising them of (1) the effect of an assignment or transfer or other disposition of property on eligibility for benefits or assistance, (2) the effect that having income that exceeds the limits prescribed in this subsection will have with respect to program eligibility, and (3) the availability of, and eligibility for, services provided by the Nurturing Families Network established pursuant to section 17b-751b. Persons who are determined ineligible for assistance pursuant to this section shall be provided a written statement notifying such persons of their ineligibility and advising such persons of the availability of HUSKY Plan, Part B health insurance benefits. |
|---|
| 19 | 31 | | |
|---|
| 20 | 32 | | (b) For the purposes of the Medicaid program, the Commissioner of Social Services shall consider parental income and resources as available to a child under eighteen years of age who is living with his or her parents and is blind or disabled for purposes of the Medicaid program, or to any other child under twenty-one years of age who is living with his or her parents. |
|---|
| 21 | 33 | | |
|---|
| 22 | 34 | | (c) For the purposes of determining eligibility for the Medicaid program, an available asset is one that is actually available to the applicant or one that the applicant has the legal right, authority or power to obtain or to have applied for the applicant's general or medical support. If the terms of a trust provide for the support of an applicant, the refusal of a trustee to make a distribution from the trust does not render the trust an unavailable asset. Notwithstanding the provisions of this subsection, the availability of funds in a trust or similar instrument funded in whole or in part by the applicant or the applicant's spouse shall be determined pursuant to the Omnibus Budget Reconciliation Act of 1993, 42 USC 1396p. The provisions of this subsection shall not apply to a special needs trust, as defined in 42 USC 1396p(d)(4)(A). For purposes of determining whether a beneficiary under a special needs trust, who has not received a disability determination from the Social Security Administration, is disabled, as defined in 42 USC 1382c(a)(3), the Commissioner of Social Services, or the commissioner's designee, shall independently make such determination. The commissioner shall not require such beneficiary to apply for Social Security disability benefits or obtain a disability determination from the Social Security Administration for purposes of determining whether the beneficiary is disabled. |
|---|
| 23 | 35 | | |
|---|
| 24 | 36 | | (d) The transfer of an asset in exchange for other valuable consideration shall be allowable to the extent the value of the other valuable consideration is equal to or greater than the value of the asset transferred. |
|---|
| 25 | 37 | | |
|---|
| 26 | 38 | | (e) The Commissioner of Social Services shall seek a waiver from federal law to permit federal financial participation for Medicaid expenditures for families with incomes of one hundred forty-three per cent of the temporary family assistance program payment standard. |
|---|
| 27 | 39 | | |
|---|
| 28 | 40 | | (f) To the extent permitted by federal law, Medicaid eligibility shall be extended for one year to a family that becomes ineligible for medical assistance under Section 1931 of the Social Security Act due to income from employment by one of its members who is a caretaker relative or due to receipt of child support income. A family receiving extended benefits on July 1, 2005, shall receive the balance of such extended benefits, provided no such family shall receive more than twelve additional months of such benefits. |
|---|
| 29 | 41 | | |
|---|
| 30 | 42 | | (g) An institutionalized spouse applying for Medicaid and having a spouse living in the community shall be required, to the maximum extent permitted by law, to divert income to such community spouse in order to raise the community spouse's income to the level of the minimum monthly needs allowance, as described in Section 1924 of the Social Security Act. Such diversion of income shall occur before the community spouse is allowed to retain assets in excess of the community spouse protected amount described in Section 1924 of the Social Security Act. The Commissioner of Social Services, pursuant to section 17b-10, may implement the provisions of this subsection while in the process of adopting regulations, provided the commissioner prints notice of intent to adopt the regulations in the Connecticut Law Journal within twenty days of adopting such policy. Such policy shall be valid until the time final regulations are effective. |
|---|
| 31 | 43 | | |
|---|
| 32 | | - | (h) To the extent permissible by federal law, an institutionalized individual, as defined in Section 1917 of the Social Security Act, 42 USC 1396p(h)(3), shall not be determined ineligible for Medicaid solely on the basis of a disqualifying asset. As used in this subsection, "disqualifying asset" means a single, noncash asset that causes the assets of an institutionalized individual who is otherwise eligible for Medicaid to exceed the permissible threshold. If the individual is eligible for Medicaid except for the disqualifying asset, the Commissioner of Social Services shall forthwith notify the individual, or the individual's guardian or conservator, if any, or legally liable relative or other responsible party, if known, and the facility where such individual is institutionalized. The individual shall have forty-five days from receipt of the notice to expend or liquidate the disqualifying asset. If the individual has not done so in such time, the department shall grant the individual's application for Medicaid, provided the state of Connecticut shall have a lien against the disqualifying asset, which shall have priority over all other unsecured claims and unrecorded encumbrances in accordance with the provisions of section 17b-93. |
