Section 106.10  Estates of recipients admitted to state hospitals (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.15  Definitions

            "Allowable reserve."  An amount set by the Department in accordance with Section 106.45(g) which is exempt from services charges.

            "Annual income."  Adjusted gross income as defined by Section 2-203 of the Illinois Income Tax Act [35 ILCS 5/203].

            "Average per capita cost."  Amount calculated for the daily average per capita cost of operation of all Department facilities for the fiscal year immediately preceding the period of State care for which the rate is being calculated [405 ILCS 5/5-106].

            "Board of Reimbursement Appeals."  Board appointed by the Governor consisting of 3 persons whose duties are to review decisions of the Department under Sections 5-105 through 5-115 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-105 through 5-115].

            "Department."  The Department of Human Services.

            "Estate of recipient."  All income and assets, including real property.

            "Ill-1, Financial Questionnaire."  A designation assigned to a set of schedules developed for the purpose of collecting financial data on recipients of services and their statutorily responsible relations.

            "Legal dependents."  Those persons dependent upon the recipient for more than one-half of their support and shown as dependent on the recipient's U.S. Individual Income Tax Return.

            "Medical costs."  Services for the diagnosis and treatment of conditions, other than the recipient's handicapping condition, which are provided by a hospital.

            "Notice of determination."  Notification sent to an individual when charges have been established for recipient services [405 ILCS 5/5-111].

            "Recipient of services" or "recipient."  A person who has received or is receiving services partially or wholly supported by the Department [405 ILCS 5/1-123].

            "Responsible relative."  Spouse of a recipient or parent of a recipient under age 18 [405 ILCS 5/1-124 and 5-105].

            "Secretary."  The Secretary of the Department of Human Services or his or her designee.

            "Services."  Services which are rendered and are partially or wholly supported by the Department.

(Source:  Amended at 13 Ill. Reg. 3821, effective March 14, 1989)

Section 106.20  Maximum charges for treatment (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.25  Charges for services

a)         The maximum charge for services to be assessed against a recipient, or the estate of a recipient in a Department-operated facility, shall be 55% of the average per capita cost commencing January 1, 1985; 65% of the average per capita cost commencing January 1, 1986; 75% of the average per capita cost commencing January 1, 1987; 85% of the average per capita cost commencing January 1, 1988; 95% of the average per capita cost commencing January 1, 1989; and 100% of the average per capita cost commencing January 1, 1990 and each January 1 thereafter to be recalculated annually.

b)         The standard authorized by Section 5-116 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-116] by which the Department will set the rate for responsible relatives to provide support will be based on a percentage of annual income, considering the number of dependents.  Section 106.Table A, found at the end of this Part, is used for determining the support obligation of a responsible relative.

c)         The maximum rate to be used when filing claims for benefits under Title XVIII of the Social Security Act (Medicare) (42 U.S.C.A. 1395b-1 (1996)), Title XIX of the Social Security Act (Medicaid) (42 U.S.C.A. 1396a (1996)) Veteran's Administration benefits (38 U.S.C.A. 521, 541, 542 (1996)), Champus/Champva (38 U.S.C.A. 601 (1996)) and active military, is not to exceed the rate set by the Department of Public Aid, or as approved each year for the respective program. Payments received from a benefit or federal insurance program shall be credited on a dollar for dollar basis for each covered day up to the maximum per capita cost for which the recipient has a liability or the contracted rate established by the provider, whichever is less.  Responsible relatives cannot be assessed a charge during periods such coverage is received.

d)         All payments received from private hospitalization insurance shall be credited against the recipient's liability on a dollar for dollar basis up to the prevailing maximum charge for recipients as established in this Section.

e)         All payments on behalf of recipients from any source shall be credited against Medicaid (42 U.S.C.A. 1396a (1996)) billings if for the same period of service.

f)         If a spouse who is a legal dependent of a recipient is designated as payee of the recipient's benefits and is using such benefits as his/her income, charges shall be established on the total combined income in accordance with the schedule in Section 106.Table A as provided for in Section 5-116 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-116].

g)         Voluntary payments in excess of required amounts will be accepted from the recipient and from responsible relatives as well as from persons not legally responsible.

