CABINET FOR HEALTH AND FAMILY SERVICES

Department for Behavioral Health, Developmental and

Intellectual Disabilities

Division of Administration and Financial Management

(Amendment)

 

††††† 908 KAR 3:060. ''Means test'' for determining patient liability.

 

††††† RELATES TO: KRS Chapter 13B, 210.710, 210.720, and 210.730

††††† STATUTORY AUTHORITY: KRS Chapter 13B, 194A.050, 210.710(4), 210.720(3), 210.750

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050 requires the Secretary of the Cabinet for Health and Family Services to promulgate administrative regulations necessary to operate the programs and fulfill the responsibilities vested in the cabinet. KRS 210.750 authorizes the Secretary to promulgate administrative regulations to carry out the provisions of KRS 210.710 to 210.760. KRS 210.710(4) and 210.720(3) require the Secretary to adopt a "Means test" for determining the ability to pay of the patient or person responsible for the patient for board, maintenance, and treatment at a facility owned by the state[operated or utilized by the Cabinet for Health and Family Services, for individuals with behavioral health, developmental and intellectual disabilities]. This administrative regulation establishes the "Means test" for making that determination.

 

††††† Section 1. Definitions. (1) "Allowed deduction" means an amount disregarded or deducted from income and assets for the purpose of determining the ability to pay for services rendered by a facility.

††††† (2) "Available assets" means resources of the patient or person responsible for the patient in accordance with KRS 210.720(3), less the applicable protections specified in Section 2(7) of this administrative regulation.

††††† (3) "Deductible" means an amount that a patient or person responsible for the patient is expected to pay toward the patientís[their] care by a third-party payor such as Medicare or a private insurance company.

††††† (4) "Facility" is defined in KRS 210.710(2).

††††† (5) "Income" means funds received by the patient or person responsible for the patient and includes the following:

††††† (a) Salaries;

††††† (b) Wages;

††††† (c) Self-employed gross revenues, less operating expenses;

††††† (d) Benefit payments, except for Supplemental Security Income payments;

††††† (e) Social Security payments;

††††† (f) Rents;

††††† (g) Royalties;

††††† (h) Pensions;

††††† (i) Retirement payments;

††††† (j) Veteranís Administration payments;

††††† (k) Black lung benefits;

††††† (l) Railroad retirement benefits;

††††† (m) Gifts;

††††† (n) Settlements;

††††† (o) Trust receipts;

††††† (p) Alimony, but does not include child support payments;

††††† (q) Interest income; and

††††† (r) Income from investments.

††††† (6) "Patient" means a person admitted to a facility.

††††† (7) "Person responsible for the patient" is defined in KRS 210.710(5).

††††† (8) "Personal Needs Allowance" means an amount of resources deducted from income for the patientís personal needs, including clothing and other miscellaneous items required by the patient.

††††† (9) "Poverty Guidelines" means the latest federal poverty measurement guidelines issued by the United States Department of Health and Human Services and published annually in the Federal Register, under the authority of 42 U.S.C. 9902(2).

 

††††† Section 2. Determination of the Ability to Pay for Services Rendered at Facilities. (1) The facility shall apply the means test to each patient who is admitted to the facility for treatment.

††††† (2)(a) The means test shall include a determination of the responsible party or parties to pay for the patientís care, which shall be documented using the "Patient or Responsible Party Financial Record" form.

††††† (b) This form shall be explained to the patient or person responsible for the patient and signed by all parties.

††††† (c) If the patient or person responsible for the patient refuses to sign, this refusal shall be noted on the form along with the date the form was discussed.

††††† (d) Refusal to sign the form shall not absolve the liability of the patient or person responsible for the patient to pay for services rendered.

††††† (3) The amount a patient or person responsible for the patient is required to pay for services shall be the lesser of:

††††† (a) The cost per patient day in accordance with 908 KAR 3:050, less any amount paid by Medicare, Medicaid, and other third-party payment sources; or

††††† (b) The amount the patient is[deemed] able to pay calculated in accordance with this administrative regulation.

