| 1 | The Elder & Long-Term Care Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to Medicaid eligibility; amending s. |
| 7 | 409.902, F.S.; providing for determination of eligibility |
| 8 | for nursing facility services under the Medicaid program; |
| 9 | specifying a penalty period; requiring the Agency for |
| 10 | Health Care Administration to develop a reimbursement |
| 11 | methodology for certain facilities; specifying criteria |
| 12 | for certain personal services contracts; providing for |
| 13 | certain financial instruments signed within a specified |
| 14 | period of time to be considered countable assets when |
| 15 | determining Medicaid eligibility; specifying criteria for |
| 16 | certain annuities; providing direction to hearing officers |
| 17 | relating to revisions of community spouse income or |
| 18 | resource allowances; authorizing the Department of |
| 19 | Children and Family Services to adopt rules; providing a |
| 20 | contingent effective date. |
| 21 |
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| 22 | Be It Enacted by the Legislature of the State of Florida: |
| 23 |
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| 24 | Section 1. Section 409.902, Florida Statutes, is amended |
| 25 | to read: |
| 26 | 409.902 Designated single state agency; payment |
| 27 | requirements; program title; release of medical records; |
| 28 | eligibility requirements.-- |
| 29 | (1) The Agency for Health Care Administration is |
| 30 | designated as the single state agency authorized to make |
| 31 | payments for medical assistance and related services under Title |
| 32 | XIX of the Social Security Act. These payments shall be made, |
| 33 | subject to any limitations or directions provided for in the |
| 34 | General Appropriations Act, only for services included in the |
| 35 | program, shall be made only on behalf of eligible individuals, |
| 36 | and shall be made only to qualified providers in accordance with |
| 37 | federal requirements for Title XIX of the Social Security Act |
| 38 | and the provisions of state law. This program of medical |
| 39 | assistance is designated the "Medicaid program." The Department |
| 40 | of Children and Family Services is responsible for Medicaid |
| 41 | eligibility determinations, including, but not limited to, |
| 42 | policy, rules, and the agreement with the Social Security |
| 43 | Administration for Medicaid eligibility determinations for |
| 44 | Supplemental Security Income recipients, as well as the actual |
| 45 | determination of eligibility. As a condition of Medicaid |
| 46 | eligibility, subject to federal approval, the Agency for Health |
| 47 | Care Administration and the Department of Children and Family |
| 48 | Services shall ensure that each recipient of Medicaid consents |
| 49 | to the release of her or his medical records to the Agency for |
| 50 | Health Care Administration and the Medicaid Fraud Control Unit |
| 51 | of the Department of Legal Affairs. |
| 52 | (2)(a) In determining eligibility for nursing facility |
| 53 | services, including institutional hospice services and home and |
| 54 | community-based waiver programs under the Medicaid program, the |
| 55 | Department of Children and Family Services shall apply the |
| 56 | following asset transfer limitations effective for transfers |
| 57 | made on or after October 1, 2005: |
| 58 | 1.a. The penalty period associated with all transfers of |
| 59 | assets for less than fair market value begins on the first day |
| 60 | of the month in which an individual applies for medical |
| 61 | assistance and is otherwise eligible. For recipients of medical |
| 62 | assistance, the penalty period begins on the first day of the |
| 63 | month in which the Department of Children and Family Services |
| 64 | becomes aware of the transfer or on the first day of the month |
| 65 | following a period of ineligibility for an earlier transfer. |
| 66 | b. The Agency for Health Care Administration shall amend |
| 67 | the Medicaid state plan to create a methodology to reimburse |
| 68 | facilities licensed under chapter 400 for the bad debts incurred |
| 69 | as the result of the obligation to care for residents without |
| 70 | payment during this period of ineligibility. Payments shall be |
| 71 | limited to the daily Medicaid rate, shall be offset by any |
| 72 | collections from the resident or resident's responsible party, |
| 73 | and shall be limited to the period of ineligibility from the |
| 74 | date of application to the date of discharge or eligibility, |
| 75 | whichever is earlier. This payment methodology shall be |
| 76 | effective for bad debts incurred for any resident determined |
| 77 | ineligible under this provision for a period of 2 years after |
| 78 | federal law relating to the period of ineligibility is changed |
| 79 | or federal approval of the waiver is granted. Upon expiration of |
| 80 | this methodology, bad debts incurred as the result of the |
| 81 | obligation to care for residents without payment during this |
| 82 | period of ineligibility shall be deemed an allowable Medicaid |
| 83 | bad debt and shall be reported on a facility's Medicaid cost |
| 84 | report. |
| 85 | 2. Individuals who enter into a personal services contract |
| 86 | with a relative shall be considered to have transferred assets |
| 87 | without fair compensation to qualify for Medicaid unless all of |
| 88 | the following criteria are met: |
| 89 | a. The contracted services do not duplicate services |
| 90 | available through other sources or providers, such as Medicaid, |
| 91 | Medicare, private insurance, or another legally obligated third |
| 92 | party. |
| 93 | b. The contracted services directly benefit the individual |
| 94 | and are not services normally provided out of love and |
| 95 | consideration for the individual. |
| 96 | c. The actual cost to deliver services is computed in a |
