CO Code § 25.5-6-206 (2021)
2021 Colorado Code|Title 25.5 - Health Care Policy and Financing|Article 6 - Colorado Medical Assistance Act - Long-Term Care|Part 2 - Nursing Facilities|§ 25.5-6-206. Personal Needs Benefits - Amount - Patient Personal Needs Trust Fund Required - Funeral and Final Disposition Expenses - Penalty for Illegal Retention and Use

  The state department, pursuant to its rules, may include in medical care benefits provided under this article 6 and articles 4 and 5 of this title 25.5 reasonable amounts for the personal needs of any recipient receiving nursing facility services or intermediate care facilities for individuals with intellectual disabilities, if the recipient is not otherwise eligible for the amounts from other categories of public assistance, but the amounts for personal needs must not be less than the minimum amount provided for in subsection (2) of this section. Payments for funeral and final disposition expenses upon the death of a recipient may be provided under rules of the state department in the same manner as provided to recipients of public assistance as defined by section 26-2-103 (8).      The basic minimum amount payable pursuant to subsection (1) of this section for personal needs to any recipient admitted to a nursing facility or intermediate care facility for individuals with intellectual disabilities is seventy-five dollars monthly; except that, commencing January 1, 2015, and each January 1 thereafter, the basic minimum amount shall increase annually by the same percentage applied to the general fund share of the aggregate statewide average of the per diem net of patient payment pursuant to section 25.5-6-202 (9)(b)(I). Commencing with the fiscal year beginning July 1, 2014, and each fiscal year thereafter, the reduction to patient payments received by nursing facilities resulting from an increase in the basic minimum amount shall be funded in full by general fund and applicable federal funds.    On and after October 1, 1992, the basic minimum amount payable pursuant to subsection (1) of this section for personal needs shall be ninety dollars for the following persons:   A medical assistance recipient who receives a non-service connected disability pension from the United States veterans administration, has no spouse or dependent child, and is admitted to or is residing in a nursing facility; and    A medical assistance recipient who is a surviving spouse of a person who received a non-service connected disability pension from the United States veterans administration, has no dependent child, and is admitted to or is residing in a nursing facility.            All personal needs funds shall be held in trust by the nursing facility or intermediate care facility for individuals with intellectual disabilities, or its designated trustee, separate and apart from any other funds of the facility. The facility shall deposit any personal needs funds of a resident in an amount of fifty or more dollars in an interest-bearing checking account or accounts or savings account or any combination thereof established to protect and separate the personal needs funds of the patients. Any interest earned on a resident's personal needs funds shall be credited to such account or accounts. In the event residents' personal needs funds are maintained in a pooled account, separate accountings shall be made for each resident's share of the pooled account. Any personal needs funds of a resident in an amount less than fifty dollars shall be maintained in a non-interest-bearing account, an interest-bearing account, or a petty cash fund.    At all times, the principal and all income derived from said principal in the patient personal needs trust fund shall remain the property of the participating patients, and the facility or its designated trustee is bound by all of the duties imposed by law upon fiduciaries in the handling of such fund. Those duties include but are not limited to providing notice to a resident when the resident's personal needs account accumulates two hundred dollars less than the federal supplemental security income resource limit for one person.    The facility or its designated trustee shall post a surety bond in an amount to assure the security of all personal needs funds deposited in the patient personal needs trust fund or shall otherwise demonstrate to the satisfaction of the state department that the security of residents' personal needs funds is assured.    Within sixty days after a resident's death, the facility shall transfer the resident's personal needs funds and a final accounting of the funds to the person responsible for settling the resident's estate or, if there is none, to the resident's heirs in accordance with the provisions of title 15, C.R.S. Within fifteen days after receiving the funds, the executor, administrator, or other appropriate representative of the resident's estate shall provide written notice to the state department regarding the receipt of the funds. Upon receipt of the notice, the state department may bring an action to recover the funds pursuant to the provisions of this article and articles 4 and 5 of this title.       