††††† (4) The facility shall determine the financial resources available to the patient or person responsible for the patient including:

††††† (a) Insurance and third-party payors;

††††† (b) Income received or expected to be received during the period of hospitalization; and

††††† (c) Available assets.

††††† (5) The following shall be allowed deductions from income:

††††† (a) Federal income taxes;

††††† (b) State income taxes;

††††† (c) Social security taxes;

††††† (d) Normal retirement contributions;

††††† (e) Unpaid medical and dental bills;

††††† (f) Health insurance premiums;

††††† (g) Medicare Part B insurance premiums;

††††† (h) Long-Term Care insurance premiums;

††††† (i) A personal needs allowance of forty (40) dollars per month;

††††† (j) Student loan payments;

††††† (k) Bed-hold reservation costs at another facility for up to fourteen (14) days as long as the patientís stay is expected to be shorter than the reservation period;

††††† (l) Child support payments;

††††† (m) Life insurance premiums if the patientís estate or a funeral home is the named beneficiary on the policy; and

††††† (n) A basic maintenance allowance, derived from the Poverty Guidelines, as contained in the Basic Maintenance Allowance Table of Section 3(7) of this administrative regulation for the size of the patientís family, if the following conditions are met:

††††† 1. The patient was maintaining a residence immediately prior to admission;

††††† 2. The residence will continue to be maintained during the period of hospitalization and resources of the patient are needed for this effort;

††††† 3. Facility staff expects the patientís hospital stay to be three (3) months or less in duration; and

††††† 4.[Dependents used in the calculation of the basic maintenance allowance shall include] A legally-recognized spouse and each individual less than eighteen (18) years of age who is[and] in the patientís care are classified as dependents for purposes of calculating the basic maintenance allowance.

††††† (6) An estimated income tax related deduction of twenty-five (25) percent of total income shall be allowed instead[in lieu] of the actual wage taxes contained in subsection (5) of this section. A patient or person responsible for the patient may request that actual tax amounts be used instead of the estimated deduction, if they can substantiate the actual tax amounts.

††††† (7) The following shall be excluded from the calculation of available assets:

††††† (a) Prepaid burial plans of up to $1,500 per family member;

††††† (b) Automobiles;

††††† (c) Housing structures;

††††† (d) Land;

††††† (e) Retirement accounts;

††††† (f) Pension funds;

††††† (g) Trust funds that cannot be accessed;

††††† (h) The applicable amount contained in the Ability To Pay Assets Table of Section 3(7) of this administrative regulation for the size of the patientís family using the dependent counting guidelines contained in subsection (5)(n)4 of this section; and

††††† (i)[(I)] Other assets that are exempted under state law, if any.

 

††††† Section 3. Calculation of the Amount the Patient or Person Responsible for the Patient is Able to Pay. (1) The facility shall calculate the ability to pay amount utilizing either the "Ability to Pay Worksheet" or the "Deductible Ability to Pay Worksheet" as appropriate and by using the following formula:

††††† (a) Determine the total amount of income of the patient or person responsible for the patient;

††††† (b) Determine the amount of allowed deductions from income in accordance with Section 2(5) of this administrative regulation;

††††† (c) Subtract the allowed deductions from income; and

††††† (d) The remaining available income shall be divided by 365 to obtain the average daily income of the patient or person responsible for the patient.

††††† (2) If the patient or person responsible for the patient has available assets, the facility shall:

††††† (a) Determine the amount of available assets in accordance with Section 2(7) of this administrative regulation; and

††††† (b) Include available assets that remain after the deduction in the patient or person responsible for the patientís ability to pay amount.

††††† (3) Payments to be made on behalf of the patient by a third-party, such as Medicare, Medicaid, or private insurance companies, shall be subtracted from the facilityís per diem rate as contained in 908 KAR 3:050. Any remaining liability shall be satisfied as follows, with the exception of ability to pay amounts arising from deductibles:

††††† (a) The available income of the patient or person responsible for the patient shall first be applied to the patientís liability for services;

††††† (b) Any liability that remains after application of the average available income shall be satisfied by available assets; and

††††† (c) The applicable average income per day and available asset amount per day shall be combined to determine the ability to pay amount. The ability to pay amount shall be charged for each day the patient is in the facility.

