210 R.I. Code R. 210-RICR-50-00-8.5

Current through December 3, 2024

Section 210-RICR-50-00-8.5 - Income for Post-Eligibility Purposes

A. PETI Income. During the post-eligibility review process, income is treated differently than during earlier steps in the LTSS eligibility sequence.

1. General Rules - The treatment and availability of income in the PETI is conducted in accordance with the following:

a. Only the income allocated to the LTSS beneficiary is considered available in the beneficiary liability determination.

b. During any month in which a Medicaid LTSS beneficiary is receiving covered services, the income of beneficiary's spouse is treated as unavailable.

c. In the case of an LTSS beneficiary who has no spouse, only the income of the beneficiary is considered in determining beneficiary liability.

d. Spouses separated by a continuous period of LTSS, regardless of living arrangement, are considered for PETI purposes to be living apart starting in the month the LTSS beneficiary begins to receive Medicaid LTSS.

2. Income Ownership - When determining the income ownership in the PETI process, the following Rules apply and preempt any State laws that might otherwise govern community property or the division of marital property:

a. Non-trust property. Non-trust property is all property not subject to a trust. The instrument which provides income is reviewed to identify the specific provisions related to payment and the availability of income for the LTSS beneficiary and spouse. If the instrument providing the income lacks specific provisions relating to payment and availability of income, the following provisions apply:

(1) If payment of income is made solely in the name of the LTSS beneficiary or the spouse, the income must be considered available only to the spouse;

(2) If payment of income is made in the names of the LTSS beneficiary and the spouse, one half (1/2) of the income is considered available to each member of the couple;

(3) If payment of income is made in the name of the LTSS beneficiary, spouse or both, and to another person, the income is considered available to each spouse in proportion to that spouse's interest. If payment is made with respect to both spouses and no such interest is specified, one half (1/2) of the joint interest is considered available to each spouse.

(4) In the case of income that is not derived from a trust in which there is no instrument establishing ownership, one half (1/2) of the joint interest is considered available to the LTSS beneficiary and one half (1/2) to the spouse.

b. Trust property. In the case of a trust, income is considered available to each spouse as provided in the trust or, in the absence of a specific provision in the trust, as follows:

(1) If payment of income is made solely to the LTSS beneficiary or the spouse, the income is considered available only to the spouse;

(2) If payment of income is made to both the LTSS beneficiary and the spouse, one half (1/2) of the income is considered available to each member of the couple;

(3) If payment of income is made to the LTSS beneficiary or the spouse, or both, and to another person or persons, the income is considered available to each spouse in proportion to the spouse's interest. If payment is made with respect to both spouses and no such interest is specified, one half (1/2) of the joint interest is considered available to each spouse.

3. Rebutting Income Ownership - The provisions regarding non-trust property may be superseded to the extent that an LTSS beneficiary can establish, by a preponderance of the evidence that the ownership interests in income are other than as provided in this Part.

B. Recalculation of Income. The first (1st) step in the PETI process is the determination of gross income of the LTSS beneficiary by adding all earned and unearned income without including any disregards or exclusions that apply for eligibility purposes. Once gross income has been established, Federal law mandates that certain types of income must be excluded from gross income in the PETI calculation. They are as follows:

1. German reparation payments, Austrian social insurance payments, and Netherlands reparation payments, in accordance with the Nazi Persecution Victims Eligibility Act, Pub. Law 103-286(20 C.F.R. § 416.1236(a)(18)); or provisions of the nationwide class action lawsuit, Bondy v. Sullivan (1991) involving Austrian General Social Insurance Act, paragraphs 500 through 506

2. Japanese and Aleutian restitution payments, under the provisions of §105 of Pub. Law 100-383(50a U.S.C. §1989b et seq.) by persons of Japanese ancestry

3. Agent Orange settlement payments under the provisions of the Agent Orange Compensation Exclusion Act, Pub. Law 101-201(42 C.F.R. § 416.1236) received on or after January 1, 1989

4. Radiation exposure compensation payments under the provisions of the Radiation Exposure Compensation Act, Pub. Law 101-426(42 U.S.C. § 2210)

5. U.S. Veterans Administration pensions of up to the amount of ninety dollars ($90.00) per month for LTSS beneficiaries residing in a health care institution (NF, ICF-ID, H). Applies to surviving spouses of veterans requesting or receiving Medicaid LTSS

6. U.S. Veteran's Aid and Attendance (A&A) and housebound allowances (VHA) are reduced to and included in the ninety dollar ($90.00) exclusion indicated in § 8.5(B)(5) above when residing in a health care institution. When the LTSS beneficiary is residing at home or in a community-based LTSS arrangement, the portion of the A&A or VHA payment allocated by the VA for room and board is excluded. The pension portion of the payment is included in the calculation of gross income and is considered when determining beneficiary liability unless specifically allocated for a spouse/dependents. See: http://www.benefits.va.gov/pension/current_rates_veteran_pen.asp for pension amounts.

7. Seneca Nation Settlement Act of 1990 payments under the provisions of the Seneca Nation Settlement Act of 1990, Pub. Law 101-503(25 U.S.C. § 1774) (as in effect January 1, 2014), received on or after November 3, 1990

8. As indicated in § 8.3 of this Part, SSI cash benefits received under authority of §§1611(e)(1)(E) and (G) of the SSA (42 U.S.C. § 1382), Omnibus Budget Reconciliation Act of 1987, Pub. Law 100-203(42 U.S.C. § 1396a) are excluded for LTSS beneficiaries during the first three (3) full months of Medicaid LTSS in a health care institution. The EOHHS redetermines beneficiary liability retroactively if an SSI-eligible LTSS beneficiary's actual stay exceeds the expected stay of ninety (90) days or less.

