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Centers for Medicare & Medicaid Services, HHS § 435.403

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Centers for Medicare & Medicaid Services, HHS § 435.403 Centers for Medicare & Medicaid Services, HHS § 435.403 and C of this part on reasonable classi- (2) Meets the criteria specified in an fications that do not result in arbi- interstate agreement under paragraph trary or inequitable treatment of indi- (k) of this section. viduals and groups and that are con- (e) Placement by a State in an out-of- sistent with the objectives of Title State institution—(1) General rule. Any XIX. agency of the State, including an enti- (c) The agency must not use require- ty recognized under State law as being ments for determining eligibility for under contract with the State for such optional coverage groups that are— purposes, that arranges for an indi- (1) For families and children, more vidual to be placed in an institution lo- restrictive than those used under the cated in another State, is recognized as State’s AFDC plan; and acting on behalf of the State in making (2) For aged, blind, and disabled indi- a placement. The State arranging or viduals, more restrictive than those actually making the placement is con- used under SSI, except for individuals sidered as the individual’s State of res- receiving an optional State supplement idence. as specified in § 435.230 or individuals in (2) Any action beyond providing in- categories specified by the agency formation to the individual and the in- under § 435.121. dividual’s family would constitute ar- ranging or making a State placement. § 435.402 [Reserved] However, the following actions do not constitute State placement: § 435.403 State residence. (i) Providing basic information to in- (a) Requirement. The agency must dividuals about another State’s Med- provide Medicaid to eligible residents icaid program, and information about of the State, including residents who the availability of health care services are absent from the State. The condi- and facilities in another State. tions under which payment for services (ii) Assisting an individual in locat- is provided to out-of-State residents ing an institution in another State, are set forth in § 431.52 of this chapter. provided the individual is capable of in- (b) Definition. For purposes of this dicating intent and independently de- section—Institution has the same mean- cides to move. ing as Institution and Medical institu- (3) When a competent individual tion, as defined in § 435.1010. For pur- leaves the facility in which the indi- poses of State placement, the term also vidual is placed by a State, that indi- includes foster care homes, licensed as vidual’s State of residence for Medicaid set forth in 45 CFR 1355.20, and pro- purposes is the State where the indi- viding food, shelter and supportive vidual is physically located. services to one or more persons unre- (4) Where a placement is initiated by lated to the proprietor. a State because the State lacks a suffi- (c) Incapability of indicating intent. cient number of appropriate facilities For purposes of this section, an indi- to provide services to its residents, the vidual is considered incapable of indi- State making the placement is the in- cating intent if the individual— dividual’s State of residence for Med- (1) Has an I.Q. of 49 or less or has a icaid purposes. mental age of 7 or less, based on tests (f) Individuals receiving a State supple- acceptable to the mental retardation mentary payment (SSP). For individuals agency in the State: of any age who are receiving an SSP, (2) Is judged legally incompetent; or the State of residence is the State pay- (3) Is found incapable of indicating ing the SSP. intent based on medical documentation (g) Individuals receiving Title IV-E pay- obtained from a physician, psycholo- ments. For individuals of any age who gist, or other person licensed by the are receiving Federal payments for fos- State in the field of mental retarda- ter care and adoption assistance under tion. title IV-E of the Social Security Act, (d) Who is a State resident. A resident the State of residence is the State of a State is any individual who: where the child lives. (1) Meets the conditions in para- (h) Individuals under Age 21. (1) For graphs (e) through (i) of this section; or any individual who is emancipated 137 VerDate Aug<31>2005 15:26 Oct 31, 2007 Jkt 211180 PO 00000 Frm 00147 Fmt 8010 Sfmt 8010 Y:\SGML\211180.XXX 211180 rmajette on PROD1PC64 with CFR § 435.403 42 CFR Ch. IV (10–1–07 Edition) from his or her parents or who is mar- (2) For any institutionalized indi- ried and capable of indicating intent, vidual who became incapable of