††††† (4) Ability to pay liabilities arising from deductibles shall first be applied to available assets of the patient or person responsible for the patient with any remaining liability being satisfied with available income.

††††† (5) If the Department for Medicaid Services performs an income assessment for a Medicaid patient residing in a nursing facility, intermediate care facility for individuals with mental health[retardation] or a developmental disability or psychiatric hospital in accordance with 907 KAR 1:655, that Medicaid income assessment shall be relied upon instead[in lieu] of the ability to pay provisions established in this administrative regulation.

††††† (6)(a) After the ability to pay is determined for the patient or person responsible for the patient, a "Patient or Responsible Party Financial Agreement and Assignment" form shall be completed.

††††† (b) This form shall be explained to the patient or person responsible for the patient and signed by all parties.

††††† (c) If the patient or person responsible for the patient refuses to sign, this refusal shall be noted on the form including the date the form was discussed.

††††† (d) Refusal to sign the form shall not absolve the liability of the patient or person responsible for the patient to pay for services rendered.

††††† (7) The patient liability shall be calculated based on the United States Department of Health and Human Services poverty threshold guidelines established in this subsection:

††††† (a) The poverty guidelines effective July 31, 2013[2011] shall be as follows:

TABLE I. BASIC MAINTENANCE ALLOWANCE TABLE

Size of Family

Allowed deduction from income*

1

$11,490[$10,890]

2

$15,510[$14,710]

3

$19,530[$18,530]

4

$23,550[$22,350]

5

$27,570[$26,170]

6

$31,590[$29,990]

7

$35,610[$33,810]

8

$39,630[$37,630]

*For each additional dependent, the facility shall add $4,020[$3,820 dollars].

 


TABLE II. ABILITY TO PAY ASSETS TABLE

Size of Family

Allowed Deduction from Assets*

1

$2,000

2

$4,000

3

$4,050

4

$4,100

*For each additional dependent, the facility shall add fifty (50) dollars.

††††† (b) The poverty guidelines effective on the effective date of this administrative regulation shall be as follows:

TABLE I. BASIC MAINTENANCE ALLOWANCE TABLE

Size of Family

Allowed deduction from income*

1

$11,670[$11,490]

2

$15,730[$15,510]

3

$19,790[$19,530]

4

$23,850[$23,550]

5

$27,910[$27,570]

6

$31,970[$31,590]

7

$36,030[$35,610]

8

$40,090[$39,630]

*For each additional dependent, the facility shall add $4,060[$4,020 dollars].

 


TABLE II. ABILITY TO PAY ASSETS TABLE

Size of Family

Allowed Deduction from Assets*

1

$2,000

2

$4,000

3

$4,050

4

$4,100

*For each additional dependent, the facility shall add fifty (50) dollars.

 

††††† Section 4. Revisions to Ability to Pay Amounts. (1) Facility staff shall update a patientís ability to pay amount to incorporate changes that take place subsequent to the initial determination. These changes may include:

††††† (a) Income revisions;

††††† (b) Asset revisions, including exhaustion of available assets;

††††† (c) Change in allowed deductions;

††††† (d) Change in a dependent of the patient or person responsible for the patient; or

††††† (e) Change regarding the status of the person responsible for the patient.

††††† (2) Upon a change to the ability to pay information, a revised "Ability to Pay Worksheet" or "Deductible Ability to Pay Worksheet" shall be prepared along with a revised "Patient or Responsible Party Financial Record" form and a revised "Patient or Responsible Party Financial Agreement and Assignment" form. The revised forms shall be presented to the patient or person responsible for the patient in the same manner as the original forms.