The state department shall establish rules concerning the establishment of a patient personal needs trust fund and procedures for the maintenance of a system of accounting for expenditures of each patient's personal needs funds. The facility shall use an accounting system that assures a complete and separate accounting of residents' personal needs funds based on generally accepted accounting principles and that precludes the commingling of a resident's personal needs funds with the facility's funds or the funds of any other person other than the personal needs funds of another resident. These rules shall provide that the nursing facility or intermediate care facility for individuals with intellectual disabilities shall maintain complete records of all receipts and expenditures involving the patient personal needs trust fund, that all expenditures shall be approved by the patient, legal custodian, guardian, or conservator prior to an expenditure, and that each patient or such patient's legal custodian, guardian, or conservator shall be given at least a quarterly accounting of the receipts and expenditures of such funds. In addition, the rules shall require that the person who maintains the patient personal needs trust fund for the facility and who is responsible for the deposit of moneys into such trust fund shall deposit any personal needs funds received from a patient or from the state department no later than sixty days after the receipt of such moneys.    All patient personal needs trust funds shall be subject to audit by the state department. A record of a patient's personal needs trust fund shall be kept by the facility for a period of three years from the date of the patient's discharge from the facility or until such records have been audited by the state department, whichever occurs later.    Any overpayment of personal needs funds to a nursing facility or an intermediate care facility for individuals with intellectual disabilities by the state department due to the omission, error, fraud, or defalcation of the nursing facility or intermediate care facility for individuals with intellectual disabilities or any shortage in an audited patient personal needs trust fund shall be recoverable by the state on behalf of the recipient in the same manner and following the same procedures as specified in section 25.5-4-301 (2) for an overpayment to a provider.    Nothing in this section shall prevent a nursing facility or intermediate care facility for individuals with intellectual disabilities patient from excluding himself or herself from participation in the patient personal needs trust fund.      It is unlawful for any person to knowingly fail to deposit personal needs funds received from a patient or from the state department for a patient's personal needs into the patients' personal needs trust fund within sixty days after the receipt of such moneys or to knowingly apply, spend, commit, pledge, or otherwise use a patient personal needs trust fund, or any other moneys paid by a patient or the state department for patient personal needs, for any purpose other than the personal needs of the patient to purchase necessary clothing, incidentals, or other items of personal needs that are not reimbursed by any federal or state program. Deposit or use of personal needs funds, including the use of a petty cash fund for personal needs purposes, is not a violation of this section if such deposit or use is in substantial compliance with applicable rules of the state department. Sums later ordered repaid to the patients' personal needs trust fund as a result of an audit adjustment related to simple accounting errors such as data entry errors, mathematical errors, or posting errors or a dispute related to a proration of patient payment is not a violation of this section.    Any person who knowingly violates any of the provisions of this subsection (8) by failing to deposit personal needs funds within sixty days after the receipt of such moneys commits the crime of unlawful retention of patient personal needs funds. Any person who violates any of the provisions of this subsection (8) by applying, spending, committing, pledging, or otherwise using a patient personal needs trust fund for any purpose other than the purposes permitted by this subsection (8) commits the crime of unlawful use of a patient personal needs trust fund.    [ ] Unlawful retention of patient personal needs funds is a class 3 misdemeanor. When a person commits unlawful retention of patient personal needs funds twice or more within a period of six months without having been placed in jeopardy for the prior offense or offenses, unlawful retention of patient personal needs funds is a class 1 misdemeanor.   