|---|
| 44 | + | (h) To the extent permissible by federal law, an institutionalized individual, as defined in Section 1917 of the Social Security Act, 42 USC 1396p(h)(3), shall not be determined ineligible for Medicaid solely on the basis of a disqualifying asset. As used in this subsection, "disqualifying asset" means a single asset that causes the assets of an institutionalized individual who is otherwise eligible for Medicaid to exceed the permissible asset threshold for Medicaid eligibility. If the individual is eligible for Medicaid except for the disqualifying asset, the Commissioner of Social Services shall notify the individual, or the individual's guardian or conservator, if any, or legally liable relative or other responsible party, if known, and the facility. The individual shall have forty-five days from receipt of the notice to expend or liquidate the disqualifying asset. If the individual has not done so in such time, the department shall grant the individual's application for Medicaid, provided the state of Connecticut shall have a lien against the disqualifying asset, which shall have priority over all other unsecured claims and unrecorded encumbrances in accordance with the provisions of section 17-93. |
|---|
| 33 | 45 | | |
|---|
| 34 | 46 | | [(h)] (i) Medical assistance shall be provided, in accordance with the provisions of subsection (e) of section 17a-6, to any child under the supervision of the Commissioner of Children and Families who is not receiving Medicaid benefits, has not yet qualified for Medicaid benefits or is otherwise ineligible for such benefits. Medical assistance shall also be provided to any child in the voluntary services program operated by the Department of Developmental Services who is not receiving Medicaid benefits, has not yet qualified for Medicaid benefits or is otherwise ineligible for benefits. To the extent practicable, the Commissioner of Children and Families and the Commissioner of Developmental Services shall apply for, or assist such child in qualifying for, the Medicaid program. |
|---|
| 35 | 47 | | |
|---|
| 36 | 48 | | [(i)] (j) The Commissioner of Social Services shall provide Early and Periodic Screening, Diagnostic and Treatment program services, as required and defined as of December 31, 2005, by 42 USC 1396a(a)(43), 42 USC 1396d(r) and 42 USC 1396d(a)(4)(B) and applicable federal regulations, to all persons who are under the age of twenty-one and otherwise eligible for medical assistance under this section. |
|---|
| 37 | 49 | | |
|---|
| 38 | 50 | | Sec. 2. Section 17b-261a of the 2012 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2012): |
|---|
| 39 | 51 | | |
|---|
| 40 | 52 | | (a) Any transfer or assignment of assets resulting in the imposition of a penalty period shall be presumed to be made with the intent, on the part of the transferor or the transferee, to enable the transferor to obtain or maintain eligibility for medical assistance. This presumption may be rebutted only by clear and convincing evidence that the transferor's eligibility or potential eligibility for medical assistance was not a basis for the transfer or assignment. |
|---|
| 41 | 53 | | |
|---|
| 42 | | - | (b) Any transfer or assignment of assets resulting in the establishment or imposition of a penalty period shall create a debt, as defined in section 36a-645, that shall be due and owing by the transferor or transferee to the Department of Social Services in an amount equal to [the amount of the medical assistance] any payments for the cost of medical care provided to [or on behalf of] the transferor during the penalty period on or after the date of the transfer of assets [, but said amount shall not exceed] or the fair market value of the assets at the time of transfer, whichever is higher, plus penalties. The Commissioner of Social Services, the Commissioner of Administrative Services and the Attorney General shall have the power or authority to seek administrative, legal or equitable relief as provided by other statutes or by common law to recover any payments made to or on behalf of the transferor during the penalty period. If assets were intentionally transferred to obtain or maintain eligibility for medical assistance, the Commissioner of Social Services may assess a monetary penalty up to double the amount of the debt. Not later than January 1, 2013, the commissioner shall issue a request for proposals from private entities to manage debt collection related to nursing home care. The commissioner may contract with a private entity to maximize debt collection efforts and minimize costs for the state. |
|---|
| 54 | + | (b) Any transfer or assignment of assets resulting in the establishment or imposition of a penalty period shall create a debt, as defined in section 36a-645, that shall be due and owing by the transferor or transferee to the Department of Social Services in an amount equal to the amount of the medical assistance provided to or on behalf of the transferor on or after the date of the transfer of assets, but said amount shall not exceed the fair market value of the assets at the time of transfer. The Commissioner of Social Services, the Commissioner of Administrative Services and the Attorney General shall have the power or authority to seek administrative, legal or equitable relief as provided by other statutes or by common law. If such relief is sought, the Commissioner of Social Services shall have the authority to assess a monetary penalty equal to double the amount of the debt. |
|---|
| 43 | 55 | | |
|---|
