104 CMR, § 30.06

Current through Register 1536, December 6, 2024

Section 30.06 - Charges for Residential Services and Supports in the Community

(1)Purpose and Scope.

(a)Charges for Residential Services and Supports in the Community.104 CMR 30.06 sets forth the rules governing assessment and collection of charges for residential services and supports provided in the community by a Department operated or contracted for the program. The requirements set forth in 104 CMR 30.06 do not apply to residential services and supports provided:

1. by a DMH operated or contracted facility;

2. as part of a shelter, respite, or crisis stabilization program as defined by the Department procurement activity codes;

3. as part of a procured residential placement for a specific individual;

4. as part of another service for which a fee payer is charged pursuant to 104 CMR 30.04 if the charge includes community residential services and supports; or

5. to clients who are minors.

(b)Other Charges or Fees

1. Unless specifically authorized by the applicable Area Director in writing or by a contract to which the Department is a party, a Department operated or contracted for program only may charge clients, or ask clients for contributions for services and costs

a. pursuant to 104 CMR 30.04 or 30.06, or

b. related to specific client caused damages, when the cost of such damage is in excess of the usual expense of repair and replacement.

2. A program may ask clients for contributions for non-service related activities that are not covered or paid for by the Department that the program offers (e.g., extra recreational or entertainment activities); provided that participation is voluntary; contributions are only collected for those who wish to participate in the activities and the program has policies and procedures regarding the collection of such contributions and for providing assistance to those who cannot afford to participate in such activities.

(2)Definitions. In addition to the terms defined in 104 CMR 25.02: Definitions, the following terms shall have the meanings set forth in this section throughout 104 CMR 30.06(2), unless the content clearly provides otherwise.

Client. An individual who receives residential services or supports from a Department operated or contracted for program.

Earned Income. Income derived from active participation in a trade or business, including wages, salary, tips, commissions, bonuses, and net earnings from self-employment.

Fee Payer. A legally authorized representative or other person who controls funds of the client; provided however, that the legally authorized representative or other person is liable only with respect to the client's funds under his or her control.

Income. Any monies received by or on behalf of a client, including earned income, recurrent payments, payments in kind or lump sum payment. Income shall not include the following:

(a) Financial aid provided to full or part time students. This includes scholarships and stipends for housing or earnings from work-study programs that are included in a student's financial aid package;

(b) Payments made to and held by a client from the Supplemental Nutrition Assistance Program; or

(c) Income that is directly deposited into a Plan to Achieve Self-support (PASS) approved by the Social Security Administration.

Liquid Asset. Cash and all property capable of ready conversion into cash, such as stocks and bonds, regardless of whether such assets are held jointly or solely. Liquid assets do not include life insurance or its cash value, or assets subject to an irrevocable trust with the patient or client as named beneficiary, unless those assets are available to the patient or client or fee payer on demand.

Monthly Residential Services and Supports Cost. The median of the statewide monthly cost per client for providing residential services and supports in Department operated and contracted programs as determined by the Department. Costs attributable to rehabilitative services are not included determining the statewide monthly cost of providing residential services and supports.

Recurrent Payment. Income received at regular intervals, though not necessarily in constant amounts, and includes, but is not limited to:

(a) compensation for services and other earned income;

(b) net income derived from a business;

(c) interest;

(d) net rental income;

(e) dividends;

(f) annuities;

(g) pensions;

(h) unemployment compensation;

(i) worker's compensation;

(j) royalties;

(k) Veterans Administration benefits;

(l) Social Security retirement, Supplemental Security Income and Social Security Disability Income benefits;

(m) Old Age and Survivor Disability Insurance benefits; and

(n) trust benefits

Residential Services and Supports. Services delivered in staffed group living environments that provide clients with a place to reside on a regular fixed basis and assistance aimed specifically at enabling the clients to maintain their residence. It does not include rehabilitative services that also may be provided to clients receiving residential services and supports.

Residential Services and Supports Charge. The portion of the monthly residential services and supports cost to be charged to a client or fee payer(s).

(3)Duty to Charge for Residential Services and Supports.

A Department operated or contracted for program that provides residential services and supports must charge the clients receiving such services and supports and the respective fee payers monthly and collect the charge in accordance with 104 CMR 30.06, unless the charge is reduced in its entirety pursuant to 104 CMR 30.06(6).

(4)Notice.

(a) A Department operated or contracted program that provides residential services and supports to clients must inform each client and his or her legally authorized representative, if any, by written notice that he or she will be charged for the residential services and supports provided to the client. The notice must also be given to a client's fee payer(s), if applicable. The notice must be provided:

1. as soon as practical after the client starts receiving residential services and supports from the program;

2. at least 30 days prior to the program implementing a change in amount of the client's charge for residential services and supports;

3. upon request of the client, his or her legally authorized representative, or fee payer; and

4. at such other times deemed appropriate by the Department.

