Code of Massachusetts Regulations
115 CMR - DEPARTMENT OF DEVELOPMENTAL SERVICES
Title 115 CMR 3.00 - Administration
Section 3.05 - Charges for Care - Community Residential Services and Supports

Universal Citation: 115 MA Code of Regs 115.3

Current through Register 1537, December 20, 2024

(1) Authority. Under M.G.L. c. 123B, § 16, the Department is authorized to make and regulate charges for care.

(2) Purpose and Scope. 115 CMR 3.05 sets forth the rules governing charges for residential services and supports provided at a particular location that either the Department operates or funds through a contract. 115 CMR 3.00 does not apply to residential services and supports provided at a facility.

(3) Definitions. As used in 115 CMR 3.05 and 3.06 only, the terms listed below have the following definitions :

Fee-payor means any of the following persons, each of whom may be liable for charges for residential services and supports of an individual:

(a) the individual who receives residential services and supports;

(b) a guardian, conservator, representative payee or other person who controls funds of the individual; however, the guardian, conservator, representative payee, or other person is liable only with respect to the individual's funds under his/her control.

Fee-payor Charge means the portion of the residential rate to be charged to the fee-payor.

Income means any monies received, including recurrent payments, payments in kind, or lump sum payments.

Liquid Asset means cash and all property capable of ready conversion into cash regardless of whether such assets are held jointly or solely. Except as otherwise provided, liquid assets do not include life insurance or its cash value for the purpose of calculating charges for residential services and supports.

Recurrent Payment means income received at regular intervals, though not necessarily in constant amounts, and include, but are not limited to:

(a) compensation for services rendered (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) Veteran's Administration benefits;

(l) Supplemental Security Income benefits;

(m) Old Age and Survivor Disability Insurance benefits.

Residential Rate means the annualized rate approved by the Division of Purchased Services pursuant to St. 1992, c. 133, § 113 and/or the Rate Setting Commission pursuant to M.G.L. c. 6A, or pending the approval of such rate, the annualized rate the Department submits to the Division of Purchased Services or the Rate Setting Commission for residential services and supports to be provided at a particular location.

(4) Notice.

(a) The Department shall give written notice of the charge to each fee-payor:
1. prior to the individual receiving residential services and supports, where applicable;

2. prior to a change in the charge;

3. at any other time deemed appropriate by the Department.

(b) The notice shall be sent at least 30 days prior to the date payment is due and shall show how the charges were determined and explain the appeal process.

(5) Determination of Charges.

(a) The residential charge for an individual who is not in a facility is the residential rate for the residential services and supports provided.

(b) The residential charge shall be calculated in monthly amounts. Charges for individuals who received residential services and supports for less than a month shall be adjusted pro rata.

(c) For any individual whose cost for residential services and supports is covered by the Medicaid program, any third party contract, insurance, reimbursement, or entitlement programs, the Department shall charge the Medicaid program or any other third party payor the residential charge due that month. If these sources provide for payment of less than the residential charge, then the Department shall charge the fee-payor(s) in accordance with 115 CMR 3.05(5).

(d) For any individual who does not have third party coverage to pay for residential services and supports, the Department shall charge the fee-payor(s) in accordance with 115 CMR 3.05(5).

(e) For an individual receiving recurrent payments other than earned income, the monthly fee-payor charge shall be an amount equal to 75% of the individual's recurrent payments received in the month for which the charge for residential services and supports accrued; provided, however, the fee- payor charge is subject to the following reductions:
1. Reduction by the amount the 75% of that month's recurrent payments exceed, if any, the remaining balance attributable to the fee-payor under 115 CMR 3.05(5)(c);

2. Reduction by the amount that the personal needs allowance established under state and federal laws governing the Medicaid program exceeds 25% of that month's recurrent payments.

3. Reduction by the amount of adjustment, if any, permitted under 115 CMR 3.05(6);

(f) For an individual receiving recurrent payments and earned income, the monthly fee-payor charge shall be an amount equal to 75% of the individual's recurrent payments received in the month for which the charge for residential services and supports accrued plus an additional 50% of earned income that exceeds $65 in that month; provided, however, the fee-payor charge is subject to the following reductions:
1. Reduction by the amount the 75% of that month's recurrent payments exceed, if any, the remaining balance attributable to the fee-payor under 115 CMR 3.05(5)(c);

2. Reduction by the amount that the personal needs allowance established under state and federal laws governing the Medicaid program exceeds 25% of that month's recurrent payments.

3. Reduction by the amount of adjustment, if any, permitted under 115 CMR 3.05(6);

(g) For an individual receiving earned income only, the monthly fee-payor charge shall be an amount equal to 50% of earned income that exceeds $65 in the month the charge for residential services and supports accrued; provided, however, the fee-payor charge is subject to the following reductions:
1. Reduction by the amount the 75% of that month's recurrent payments exceed, if any, the remaining balance attributable to the fee-payor under 115 CMR 3.05(5)(c);

2. Reduction by the amount that the personal needs allowance established under state and federal laws governing the Medicaid program exceeds 25% of that month's recurrent payments.

