Current through Register 1531, September 27, 2024
(1)
Purpose and
Scope.
(a)
Charges
for Residential Services and Supports in the Community.
104
CMR 30.06 sets forth the rules governing
assessment and collection of charges for residential services and supports
provided in the community by a Department operated or contracted for the
program. The requirements set forth in
104
CMR 30.06 do not apply to residential
services and supports provided:
1. by a DMH
operated or contracted facility;
2.
as part of a shelter, respite, or crisis stabilization program as defined by
the Department procurement activity codes;
3. as part of a procured residential
placement for a specific individual;
4. as part of another service for which a fee
payer is charged pursuant to
104
CMR 30.04 if the charge includes community
residential services and supports; or
5. to clients who are minors.
(b)
Other Charges or
Fees1. Unless specifically
authorized by the applicable Area Director in writing or by a contract to which
the Department is a party, a Department operated or contracted for program only
may charge clients, or ask clients for contributions for services and costs
a. pursuant to
104
CMR 30.04 or
30.06, or
b. related to specific client caused damages,
when the cost of such damage is in excess of the usual expense of repair and
replacement.
2. A program
may ask clients for contributions for non-service related activities that are
not covered or paid for by the Department that the program offers
(e.g., extra recreational or entertainment activities);
provided that participation is voluntary; contributions are only collected for
those who wish to participate in the activities and the program has policies
and procedures regarding the collection of such contributions and for providing
assistance to those who cannot afford to participate in such
activities.
(2)
Definitions. In
addition to the terms defined in
104
CMR 25.02: Definitions, the
following terms shall have the meanings set forth in this section throughout
104
CMR 30.06(2), unless the
content clearly provides otherwise.
Client. An individual who receives
residential services or supports from a Department operated or contracted for
program.
Earned Income. Income derived from
active participation in a trade or business, including wages, salary, tips,
commissions, bonuses, and net earnings from self-employment.
Fee Payer. A legally authorized
representative or other person who controls funds of the client; provided
however, that the legally authorized representative or other person is liable
only with respect to the client's funds under his or her control.
Income. Any monies received by or on
behalf of a client, including earned income, recurrent payments, payments in
kind or lump sum payment. Income shall not include the following:
(a) Financial aid provided to full or part
time students. This includes scholarships and stipends for housing or earnings
from work-study programs that are included in a student's financial aid
package;
(b) Payments made to and
held by a client from the Supplemental Nutrition Assistance Program;
or
(c) Income that is directly
deposited into a Plan to Achieve Self-support (PASS) approved by the Social
Security Administration.
Liquid Asset. Cash and all property
capable of ready conversion into cash, such as stocks and bonds, regardless of
whether such assets are held jointly or solely. Liquid assets do not include
life insurance or its cash value, or assets subject to an irrevocable trust
with the patient or client as named beneficiary, unless those assets are
available to the patient or client or fee payer on demand.
Monthly Residential Services and Supports
Cost. The median of the statewide monthly cost per client for
providing residential services and supports in Department operated and
contracted programs as determined by the Department. Costs attributable to
rehabilitative services are not included determining the statewide monthly cost
of providing residential services and supports.
Recurrent Payment. Income received at
regular intervals, though not necessarily in constant amounts, and includes,
but is not limited to:
(a)
compensation for services and other earned income;
(b) net income derived from a
business;
(c) interest;
(d) net rental income;
(e) dividends;
(f) annuities;
(g) pensions;
(h) unemployment compensation;
(i) worker's compensation;
(j) royalties;
(k) Veterans Administration
benefits;
(l) Social Security
retirement, Supplemental Security Income and Social Security Disability Income
benefits;
(m) Old Age and Survivor
Disability Insurance benefits; and
(n) trust benefits
Residential Services and Supports.
Services delivered in staffed group living environments that provide clients
with a place to reside on a regular fixed basis and assistance aimed
specifically at enabling the clients to maintain their residence. It does not
include rehabilitative services that also may be provided to clients receiving
residential services and supports.
Residential Services and Supports
Charge. The portion of the monthly residential services and
supports cost to be charged to a client or fee
payer(s).
(3)
Duty to Charge for Residential Services and Supports.
A Department operated or contracted for program that provides
residential services and supports must charge the clients receiving such
services and supports and the respective fee payers monthly and collect the
charge in accordance with
104
CMR 30.06, unless the charge is reduced in
its entirety pursuant to
104
CMR
30.06(6).
(4)
Notice.
(a) A Department operated or contracted
program that provides residential services and supports to clients must inform
each client and his or her legally authorized representative, if any, by
written notice that he or she will be charged for the residential services and
supports provided to the client. The notice must also be given to a client's
fee payer(s), if applicable. The notice must be provided:
1. as soon as practical after the client
starts receiving residential services and supports from the program;
2. at least 30 days prior to the program
implementing a change in amount of the client's charge for residential services
and supports;
3. upon request of
the client, his or her legally authorized representative, or fee payer;
and
4. at such other times deemed
appropriate by the Department.
