SECTION 317:35-19-21. Determining financial eligibility for care in nursing facility

(a)   Financial eligibility and vendor payment calculations for individuals in anursing facility (NF) are determined according to whether or not a spouse remains in the home.

(1)   Individual without a spouse. For an individual without a spouse, the following rules are used to determine financial eligibility.

(A)   Income eligibility. To determine the income of the individual without a spouse, the rules in (i) - (iii) of this subparagraph apply.

(i)   If payment of income is made to the individual and another person(s), the income is considered in proportion to the individual's interest.

(ii)   If a legal instrument exists which specifies terms of payment, income is considered according to the terms of the instrument.

(iii)   After determination of income, the gross income of the individual cannot exceed the categorically needy standard in Oklahoma Department of Human Services (OKDHS) Form 08AX001E (Appendix C-1), Schedule VIII. B. 1., to be eligible for NF services. If the individual's gross income exceeds this standard, refer to SoonerCare rules for establishing a Medicaid Income Pension Trust [Oklahoma Administrative Code (OAC) 317:35-5-41.6(a)(6)(B)].

(B)   Resource eligibility. In order for an individual without a spouse to be eligible for NF services, his/her countable resources cannot exceed the maximum resource standard listed in OKDHS Form 08AX001E (Appendix C-1), Schedule VIII. D.

(C)   Vendor payment. When eligibility for NF care has been determined, the vendor payment is computed. For an individual eligible for long-term care in a NF, the individual's share of the vendor payment is not prorated over the month. As SoonerCare is the payer of last resort, the full amount of the member's share of the vendor payment must first be applied to the facility's charges before SoonerCare reimbursement begins. See (b) of this Section for calculation of the vendor payment after financial eligibility has been determined.

(D)   First month. For the first month of care, the following procedures apply when determining the vendor payment:

(i)   When an individual enters the facility on the first day of the month, all countable income is considered with the facility maintenance standard allowed.

(ii)   When an individual enters the facility after the first day of the month, all countable income is considered with the own home standard allowed in computation of the vendor payment. Only the remaining income actually available is used to compute the vendor payment.

(E)   Equity in capital resources. If the equity in capital resources is in excess of the standards, certification is delayed up to thirty (30) days providing plans are made for the applicant to utilize the excess resource. Certification is made at the point the excess resources have been exhausted, with the effective date of certification being shown as the date on which the resources came within the standard. If the excess capital resources, along with excess income to be considered against the vendor payment, are in excess of one (1) month's vendor payment, the application is denied.

(2)   Individual with a spouse who is institutionalized in a NF or ICF/IID, or who receives ADvantage or HCBW/IID services, or is sixty-five (65) or over and in a mental health hospital. For an individual with a spouse who is institutionalized in a NF or ICF/IID, or who receives ADvantage or HCWB/IID services, or is sixty-five (65) or over and in a mental health hospital, resources are determined for each individual as the amount owned by each individual plus one-half of the jointly owned resources of the couple. Once this separation of assets is made, a resource of either spouse is not considered available to the other during institutionalization.

(A)   Income eligibility. To determine income for an individual whose spouse is institutionalized in a NF or ICF/IID, or who receives ADvantage or HCBW/IID services, or is sixty-five (65) or over and in a mental health hospital, income determination is made individually. The income of either spouse is not considered as available to the other during institutionalization for determination of financial eligibility. See (b) of this Section for post-eligibility calculation of the vendor payment and the community spouse income allowance, if applicable. The rules in (i) - (v) of this subparagraph apply in this situation.

(i)   If payment of income is made solely to one (1) or the other, the income is considered available only to that individual.

(ii)   If payment of income is made to both, one-half is considered for each individual.

(iii)   If payment of income is made to either one (1) or both and another person(s), the income is considered in proportion to either spouse's interest (if payment is to that spouse) or one-half of the joint interest if no interest is specified.

(iv)   If a legal instrument exists which specifies terms of payment, income is considered according to the terms of the instrument.

(v)   After determination of income, the gross income of the individual cannot exceed the categorically needy standard in OKDHS Form 08AX001E (Appendix C-1), Schedule VIII. B. 1., to be eligible for Nursing Facility services. If the individual's gross income exceeds this standard, refer to SoonerCare rules for establishing a Medicaid Income Pension Trust [OAC 317:35-5-41.6(a)(6)(B)].

