BEFORE THE Department of Public
health and human services of the
STATE OF MONTANA
TO: All Concerned Persons
1. On July 14, 2011, the Department of Public Health and Human Services published MAR Notice No. 37-552 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1293 of the 2011 Montana Administrative Register, Issue Number 13.
2. The department has amended the above-stated rules as proposed.
3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: A commenter who represents an organization stated they support increasing the personal needs allowance from $40 to $50 in keeping with current policy and as approved by the Legislature in 2007. Also, with respect to veterans with veteran's pension of $90 or less, they support the change in keeping with federal requirements to not count the $90 (or less) pension as income and to set the personal needs allowance at $50.
However, the commenter opposes the change which reduces the personal needs allowance of veterans whose pensions are greater than $90. They are not aware of any federal requirement to reduce the personal needs allowance for some veterans from $90 to $50 per month. Nor are they aware of any action taken by the Legislature to reduce this amount. What the department is proposing means that some veterans will retain their $90 (or lower pension) and also $50 personal needs allowance so they will have $140 available monthly for personal needs. Those with pensions over $90 will only have $50 available for personal needs each month. This is inequitable among veterans as compared to each other. This is also a very inappropriate way to treat veterans. A veteran, with a pension over $90, earned that pension because of extensive service in the military. Why would the state of Montana target this group for a reduction in their personal needs allowance? Even without the reduction, they are being allowed to keep very little of the pensions they earned through their military service.
The commenter recommends that the personal needs allowance for those with pensions over $90 per month NOT be reduced to $50 per month, but remain at $90 per month.
RESPONSE #1: In the past, as a result of erroneous guidance from the Health Care Financing Administration (HCFA), the agency that preceded the Centers for Medicare and Medicaid Services (CMS), the department gave some veterans a larger personal needs allowance than was given to other veterans and to nonveterans. Due to this incorrect information from CMS, the department gave veterans with pensions of $90 or less a month a personal needs allowance of $90 per month while veterans with pensions of more than $90 per month and nonveterans were allowed a personal needs allowance of only $40 per month, or later $50 per month. The department then learned that federal law does not specify that veterans with pensions of $90 or less should be given a larger personal needs allowance but instead provides that the first $90 of a veteran's pension must be disregarded, i.e., not counted as income, in determining the amount the veteran is required to pay to the nursing facility for the veteran's care if the veteran's pension is $90 or less. When the department became aware that federal law mandates an income disregard for veterans with pensions of $90 or less, rather than mandating a higher personal needs allowance for all veterans, the department changed its policy to bring it in line with federal law by providing that all nursing home residents receive the same personal needs allowance and veterans with pensions of $90 or less their pension disregarded.
As the commenter notes, the federal Medicaid regulations do not prohibit the department from giving veterans whose pensions are more than $90 a month a personal needs allowance of $90. However, the Medicaid State Plan indicates that higher personal needs allowance may only be provided to persons "with greater need". Veterans with pensions of more than $90 do not, as a group, have a greater financial need. Additionally, the department's nursing home budget for the current biennium was based on the assumption that the personal needs allowance for all veterans would be $50 per month. The department has no excess funds to supplement the nursing home budget if the personal needs allowance for veterans with pensions of more than $90 were given a personal needs allowance of $90 instead of $50. The department will therefore adopt as proposed the amendment to ARM 37.82.1320 that provides a personal needs allowance of $50 for all nursing home residents and an income disregard of up to $90 for veterans with pensions of $90 or less.
/s/ Barbara B. Hoffmann /s/ Anna Whiting Sorrell
Rule Reviewer Anna Whiting Sorrell, Director
Public Health and Human Services
Certified to the Secretary of State August 29, 2011.