(b)
Contents. The
notice must inform each payer of the following:
1. the client and fee payer's responsibility
for paying monthly the charge for residential services and supports;
2. the client's or fee payer's charge for
residential services and supports and how it was calculated;
3. in determining the monthly charge for
residential services and supports, there is an incentive for clients to work in
that earned income which is factored only at 50% and unearned income factored
at 75%;
4. the client or fee
payer's responsibility for reporting changes of ten percent or more to the
client's income and expenses and how such changes are to be reported;
5. details as to when and how the charge is
to be paid each month; and
6. the
right to the appeal process as set forth in
104
CMR 30.06(10).
(5)
Determination of a Client's Charge and Collection of
Charge.
(a)
Determination of a Client's Charge. A client charge
for residential services and supports shall be calculated as follows:
1. Client Receiving Recurrent Payments. For a
client receiving recurrent payments, the monthly residential service and
supports charge shall be an amount equal to 75% of the client's recurrent
payment (not including earned income), if any, plus 50% of the client's earned
income, if any, received in the month for which the charge for residential
services and supports accrued; provided, however, that the charge is subject to
the following reductions:
a. Reduction by the
amount the charge exceeds, if any, the monthly residential and support services
cost.
b. Reduction by the amount
necessary to ensure that the client retains a minimum of $200 of his or her
monthly's recurrent payments (including earned income).
c. Reduction by the amount of adjustment
permitted under
104
CMR 30.06(6).
d. Reduction by the amount the charge
exceeds, if any, the amount permitted to be charged by the terms of a law, a
regulation, or a housing subsidy held by the client or the program.
2.
Client Not
Receiving Recurrent Payments. For a client who does not receive
recurrent payments, but has liquid assets, the monthly residential services and
supports charge shall be an amount equal to 75% of the appropriate Supplemental
Security Income benefit level for the "SSI Payment Standard" category that is
in effect in the month the charge for residential services and supports
accrued; provided however, such charge is subject to the following reductions:
a. Reduction by the amount the charge
exceeds, if any, the monthly residential and support services cost.
b. Reduction by the amount necessary to
assure that the client retains a minimum of $1,000 of his or her liquid
assets.
c. Reduction by the amount
of adjustment permitted under
104
CMR 30.06(6).
d. Reduction by the amount the charge
exceeds, if any, the amount permitted to be charged by the terms of a law, a
regulation, or a housing subsidy held by the client or the program.
(b)
Determination of a Client's Charge. A program shall
determine a client's monthly residential services and supports charge as soon
as practical after the client starts receiving residential services and
supports from the program and at least annually thereafter. The charge shall
also be reviewed upon:
1. notification by the
client or fee payer of a change in the client's income or expenses in an amount
equal to or greater than ten percent; and
2. notification by the Department of a change
in the monthly residential services and supports cost.
(c)
Change in a Client's
Charge.
1. Each client and his or
her legally authorized representative and fee payer, if any, shall receive a
notice of a change to his or her charge at least 60 days prior to the
implementation of such change and notice as to whether, pursuant to a request,
a charge will be adjusted pursuant to
104
CMR 30.06(6). Such notices
shall include information about the right to appeal such determinations in
accordance with
104
CMR 30.06(10) and, when a
phase-in of an increase is required pursuant to
104
CMR 30.06(5)(c)2.,
information as to how that will be done.
2. If as a result of the change the client
(or fee payer) will pay an additional amount of greater than $100, then the
increase resulting from the change shall be phased in proportionally over a
12-month period, so that at the end of the 12-month period, the client (or fee
payer) is paying the new charge in full.
(d) A Department operated or contracted
program that provides residential services and supports is responsible for
billing and collecting the monthly residential services and support charge from
clients and fee payers, or a combination thereof, in a timely manner; except as
provided in
104
CMR
30.06(5)(c).
(6)
Adjustment to
Charges. For a client who has necessary expenses but does not have
sufficient funds to pay for these expenses in a particular month, the charge
for residential services and supports shall be reduced that month by an amount
that will enable the client to pay such expenses. Expenses deemed necessary are
the following:
(a) The cost of premiums to
enroll and maintain the client in a health insurance program;
(b) Medical and dental expenses, including
medication costs, provided that such expenses are not covered by insurance or
other third-party payor;
(c) The
Costs for co-payments for medical and dental costs;
(d) Child support or alimony payments owed by
the client;
(e) Loan payments, but
only if the loan was incurred by the individuals to pay for expenses enumerated
in 104 CMR
30.06(6); or were incurred
prior to receiving the residential services and supports at the applicable
Department operated or contracted for the program;
(f) Transportation expenses related to the
implementation of the client's Community Service Plan that are not provided by
a Department operated or contracted for the program; and
(g) Other expenses necessary to implement
activities in a client's Community Service Plan.
(7)
Responsibility of the Client
and Fee Payers.
