Current through Register 1518, March 29, 2024
(1)
Authority. The
facility director of any facility listed in 115 C MR 3.0 3 is authorized under
M.G.L. c. 123B, § 12(a) to deposit in a bank those funds belonging to a
resident and to use these funds for the benefit of the resident. 115 CMR 3.08
is promulgated pursuant to this authority.
(2)
Definition of
Funds. For the purpose of 115 CMR 3.08,"funds" refer to cash,
checks, negotiable instruments, or any other income or liquid personal
property.
(3)
Scope. 115 CMR 3.08 shall apply only to the
maintenance and expenditure of an individual's funds which are located within
the facility or which are deposited with the facility director or
designee.
(4)
Upon
Admission and Prior to Evaluation.
(a)115 CMR 3.08(4) shall apply only from the
time of admission of the individual until such time as there has been an
evaluation under 115 CMR 3.08(5).
(b) Upon the admission of an individual to a
facility, the individual shall be encouraged, but shall not be required, to
temporarily deposit any funds and other valuables on his or her person with the
facility director or dsignee, pending thee valuation required under 115 CMR
3.08(5). The individual shall receive a receipt for his or her funds and
valuables.
(c) If any funds are so
deposited with the facility, an appropriate written record shall be made of the
deposit. A copy of such record shall be made available to the individual or his
or her conservator or guardian.
(d)
Upon admission of an individual and until such time as there has been an
evaluation under 115 CMR 3.08(5), the individual's funds which have been
deposited with the facility director or designee, shall be maintained in a safe
or in a bank account, provided, however, that if the individual's funds exceed
$250 the individual's funds shall be maintained in an individual
interest-bearing bank account. The interest which accrues on a bank account
shall be added to the individual's funds. Unless the individual has a guardian
or conservator, the individual shall have an unrestricted right to manage and
spend all of his or her funds in his or her sole discretion until such time as
there has been an evaluation under 115 CMR 3.08(5). Availability of funds shall
be governed by 115 CMR 3.08(9).
(5)
Evaluation.
(a) Unless a guardian or conservator has been
appointed, the individual's ability to manage and spend his or her funds shall
be evaluated, as soon as possible after admission (but no later than 30 days
after admission), and at least every 12 months thereafter or upon the
individual's request.
(b) The
individual shall be assisted to manage and spend his or her funds consistent
with his or her capabilities and the levels of support provided to him or
her.
(c) Depending on the outcome
of the evaluation the facility shall:
1.
assist the individual to spend and manage his or her funds with no interference
by the facility;
2. develop a plan
to teach or assist the individual to manage all or a portion of his or her own
funds according to his or her capabilities and the levels of support provided
to him or her;
3. develop a plan
for the necessary spending of the individual's funds in a manner that would
benefit the individual and is consistent with 115 CMR 3.08, if the evaluation
establishes that the individual cannot beneficially use his or her money to
satisfy his or her needs and desires, even with teaching and support.
Objectives of the plan developed pursuant to 115 CMR
3.08(5)(a)2. or 3. shall become incorporated into the individual's ISP as part
of the facility's separate provider strategy.
(d) For all evaluations, the individual shall
be informed of the provisions of 115 CMR 3.08(5), shall have the right to
present any information on his or her behalf, shall have the right to be
assisted by a person of his or her choice, and shall be informed of the result
of the evaluation. The results of the evaluation shall become a part of the
individual's record.
(6)
Appointment of Guardian or Conservator. In accordance
with M.G.L. c. 123B, § 11, if an individual has been under the care of the
Department as a resident for at least six months, if the individual is not able
to manage and spend any of his or her funds independently (as determined by the
evaluation under 115 CMR 3.08(5) ), and if the individual is not
underguardianship or conservatorship, the facility director shall notify the
individual's nearest living relative and recommend that the necessary steps be
taken for the appointment of a conservator, or if appropriate, the appointment
of a guardian.
(7)
Use
of Independent Funds by Individual.
(a)115 CMR 3.08(7) shall apply only to those
funds which the individual is able to manage and spend, with or without
assistance, as determined by the evaluation under 115 CMR 3.08(5). Such funds
are referred to as "independent funds." The individual shall have the right to
manage and spend his or her independent funds.