(B)   Resource eligibility. In order for an individual with a spouse who is institutionalized in a NF or ICF/IID, receives ADvantage or HCBW/IID services, or is sixty-five (65) or older and in a mental health hospital to be eligible for NF services, his/her countable resources cannot exceed the maximum resource standard for an individual listed in OKDHS Form 08AX001E (Appendix C-1), Schedule VIII. D.

(C)   Vendor payment. When eligibility for NF services has been determined, the spenddown calculation is used to compute the vendor payment. For an individual eligible for long-term care in a NF, the individual's share of the vendor payment is not prorated over the month. As SoonerCare is the payer of last resort, the full amount of the member's share of the vendor payment must first be applied to the facility's charges before SoonerCare reimbursement begins. See (b) of this Section for calculation of the vendor payment after financial eligibility has been determined.

(D)   First month. For the first month of care, the following procedures apply when determining the vendor payment:

(i)   When an individual enters the facility on the first day of the month, all countable income is considered with the facility maintenance standard allowed.

(ii)   When an individual enters the facility after the first day of the month, all countable income is considered with the own home standard allowed in computation of the vendor payment. Only the remaining income actually available is used to compute the vendor payment.

(E)   Equity in capital resources. If the equity in capital resources is in excess of the standards, certification is delayed up to thirty (30) days providing plans are made for the applicant to utilize the excess resource. Certification is made at the point the excess resources have been exhausted, with the effective date of certification being shown as the date on which the resources came within the standard. If the excess capital resources, along with excess income to be considered against the vendor payment, are in excess of one (1) month's vendor payment, the application is denied.

(3)   Individual with a spouse remaining in the home who does not receive ADvantage or HCBW/IID services. When an individual and spouse are separated due to the individual entering an NF, income and resources are determined separately. However, the income and resources of the community spouse must be included on the application form. At redetermination of eligibility, the community spouse's income must be included in the review process. During any month that the individual is in the NF, income of the community spouse is not considered available to that individual. The following rules are used to determine the income and resources of each:

(A)   Income eligibility. To determine the income of both spouses, the following rules in this subparagraph apply:

(i)   If payment of income is made solely to one (1) or the other, the income is considered available only to that individual.

(ii)   If payment of income is made to both, one-half is considered for each individual.

(iii)   If payment of income is made to either one (1) or both and another person(s), the income is considered in proportion to either the spouse's interest (if payment is to that spouse) or one-half of the joint interest if no interest is specified.

(iv)   If a legal instrument exists which specifies terms of payment, income is considered according to the terms of the instrument.

(v)   If the individual's gross income exceeds the categorically needy standard as shown on OKDHS Form 08AX001E (Appendix C-1), Schedule VIII. B. 1., refer to SoonerCare rules for establishing a Medicaid Income Pension Trust [OAC 317:35-5-41.6(a)(6)(B)].

(B)   Resource eligibility. To determine resource eligibility, it is necessary to determine the amount of resources for both spouses for the month of the individual's entry into the nursing facility. Of the resources available to the couple (both individual and joint ownership) an amount will be protected for the community spouse which will not be considered available to the spouse in the NF. OKDHS Form 08MA011E, Assessment of Assets, is used for the assessment prior to application for SoonerCare. The amount determined as the spousal share is used for all subsequent applications for SoonerCare, regardless of changes in the couple's resources. The protected spousal share cannot be changed for any reason. When application for SoonerCare is made at the same time the individual enters the NF, OKDHS Form 08MA012E, Title XIX Worksheet, is used in lieu of OKDHS Form 08MA011E.

(i)   The first step in the assessment process is to establish the total amount of resources for the couple during the first month of the entry of the spouse into the NF.

(ii)   The community spouse's share is equal to one-half of the total resources of the couple not to exceed the maximum amount of resource value that can be protected for the community spouse, as shown on OKDHS Form 08AX001E (Appendix C-1), Schedule XI.

