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Revision 12-2; Effective June 1, 2012
The following is taken from Subchapter C, Financial Requirements, Division 6, Budgeting for Eligibility and Co-Payment.
§358.438. Determination of Co-payment.
(a) After a person or couple in an institutional setting is determined eligible for a Medicaid-funded program for the elderly and people with disabilities, the Texas Health and Human Services Commission (HHSC) determines the person's or couple's co-payment in accordance with:
(1) Section 1902(a)(17) of the Social Security Act (42 U.S.C. §1396a(17)), relating to the general authority;
(2) Section 1902(a)(50) and (q) of the Social Security Act (42 U.S.C. §1396a(50) and (q)), relating to personal needs; and
(3) Section 1924 of the Social Security Act (42 U.S.C. §1396r-5), relating to institutionalized spouses with community spouses.
(b) To determine the co-payment for a person or couple in an institutional setting, HHSC follows 42 CFR §§435.725, 435.726, and 435.735, including the optional deduction for a home maintenance allowance for a person or couple described in 42 CFR §435.725(d).
(c) To determine the co-payment for a person or couple receiving services under the Program of All-Inclusive Care for the Elderly (PACE) in a PACE setting, HHSC follows §1934(i) of the Social Security Act (42 USC §1396u-4(i)).
(d) HHSC follows §1924(d) of the Social Security Act (42 U.S.C. §1396r-5(d)), concerning the protection of income for the community spouse, to determine the minimum monthly maintenance needs allowance, and to determine an institutionalized spouse's co-payment.
§358.439. Guardianship Fee.
In determining the co-payment for a person receiving services in an institutional setting, the Texas Health and Human Services Commission (HHSC) may deduct a guardianship fee, if any, up to an amount set by the court, from the person's total countable income.
(1) The deduction is limited to guardianship-related costs and fees, subject to the limitations of §32.02451 of the Texas Human Resources Code, Section 670 of the Texas Probate Code, and this section, as determined by HHSC.
(2) HHSC deducts the guardianship-related costs and fees from total countable income after deducting the personal needs allowance, but before deducting any other allowances.
(3) The deduction is effective the later of:
(A) the month the judge signs the court order awarding guardianship-related costs and fees;
(B) the first month of eligibility for which the person has a co-payment; or
(C) the first day of the month that the applicant or recipient provides HHSC with a copy of the court order awarding the guardianship-related costs and fees.
(4) HHSC does not deduct any amount of guardianship-related costs and fees awarded before the date the court order was signed. The deduction is prospective only.
(5) HHSC does not deduct a guardianship establishment fee unless a new guardian is named in the most recent court order.
(6) HHSC does not deduct any guardianship-related costs and fees ordered after the recipient has died.
(7) To receive the deduction, an applicant or recipient must provide a copy of the court order to HHSC no later than the date specified by HHSC. No deduction will be given until the applicant or recipient provides HHSC with a copy of the court order awarding the guardianship-related costs and fees by submitting the court order as specified by HHSC.
(8) The deduction authorized by this section is limited to a guardianship of the person. No deductions are allowed for any other type of guardianship.
§358.440. Dependent Allowance.
(a) In determining a person's co-payment, the Texas Health and Human Services Commission (HHSC) may deduct a dependent allowance from a person's total countable income.
(1) For a person with at least one dependent relative at home, HHSC allows the individual Social Security Income (SSI) federal benefit rate for each dependent relative and deducts the individual SSI federal benefit rate from the dependent relative's countable income.
(2) For a person with a spouse and at least one dependent relative at home, when spousal impoverishment provisions apply, HHSC determines the dependent allowance in accordance with 42 U.S.C. §1396r-5.
(b) The amount of the dependent allowance may be appealed based on undue hardship caused by financial duress as determined by HHSC, in accordance with HHSC's fair hearing rules in Chapter 357 of this title (relating to Hearings).
§358.441. Payroll Deductions.
(a) In determining a person's co-payment, the Texas Health and Human Services Commission (HHSC) calculates earned income each month by subtracting the following mandatory payroll deductions:
(1) income tax;
(2) social security tax;
(3) required retirement withholding; and
(4) required uniform expenses.
(b) After a person or couple in an institutional setting is determined eligible, HHSC applies the payroll deductions described in subsection (a) of this section to:
(1) an applicant or recipient;
(2) an applicant's or recipient's spouse; and
(3) a dependent relative of either spouse.