(Source:  Amended at 15 Ill. Reg. 1555, effective January 22, 1991)

Section 106.30  Liability for treatment charges (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.35  Liability for services charges

a)         A recipient of services in Department facilities and the estate of such recipient has the primary liability for payment of sums representing charges for services at the prevailing maximum rate as determined by the Department. If a recipient is unable to pay such rate, or the estate of the recipient is insufficient for payment, the responsible relatives are severally liable for payment of the balance due according to the rates prescribed in Section 106.Table A of this Part.  The liability of each responsible relative for payment of services charges ceases when payments on the basis of financial ability have been made for a total of 12 years. (Section 5-105 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-105])

b)         The responsibility for liability for services charges shall be established in the following order:

1)         Recipient of services or the estate of the recipient

A)        The recipient of services or the estate of the recipient has a liability as long as there are unpaid services charges.

B)        Income accruing from a trust estate of a recipient shall be charged the same as other assets.  If the income from such trust is not sufficient to meet the maximum cost of services to the recipient, the Department shall, in those cases where the trust agreement specifically states that the principal, if needed, may be used, establish charges against both the income and the corpus of the trust.

2)         Responsible relatives

A)        A spouse is liable for services charges unless the other spouse willfully failed to contribute to the spouse's support for a period of five years preceding admission.  Any spouse claiming exemption from liability for charges, due to willful failure to support for five or more years, shall be required to furnish the Department with clear and convincing evidence substantiating such claim. (Section 5-105 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-105])  Such evidence may consist of a judgment of legal separation or other evidence of lack of support for the five year period.  A spouse ceases to be liable for services charges for the other spouse on the effective date of a divorce unless financial liability is established by the marriage dissolution or maintenance decree.

B)        Parents, natural or adoptive (Instruments Regarding Adopted Children Act [760 ILCS 30]), are severally liable whether living together or apart unless a court order pursuant to a marriage dissolution under the Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5] provides otherwise. No parent shall be personally liable for services charges incurred by a child after such child reaches the age of majority (18), except under a type of insurance arrangement which provides coverage for the recipient.

c)         Charges for services shall not be made for recipients committed by the court to the Department of Corrections and then admitted to a Department facility for observation, diagnosis and treatment/habilitation for any period that the recipient is still under commitment  to the Department of Corrections.

d)         Charges for services shall be established against the estate and income of recipients in Department facilities whom the court has determined as being legally unfit to stand trial or not guilty by reason of insanity, but no services charges shall be assessed against the relatives of such recipients.

e)         Charges for services for a recipient under the age of 18 shall be limited to the lesser of the cost of medical care provided, which are unrelated to the individual's handicapping condition, or the amount indicated on the responsible relative schedule for a responsible relative (see Section 106.Table A of this Part); or individual liability as determined by Section 106.45 for an individual payee.

f)         Charges for a recipient between the ages of 18 and 21 are limited to the provisions of subsection (e) of this Section if the individual is receiving services under the Education for the Handicapped Act (20 U.S.C.A. 1400 (1996)).  For a recipient between the ages of 18 and 21, who is not receiving services under the Education for the Handicapped Act (20 U.S.C.A. 1400 (1996)), the provisions of subsections (a) through (d) of this Section apply.

g)         When a recipient of services under the age of 22 receives benefits from a federal government agency, which are to provide for the individual's care and maintenance needs, such funds, less the applicable personal allowance of $40 per month, shall be applied toward the State's cost of providing such care.

h)         If the recipient is also a Medicaid recipient and receives benefits from a federal government agency, such funds, less the applicable personal allowance as specified in 89 Ill. Adm. Code 113.247, must be applied toward such Medicaid charges in accordance with 42 CFR 435.732 (1996).  Claims submitted by the Department to the Illinois Department of Public Aid (IDPA) shall be reduced by the amount of these net benefits.

(Source:  Amended at 12 Ill. Reg. 10472, effective June 7, 1988)

Section 106.40  Determination of ability to pay treatment charges (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.45  Determination of ability to pay services charges

a)         The Department, in determining the ability of the responsible person (recipient, responsible relative, guardian, trustee and/or payee) to pay services charges, shall assemble any necessary information pertaining to his or her financial status and shall then set the amount for which the responsible person shall be held liable.  Recipients and all responsible persons must furnish financial information on admission or as soon thereafter as possible to enable the Department to make a proper determination of the sources available for the cost of services charges. The liability for payment of services charges shall be based on information available at the time of determination.  (Such data may include savings, trusts, wills, evidence of indebtedness, evidence of court-ordered payments, and the like.)  Each person for whom a determination has been made shall be issued a form DMHDD-612, Notice of Determination, notifying the person of his or her liability.  Such notice shall be issued even when current determined liability is $0.00.