 

††††† Section 5. Failure to Provide Financial Information or to Assign Benefits. (1) If the patient or person responsible for the patient fails to or will not provide the information necessary to calculate the ability to pay amount, the maximum charge provided in Section 2(3)(a) of this administrative regulation shall be assessed.

††††† (2) If the patient or person responsible for the patient fails to sign the assignment provision contained in the "Patient or Responsible Party Financial Agreement and Assignment" form, the maximum charge provided in Section 2(3)(a) of this administrative regulation shall be assessed.

 

††††† Section 6. Payment Hardship, Appeal and Waiver Procedures. (1) Payment hardships.

††††† (a) If the patient or person responsible for the patient believes that payment of the ability to pay amount results in a financial hardship, the patient or person responsible for the patient may request to make installment payments.

††††† (b) This request shall be made in writing to the facilityís patient billing supervisor and shall include documentation to support the claimed hardship.

††††† (c) The patient billing supervisor shall review the financial hardship request and render a payment plan decision within fifteen (15) days from the receipt of the hardship request. If there is financial hardship, the patient billing supervisor shall allow minimum monthly payments based on what the patient can reasonably afford.

††††† (2) Appeals.

††††† (a) If the patient or person responsible for the patient is aggrieved by the facility charges or a payment plan determined in accordance with this administrative regulation, that person may appeal the determination to the facility director or the facility director's designee for informal resolution within thirty (30) days of the ability to pay amount or payment plan being calculated.

††††† (b) The facility director or the facility director's designee shall review the appeal and issue a determination within thirty (30) days of receipt.

††††† (c) If the patient or person responsible for the patient is dissatisfied with the informal resolution, that person may file an appeal within thirty (30) days of the facilityís response to the Director of the Division of Administration and Financial Management, Department for Behavioral Health, Developmental and Intellectual Disabilities, 100 Fair Oaks Lane, 4th Floor, Frankfort, Kentucky 40621-0001. The director shall arrange for an administrative hearing in accordance with KRS Chapter 13B.

††††† (d) The appeal request shall fully explain the patientís, or person responsible for the patientís, position and shall include all relevant documentation supporting the claim of financial hardship[necessary supporting documentation].

††††† (3) Waivers.

††††† (a) The director of each facility may waive payment of the[his or her] facilityís charges under this administrative regulation if waiver is [deemed to be] in the best interest of all parties, based on the factors provided in paragraph (c) of this subsection.

††††† (b) The Director of the Division of Administration and Financial Management shall have the authority to waive payment at any facility within the department if waiver is[deemed to be] in the best interest of all parties, based on the factors provided in paragraph (c) of this subsection.

††††† (c) When making a waiver determination, the following factors shall be considered:

††††† 1. Income;

††††† 2. Overall family debt;

††††† 3. Assets; and

††††† 4. Other information relating to the current financial situation of the patient or the person responsible for the patient.

 

††††† Section 7. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) "DBHDID[MHMR] 3:060-1 Ability to Pay Worksheet", June 2008;

††††† (b) "DBHDID[MHMR] 3:060-2 Deductible Ability to Pay Worksheet", June 2008;

††††† (c) "DBHDID[MHMR] 3:060-3 Patient or Responsible Party Financial Agreement and Assignment", August 2004; and

††††† (d) "DBHDID[MHMR] 3:060-4 Patient or Responsible Party Financial Record", March 2006.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Behavioral Health, Developmental and Intellectual Disabilities, 100 Fair Oaks Lane, Frankfort, Kentucky 40621-0001, Monday through Friday, 8 a.m. to 4:30 p.m.

 

MARY REINLE BEGLEY, Commissioner

AUDREY TAYSE HAYNES, Secretary

††††† APPROVED BY AGENCY: August 7, 2014

††††† FILED WITH LRC: August 14, 2014 at 1 p.m.

