RULES AND REGULATIONS
[55 PA. CODE CH. 181]
Medical Assistance Income
[31 Pa.B. 3200]
The Department of Public Welfare (Department), by this order, adopts the amendments to read as set forth in Annex A under the authority of sections 201(2) and 403(b) of the Public Welfare Code (act) (62 P. S. §§ 201(2) and 403(b)). Section 201(2) of the act provides that the Department has the authority to promulgate regulations with approval of the Governor. Section 403(b) of the act provides that the Department establish rules, regulations and standards consistent with law.
Notice of proposed rulemaking is omitted in accordance with section 204(1)(iv) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(1)(iv)), known as the Commonwealth Documents Law (CDL), and 1 Pa. Code § 7.4(1)(iv) (relating to omission of notice of proposed rulemaking) because the administrative regulation relates to Commonwealth grants and benefits. The Health Care Financing Administration (HCFA) has determined that under the nursing home reform provisions of the Omnibus Budget Reconciliation Act of 1987 (OBRA 87), the Commonwealth is required to consider compensable drugs as a covered service for Medically Needy Only-Medical Assistance (MNO-MA) recipients receiving nursing facility services. Additionally, notice of proposed rulemaking is omitted for good cause as unnecessary and contrary to the public interest under section 204(3) of the CDL and 1 Pa. Code § 7.4(3).
The inclusion of compensable drugs for MNO-MA recipients receiving nursing facility services permits the Commonwealth to receive Federal Financial Participation for providing compensable drugs. Previously, MNO-MA recipients in nursing facilities received compensable drugs through a State-funded pharmaceutical program. This amendment is beneficial to MNO-MA recipients receiving nursing facility services. Therefore, the Department finds proposed rulemaking is unnecessary because this amendment eliminates the requirement for recipients to enroll in the Pharmaceutical Assistance Contract for the Elderly (PACE) Program and codifies existing practice.
The purpose of this amendment is to eliminate the requirement that an MA recipient receiving nursing facility services must meet the enrollment requirements for the PACE Program in determining the MA recipient's expected contribution toward the cost of nursing facility services.
HCFA determined that under the nursing home reform provisions of OBRA 87, states are required to reimburse incurred costs of drugs provided to all MA recipients receiving nursing facility services. Section 1919(b)(4)(A)(iii) of the Social Security Act (42 U.S.C.A. §§ 1396r(b)(4)(A)(iii)) requires nursing facilities as a condition of participation in the Medicaid Program to provide pharmaceuticals to the extent necessary to fulfill each resident's plan of care. Section 1902(a)(13) of the Social Security Act found in (42 U.S.C.A. § 1396(a)(13)) requires states to pay nursing facilities through the use of rates which take into account the cost of complying with Medicaid participation requirements.
As the provision of drugs is a Medicaid nursing facility participation requirement, the Federal mandate requires that the Commonwealth reimburse the incurred costs of drugs provided to all MA eligible nursing facility residents. Federal law requires the Commonwealth to consider compensable drugs as a covered service for MNO-MA recipients receiving nursing facility services.
The Office of Medical Assistance Programs (OMAP) amended its regulations in § 1121.22 (relating to scope of benefits for the medically needy) to include coverage of pharmaceuticals for MNO-MA recipients receiving nursing facility services effective June 1, 1994. Medical Assistance Bulletin Number 1121-94-01 issued June 24, 1994, with an effective date of June 1, 1994, and Notice of Rule Change published in the Pennsylvania Bulletin at 24 Pa.B. 3760 (July 30, 1994) with an effective date of June 1, 1994, informed pharmacies and licensed prescribers that the Department is including the coverage of pharmaceuticals for MNO-MA recipients receiving nursing facility services.
This change necessitates a revision to the Office of Income Maintenance eligibility regulation in § 181.452(d)(5)(ii)(B) and (iii) (relating to posteligibility determination of income available from an MA eligible person toward the person's cost of care) requiring that an MA recipient enroll in the PACE Program. Current regulations allow for the deduction from income of the full prescription costs depending upon whether an MA recipient has met the enrollment requirements for the PACE Program. The inclusion of prescription drugs as a covered service for MNO-MA recipients in nursing facilities eliminates the need for the recipients to enroll in the PACE Program.
TANF-related (Temporary Assistance for Needy Families) recipients referenced in § 181.542(d) (relating to categories of MNO-MA) in Annex A include persons who qualify for MA under the pre-TANF (Aid to Families with Dependent Children) eligibility rules. See section 1931 of the Social Security act (42 U.S.C.A. § 1396u-1).
These amendments are a benefit to MNO-MA recipients who are receiving nursing facility services. Effective June 1, 1994, OMAP included pharmaceuticals as a covered service for MNO-MA recipients receiving nursing facility services.
Need for Amendment
The amendment is needed to remove the requirements to enroll in the PACE Program currently in § 181.452(d)(5)(ii)(A) and (B) and (iii). The inclusion of prescription drugs as a covered service for MNO-MA recipients eliminates the need for recipients to enroll in the PACE Program.
The subparagraph has been revised and the clauses have been eliminated from § 181.452(d)(5)(ii)(A) and (B) and (iii) to remove the enrollment requirement for the PACE Program. The inclusion of prescription drugs as a covered service for MNO-MA recipients in nursing facilities eliminates the need for the recipients to enroll in the PACE Program.
Affected Persons and Organizations
This amendment will affect persons applying for, or receiving, MNO-MA who are receiving nursing facility services. This includes recipients who reside in Intermediate Care Facilities/Mental Retardation facilities and county and private nursing facilities.