3. Reduction by the amount of adjustment, if any, permitted under 115 CMR 3.05(6);

(h) For an individual who, during the month, receives no recurrent payments other than interest and dividends, but has liquid assets which are deemed countable assets by the Medical Assistance Program for the purpose of establishing or maintaining Medicaid eligibility, the monthly fee-payor 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 may be reduced by the amount of adjustment permitted under 115 CMR 3.05(6). In any month where the fee-payor charge would cause liquid assets to fall below $1,000, that month's charge will be adjusted to allow the individual to retain $1,000 in liquid assets, and the provisions of 115 CMR 3.05(7) shall apply to the adjustment.

For any individual whose annual income exceeds 200% of the federal poverty line, the Department may assess an additional charge of 25% of the income above the poverty line.

(i) The Department shall determine fee-payor charges at least annually and upon notification by a fee-payor of any change in circumstance pursuant to 115 CMR 3.05(9).

(6) Adjustment to Charges. For an individual who has necessary expenses but does not have sufficient funds to pay for these expenses in a particular month, the monthly fee-payor charge may be reduced by an amount that will enable the individual to pay such expenses. Expenses deemed necessary may include, but are not limited to, the following:

(a) Reasonable transition expenses, including appropriate deposits to savings or checking accounts, necessary to enable the resident to move to a less restrictive living environment within the next 12 months;

(b) The cost of premiums required to enroll and maintain the individual in a health insurance program;

(c) Medical and dental expenses of the individual, including medication costs, not covered by the residential rate, insurance or other third party reimbursement;

(d) Transportation expenses of the individual for services not provided under M.G.L. c. 19B, § 17;

(e) Alimony payments owed by the individual;

(f) Loan payments, but only if the loan was incurred by the individual to pay for expenses enumerated in 115 CMR 3.05(6);

(g) Funeral related payments and expenses of the individual;

(h) Educational costs, e.g. , tuition , of the individual;

(i) Uniforms or tools if required by the job and required to be purchased by the individual as the employee;

(j) Child support and day care expenses of the individual's minor child ;

(k) Maintenance needs of the individual's spouse, minor children, and dependents at home.

(7) Accumulated Unpaid Charges.

(a) Every adjustment to charges made pursuant to 115 CMR 3.05(6) and resulting in a reduction in the fee-payor charge shall accumulate as an unpaid charge and shall be subject to future billing as the individual's circumstances permit.

(b) The Department may bill a fee-payor for accumulated unpaid charges when the individual's income increases or circumstances change, subject to adjustments for necessary expenses as provided for under 115 CMR 3.05(6).

(8) Collection of Charges.

(a) The Department shall collect charges for residential services and supports from the fee-payor, any contract, insurance, or third party reimbursement or entitlement programs, or any combination thereof.

(b) Any amount received as income to the individual shall be treated as income for a period of 60 days from the date of receipt by the fee-payor for purposes of calculating the monthly fee-payor charges.

(c) As otherwise permitted by law, the Department may assert a lien against an individual's assets.

(9) Responsibility of Fee-payors.

(a) Fee-payors shall provide information on income, assets, and expenses of the individual to the Department upon request, and shall report any known change in circumstance which could result in a change in the charge, or a change in the party to be billed, or a change in the funds subject to charge. Fee-payors must report each change in circumstance within ten days from the date they first learn of the change.

(b) In cases where information is not reported as re quired in 115 CMR 3.05(9)(a), the Department may determine the charge and adjustments based upon the best available information, and proceed to assess and collect charges for residential services and supports. The limitation set out in 115 CMR 3.05(8)(b) shall not apply to unreported changes in funds subject to charge.

(c) Fee-payors shall pay charges in a timely manner after billing.

(10) Appeal. Within 30 days of being notified of the amount of the monthly fee-payor charge, a fee-payor may appeal the charge by notifying in writing the Commissioner.

(a) Grounds for appealing a charge for residential services and supports shall be as follows:
1. Miscalculation of the charge;

2. Misidentification of the fee-payor;

3. Failure to adjust the charge to account for necessary expenses in accordance with 115 CMR 3.05(6).

(b) During pendency of the appeal, the Department shall continue to bill the fee-payor the monthly charge for residential services and supports.

(c) The Commissioner or designee shall hear the appeal within 30 days of receipt of the notice. The fee-payor shall be given an opportunity to present oral or written statements relevant to the charge, to question a representative of the Department concerning the charge, and to have a representative, if any, present. Such a proceeding shall not be an adjudicatory proceeding within the meaning of M.G.L.c. 30A. The Commissioner shall make a decision within 30 days of hearing the case, and shall notify in writing the fee-payor stating the reasons for such decision. The decision of the Commissioner is final.

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