| 44 | 56 | | (c) The Commissioner of Social Services may waive the imposition of a penalty period when the transferor (1) in accordance with the provisions of section 3025.25 of the department's Uniform Policy Manual, suffers from dementia at the time of application for medical assistance and cannot explain transfers that would otherwise result in the imposition of a penalty period; or (2) suffered from dementia at the time of the transfer; or (3) was exploited into making such a transfer due to dementia. Waiver of the imposition of a penalty period does not prohibit the establishment of a debt in accordance with subsection (b) of this section. |
|---|
| 45 | 57 | | |
|---|
| 46 | 58 | | (d) An institutionalized individual shall not be penalized for the transfer of an asset if the entire amount of the transferred asset is returned to the institutionalized individual. The partial return of a transferred asset shall not result in a reduced penalty period. |
|---|
| 47 | 59 | | |
|---|
| 48 | 60 | | (1) If there are multiple transfers of assets to the same or different transferees, a return of anything less than the total amount of the transferred assets from all of the separate transferees shall not constitute a return of the entire amount of the transferred assets. |
|---|
| 49 | 61 | | |
|---|
| 50 | 62 | | (2) If the circumstances surrounding the transfer of an asset and return of the entire amount of the asset to the institutionalized individual indicates to the Department of Social Services that such individual, such individual's spouse or such individual's authorized representative intended, from the time the asset was transferred, that the transferee would subsequently return the asset to such individual, such individual's spouse or such individual's authorized representative for the purpose of altering the start of the penalty period or shifting nursing facility costs, that may have been borne by such individual, to the Medicaid program, the entire amount of the returned asset shall be considered available to such individual from the date of transfer. If such individual demonstrates to the department that the purpose of the transfer and its subsequent return was not to alter the penalty period or qualify such individual for Medicaid eligibility, the entire amount of the returned asset is considered available to the individual from the date of the return of the transferred asset. |
|---|
| 51 | 63 | | |
|---|
| 52 | 64 | | (3) The conveyance and subsequent return of an asset for the purpose of shifting costs to the Medicaid program shall be regarded as a trust-like device. Such asset shall be considered available for the purpose of determining Medicaid eligibility. |
|---|
| 53 | 65 | | |
|---|
| 54 | 66 | | (4) For purposes of this section, an "institutionalized individual" means an individual who is receiving (A) services from a long-term care facility, (B) services from a medical institution which are equivalent to those services provided in a long-term care facility, or (C) home and community-based services under a Medicaid waiver. |
|---|
| 55 | 67 | | |
|---|
| 56 | | - | (e) The Commissioner of Social Services may, upon the request of a nursing facility, provide financial relief in the form of retroactive and continued Medicaid payments, as applicable, to a facility for any resident subject to the transfer of assets penalty if the nursing home establishes that: (1) The resident did not apply or qualify for an undue hardship waiver pursuant to section 17b-261, as amended by this act; (2) the resident has resided in the nursing facility for at least ninety days with no payment made on the resident's account for such time period; and (3) the nursing facility has made every practicable effort that is permissible under state and federal law to recover such funds due. Any Medicaid payments made to a nursing facility pursuant to this subsection shall constitute a debt under subsection (b) of this section. |
|---|
| 68 | + | (e) The Commissioner of Social Services may, upon the request of a nursing facility, provide financial relief in the form of retroactive and continued Medicaid payments, as applicable, to a facility for any resident subject to the transfer of assets penalty if the nursing facility establishes that: (1) The resident did not apply or qualify for an undue hardship waiver pursuant to section 17b-261, as amended by this act; (2) the resident has resided in the nursing facility for at least ninety days with no payment made on the resident's account for such time period; and (3) the nursing facility has made every practicable effort that is permissible under state and federal law to recover such funds due. Any Medicaid payments made to a nursing facility pursuant to this subsection shall constitute a debt pursuant to subsection (b) of this section. |
|---|
| 57 | 69 | | |
|---|
| 58 | 70 | | [(e)] (f) The Commissioner of Social Services, pursuant to section 17b-10, shall implement the policies and procedures necessary to carry out the provisions of this section while in the process of adopting such policies and procedures in regulation form, provided notice of intent to adopt regulations is published in the Connecticut Law Journal not later than twenty days after implementation. Such policies and procedures shall be valid until the time final regulations are effective. |
|---|
| 59 | 71 | | |
|---|
| 60 | 72 | | |
|---|
| 61 | 73 | | |
|---|
| 62 | 74 | | |
|---|
| 63 | 75 | | This act shall take effect as follows and shall amend the following sections: |
|---|
| 64 | 76 | | Section 1 July 1, 2012 17b-261 |
|---|
| 65 | 77 | | Sec. 2 July 1, 2012 17b-261a |
|---|
| 66 | 78 | | |
|---|
| 67 | 79 | | This act shall take effect as follows and shall amend the following sections: |
|---|
| 68 | 80 | | |
|---|
| 69 | 81 | | Section 1 |
|---|
| 70 | 82 | | |
|---|
| 71 | 83 | | July 1, 2012 |
|---|
| 72 | 84 | | |
|---|
| 73 | 85 | | 17b-261 |
|---|
| 74 | 86 | | |
|---|
| 75 | 87 | | Sec. 2 |
|---|
| 76 | 88 | | |
|---|
| 77 | 89 | | July 1, 2012 |
|---|
| 78 | 90 | | |
|---|
| 79 | 91 | | 17b-261a |
|---|
| 80 | 92 | | |
|---|