b)         When there is a demonstrated ability to pay, payment for services is an obligation established by Sections 5-100 through 5-117 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-100 through 5-117] against the recipient, responsible relatives, guardians, trustees and/or payees.

c)         If the responsible person fails to submit financial information as requested, the Department may assess services charges at the maximum rate of charge as provided in Section 106.25 until such information is supplied and an actual assessment can be determined.  In the absence of billing during the period covered in such instances, the Department may consider that notices and requests for information as previously sent shall constitute ample notice of liability and indebtedness for such period. However, in subsequent review or annual redetermination involving responsible relatives, no services charges shall be retroactively established prior to the date of contact for financial information.

d)         Subsequent review could be initiated by the recipient of services prior to the annual redetermination due to changes in ability to pay or as a result of an administrative hearing or by the Board of Reimbursement Appeals.  Recipients and responsible relatives have a responsibility to inform the Department of any changes.

e)         Liability of responsible relatives shall be reviewed annually and such responsible relatives shall be requested to submit copies of their most recent U.S. Individual Income Tax Return.  This information will be used as a basis for determining services charges in accordance with this Part and the schedule of charges in Section 106.Table A of this Part.

f)         The determination by the Department of the liability of a responsible person to pay an amount up to the maximum rate as established in Sections 106.25 and 106.25(b) shall continue in force until the Department determines a different amount on the basis of changes in circumstances surrounding the person's ability to pay, or until a change has been made in the standards of ability to pay set forth in Sections 106.25 and 106.25(b) or until a release from or a modification of services charges is granted upon a hearing on the petition of a person liable in accordance with Section 106.75 and Section 5-111 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-111].

g)         The determination of the ability to pay and amount of liability of the recipient for services charges, up to the prevailing maximum rate established for recipients in Section 106.25, shall be based on all assets and income of the recipient.  After considering the recipient's legal dependent's financial needs as covered in subsection (k) of this Section, all resources and assets are reduced to the allowable reserve exemption in accordance with subsection (h) of this Section.

h)         The allowable reserve exemption, as provided for in Section 5-106 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-106], is determined by the amount of assets owned at the time of the recipient's admission except that the allowable reserve exemption from all sources cannot exceed that established by the Illinois Department of Public Aid at 89 Ill. Adm. Code 120.382.  The recipient's allowable reserve exemption can only be increased by the unused portions of the monthly personal and clothing allowance or unspent workshop or other monetary incentive funds , such as living skills program funds.   Payments to be paid by the recipient for services charges may not be deferred to build a reserve up to the maximum amount allowed.

i)          If the recipient becomes eligible and is approved for Medicaid (42 U.S.C.A. 1396a (1996)), 42 CFR 430 (1996) and the Department of Public Aid's rules at 89 Ill. Adm. Code 120.40 and 120.382 govern the allowable reserve and personal and clothing allowance.

j)          The Department shall allow deductions from income for a community spouse maintenance needs allowance and a family maintenance needs allowance for each dependent family member who does not have enough income to meet his or her needs.  Family members include dependent children under age 21, dependent adult children, dependent parents or dependent siblings of either spouse who are living with the community spouse.  To determine the amount of the deduction:

1)         The deduction for the community spouse maintenance needs allowance, as set forth in the Department of Public Aid's rule at 89 Ill. Adm. Code 120.61(d), is equal to the community spouse maintenance needs standard less any non-exempt monthly income of the community spouse.  The deduction is allowed only to the extent that income of the spouse who is receiving services at a Department-operated facility is contributed to the community spouse.  However, the deduction for the community spouse maintenance needs allowance shall not be less than the amount ordered by the court for support of the community spouse or the amount determined as the result of the fair hearing.

2)         The deduction for the family maintenance needs allowance for each dependent family member is equal to one-third of the difference between the family maintenance needs standard and any non-exempt income of the family member as set forth in the Department of Public Aid's rule at 89 Ill. Adm. Code 120.61(d).

k)         Prior to the assessment of services charges against a recipient of services, the Department shall review the financial needs of the recipient's legal dependents.  The financial needs of these legal dependents shall be based on amounts expended up to an amount equal to the minimum yearly income for which a responsible relative would be subject to a charge as shown in Section 106.Table A.  Any amounts as allowed which are not expended for support of legal dependents claimed on the recipient's U.S Individual Income Tax Return, shall be subject to services charges.

