309-012-0033 Procedures for Determining Ability-to-Pay for Cost of Care (1) Ability-to-Pay Orders — Based on the financial information received or obtained, the Division will determine the person’s ability to pay. If the person, and/or the person’s authorized representative fails to provide sufficient information to show the person cannot pay the full cost of care, the Division may determine the person has the ability to pay the full cost of care. The determination of the person’s ability to pay shall be set forth in an Ability-to-Pay Order. The four types of Ability-to-Pay orders are Determination of Charges, Modification to Charges, Return of Funds for Personal Support Following Release, and Waiver of Charges. Each Order shall be given one of these titles to identify the type of determination it sets forth, and it shall be based on the factors and criteria described in the following sections. (2) Limit on Charges — The amount determined by the Division to be the person’s charges shall not exceed the full cost of care for the dates of service covered by the Ability-to-Pay Order, less payments and/or credits from any other sources the Division has received, or reasonably anticipates receiving. (3) Determination of Charges — An Ability-to-Pay Order which sets forth a determination of the person’s charges for the care received which is made either while the person is in the state institution, or after the person’s release from the state institution. A Determination of Charges may be issued any time during the person’s stay in the state institution. A Determination of Charges will be issued after the person’s release if none was issued during the person’s stay, or if the person’s financial circumstances change to enable the person to pay cost of care which exceeds amounts charged by previous Ability-to-Pay Orders. When issuing a Determination of Charges, the Division will consider the following factors: (a) Factors relating to the person’s eligibility for and coverage by benefits from health insurance; (b) Factors relating to the person’s assets: (A) Except as otherwise provided in this section, charges will be assessed using the person’s equity in all assets whether the asset is controlled by the person, or by the person’s authorized representative. The Division will determine the person’s equity in each asset by deducting from the fair market value of the asset any bona fide encumbrance against the asset; (B) Charges will be assessed using the person’s equity in a primary personal residence only if: (i) Information is provided by the treatment staff at the state institution stating the person cannot reasonably be expected to return to the residence to live at any time following discharge from the institution; and (ii) None of the following individuals is residing in the residence: (I) The person’s spouse; (II) The person’s child or children under age 21, or blind or disabled; (III) The person’s sibling or siblings who own an interest in the residence, and who lived in the residence for at least one year immediately prior to the person’s admission to the state institution; (IV) The person’s parents or emancipated children who are unable to work to maintain themselves as declared in ORS 109.010. (C) No charge will be assessed using the person’s equity in a primary personal automobile; (D) The value of an asset which has great sentimental value to the person (such as a family heirloom or gift from a loved one) may be disregarded if selling the asset would cause the person great emotional distress. The Division shall confer with the person’s treatment staff to decide whether or not to make this disregard; (E) When assets are used as the basis for ongoing charges, the Division will estimate the length of time the assets are expected to last. During the final 60 days of that time period, the Division will review the person’s financial circumstances in preparation for modifying the person’s charges. (c) Factors relating to the person’s income: (A) Charges will be assessed using the total amount of all income received either by the person, or for the person by the person’s authorized representative; (B) Income received at intervals other than monthly may be prorated for use in a calculation of a monthly charge to the person. (d) Factors relating to the person’s legal and moral obligations: (A) For legal obligations other than administratively or judicially ordered child and/or spousal support, the person must have demonstrated an intent to pay the obligation, either by showing a history or regular payments toward the full amount owing, or by providing a plan showing dates and amounts of payments to be made in the future; (B) The Division shall seek the advice of treatment staff as to whether or not, in the interest of the person’s rehabilitation, welfare, and/or treatment, the person’s need to satisfy declared moral obligations should be given priority over the person’s obligation to pay the cost of care; (C) Any deduction allowed by the Division for legal or moral obligations must be used to satisfy the current obligation. It may not be accumulated by, or on behalf of the person, or used for purposes other than that for which it was approved. (e) Factors relating to the person’s obligation to provide financial support for dependents: (A) Before approving a deduction for financial support for a dependent, the Division shall determine how much money is required to reasonably support the dependent. From that amount, the Division shall subtract any funds available from sources other than the person, such as the dependent’s own income and assets, or any form of governmental aid such as public assistance payable to, or on behalf of the dependent; (B) Any deduction allowed by the Division for the financial support of dependents must be used to provide current support. It may not be accumulated by, or on behalf of the person, and it may not be used for other purposes. (f) Factors relating to the person’s personal and special authorized expenses while in the state institution: (A) The personal expense allowance while the person is in the state institution shall be established by the Division to reflect the Supplemental Security Income Program’s payment limit for institutionalized individuals (The allowance was $30 per month as of July 1, 1988.); (B) Special authorized expense allowances while the person is in the state institution shall be approved based on the following criteria: (i) The state institution treatment staff’s advice that satisfying the need will not interfere in any way with the successful treatment or general welfare of the person, and it may enhance the person’s ability to meet the goals of the treatment plan; and (ii) There