(a) Client and
fee payers shall provide information on income, assets and expenses of the
client to the Department or program upon request and shall report changes to
income, assets and expenses when the amount of such changes equals or exceeds
ten percent of what has been previously reported. Clients and fee payers must
report each such change in circumstance within ten days from the date they
first learn of the change.
(b) In
the case where information is not reported as required in
104
CMR 30.06(7), the Department
operated or contracted for the program may determine the charge and adjustment
upon the best available information, and proceed to assess and collect charges
for residential services and supports. The 60-day limitation for income set
forth in
104
CMR 30.06(2) shall not
apply to unreported changes in funds available to pay the charges.
(c) Clients and fee payers shall pay charges
in a timely manner each month.
(8)
Multiple
Programs. If a client receives residential services and supports
from more than one Department operated or contracted for the program on any
given day, the client and if applicable, fee payer(s), shall only be charged
for residential services and supports at the program that is considered the
client's more permanent residence. If there is any issue regarding which one of
the different programs is to bill, the issue shall be resolved by the
applicable Area Director or designee.
(9)
Program Director's
Authority. If a client is charged for residential services and
supports by a program with which he or she has deposited funds with the program
director or designee in accordance with
104
CMR 30.02, the program may deduct the charges
or, if appropriate, the adjusted charges from those funds; provided however,
that:
(a) the program director, or designee,
has requested in writing to the authority to deduct such charges and has
received such authority from the client or the client's legally authorized
representative; or
(b) the funds
have been entrusted to the program director or designee as the client's
representative payee; and
(c) all
notice provisions as specified in
104
CMR 30.06 have been complied with;
and
(d) no appeal of the charge has
been filed by the client or representative, or if an appeal has been filed it
has been heard and the charge has been finally determined.
For the purpose of
104
CMR 30.06(9)(a), the program
director or designee shall be deemed to have such authority if within 14 days
of requesting such authority in writing the client or legally authorized
representative has not responded to such request.
(10)
Appeal of
Charges.
(a)
Grounds
for Challenging a Charge. Grounds for challenging a charge
(including by appeal) shall be as follows:
1.
Miscalculation of the charge;
2.
Misidentification of the fee payer; or
3. Failure to adjust the charge to account
for necessary expenses in accordance with
104
CMR 30.06(6).
(b)
Informal
Resolution.
1. Within seven days
of receipt of notice of a change in a client's charge, the client or fee payer,
or client representative shall notify the program that the client has grounds
for challenging the charge as provided in
104
CMR 30.06(10)(a).
To the extent possible, disputes concerning a client's charge
should be resolved informally with the program, within five days of notice from
the client of a dispute.
2.
If the dispute cannot be resolved within the program, the program and client
shall present the dispute to the Area Director or designee for review and
resolution.
3. If within ten days
the Area Director or designee is unable to resolve the dispute, the client, fee
payer or client representative may appeal the charge to the Commissioner
pursuant to this section.
4. During
the pendency of the appeal the program may continue to bill the client or fee
payer for the client's charge.
(c)
Appeal to the
Commissioner. Following informal resolution effort, but no longer
than 30 days after being notified of the amount of the monthly charge, the
client or fee payer, or client representative may appeal the charge by
notifying the Commissioner in writing. The notice must state the name of the
program assessing the charge and the basis for the appeal as provided in
104
CMR 30.06(10)(c). The
Commissioner may accept an appeal after 30 days for good cause.
(d) During the pendency of the appeal, the
Department or provider shall continue to bill the client and fee payer the
monthly charge for residential services and supports.
(e) The Commissioner or designee shall hear
the appeal within 30 days of receipt of the appeal.
1. The client or fee payer or client
representative shall be given an opportunity to present oral or written
statements relevant to the charge, to question a representative of the
Department or program concerning the charge, and to have a representative, if
any, present.
2. The standard of
proof on all issues shall be a preponderance of the evidence and the burden of
proof shall be on the appellant.
3.
Such a proceeding shall not be an adjudicatory proceeding within the meaning of
M.G.L. c. 30A.
4. The Commissioner
shall make a decision within 30 days of hearing the case and shall notify in
writing the appellant stating the reason for such decision. The decision of the
Commissioner is final.
(11)
Transitional
Provision.
(a) The Department
anticipates issuing notice of the residential services and supports cost in
accordance with
104
CMR 30.06(2) concurrent
with the effective date of this regulation, the issuance of which shall trigger
programs' responsibility to initiate the new charge for residential services
and supports in accordance with
104
CMR 30.06. Until such notice is given the
charge for room and board under the former regulation
104
CMR 30.06 shall continue.
(b) If as a result of the promulgation of
this regulation a client's monthly charge for residential services and support
is greater than what the client (or fee payer) was being charged for room and
board under the former regulation
104
CMR 30.06 by more than $100, then the
increase resulting from the change shall be phased in proportionally over a
12-month period, so that at the end of the 12-month period, the client and fee
payer is paying the new charge for residential services and support in
full.
