Current through Register 1518, March 29, 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.