This amendment will benefit MNO-MA recipients receiving nursing facility services. This change eliminates the requirement for recipients to enroll in the PACE Program and eliminates one additional procedure the recipient was required to fulfill in obtaining prescriptions.
The amendment is consistent with section 1919(b)(4)(A)(iii) of the Social Security Act which requires prescription drugs as a covered service for MA recipients in nursing facilities.
The net impact to the Department is anticipated to be $1.994 million ($0.924 million in State funds) during Fiscal Year 1998-1999. This cost will be offset by anticipated savings to the Commonwealth's PACE Program.
This regulation requires no additional forms or reports.
This amendment is effective upon publication in the Pennsylvania Bulletin as final-form rulemaking retroactive to June 1, 1994.
No sunset date is applicable. The Department continuously reviews the MA Program and regulations through the Federally-monitored Quality Control process. HCFA staff conduct audits periodically on specific aspects of the MA Program.
Public Comment Period
Although this amendment is being adopted without prior notice, interested persons are invited to submit their written comments, suggestions or objections to Edward J. Zogby, Director, Bureau of Policy, Department of Public Welfare, Room 431, Health and Welfare Building, Harrisburg, PA 17120, (717) 787-4081, within 30 days from the date of this publication for consideration by the Department as to whether the regulation should be revised.
Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (Voice users).
Regulatory Review Act
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on April 25, 2001, the Department submitted a copy of this final-omitted regulation to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. On the same date, the final-omitted regulation was submitted to the Office of the Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506).
Under section 5.1(d) of the Regulatory Review Act, on May 15, 2001, this final-omitted regulation was approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, on May 17, 2001, IRRC met and approved the final-omitted regulations.
The Department finds that:
(1) Public notice of intention to adopt the administrative regulation adopted by this order may be omitted as this rulemaking relates to Commonwealth grants and benefits and is unnecessary and contrary to the public interest under section 204(1)(iv) and (3) of the CDL and the regulation thereunder, 1 Pa. Code § 7.4(1)(iv) and (3).
(2) The adoption of this amendment in the manner provided in this order is necessary and appropriate for the administration and enforcement of the act.
The Department, acting under act, orders that:
(a) The regulations of the Department, 55 Pa. Code Chapter 181, are amended by amending § 181.452 to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin as final-form rulemaking retroactive to June 1, 1994.
FEATHER O. HOUSTOUN,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 31 Pa.B. 2855 (June 2, 2001).)
Fiscal Note: 14-461. (1) General Fund; (2) Implementing Year 1999-00 is $9.615 million; (3) 1st Succeeding Year 2000-01 is $10.681 million; 2nd Succeeding Year 2001-02 is $11.865 million; 3rd Succeeding Year 2002-03 is $13.180 million; 4th Succeeding Year 2003-04 is $14.641 million; 5th Succeeding Year 2004-05 is $16.251 million; (4) 1998-99 Program--$738.340 million; 1997-98 Program--$622.740 million; 1996-97--$798.836 million; (7) Medical Assistance-Outpatient; (8) recommends adoption. Savings in Medical Assistance-Long Term Care are expected to offset a portion of the cost increase in Medical Assistance-Outpatient. Funds are available in the Department's budget to cover any remaining cost.
TITLE 55. PUBLIC WELFARE
PART II. PUBLIC ASSISTANCE MANUAL
Subpart D. DETERMINATION OF NEED AND AMOUNT OF ASSISTANCE
CHAPTER 181. INCOME PROVISIONS FOR CATEGORICALLY NEEDY NMP-MA AND MNO-MA
Subchapter D. POSTELIGIBILITY DETERMINATION OF ELIGIBILITY FOR MA PAYMENT TOWARD COST OF CARE IN INSTITUTIONS
POSTELIGIBILITY DETERMINATION PROVISIONS
§ 181.452. Posteligibility determination of income available from an MA eligible person toward his cost of care.
* * * * *
(d) The following amounts are deducted from the MA eligible person's total gross income identified in subsection (a) for persons in the aged, blind and disabled-related categories, or subsection (b) for persons in the TANF-related or GA-related categories and adjusted as applicable by the treatment of Veterans Administration benefits under subsection (c) for all MA eligible persons in the following order:
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(5) The following medical expenses which are not subject to payment by a third party are deducted in the calendar month the medical expenses are paid.
(i) Medicare and other health insurance premiums, including enrollment fees, deductibles or coinsurance charges incurred by the MA eligible person.
(ii) Copayments or deductibles, including the amount an applicant/recipient participating in the Copayment Program is required to pay by the Department subject to the Department's established copayment limit.
(iii) Expenses paid by the MA eligible person for necessary medical or remedial care recognized under State statutes or regulations but not covered under the MA Program.
(6) An amount for maintenance of a single MA eligible person's home if a physician has certified that he is likely to return to his home within a 6-month period from the date he entered the facility. When this deduction is given, it may not be deducted for more than one 6-consecutive month period. The maintenance need amount for the single person is the MA income limit for one person in Appendix A. A home is defined as the residence maintained by the MA eligible person before he entered the facility and to which he plans to return. If a person is discharged and subsequently returns to a facility, the single MA eligible person is eligible for a new 6 consecutive month period for this deduction if a physician certifies that the person is likely to return to his home within a 6-month period from the date of admittance to the facility.
(e) The amount that the MA eligible person is expected to pay toward the cost of care is the amount that remains and as adjusted under subsection (c), if applicable, and after the deductions in subsection (d) are applied to the person's total gross income as determined under subsections (a) and (b).
[Pa.B. Doc. No. 01-1042. Filed for public inspection June 15, 2001, 9:00 a.m.]
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