A petty offense if the amount is less than three hundred dollars;    A class 2 misdemeanor if the amount is three hundred dollars or more but less than one thousand dollars;    A class 1 misdemeanor if the amount is one thousand dollars or more but less than two thousand dollars;    A class 6 felony if the amount is two thousand dollars or more but less than five thousand dollars;    A class 5 felony if the amount is five thousand dollars or more but less than twenty thousand dollars;    A class 4 felony if the amount is twenty thousand dollars or more but less than one hundred thousand dollars;    A class 3 felony if the amount is one hundred thousand dollars or more but less than one million dollars; and    A class 2 felony if the amount is one million dollars or more.       [ ] Unlawful use of a patient personal needs trust fund is:   A class 2 misdemeanor, if the amount involved is less than five hundred dollars;    A class 1 misdemeanor, if the amount involved is five hundred dollars or more but less than one thousand dollars;    A class 4 felony, if the amount involved is one thousand dollars or more but less than twenty thousand dollars;    A class 3 felony, if the amount involved is twenty thousand dollars or more.    A petty offense if the amount is less than three hundred dollars;    A class 2 misdemeanor if the amount is three hundred dollars or more but less than one thousand dollars;    A class 1 misdemeanor if the amount is one thousand dollars or more but less than two thousand dollars;    A class 6 felony if the amount is two thousand dollars or more but less than five thousand dollars;    A class 5 felony if the amount is five thousand dollars or more but less than twenty thousand dollars;    A class 4 felony if the amount is twenty thousand dollars or more but less than one hundred thousand dollars;    A class 3 felony if the amount is one hundred thousand dollars or more but less than one million dollars; and    A class 2 felony if the amount is one million dollars or more.       Any person who is convicted of violating this subsection (8) may not own or operate a nursing facility that receives medical assistance pursuant to this article or article 4 or 5 of this title. For the purposes of this paragraph (e), “convicted” means the entry of a plea of guilty, including a plea of guilty entered pursuant to a deferred sentence under section 18-1.3-102, C.R.S., the entry of a plea of no contest accepted by the court, or the entry of a verdict of guilty by a judge or jury.       Editor's note: This version of subsection (8)(c) is effective until March 1, 2022.  [ ] Unlawful retention of patient personal needs funds is:  Editor's note: This version of subsection (8)(c) is effective March 1, 2022. Editor's note: This version of subsection (8)(d) is effective until March 1, 2022.  [ ] Unlawful use of a patient personal needs trust fund is:  Editor's note: This version of subsection (8)(d) is effective March 1, 2022.  History. Source: L. 2006: Entire article added with relocations, p. 1934, § 7, effective July 1. L. 2012: (8)(a) and (8)(d) amended,(HB 12-1310), ch. 20, p. 1400, § 20, effective June 7. L. 2013: (1), (2)(a), (3)(a), (4), (6), and (7) amended,(SB 13-167), ch. 394, p. 2292, § 4, effective June 5. L. 2014: (2)(a) amended,(SB 14-130), ch. 338, p. 1504, § 1, effective July 1. L. 2021: (1) amended,(SB 21-006), ch. 123, p. 497, § 25, effective September 7; (8)(c) and (8)(d) amended,(SB 21-271), ch. 462, p. 3241, § 483, effective March 1, 2022.    Editor's note:    This section is similar to former § 26-4-504 as it existed prior to 2006.    Section 31(2) of chapter 123 (SB 21-006), Session Laws of Colorado 2021, provides that the act changing this section applies to final dispositions of human remains or human fetuses made on or after September 7, 2021.    Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.     ANNOTATION   Law reviews. For article, “Trust Protection of Personal Injury Recoveries from Public Creditors”, see 19 Colo. Law. 2187 (1990).   Annotator's note. Since § 25.5-6-206 is similar to § 26-4-504 as it existed prior to the 2006 amendments relocating article 4 of title 26 to title 25.5 and § 26-4-504 is similar to § 26-4-116 as it existed prior to the 1991 repeal and reenactment of article 4 of title 26, a relevant case construing that provision has been included in the annotations to this section.   Former subsection (3.5) is remedial in nature and does not remove or impair any vested rights acquired under existing law, does not create a new obligation, impose a new duty, or attach a new disability with respect to transactions or considerations already past. This subsection gives the department of social services the power to recover by setoff monies improperly withdrawn by a nursing home from patient personal needs trust fund accounts. Dept. of Soc. Serv. v. Smith, Harst & Assoc., 803 P.2d 964 (Colo. 1991).