9. Optional State Supplement Payments paid to LTSS beneficiaries residing in health care institutions. State supplement program cash assistance is a State-only payment that is considered to be a component of the beneficiary's personal needs allowance or HCBS special maintenance needs allowance and is identified herein as the State-only personal needs allowance.

10. Payments received under the provisions of a State "Victims of Crime Program" for a period of nine (9) months beginning with the month following the month of receipt

11. Payments made from any fund established pursuant to a class settlement in the case of Susan Walker v. Bayer Corporation, et al, per §4735 of the Balanced Budget Act of 1997, Pub. Law 105-33(42 U.S.C. § 1396u)

12. Payments made from any fund established pursuant to a class action settlement in the case of "Factor VIII or IX concentrate blood products litigation."

C. Sequence of Deductions. Once all required exclusions are applied, deductions are made in the income of the person seeking or receiving LTSS in a specific sequence. In general, the sequence functions as follows: the beneficiary's personal need allowance (identified as 1 through 2(b) in the table below), and then spousal and family allowances (3 and 4 in the table). If necessary, the personal needs allowance is adjusted to ensure that the allowances for spouses and family members are adequate. From this point forward, allowances for health costs, incurred expenses and, if appropriate, home maintenance are deducted. Both the nature of the deduction and the amount may vary by LTSS family structure and living arrangement:

Sequence of Deductions for PETI Allowances by Type
Applicability by Setting
Allowances	Institutional - NF, Hosp, ICF/ID	HCBS
1. Personal Need Allowance - Federally-mandated	Yes For Non-Veterans total = thirty dollars ($30.00)	Yes
a. State-Only - Personal needs allowance State-only	Yes For Non-Veterans total = forty-five dollars ($45.00)	Yes - Amount varies by living arrangement
b. Veterans Improved Pension	Veteran LTSS beneficiaries in nursing facilities (NF) and other health care institutions only	No
c. Therapeutic Employment (TE) - Personal needs allowance	Yes	No
2. HCBS - Maintenance of Needs Allowance for the LTSS beneficiary, OR:	No	Yes
a. Intellectual and Developmental Disabilities - Special Maintenance Needs Allowance	No	For LTSS beneficiaries participating in the Medicaid HCBS habilitation program and integrated community employment support program for persons with developmental disabilities. See § 8.6(B)(4) of this Part
b. Assisted Living -Special Maintenance Needs Allowance - Assisted/Supported Living	No	For LTSS beneficiaries. See § 8.6(B)(3) of this Part
3. Monthly Spousal Allowance - Amount protected for a beneficiary's spouse	Yes	Yes
4. Family Allowance - Dependent family members when there is a non-LTSS spouse; OR	Yes	Yes
Family Maintenance of Need - Dependent family members, when there is NO non-LTSS spouse	Yes	Yes
5. Health Coverage and Expenses	Yes	Yes
6. Special Incurred Expenses - including legal guardianship fees	Yes	Yes
7. In Institution - Time Limited Home Maintenance Allowance	Yes	No

D. PETI Standards - When determining the amount of an allowance in the PETI process the following standards apply:

PETI Allowance Standards
Standard	Monthly Amount and Basis
Personal needs allowance standard	Non-veterans = Federal minimum plus State supplement program payment, total seventy-five dollars ($75.00) Veterans = Improved pension ninety dollars ($90.00)
Therapeutic employment personal needs allowance	An additional eighty-five dollars ($85.00) plus one half (1/2) of earned income allowance, after deducting certain employment expenses and fees
Minimum Monthly Maintenance of Need Allowance - for non-LTSS spouse	Based on one hundred fifty percent (150%) of the FPL for a family of two (2)
Community Spouse Housing Allowance	Amount established by the Federal government and the standard utility allowance for SNAP
Home and Community-Based Services - Maintenance of Needs Allowance	Three hundred percent (300%) of the SSI Federal Benefit rate
State-only personal needs allowance for beneficiaries receiving the optional State supplemental payment to SSI	Varies by living arrangement
Assisted Living Special Maintenance of Need Allowance for room and board	The monthly special assisted living room and board allowance for Medicaid LTSS beneficiaries varies by eligibility status as indicated in § 8.6(B)(3) of this Part but in no case is less than the Federal Benefit Rate for one (1) plus three hundred thirty-two dollars ($332.00) less the applicable personal needs allowance.
I/DD-Special Maintenance of Needs Allowance - habilitation and developmental disabilities programs	HCBS maintenance of need allowance (three hundred percent (300%) of the SSI Federal Benefit rate) plus any earned income not to exceed three hundred percent (300%) of the SSI income standard
Family Allowance	One third (1/3) of the minimum monthly maintenance needs allowance per dependent family member
Family Maintenance of Need	Medically needy income limit adjusted for family size. Medicaid LTSS beneficiary living with family members is included in family size. LTSS Medicaid beneficiaries residing in institutional living arrangements are NOT included in family size
Health Coverage and Expenses	Actual costs but only if not paid for or reimbursed by Medicaid or a third (3rd) party and allowable expenses otherwise not covered by Medicaid, including Medicare and other health insurance premiums
Special Incurred Expenses	Within applicable limits See § 8.6(A)(2)(b) of this Part
In Institution - Time Limited Home Maintenance Allowance	Up to one hundred percent (100%) of the FPL for one (1) per month, based on expenses, for no more than six (6) months

210 R.I. Code R. 210-RICR-50-00-8.5

Amended effective 6/3/2021
Amended effective 9/2/2021
Amended Effective 11/3/2021
Amended effective 7/29/2023(EMERGENCY)
Amended effective 11/22/2023