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DRA Update as of March 2015


 

DRA Update as of March 2015

There has been no further update since October 2014 regarding the progress of implementation of the DRA regulations, when all four of the DRA regulation packages were still in the process of being drafted or redrafted. Given the workload of DHCS on the implementation of the Affordable Care Act initiatives, it is unlikely that regulations will be released soon.  However, the pressure is on!

On January 25, 2015, Congressman Fred Upton (Michigan) and Senator Orrin Hatch (Utah) sent a letter to Marilyn Tavenner, the CMS Administrator, asking why some states have not fully implemented the DRA or haven’t implemented them at all.  The letter notes:


            We are troubled to learn that many states have not implemented all of the eligibility and transfer of asset requirements enacted in OBRA and DRA.  Information provided to us by the Department of Health and Human Services’ Office of Inspector General (OIG) shows that, as of November2013, only 28 states reported that they implemented all of the relevant provisions from these two laws. Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law. California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions.  As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need.

The letter goes on to ask CMS to respond to a number of questions regarding what actions CMS will take to ensure compliance and asks for a response by February 27, 2015. 

A number of comments come to mind while reading the Upton/Hatch letter.  20 years since OBRA 93? 10 years since the DRA? My how time flies. And good on you, 22 states and District of Columbia for recognizing the DRA for what it is – a draconian piece of garbage meant to do one thing and one thing only – save money by denying benefits to those in need. Study after study has shown that there has been no rush by the rich to transfer assets in order to cash in on the benefits of a Medicaid bed in a substandard nursing home. But most of all, why do Congressman Upton and Senator Hatch care? Their federal taxpayer-funded health insurance is certainly not impacted regardless of whether California or any other state implements the DRA.

Whatever the reasons for their letter at this time, CMS and California will have to pay attention and respond accordingly.  We’ve not seen the CMS response, but we will keep you posted as to the progress at the federal and state levels.  And we will certainly notify you if there is any progress on the promulgation of the DRA regulations. (see link above to read the Upton/Hatch letter)

It could still be some time between when the DRA regulations are published at Office of Regulations and finalized and filed with the Secretary of State.

The administrative process goes like this:

Once the Legal Office has completed review of all four packages and the regulations are approved by the powers that be in the Department, the regulations need to be sent to the Office of Regulations- then publishing of proposed regulations, a 45 day public comment period, then time to review comments, then publish again and if any significant changes, than a 15 day comment period follows. The proposed regulations must be submitted to the Office of Administrative Law within one year of the date that the notice of rulemaking was published, and OAL then has 30 days to conduct a review.  If approved, final regulations are then filed with the Secretary of State and become effective immediately.
It could be some time between when the DRA regulations are published at Office of Regulations and finalized and filed with the Secretary of State.

For a detailed description of the administrative law process - see this OAL link:

http://www.oal.ca.gov/Regular_Rulemaking_Process.htm

Meanwhile – remember:

  • The DRA regulations must comply with the provisions of SB 483 (Kuehl) which includes a number of consumer protections and hardship criteria.

  • Transfer penalties cannot be retroactively applied since law in SB 483 prohibits this.  Any transfers made prior to the date that the regulations are filed with the Secretary of State will be subject to current law, not the DRA regulations.

  • When the DRA regulations are implemented, the 60 month look-back period for the DRA implementation will be phased in one month at a time over a 60 month period.  
The DRA regulations only impact Medi-Cal eligibility and do not change the recovery regulations.

Page Last Modified: April 29, 2015