are no other resources available to meet the need. (g) Factors related to the person’s need for funds for personal support following release from the state institution when the Division is issuing any Ability-to-Pay Order after release or when release is scheduled within 30 days: (A) As necessary, funds for personal support following release will be allowed to pay for the following items: (i) Rental costs including the monthly rent payment, as well as one time deposits or fees, or mortgage payments related to the purchase of a residence; (ii) Food for the person and dependents; (iii) Utilities such as heating fuel, water, electricity, garbage service, basic telephone service, and basic television cable service; (iv) Transportation and related insurance coverage; (v) Routine household maintenance and insurance coverage; (vi) Health and dental care and related insurance coverage for the person and dependents; (vii) Clothing and entertainment for the person and dependents; and (viii) Other personal expenses which the person shows to be reasonable and necessary, including payments toward moral obligations and legal obligations (other than mortgage contracts), as described in subsection (d) of this section. (B) The funds allowed for personal support following release shall be based on what a reasonable and prudent individual would spend for the items given the resources available to the individual; (C) The amount approved for support of the dependents shall take into consideration all other resources available to meet the dependent’s needs. (h) Factors relating to the time period during which the Division may assess charges, and the time period during which the person is required to pay assessed charges: (A) Ability-to-Pay Orders issued after release which establish an ongoing monthly charge based on the person’s ability to pay after release shall not add new charges beyond the 36th month following the month in which the person was released from the state institution; (B) The person is required to pay beyond the 36 month period, any assessed charges not paid prior to release or during the 36 month period after release. (4) Modification to Charges — An Ability-to-Pay Order which sets forth a modification to the person’s charges established by a prior Ability-to-Pay Order. A Modification to Charges will be made to reflect either a change in the person’s financial circumstances which affects the person’s ability-to-pay ongoing monthly charges, or the Division’s receipt of benefits from health insurance that were not recognized in a prior Ability-to-Pay Order, which cause established charges to exceed the maximum cost of care chargeable to the person in accordance with section (2) of this rule. When issuing a Modification to Charges, the Division will consider the same factors used for a Determination of Charges as described in section (3) of this rule. (5) Return of Funds for Personal Support Following Release — An Ability-to-Pay Order which sets forth a determination by the Division regarding the return of funds paid toward the person’s charges to provide the person with adequate funds for personal support following his or her release from the state institution. When issuing a Return of Funds for Personal Support Following Release, the Division will use the following criteria: (a) A Return of Funds for Personal Support Following Release is subject to the following conditions: (A) The person or the person’s representative has made payments toward the cost of care provided by the state institution. NOTE: Returned funds for personal support following release cannot exceed the total amount paid from the person’s own income and assets. Benefits from health insurance are not included in the amounts paid. If charges are due, but the person or the person’s representative has made no payment, funds for personal support following release will be considered under the provisions for Waiver of Charges; (B) The person will be discharged from the state institution within the next 30 days, or he/she was discharged from the state institution within the last 60 days; (C) The person has financial obligations following release from the state institution as described in subsection (3)(g) of this rule which cannot be immediately satisfied with other available resources. (b) Funds for personal support following release will be provided for a limited amount of time, not normally to exceed six months, during which time the person will be expected to become otherwise supported through employment, public assistance, or other available programs; (c) Funds for personal support following release for a period of time exceeding six months will be considered only if the Division receives information which shows the person’s circumstances require such consideration. (6) Waiver of Charges — An Ability-to-Pay Order which sets forth a determination by the Division regarding waiver of collection of part or all of the person’s unpaid charges based upon the best interest of the person or the Division: (a) A waiver of charges should be granted when the Division, after considering information regarding extraordinary circumstances pertaining either to the person’s financial situation, or the person’s physical, psychological, or sociological well-being, determines: (A) Charges assessed by prior Ability-to-Pay Orders are unpaid, and a subsequent change in the person’s circumstances shows that collection of all or part of the unpaid charges would be detrimental to the best interests of the person or of the Division; (B) Charges assessed by prior Ability-to-Pay Orders are unpaid, and the Division either receives a written statement from the person’s treating physician, or accepts, on a case-by-case basis, a non-physician mental health professional’s written statement, which indicates the person’s physical, psychological, and/or sociological condition is interfering with the person’s ability to satisfy the outstanding obligation, and further efforts by the Division to collect the unpaid charges would be harmful to the person; or (C) Charges have not been assessed by a prior Ability-to-Pay Order extraordinary circumstances as described in paragraph (A) and/or (B) of this subsection are present, and based on those circumstances the charges should not be assessed. (b) In accordance with ORS 179.640(4), charges may be assessed or reassessed at a later time by a new Determination of Charges Ability-to-Pay Order if the basis for waiver under this section ceases to exist. Statutory/Other Authority: ORS 179.770 & 413.042 Statutes/Other Implemented: ORS 179.610 – 179.770 History: MHD 9-1991, f. 12-13-91, cert. ef. 12-16-91 MHD 14-1980, f. & ef. 6-24-80 MHD 5-1980(Temp), f. & ef. 4-18-80