(iii)   The minimum resource standard for the community spouse, as established by the Oklahoma Health Care Authority (OHCA), is found on OKDHS Form 08AX001E (Appendix C-1), Schedule XI. When the community spouse's share is less than the minimum standard, an amount may be deemed from the other spouse's share to ensure the minimum resource standard for the community spouse. If the community spouse's share equals or exceeds the minimum resource standard, deeming cannot be done.

(iv)   If deeming is necessary to meet the minimum resource standard for the community spouse, the amount that is deemed must be legally transferred to the community spouse within one (1) year of the effective date of certification for SoonerCare. At the first redetermination of eligibility, the worker must document that the resources have been transferred. After the first year of SoonerCare eligibility, resources of the community spouse will not be available to the other spouse and resources cannot be deemed to the community spouse.

(v)   After the month in which the institutionalized spouse and community spouse have met the resource standards and the institutionalized spouse is determined eligible for benefits, no resources of the community spouse, regardless of value, will be considered available to the institutionalized spouse. If the resources of the community spouse grow to exceed the original deemed amount, the State cannot require the community spouse to apply any of these excess resources toward the cost of the care of the institutionalized spouse.

(vi)   When determining eligibility for SoonerCare, the community spouse's share of resources is protected and the remainder considered available to the spouse in the NF.

(vii)   The resources determined above for the individual in the NF cannot exceed the maximum resource standard for an individual as shown in OKDHS Form 08AX001E (Appendix C-1), Schedule VIII. D.

(viii)   Once the dollar value of the community spouse's share of resources is established for the month of the other spouse's entry into NF, that amount is used when determining resource eligibility for a subsequent SoonerCare application for NF.

(ix)   Once a determination of eligibility for SoonerCare is made, either spouse is entitled to a fair hearing. Any such hearing regarding the determination of the community spouse's resource allowance is held within thirty (30) days of the date of the request for the hearing. Either spouse is entitled to a fair hearing if dissatisfied with a determination of:

(I)   The community spouse's monthly income allowance;

(II)   The amount of monthly income otherwise available to the community spouse;

(III)   Determination of the spousal share of resource;

(IV)   The attribution of resources (amount deemed); or

(V)   The determination of the community spouse's resource allowance.

(x)   The rules on determination of income and resources are applicable only when an individual has entered an NF and is likely to remain under care for thirty (30) consecutive days. The thirty (30) day requirement is considered to have been met even if it is interrupted by a hospital stay or the individual is deceased before the thirty (30) day period ends.

(xi)   The rules on resources included in this Section apply only to those cases in which an individual begins a continuous period of care in an NF on or after September 30, 1989.

(xii)   If the individual was admitted prior to September 30, 1989, there is not a protected amount for the community spouse. Resources are separated according to spousal ownership with one-half of jointly owned resources counted for each. In this instance, each spouse's resources are considered separately and the resources of the community spouse do not affect the eligibility of the spouse in the NF.

(C)   Vendor payment. After the institutionalized spouse has been determined eligible for long-term care, the vendor payment is computed. For an individual eligible for long-term care in a NF, the individual's share of the vendor payment is not prorated over the month. As SoonerCare is the payer of last resort, the full amount of the member's share of the vendor payment must first be applied to the facility's charges before SoonerCare reimbursement begins. See (b) of this Section for calculation of the vendor payment after financial eligibility has been determined.

(D)   Excess resources. If the equity in capital resources is in excess of the standards but less than the amount of one (1) month's vendor payment, certification is delayed up to thirty (30) days providing plans are made for the applicant to utilize the excess resource. Certification is made at the point the excess resources have been exhausted, with the effective date of certification being shown as the date on which the resources came within the standard. If the excess capital resources, along with excess income to be considered against the vendor payment, are in excess of the vendor payment, the application is denied.

(b)   Calculation of the vendor payment after financial eligibility for care in a NF has been determined is performed according to whether or not a spouse remains in the home. For the purpose of calculating the community spouse income allowance, spouses receiving ADvantage or HCBW/IID services are considered community spouses.

(1)   The formula for determining the vendor payment for individuals without a spouse or other dependents is:

(A)   Countable income;

(B)   Minus the institutional or own home standard; and

(C)   Minus the actual monthly payments being made for medical insurance premiums including Medicare premiums; and

(D)   Minus incurred expenses for necessary medical and remedial care not covered under Medicaid, as set forth in the Oklahoma State Medicaid Plan.