††††† PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if request, be held on September, 22, 2014, at 9:00 a.m. in Conference Suite B, Health Services Building, First Floor, 275 East Main Street, Frankfort, Kentucky. Individuals interested in attending this hearing shall notify this agency in writing by September 15, 2014, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. The hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. You may submit written comments regarding this proposed administrative regulation through September 30, 2014. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to:

††††† CONTACT PERSON: Tricia Orme, Office of Legal Services, 275, East Main Street 5 W-B, Frankfort, Ky. 40621, phone (502) 564-7905, fax (502) 564-7573, email tricia.orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS And Tiering Statement

 

Contact Persons: Paula DeWitt or Susan Walker

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation requires the Secretary of the Cabinet for Health and Family Services to adopt a "means test" for determining the ability to pay of the patient or person responsible for the patient for board, maintenance and treatment at a facility owned or utilized by the state.

††††† (b) The necessity of the amendment to this administrative regulation: This administrative regulation is necessary in order to establish a homogeneous methodology to determine the ability of a patient or person responsible for the patient to pay for services received at a facility owned or utilized by the state.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 210.710 to KRS 210.760 requires the cabinet to adopt a "means test" to determine the ability to pay of a patient who receives services at a facility for individuals with behavioral health, developmental and intellectual disabilities operated or utilized by the state.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation assists the cabinet in determining the entire financial resources available to a patient or person responsible for the patient.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: This administrative regulation is being amended to update the Basic Maintenance Allowances table based on the most recent version of the Federal poverty guideline allowance amounts.

††††† (b) The necessity of the amendment to this administrative regulations: The amendment to this administrative regulation is necessary to revise tables related to benefit and support limits based on Federal poverty guidelines in order to accurately determine the ability to pay of the patient or person responsible for the patient for board, maintenance, and treatment at a facility owned or utilized by the state.

††††† (c) How the amendment conforms to the content of the authorizing statutes: KRS 210.710 to KRS 210.760 requires the cabinet to adopt a "means test" to determine the ability to pay of a patient who receives services at a facility for individuals with behavioral health, developmental and intellectual disabilities operated or utilized by the cabinet.

††††† (d) How the amendment will assist in the effective administration of the statutes: KRS 210.720 requires the cabinet to adopt a "means test" to determine the ability to pay of a patient. This amendment to 908 KAR 3:060 allows the Cabinet to more accurately assess the entire financial resources available to a patient or person responsible for the patient.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local government affected by this administrative regulation: There are fifteen (15) state owned facilities affected by this administrative regulation. This amendment will primarily affect patients admitted to facilities owned by the state.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Facility staff will be required to assess the financial resources of the clients or clientsí financially responsible party.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There will be no additional cost to comply with this administrative regulation.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): This administrative regulation allows facilities to assess and recoup costs associated with treatment and services. No resident presented for admission shall be denied treatment due to their inability to pay. This administrative regulation will assure that state owned facilities equitably charge patients served. Increase in poverty guidelines factor into patientís liability to their benefit in allowable deductions.

††††† †(5) Provide an estimate of how much it will cost to implement this administrative regulation:

††††† (a) Initially: There is no cost to implement this administrative regulation.

††††† (b) On a continuing basis: There is no cost to implement this administrative regulation.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: There is not an additional cost to implement and enforce this administrative regulation.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new or by the change if it is an amendment: This administrative regulation will not generate any increase in fees or funding.

††††† (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: The amendment to this administrative regulation does not increase fees to a patient or to the cabinet.

††††† (9) Tiering: Is tiering applied? Tiering is not appropriate in this administrative regulation because the "Means Test" to determine ability to pay apply equally to all patients.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† (1) What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The fifteen (15) state owned facilities are impacted by this administrative regulation.

††††† (2). Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 210.710, 210.728

††††† (3). Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. This administrative regulation allows facilities to assess and recoup costs associated with treatment and services.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will not generate revenue.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will not generate revenue.

††††† (c) How much will it cost to administer this program for the first year? There is no cost to administer this administrative regulation.

††††† (d) How much will it cost to administer this program for subsequent years? There is not a cost to administer this administrative regulation.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-): No

††††† Expenditures (+/-): No

††††† Other Explanation: