Texas Register, Volume 34, Number 33, Pages 5445-5614, August 14, 2009 Page: 5,498
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HHSC received no comments at a public hearing held in Austin
on June 22, 2009.
HHSC received written comments from one individual. A sum-
mary of the comments and HHSC's responses follow.
Comment: The commenter expressed appreciation for the incor-
poration of federal law citations into the state rules.
Response: HHSC thanks the commenter for his comment. No
rule language was changed in response to this comment.
Comment: Regarding proposed 358.416(c), the commenter
stated that the requirement to reduce the resources of the in-
stitutionalized spouse to $2,000 as a condition of establishing
eligibility is new to the Texas rules and that it is a violation of the
federal requirement in 1924(c)(2) of the Social Security Act (42
U.S.C. 1396r-5(c)(2)). The commenter requested that the fol-
lowing sentence be deleted from the subsection: "To be eligible
for Medicaid, the institutionalized spouse must have countable
resources that do not exceed the individual resource limit de-
scribed in 20 CFR 416.1205 and meet all other eligibility crite-
ria." The commenter stated that the rule, as proposed, limits the
institutionalized spouse's resources to $2,000 at the time of the
institutionalized spouse's application for Medicaid; however, the
commenter believes that the $2,000 resource limit should be ap-
plied at the time of annual review, not at the time of application.
Response: HHSC agrees that the specific language in
358.416(c) was not in the previous rule; however, HHSC
disagrees that it is new policy and disagrees that it is in violation
of federal requirements. In response to the comment and
in order to clarify the rule, HHSC has replaced the second
sentence of subsection (c) with the following: "HHSC follows
1924(a)(3) and 1924(c)(2) of the Social Security Act (42
U.S.C. 1396r-5(a)(3) and 42 U.S.C. 1396r-5(c)(2)) when
determining resource eligibility of the institutionalized spouse at
the initial eligibility determination."
Comment: Regarding proposed 358.417(a), the commenter re-
quested that the phrase "After the initial eligibility period . . ." be
replaced with "After the eligibility of the institutionalized spouse
is determined . . .". The commenter stated that the rule, as pro-
posed, implies that during the initial eligibility period, the com-
munity spouse is limited to the amount of resources set by the
spousal protected resource amount (SPRA); however, the com-
menter believes that the resources of the community spouse
should not be limited after eligibility is established.
Response: HHSC disagrees with the commenter, because the
intent of the rule is the treatment of resources of the institution-
alized spouse after the initial eligibility period. "Initial eligibility
period" is defined in 358.103(41) as "the time from a person's
certification date to the person's first annual review." In response
to the comment, in order to clarify the intent of the rule, HHSC
has added "of the institutionalized spouse" when referring to re-
sources in the section.
Comment: Regarding proposed 358.417(b), the commenter
requested that the subsection be deleted, because exclusions
to an institutionalized spouse's resources are not limited to a
home and an automobile. Other exclusions allowed by 20 CFR
416.1210 - 416.2176 should also be allowed.
Response: HHSC agrees with the commenter that subsection
(b) is not necessary and has deleted subsection (b) from the
adopted rule.Comment: Regarding 358.336(3), the commenter noted that
the phrase "medical and social services" is unclear and appears
to place restrictions on distributions from trusts that would not
apply to distributions by individuals, contrary to federal law and
policy regarding trusts.
Response: HHSC agrees that the phrase is unclear. Income
used to purchase medical or social services is just one exam-
ple of payment from a trust made to or for the benefit of a per-
son that would not be counted as income. HHSC has changed
358.336(3) in response to the comment to include the federal
regulation that governs what is counted as income and to delete
the example concerning medical and social services.
HHSC made minor editorial changes to the text of the following
to clarify and improve the accuracy of the sections:
(1) In 358.103(1), 358.107(c)(3), and 358.401, HHSC
changed the word "section" to the "" symbol to ensure consis-
tent formatting of the term throughout the chapter.
(2) HHSC reversed the order of definitions in proposed
358.103(29) and (30) to place the definitions in alphabetical
order.
(3) To reflect the amendment made to Texas Health and
Safety Code, 531.0021(a) in Senate Bill 643, 81st Legislature,
Regular Session, 2009, concerning the change in name from
"state school" to "state supported living center," HHSC deleted
the proposed definition of "state mental retardation facility,"
added definitions for "state supported living center" and "state
center," and made conforming changes to the rule language in
358.103(47), proposed 358.103(85) (adopted 358.103(86)),
358.402(a)(2) and (3), and 358.402(e)(4). The additional def-
initions in 358.103 required HHSC to renumber the paragraphs
of subsequent definitions.
(4) In 358.103(84), HHSC changed the word "legislation" to
"provision" to provide a more accurate description of the defined
term.
(5) In proposed 358.103(87) (adopted 358.103(88)),
358.381, 358.433, 358.435, and 358.440, HHSC changed
the term "Supplemental Security Income (SSI) benefit rate" to
"Supplemental Security Income (SSI) federal benefit rate" to
more accurately reflect the term used in the federal regulations.
(6) In 358.107, HHSC made minor editorial changes to clarify
the designation of mandatory coverage groups and the optional
coverage groups.
(7) In 358.207(a), HHSC added the federal citation for the U.S.
residence requirement and made conforming changes in sub-
section (b).
(8) In 358.337(b)(3)(B), HHSC added the phrase "only if the
payments would ordinarily be counted as income in accordance
with 20 CFR 416.1102" to be consistent with the change made
to 358.336 in response to a public comment.
(9) In 358.386, HHSC changed the parenthetical phrase "for
example" to "that is" and made changes in paragraph (2)(C) to
conform to similar language in paragraph (2)(A) and (B).
(10) HHSC added subsection (g) to 358.416 to provide clarifica-
tion regarding the treatment of a community spouse's resources
after eligibility is established for the institutionalized spouse.
(11) In 358.418, HHSC clarified that subsection (a) governs a
spousal resource assessment made prior to an application for34 TexReg 5498 August 14, 2009
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Texas. Secretary of State. Texas Register, Volume 34, Number 33, Pages 5445-5614, August 14, 2009, periodical, August 14, 2009; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth90865/m1/51/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.