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Revision 09-4; Effective December 1, 2009
Explaining policy is appropriate. The law requires that Medicaid rules, policies and procedures be freely available to the public. The rules governing MEPD are contained in the Texas Administrative Code (TAC), Title 1, Part 15, Chapters 358, 359 and 360. This handbook also contains the MEPD rules, as well as policies, procedures and examples. Both the TAC and MEPD Handbook are available online. MEPD eligibility specialists act properly in explaining the rule or policy that applies to an applicant's or recipient’s situation, and in referencing the applicable rule or handbook sections.
Giving advice is contrary to HHSC policy. Giving advice includes suggesting options for how to become eligible or how to avoid Medicaid estate recovery, as well as expressing any opinion of what is preferable or more advantageous to the applicant or recipient. Giving advice is contrary to HHSC policy because it:
- usually constitutes the unauthorized practice of law (which can subject the eligibility specialist to legal penalties);
- encroaches on the contractual relationship that may exist between the applicant or recipient and attorney or financial advisor; and
- can subject the eligibility specialist to personal liability for giving advice that is incorrect or that fails to take into account issues other than eligibility (attorneys and financial planners take into account other issues, such as tax laws, in giving estate planning advice relating to Medicaid eligibility).
The approach taken by MEPD eligibility specialists should be to explain policy but not to make recommendations. If an MEPD eligibility specialist is asked for advice, an appropriate response would be to provide the policy that applies to the situation, and to otherwise decline the request. The MEPD eligibility specialist should explain that agency policy prohibits giving advice, and may suggest that the applicant or recipient seek the assistance of an attorney or other estate planning professional of their own choosing.
Excess Income
See Appendix XVI, Documentation and Verification Guide, and Appendix XXXVI, Qualified Income Trusts (QITs) and Medicaid for the Elderly and People with Disabilities (MEPD).
If an applicant is income ineligible in an institutional living arrangement, Appendix XXXVI may be shared with applicants and their representatives to assist them in understanding the purpose of and requirements for a QIT.
To prevent allegations that MEPD staff are engaging in the unauthorized practice of law, the following instructions are provided. Use the instructions on the chart regarding the appropriate actions to take and the actions to avoid.
MEPD Staff
| May | May Not |
|---|---|
| Provide applicants or their representatives with a copy of Appendix XXXVI for informational purposes only. | Tell applicants or their representatives that they need a QIT. |
| Provide applicants or their representatives with applicable policy and procedures. | Recommend specific actions applicants or their representatives should take to become eligible for Medicaid. |
Refer applicants or their representatives to the following allowable referral list:
|
Tell applicants or their representatives whether or not they must have an attorney to establish a QIT.
Recommend that an applicant or representative consult with a specific attorney or organization. (See allowable referral list.) |
| Speak with their supervisor or regional services attorney about any questions they have regarding the use of Appendix XXXVI. | Recommend that an applicant or representative call an HHSC attorney for legal advice. |
Excess Resources
See Appendix XVI, Documentation and Verification Guide.
If excess resources can be designated as burial funds, allow the individual the opportunity to do so. See Section F-4227, Burial Funds.
If a person is determined ineligible because of excess funds in a joint account, allow an opportunity to disprove the presumed ownership of all or part of the funds. The person also must be allowed to disprove ownership of joint accounts that currently do not affect eligibility but may in the future. See Section F-4121, Joint Bank Accounts.