(b)Contents. The notice must inform each payer of the following:

1. the client and fee payer's responsibility for paying monthly the charge for residential services and supports;

2. the client's or fee payer's charge for residential services and supports and how it was calculated;

3. in determining the monthly charge for residential services and supports, there is an incentive for clients to work in that earned income which is factored only at 50% and unearned income factored at 75%;

4. the client or fee payer's responsibility for reporting changes of ten percent or more to the client's income and expenses and how such changes are to be reported;

5. details as to when and how the charge is to be paid each month; and

6. the right to the appeal process as set forth in 104 CMR 30.06(10).

(5)Determination of a Client's Charge and Collection of Charge.

(a)Determination of a Client's Charge. A client charge for residential services and supports shall be calculated as follows:

1. Client Receiving Recurrent Payments. For a client receiving recurrent payments, the monthly residential service and supports charge shall be an amount equal to 75% of the client's recurrent payment (not including earned income), if any, plus 50% of the client's earned income, if any, received in the month for which the charge for residential services and supports accrued; provided, however, that the charge is subject to the following reductions:

a. Reduction by the amount the charge exceeds, if any, the monthly residential and support services cost.

b. Reduction by the amount necessary to ensure that the client retains a minimum of $200 of his or her monthly's recurrent payments (including earned income).

c. Reduction by the amount of adjustment permitted under 104 CMR 30.06(6).

d. Reduction by the amount the charge exceeds, if any, the amount permitted to be charged by the terms of a law, a regulation, or a housing subsidy held by the client or the program.

2.Client Not Receiving Recurrent Payments. For a client who does not receive recurrent payments, but has liquid assets, the monthly residential services and supports charge shall be an amount equal to 75% of the appropriate Supplemental Security Income benefit level for the "SSI Payment Standard" category that is in effect in the month the charge for residential services and supports accrued; provided however, such charge is subject to the following reductions:

a. Reduction by the amount the charge exceeds, if any, the monthly residential and support services cost.

b. Reduction by the amount necessary to assure that the client retains a minimum of $1,000 of his or her liquid assets.

c. Reduction by the amount of adjustment permitted under 104 CMR 30.06(6).

d. Reduction by the amount the charge exceeds, if any, the amount permitted to be charged by the terms of a law, a regulation, or a housing subsidy held by the client or the program.

(b)Determination of a Client's Charge. A program shall determine a client's monthly residential services and supports charge as soon as practical after the client starts receiving residential services and supports from the program and at least annually thereafter. The charge shall also be reviewed upon:

1. notification by the client or fee payer of a change in the client's income or expenses in an amount equal to or greater than ten percent; and

2. notification by the Department of a change in the monthly residential services and supports cost.

(c)Change in a Client's Charge.

1. Each client and his or her legally authorized representative and fee payer, if any, shall receive a notice of a change to his or her charge at least 60 days prior to the implementation of such change and notice as to whether, pursuant to a request, a charge will be adjusted pursuant to 104 CMR 30.06(6). Such notices shall include information about the right to appeal such determinations in accordance with 104 CMR 30.06(10) and, when a phase-in of an increase is required pursuant to 104 CMR 30.06(5)(c)2., information as to how that will be done.

2. If as a result of the change the client (or fee payer) will pay an additional amount of greater than $100, then the increase resulting from the change shall be phased in proportionally over a 12-month period, so that at the end of the 12-month period, the client (or fee payer) is paying the new charge in full.

(d) A Department operated or contracted program that provides residential services and supports is responsible for billing and collecting the monthly residential services and support charge from clients and fee payers, or a combination thereof, in a timely manner; except as provided in 104 CMR 30.06(5)(c).

(6)Adjustment to Charges. For a client who has necessary expenses but does not have sufficient funds to pay for these expenses in a particular month, the charge for residential services and supports shall be reduced that month by an amount that will enable the client to pay such expenses. Expenses deemed necessary are the following:

(a) The cost of premiums to enroll and maintain the client in a health insurance program;

(b) Medical and dental expenses, including medication costs, provided that such expenses are not covered by insurance or other third-party payor;

(c) The Costs for co-payments for medical and dental costs;

(d) Child support or alimony payments owed by the client;

(e) Loan payments, but only if the loan was incurred by the individuals to pay for expenses enumerated in 104 CMR 30.06(6); or were incurred prior to receiving the residential services and supports at the applicable Department operated or contracted for the program;

(f) Transportation expenses related to the implementation of the client's Community Service Plan that are not provided by a Department operated or contracted for the program; and

(g) Other expenses necessary to implement activities in a client's Community Service Plan.

(7)Responsibility of the Client and Fee Payers.