l)          When it is necessary for the Department to disclose information in order to collect services charges, such disclosure shall be limited to information needed to pursue collection, and the information so disclosed shall not be used for any other purpose nor shall it be redisclosed except in connection with such collection activities. (See Section 11 of the Mental Health and Developmental Disabilities Confidentiality Act [740 ILCS 110/11])

(Source:  Amended at 18 Ill. Reg. 15606, effective October 5, 1994)

Section 106.50  Standards for ability to pay treatment charges (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.60  Allowances for unusual expenses or circumstances in determining ability to pay treatment charges (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.65  Allowances for unusual expenses and/or exceptional circumstances in determining ability to pay services charges

a)         If an examination or re-examination reveals unusual and/or exceptional circumstances which indicate that the responsible relative's adjusted gross income as reported on his/her most recent U.S. Individual Income Tax Return or the recipient's income and assets as reported on schedules B and C of the I11-I, Financial Questionnaire is not an adequate measure to determine ability to pay services charges in accordance with Sections 106.25 and 106.45, allowances for the unusual and/or exceptional circumstances listed below shall be made in the application of the schedule of charges in Section 106.Table A of this Part.

1)         Unemployment;

2)         Provable reduction in income;

3)         Additional dependents;

4)         Medical and related costs over the amounts covered by insurance;

5)         Unforeseen catastrophic expenses.

6)         Undue hardship created by excessive increase in liability is limited to 100% prior year assessment applicable only to those assessed prior to July 1, 1984.

b)         All individuals requesting allowance due to subsection (a) of this Section must furnish proof of the unusual and/or exceptional circumstances.

(Source:  Amended at 12 Ill. Reg. 18158, effective October 31, 1988)

Section 106.70  Petition for release from or modification of treatment charges (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.75  Petition for release from or modification of services charges

a)         Any person who has been issued a form DMHDD-612, Notice of Determination, of sums due as service charges may petition the Department for a review of such determination.  The petition must be in writing and filed with the Department, 401 Stratton Building, Springfield, Illinois 62765 within 90 calendar days from the date of the form DMHDD-612, Notice of Determination.  [405 ILCS 5/5-111]

b)         On the basis of the grievances presented in the petition, the Department shall review the record and shall make corrections for errors prior to a formal hearing.  If such corrections do not resolve the issue raised, the Department shall provide for a hearing to be held on the services charges for the period covered by the petition.  Pre-hearing conferences may be arranged by the Department prior to scheduling of formal hearing to develop factors not included in the Department's master file record, which could result in resolution of the issues raised.

c)         A notice stating the date, time, and place of the hearing shall be sent by certified mail to the address given on the petition of the person entering the petition not less than 10 calendar days in advance of the date of such hearing.  Hearings will be scheduled at a time and place to be determined by the Department.  The place selected will be an appropriate location, with a view to geographic grouping of the cases to be heard, to keep travel at a minimum for all parties.

d)         The person petitioning the Department shall appear personally and may bring such witnesses as may be deemed necessary and may be represented by a person of his or her own choice.

e)         A hearing officer duly authorized by the Secretary of the Department shall conduct the hearing as follows:

1)         The hearing is officially opened when the purpose of same has been stated and governing authorities have been cited.

2)         Presentation of the hearing's examiner credentials.  Leave to substitute a copy for incorporation in the record shall be sought, in order to retain the original in the Department's master file.

3)         Swearing in of those who are to testify as witnesses, petitioner and others appearing on his or her behalf, the Department's representative or representatives, etc.  Identification for the record by name and title.  The hearing officer shall have the authority to subpoena witnesses and to compel the production of books and records (see 20 ILCS 1705/17).

4)         The petitioner is given preference as to the order of appearances by agreement as to the format of the hearing, as a result of a preliminary conference between both parties.  If agreeable, the Department's case is the first to be recited into the record for the purpose of developing a basis for the hearing.  All documents, in support of such testimony, are numbered and offered into evidence as the Department's exhibits.  Leave to substitute copies of such documents is sought so the originals may be retained in the Department's master file.

5)         Upon completion of the Department's case, cross examination of the Department may be held if desired, either by the petitioner, or his or her attorney, if so represented.

6)         The petitioner then states, either directly, or upon examination by the counsel, the reason for requesting a modification or release from charges, and submits documents to substantiate allegations made by him or her, or as a rebuttal of the Department's allegations.  These exhibits are numbered and identified for record purposes as petitioner's exhibits.  The presiding hearing's examiner has complete authority for determining what testimony or evidence is relevant and admissible into the record, either by the Department or the petitioner.