(b) Where the evaluation establishes that the
individual is able to manage and spend his or her funds without assistance or
training, the individual shall be assisted to put such funds into an individual
bank account within the exclusive control of the individual or, if he or she so
desires, within the exclusive control of the individual and one or more other
persons who shall be selected by the individual. Without losing any control
over the use of the funds, the individual shall be assisted to deposit part or
all of such funds in the group bank account described in 115 CMR 3.08(8)(f). No
person other than the individual (and persons selected by the individual
pursuant to 115 CMR 3.08(7) ) shall have any control over the individual's
management and expenditure of independent funds. Nothing in 115 CMR 3.08 shall
in any way restrict the individual's management and expenditure of these
funds.
(8)
Management and Expenditure of Dependent Funds.
(a)
Scope -- Dependent
Funds. 115 CMR 3.08(8) shall apply only to those funds which the
individual is unable to manage and spend, with or without assistance as
determined by the evaluation under 115 CMR 3.08(5) or as determined by a court
of competent jurisdiction in a guardianship or conservatorship proceeding, and
those Social Security and Supplemental Security Income funds which are received
by the facility director as the representative payee of the individual. Such
funds are referred to as "dependent funds."
(b)
Facility
Director. In accordance with M.G.L. c. 123B, § 12(a) and
applicable federal regulations, the facility director shall bear ultimate
responsibility for the management and expenditure of all dependent
funds.
(c)
Designated
Staff. In order to carry out his or her responsibility as to the
proper management and expenditure of dependent funds, the facility director
shall designate staff within the facility who shall be directly responsible to
the facility director and who shall determine on a day-to-day basis how to best
manage and spend an individual's dependent funds, consistent with 115 CMR
3.08(8). These designated staff shall have sufficient contact with the
individual to have first hand knowledge of the individual and to be responsive
to the individual's day-to-day needs and desires. Designated staff shall
consult with an individual prior to making a purchase for that individual. The
facility director shall establish a committee to make recommendations as to the
expenditure of dependent funds.
(d)
Appropriate Expenditures.
1. Generally, dependent funds should be used
to facilitate the individual's habilitation, and to help the individual live a
normal and comfortable life. Where the individual has unmet current needs,
continued saving of dependent funds is not in the individual's best interest
unless such saving is for a foreseeable and appropriate future purpose (such as
to pay for living expenses upon discharge).
2. Not only should the individual's needs be
considered but also his or her desires, where such expenditures are for the
benefit of the individual and are consistent not only with the individual's
desires but also with his or her resources and obligations. For example,
clothing might be purchased which is not only functional but also
stylish.
3. Dependent funds shall
be used only for purposes which directly benefit the individual. For example,
no dependent funds shall be used for a gift to an employee. No dependent funds
shall be expended for any item or service which the facility is legally
obligated to supply the individual.
4. Under no circumstances shall dependent
funds be used to provide any item or material that a facility is legally
obligated to provide for the implementation of the individual's ISP.
(e)
Group
Purchases. Dependent funds of an individual may be used together
with funds of other individuals to purchase an item or service
(i.e., a group purchase) pursuant to the requirements
contained in 115 CMR 3.08(8)(d).
(f)
Individual Savings Accounts
and Group Bank Account.
1. A
"group bank account" is a single bank account for some or all individuals in
the facility and is used to allow the Facility Director or designee easy access
to funds which are needed by individuals for daily or weekly
expenses.
2. If the individual's
dependent funds at any time exceed $250, no more than $200 of such funds shall
be maintained in a group bank account, and the balance of funds exceeding $200
shall be maintained in an individual savings account in the name of the
individual, but under the control of the Facility Director or designee. So long
as the individual's dependent funds do not exceed $250, all such funds may be
maintained in a group bank account. An individual, who has independent funds
pursuant to 115 CMR 3.08(7), may, in his or her discretion, deposit part or all
of such funds in the group bank account without losing any control over the use
of such funds. Any interest which accrues on that individual's share of the
group bank account shall be added to the individual's funds and accounted for
accordingly.