(a) Client and fee payers shall provide information on income, assets and expenses of the client to the Department or program upon request and shall report changes to income, assets and expenses when the amount of such changes equals or exceeds ten percent of what has been previously reported. Clients and fee payers must report each such change in circumstance within ten days from the date they first learn of the change.

(b) In the case where information is not reported as required in 104 CMR 30.06(7), the Department operated or contracted for the program may determine the charge and adjustment upon the best available information, and proceed to assess and collect charges for residential services and supports. The 60-day limitation for income set forth in 104 CMR 30.06(2) shall not apply to unreported changes in funds available to pay the charges.

(c) Clients and fee payers shall pay charges in a timely manner each month.

(8)Multiple Programs. If a client receives residential services and supports from more than one Department operated or contracted for the program on any given day, the client and if applicable, fee payer(s), shall only be charged for residential services and supports at the program that is considered the client's more permanent residence. If there is any issue regarding which one of the different programs is to bill, the issue shall be resolved by the applicable Area Director or designee.

(9)Program Director's Authority. If a client is charged for residential services and supports by a program with which he or she has deposited funds with the program director or designee in accordance with 104 CMR 30.02, the program may deduct the charges or, if appropriate, the adjusted charges from those funds; provided however, that:

(a) the program director, or designee, has requested in writing to the authority to deduct such charges and has received such authority from the client or the client's legally authorized representative; or

(b) the funds have been entrusted to the program director or designee as the client's representative payee; and

(c) all notice provisions as specified in 104 CMR 30.06 have been complied with; and

(d) no appeal of the charge has been filed by the client or representative, or if an appeal has been filed it has been heard and the charge has been finally determined.

For the purpose of 104 CMR 30.06(9)(a), the program director or designee shall be deemed to have such authority if within 14 days of requesting such authority in writing the client or legally authorized representative has not responded to such request.

(10)Appeal of Charges.

(a)Grounds for Challenging a Charge. Grounds for challenging a charge (including by appeal) shall be as follows:

1. Miscalculation of the charge;

2. Misidentification of the fee payer; or

3. Failure to adjust the charge to account for necessary expenses in accordance with 104 CMR 30.06(6).

(b)Informal Resolution.

1. Within seven days of receipt of notice of a change in a client's charge, the client or fee payer, or client representative shall notify the program that the client has grounds for challenging the charge as provided in 104 CMR 30.06(10)(a).

To the extent possible, disputes concerning a client's charge should be resolved informally with the program, within five days of notice from the client of a dispute.

2. If the dispute cannot be resolved within the program, the program and client shall present the dispute to the Area Director or designee for review and resolution.

3. If within ten days the Area Director or designee is unable to resolve the dispute, the client, fee payer or client representative may appeal the charge to the Commissioner pursuant to this section.

4. During the pendency of the appeal the program may continue to bill the client or fee payer for the client's charge.

(c)Appeal to the Commissioner. Following informal resolution effort, but no longer than 30 days after being notified of the amount of the monthly charge, the client or fee payer, or client representative may appeal the charge by notifying the Commissioner in writing. The notice must state the name of the program assessing the charge and the basis for the appeal as provided in 104 CMR 30.06(10)(c). The Commissioner may accept an appeal after 30 days for good cause.

(d) During the pendency of the appeal, the Department or provider shall continue to bill the client and fee payer the monthly charge for residential services and supports.

(e) The Commissioner or designee shall hear the appeal within 30 days of receipt of the appeal.

1. The client or fee payer or client representative shall be given an opportunity to present oral or written statements relevant to the charge, to question a representative of the Department or program concerning the charge, and to have a representative, if any, present.

2. The standard of proof on all issues shall be a preponderance of the evidence and the burden of proof shall be on the appellant.

3. Such a proceeding shall not be an adjudicatory proceeding within the meaning of M.G.L. c. 30A.

4. The Commissioner shall make a decision within 30 days of hearing the case and shall notify in writing the appellant stating the reason for such decision. The decision of the Commissioner is final.

(11)Transitional Provision.

(a) The Department anticipates issuing notice of the residential services and supports cost in accordance with 104 CMR 30.06(2) concurrent with the effective date of this regulation, the issuance of which shall trigger programs' responsibility to initiate the new charge for residential services and supports in accordance with 104 CMR 30.06. Until such notice is given the charge for room and board under the former regulation 104 CMR 30.06 shall continue.

(b) If as a result of the promulgation of this regulation a client's monthly charge for residential services and support is greater than what the client (or fee payer) was being charged for room and board under the former regulation 104 CMR 30.06 by more than $100, then the increase resulting from the change shall be phased in proportionally over a 12-month period, so that at the end of the 12-month period, the client and fee payer is paying the new charge for residential services and support in full.

104 CMR, § 30.06

Amended by Mass Register Issue 1359, eff. 2/23/2018.

Amended by Mass Register Issue 1384, eff. 2/8/2019.