(i)   In order to be allowed to be deducted, expenses must:

(I)   Have been incurred during the three (3) month period immediately preceding the month of application;

(II)   Have been prescribed by a medical professional;

(III)   Be certified as being medically necessary by a treating physician, physician assistant, or advanced practice registered nurse working within the scope of his or her licensure; and

(IV)   Be no more than the least of the fee recognized by Medicaid, Medicare, or the average cost allowed by a commercial health insurance plan in Oklahoma.

(ii)   The following expenses are not allowed to be deducted:

(I)   Expenses incurred as the result of the imposition of a transfer penalty;

(II)   Expenses for which a third party (including Medicaid) is liable, even if provided by an out-of-state network provider;

(III)   Expenses resulting from the failure to obtain prior approval from applicable private insurance, Medicare, or Medicaid, due to the service being medically unnecessary;

(IV)   Expenses that had been the subject of a prior authorization denial by Medicaid, due to lack of medical necessity; and

(V)   Health insurance premiums paid by an individual who is not a financially responsible relative, for which repayment is not expected.

(2)   The own home standard is the categorically needy standard found on OKDHS Form 08AX001E (Appendix C-1), Schedule VI.

(3)   The computation for the community spouse's share of resources for individuals with a spouse remaining in the home is the total countable resources divided by two (2). This amount cannot exceed the maximum resource standard. If it is less than the minimum resource standard, resources are deemed from the institutionalized spouse to the community spouse, up to the minimum standard.

(4)   The formula for determining the vendor payment for an individual with a spouse remaining in the home, regardless of whether the spouse receives ADvantage or HCBW/IID services, is:

(A)   Determine the institutionalized spouse's monthly income as described in Paragraph (b)(1) of this Section.

(B)   Determine how much of the institutionalized spouse's income can be deemed to the community spouse:

(i)   Subtract the community spouse's gross income from the maximum monthly income standard on OKDHS Form 08AX001E (Appendix C-1), Schedule XI.

(ii)   The resulting amount is the maximum amount that can be deemed from the institutionalized spouse to the community spouse.

(C)   The amount actually deemed from the institutionalized spouse to the community spouse is subtracted from the institutionalized spouse's monthly income as described in Paragraph (b)(1) of this Section. Any amount remaining is the vendor payment if there are no minor dependent children, parents, or siblings residing with the community spouse.

(D)   If there are minor dependent children, parents, or siblings residing with the community spouse, the formula for determining their allowance is:

(i)   Divide the maximum monthly income standard from OKDHS Form 08AX001E (Appendix C-1), Schedule XI by 3;

(ii)   Subtract the gross income of each dependent child, parent, or sibling residing with the community spouse from the amount in (i);

(iii)   If there is more than one (1) dependent, add the amounts from (ii) together;

(iv)   This amount is deemed to the dependents residing with the community spouse.

(E)   The amount actually deemed to the dependents residing with the community spouse is subtracted from the amount determined in Subparagraph (b)(4)(C) of this Section. Any amount of the institutionalized spouse's income remaining is the vendor payment.

[Source: Added at 12 Ok Reg 753, eff 1-6-95 through 7-14-95 (emergency); Added at 12 Ok Reg 3133, eff 7-27-95; Amended at 13 Ok Reg 1211, eff 9-8-95 (emergency); Amended at 14 Ok Reg 56, eff 4-30-96 (emergency); Amended at 13 Ok Reg 2537, eff 12-24-96; Amended at 14 Ok Reg 546, eff 12-24-96 (emergency); Amended at 14 Ok Reg 1814, eff 5-27-97; Amended at 15 Ok Reg 3715, eff 5-18-98 (emergency); Amended at 16 Ok Reg 1438, eff 5-27-99; Amended at 17 Ok Reg 2410, eff 6-26-00; Amended at 19 Ok Reg 76, eff 9-20-01; Amended at 20 Ok Reg 1958, eff 6-26-03; Amended at 25 Ok Reg 130, eff 8-1-07 (emergency); Amended at 25 Ok Reg 1257, eff 5-25-08; Amended at 30 Ok Reg 1251, eff 7-1-13; Amended at 37 Ok Reg 1652, eff 9-14-20]