(9)
Availability of
Funds.
(a) Consistent with 115
CMR 3.08(4), 3.08(7) and 3.08(8), the Facility Director or designee shall make
withdrawals and deposits, write checks payable to the individual (or to the
ultimate recipient of the funds), and disburse cash to the individual or staff
designated pursuant to 115 CMR 3.08(8)(c). It shall not be necessary for the
individual to sign a requisition for the release of dependent funds.
(b) At any time when emergency funds are
needed and for at least two hours a day during at least five days each week,
the Facility Director or designee shall be available to disburse cash and write
checks pursuant to 115 CMR 3.08(9)(a).
(10)
Record of
Funds. All funds received from the individual or on his or her
behalf and all funds disbursed shall be accounted for and a permanent record
made showing the amount of funds received, date received and source of funds.
All funds disbursed shall be accounted for and a permanent record made of the
person receiving funds, purpose of disbursement, amount of the disbursement,
and date of disbursement.
(11)
Accounting for Funds. The following persons shall be
provided a complete written account of all funds of the individual, and a
written statement of the current balance of funds of the individual:
(a) the individual;
(b) in the event the individual is determined
unable to manage or spend his or her funds, the staff designated as responsible
for expenditures for the individual under 115 CMR 3.08(8)(c);
(c) the individual's guardian or
conservator;
(d) those persons
responsible for evaluation of the individual pursuant to 115 CMR 3.08(5);
and
(e) in the event the facility
director is the representative payee of the individual, the District Office of
the Social Security Administration.
(12)
Endorsement of
Checks. A check made payable to an individual may be endorsed by
the Facility Director for deposit to the individual's account only when
(a) the check does not exceed $500;
(b) the individual is unable or refuses to
endorse the check for the purpose of depositing it; and
(c) pursuant to 115 CMR 3.08(5) the
individual is found unable to manage and spend the funds represented by the
check.
In the event one or more of the above circumstances is not met,
a check must be endorsed by the individual prior to its being deposited in his
or her account.
(13)
Training Individuals to
Manage Own Funds. A high priority shall be given to the training
of individuals in the management and use of their own money.
(14)
Regulation of Social
Security Income.
(a) Federal
regulations govern the use of Social Security funds and Supplemental Security
Income. Accordingly, the facility must comply with any regulations, policy
directives or letters from the Social Security Administration in regard to the
use of these funds and income. In the event of a conflict between
115 CMR
3.00 and the federal requirements, the federal
requirements shall govern.
(b) When
the facility director is designated by the Social Security Administration as
the representative payee of an individual, the facility director must notify
the District Office of Social Security whenever there is a change in status of
the individual which could affect the amount of income for which the individual
or the person to whom the income is paid is eligible.
(c) The facility director shall immediately
notify the District Office of the Social Security Administration upon the
appointment of a guardianor conservator for an individual who is receiving
Social Security funds or Supplemental Security Income.
(d) Whenever the facility receives a request
from the Social Security Administration regarding the ability of an individual
to manage and spend his or her funds, the most recent evaluation under 115 CMR
3.08(5) shall be determinative of the facility's response.
(15)
Separation of the Individual
from the Facility.
(a) The
facility director shall immediately notify the District Office of the Social
Security Administration upon the temporary or permanent separation from the
facility of an individual receiving Social Security funds or Supplemental
Security Income. When separation is being planned, the facility director shall
give the District Office advance notification.
(b) Upon the individual's formal discharge
from the facility, all funds shall be immediately paid to the individual or to
his or her guardian or conservator, or successor representative payee if
applicable, except that if the individual is being transferred to another
facility, any dependent funds as defined in 115 CMR 3.08(8)(a), shall be
transferred to the facility director of such other facility. Upon discharge or
transfer, a written accounting of the individual's funds shall be rendered to
the person receiving the funds.
(16)
Burial
Expenses. Upon the death of an individual, all of the individual's
funds become a part of his or her estate, to be administered by an executor or
administrator. Thus, when an individual dies, the facility may not use his or
her funds for any purpose, including burial expenses, unless otherwise allowed
by law.