| 97 | manner that clearly reflects the actual number of hours to be |
| 98 | expended and the contract clearly identifies each specific |
| 99 | service and the average number of hours of each service to be |
| 100 | delivered each month. |
| 101 | d. The hourly rate for each contracted service is equal to |
| 102 | or less than the amount normally charged by a professional who |
| 103 | traditionally provides the same or similar services. |
| 104 | e. The contracted services are provided on a prospective |
| 105 | basis only and not for services provided in the past. |
| 106 | f. The contract provides fair compensation to the |
| 107 | individual in his or her lifetime as set forth in life |
| 108 | expectancy tables adopted in rule 65A-1.716, Florida |
| 109 | Administrative Code. |
| 110 | 3. A financial instrument signed within the transfer look- |
| 111 | back period for institutional Medicaid coverage or home and |
| 112 | community-based waiver programs that allows deferred payments, |
| 113 | graduated payments, balloon payments, or debt forgiveness shall |
| 114 | be considered a countable asset to the individual in the amount |
| 115 | of the outstanding value of the financial instrument when |
| 116 | determining Medicaid eligibility. |
| 117 | (b) In determining eligibility for nursing facility |
| 118 | services, including institutional hospice services and home and |
| 119 | community-based waiver programs under the Medicaid program, the |
| 120 | following limitations apply to annuities purchased on or after |
| 121 | October 1, 2005, when the applicant or the applicant's spouse |
| 122 | owns an annuity, other than a work-related pension annuity, such |
| 123 | as a civil service annuity, a railroad retirement annuity, or |
| 124 | another similar pension annuity. |
| 125 | 1. An annuity is an excluded resource and the monthly |
| 126 | payments are counted as unearned income if the annuity: |
| 127 | a. Was purchased from an insurance company or financial |
| 128 | institution that is subject to licensing or regulation by the |
| 129 | Office of Insurance Regulation or a similar regulatory agency of |
| 130 | another state; |
| 131 | b. Is irrevocable; |
| 132 | c. Pays out principal and interest in equal monthly |
| 133 | installments wherein the principal investment is paid within the |
| 134 | annuitant's life expectancy based on the life expectancy table |
| 135 | used by the Social Security Administration or based on a shorter |
| 136 | life expectancy, if the annuitant has a condition that would |
| 137 | shorten the annuitant's life and that was diagnosed by a |
| 138 | physician before funds were placed into the annuity; and |
| 139 | d. With the exception of an annuity for a community spouse |
| 140 | who is not requesting Medicaid nursing facility care or home and |
| 141 | community-based services waiver care, names the State of Florida |
| 142 | or the Agency for Health Care Administration, or its successor |
| 143 | agency, as the beneficiary of any funds remaining in the |
| 144 | annuity, not to exceed the amount of any Medicaid fund paid on |
| 145 | the individual's behalf during his or her lifetime. |
| 146 | 2. If all of the conditions in subparagraph 1. are not |
| 147 | met, the annuity's fair market value is counted as a resource in |
| 148 | the amount of its fair market value with the following |
| 149 | exception: When an annuity does not provide for payout of |
| 150 | principal and interest in equal installments within the |
| 151 | annuitant's lifetime and the issuing company indicates the |
| 152 | payout arrangement cannot be changed, the annuity shall be |
| 153 | excluded as a resource if the contract is amended to name the |
| 154 | State of Florida as the beneficiary of any funds remaining in |
| 155 | the annuity, not to exceed the amount of Medicaid funds paid on |
| 156 | the individual's behalf during his or her lifetime. |
| 157 | (c) Under the spousal impoverishment policies of s. 1924 |
| 158 | of the Social Security Act, the following special provision |
| 159 | applies: When a hearing officer considers revisions of community |
| 160 | spouse income or resource allowances permitted by s. 1924(e)(2) |
| 161 | of the Social Security Act, the hearing officer must consider |
| 162 | all income first, including the community spouse's own income as |
| 163 | well as all potential income that would be available from the |
| 164 | institutionalized spouse upon approval of Medicaid institutional |
| 165 | care, before raising the community spouse's income or resource |
| 166 | allowance. |
| 167 | (d) The Department of Children and Family Services may |
| 168 | adopt rules pursuant to ss. 120.536(1) and 120.54 to implement |
| 169 | the requirements of this subsection. |
| 170 | Section 2. This act shall take effect July 1, 2005, except |
| 171 | that if any provision of subsection (2) of section 409.902, |
| 172 | Florida Statutes, as created by this act, is prohibited by |
| 173 | federal law, that provision shall take effect when federal law |
| 174 | is changed to permit its application or when a waiver is |
| 175 | received. If, by October 1, 2005, any provision of subsection |
| 176 | (2) of section 409.902, Florida Statutes, as created by this |
| 177 | act, has not taken effect because of prohibitions in federal |
| 178 | law, the Secretary of Health Care Administration shall apply to |
| 179 | the Federal Government by January 1, 2006, for a waiver of the |
| 180 | prohibitions in federal law or other federal authority, and the |
| 181 | provisions of subsection (2) of section 409.902, Florida |
| 182 | Statutes, as created by this act, shall take effect upon receipt |
| 183 | of a federal waiver or other federal approval, notification to |
| 184 | the Secretary of State, and publication of a notice in the |
| 185 | Florida Administrative Weekly to that effect. |