7)         After all direct testimony has been completed, and all evidence by both the Department and the petitioner is in, cross-examination may again be held, if so desired.

8)         When there is no further testimony or evidence to be offered by either party, the hearing is to be considered adjourned with the explanation that no decision will be rendered on the testimony and evidence submitted, inasmuch as the complete record will be reviewed and a full report, with recommendations will be submitted to the Secretary of the Department who will ultimately review the findings and recommendations and render a final decision as to whether the determination is subject to change, and so notify the petitioner.

9)         If the findings of the hearing indicate that an error has been made in the original determination, or new or additional information indicates supplemental allowances are in order, an independent redetermination shall be made by the hearings examiner responsible for preparation of the report to conform.

10)         Within 30 days, but no later than 60 days subsequent to the hearing, a copy of the Department's letter of decision, bearing the Secretary's signature, noted as to the date of the signature, along with a copy of the findings and recommendations shall be issued to the petitioner.

f)         The common law rules of evidence shall not be enforced in the conduct of the hearing (see 5 ILCS 100/10-40).  The hearing officer may ask and receive answers to such questions as are pertinent and proper for a fair determination of the case.  Exhibits may be received as part of the evidence and shall be numbered in order according to whether they are the Department's or the petitioner's exhibits.

g)         The hearing officer shall make a recommendation on the basis of statutory guidelines (see 405 ILCS 5 and 20 ILCS 1705), rules of the Department (59 Ill. Adm. Code) and the testimony and evidence presented. The Secretary shall review the record and the recommendation of the hearing officer shall become final only upon receiving the Secretary's signature indicating his or her assent thereto.

h)         The Department is not authorized or empowered by the Mental Health and Developmental Disabilities Code [405 ILCS 5] to hold a subsequent hearing based on the same set of facts existing at the time the Departments final order was entered.

i)          The Department shall keep a certified true copy of the record of the hearing and shall furnish such record to any court reviewing its decision or to the Board of Reimbursement Appeals (see 735 ILCS 5/3-101).  The record shall be forwarded to a petitioner or to a person authorized by the petitioner to examine the record subject to costs as outlined in Section 5-111 of the Mental Health and Developmental Disabilities Code [405 ILCS 5/5-111].

j)          Any person aggrieved by the decision of the Department upon such hearing may, within 30 days thereafter, file a petition with the Department for review of such decision by the Board of Reimbursement Appeals.  Upon receiving a petition for review by the Board of Reimbursement Appeals (the Board), the Department shall notify the Board, which shall render its decision on the petition within 30 days after it is filed and certify its decision to the Department.  Concurrence of the majority of the Board is necessary in any such decision.  The Board of Reimbursement Appeals may approve action taken by the Department or may remand the case to the Secretary with recommendation for redetermination of charges. [405 ILCS 5/5-111 and 5-113]

k)         Any person affected by such a final administrative decision of the Department or the Board of Reimbursement Appeals may have such decision reviewed only under and in accordance with the Administrative Review Law [735 ILCS 5/Art. III]. [405 ILCS 5/6-101]

(Source:  Added at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.80  Computing costs of hospitalization of recipients (Repealed)

(Source:  Repealed at 8 Ill. Reg. 22555, effective November 7, 1984)

Section 106.85  Computing monthly costs of recipient services charges

The liability of recipients, the estates of recipients and that of responsible relatives for services charges in Department facilities shall be computed in the following manner:

a)         Monthly liability established against recipients of services is determined by multiplying the per diem rate by the number of actual days of service received by the recipient during the month.

b)         Monthly liability established against responsible relatives is determined by:

1)         The full month's assessed charge whenever the service recipient's stay at the facility is continuous for the month, or

2)         Multiplying the per diem equivalent by the number of actual service days whenever the recipient's stay is less than the full month.

(Source:  Amended at 12 Ill. Reg. 18158, effective October 31, 1988)

Section 106.90  Partial payment of cost of maintenance for certain mentally retarded persons in licensed private facilities (Repealed)

(Source:  Repealed at 6 Ill. reg. 879, effective January 15, 1982)

Section 106.100  Partial payment of cost of maintenance for certain mentally ill children in licensed private facilities (Repealed)

(Source:  Repealed at 6 Ill. Reg. 879, effective January 15, 1982)

Section 106.TABLE A   Responsible Relative Liability

TABLE A

Responsible Relative Liability

Number in Family (including recipient)

(Source:  Added at 8 Ill. Reg. 22555, effective November 7, 1984)