indi- the State of residence is the State cating intent before age 21, the State of where the individual is living with the residence is— intention to remain there permanently (i) That of the parent applying for or for an indefinite period. Medicaid on the individual’s behalf, if (2) For any individual not residing in the parents reside in separate States (if an institution as defined in paragraph a legal guardian has been appointed (b) whose Medicaid eligibility is based and parental rights are terminated, the on blindness or disability, the State of State of residence of the guardian is residence is the State in which the in- used instead of the parent’s); dividual is living. (ii) The parent’s or legal guardian’s (3) For any other non-institutional- State of residence at the time of place- ized individual not subject to para- ment (if a legal guardian has been ap- graph (h)(1) or (h)(2) of this section, the pointed and parental rights are termi- State of residence is determined in ac- nated, the State of residence of the cordance with 45 CFR 233.40, the rules guardian is used instead of the par- governing residence under the AFDC ent’s); or program. (iii) The current State of residence of (4) For any institutionalized indi- the parent or legal guardian who files vidual who is neither married nor the application if the individual is in- emancipated, the State of residence stitutionalized in that State (if a legal is— guardian has been appointed and paren- (i) The parent’s or legal guardian’s tal rights are terminated, the State of State of residence at the time of place- residence of the guardian is used in- ment (if a legal guardian has been ap- stead of the parent’s). pointed and parental rights are termi- (iv) The State of residence of the in- nated, the State of residence of the dividual or party who files an applica- guardian is used instead of the par- tion is used if the individual has been ent’s); or abandoned by his or her parent(s), does (ii) The current State of residence of not have a legal guardian and is insti- the parent or legal guardian who files tutionalized in that State. the application if the individual is in- stitutionalized in that State (if a legal (3) For any institutionalized indi- guardian has been appointed and paren- vidual who became incapable of indi- tal rights are terminated, the State or cating intent at or after age 21, the residence of the guardian is used in- State of residence is the State in which stead of the parent’s). the individual is physically present, ex- (iii) The State of residence of the in- cept where another State makes a dividual or party who files an applica- placement. tion is used if the individual has been (4) For any other institutionalized in- abandoned by his or her parent(s), does dividual, the State of residence is the not have a legal guardian and is insti- State where the individual is living tutionalized in that State. with the intention to remain there per- (i) Individuals Age 21 and over. (1) For manently or for an indefinite period. any individual not residing in an insti- (j) Specific prohibitions. (1) The agency tution as defined in paragraph (b), the may not deny Medicaid eligibility be- State of residence is the State where cause an individual has not resided in the individual is— the State for a specified period. (i) Living with the intention to re- (2) The agency may not deny Med- main there permanently or for an in- icaid eligibility to an individual in an definite period (or if incapable of stat- institution, who satisfies the residency ing intent, where the individual is liv- rules set forth in this section, on the ing); or grounds that the individual did not es- (ii) Living and which the individual tablish residence in the State before entered with a job commitment or entering the institution. seeking employment (whether or not (3) The agency may not deny or ter- currently employed). minate a resident’s Medicaid eligibility 138 VerDate Aug<31>2005 15:26 Oct 31, 2007 Jkt 211180 PO 00000 Frm 00148 Fmt 8010 Sfmt 8010 Y:\SGML\211180.XXX 211180 rmajette on PROD1PC64 with CFR Centers for Medicare & Medicaid Services, HHS § 435.406 because of that person’s temporary ab- § 435.406 Citizenship and alienage. sence from the State if the person in- (a) The agency must provide Med- tends to return when the purpose of the icaid to otherwise eligible residents of absence has been accomplished, unless the United States who are— another State has determined that the (1) Citizens: (i) Under a declaration person is a resident there for purposes required by section 1137(d) of the Act of Medicaid. that the individual is a citizen or na- (k) Interstate agreements.
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