1. A. General Requirements.

   1. (1) To be eligible for participation, an individual shall be determined by the Department to meet the conditions of §§B—E of this regulation.
   2. (2) Eligibility for waiver services shall be reevaluated every 12 months or more frequently if needed due to a significant change in the participant’s condition, needs, or financial status.

2. B. Technical Eligibility. To be eligible for services covered under this chapter, an applicant or participant shall be determined by the Department to meet the technical eligibility criteria if the individual:

   1. (1) Has been determined by the Department to need a nursing facility level of care;
   2. (2) Is at least 18 years old;

   3. (3) Is not simultaneously enrolled for services covered under:

      1. (a) Another Medicaid waiver program under the authority of §1915(c) of the Social Security Act; or
      2. (b) The Program of All-Inclusive Care for the Elderly (PACE);

   4. (4) Has an active plan of service that:

      1. (a) Is based on:

         1. (i) The assessment and recommended plan of care; and
         2. (ii) Consultation with the applicant or participant;
      2. (b) Addresses the applicant’s or participant’s needs;
      3. (c) Specifies the names of service providers;
      4. (d) Is cost neutral, which is determined by adding annualized costs of services covered under this chapter and any other State Plan services which are not covered for nursing facility residents, and ensuring that the resulting amount is not more than 125 percent of the Program's average per capita-annualized-net payments for nursing facility services. Any assessed participant contributions will not be considered in determining cost neutrality; and
      5. (e) Includes the signature of the participant, the individual’s representative if applicable, and the case manager listed within the plan of service;
   5. (5) Is offered the choice between waiver services and nursing facility services;
   6. (6) Chooses to receive waiver services;
   7. (7) Resides in a home, as defined under Regulation .02B of this chapter; and
   8. (8) Uses at least one waiver service within a 12-month period.

3. C. Medical Assistance Eligibility.

   1. (1) An individual is not eligible to receive waiver services during a penalty period imposed under COMAR 10.09.24.08-1 or 10.09.24.08-2 due to disposal of assets.

   2. (2) All provisions of COMAR 10.09.24 which are applicable to aged, blind, or disabled institutionalized persons are applicable to waiver applicants and participants, with the following exceptions:

      1. (a) COMAR 10.09.24.04J(1)—(3);
      2. (b) COMAR 10.09.24.06B(2)(a)(ii);
      3. (c) COMAR 10.09.24.08G;
      4. (d) COMAR 10.09.24.10C;
      5. (e) COMAR 10.09.24.10D(4)—(6);
      6. (f) COMAR 10.09.24.10-1C(3)(a); and
      7. (g) COMAR 10.09.24.15A-2(2).

4. D. Cost of Care.

   1. (1) For a participant whose home is an assisted living facility, the Department shall reduce its monthly payment for assisted living services by the amount remaining after deducting from the individual's total nonexcluded monthly income the following amounts in the following order:

      1. (a) A personal needs allowance, consisting of the amount established in accordance with COMAR 10.09.24.10D(2)(c) and the assisted living provider's charge, not exceeding $420 per month, for room and board;
      2. (b) A spousal or family maintenance allowance, or both, if applicable, in accordance with COMAR 10.09.24.10-1C(3)(b) and (c); and
      3. (c) Incurred medical expenses in accordance with COMAR 10.09.24.10D(2)(f)—(h).
   2. (2) The Department shall determine the amount of available income to be paid by a participant towards the cost of assisted living services.
   3. (3) The participant shall pay the amount of available income for the participant’s cost of care, and the assisted living provider’s monthly charge for room and board, directly to the assisted living services provider.

5. E. Waiver Eligibility. Based on the criteria established in §§A—C of this regulation an applicant's eligibility for services under this chapter shall be established by the Department based on the following policies for the effective date of waiver eligibility:

   1. (1) No retroactive eligibility; and

   2. (2) Waiver eligibility may not begin before the latest of the following five dates:

      1. (a) Waiver application date;
      2. (b) Effective date of medical certification for the waiver's institutional level of care;
      3. (c) Date that the applicant's written waiver plan of service is established, which shall include at least one waiver service and may be a provisional plan for not more than the first 60 days of waiver enrollment;
      4. (d) Date that the applicant or representative signed a form designated by the Department to indicate the choice of waiver services as an alternative to institutionalization; and
      5. (e) Date of the applicant's discharge from institutionalization in a long term care facility, if applicable.

6. F. Annual Cap and Registry for Waiver Participation.

   1. (1) The Department shall establish an annual cap, approved by the federal Centers for Medicare and Medicaid Services (CMS), for the number of unduplicated individuals who may receive the services covered under this chapter, based on available State and federal funding.
   2. (2) Eligible individuals shall be enrolled in the waiver on a first-come, first-served basis until the annual cap on waiver participation is reached.

   3. (3) Once the annual cap on waiver participation is reached:

      1. (a) A registry list shall be established for individuals interested in applying for waiver services;
      2. (b) Individuals on the registry shall have an opportunity to apply for the waiver in accordance with procedures established by the Department; and
      3. (c) The Department and CMS may authorize increasing the waiver cap if the Department determines that sufficient Program funds are available to reimburse the services recommended in the individual's plan of service and the participant's other Program services for the remainder of the State fiscal year.
   4. (4) Individuals in nursing facilities who are receiving Medicaid services for at least 30 days may apply directly for the waiver without being put on the registry list.

7. G. Termination of Participation.

   1. (1) A participant shall be terminated from participation in the waiver if the participant:

      1. (a) No longer meets the eligibility requirements specified in §§B—E of this regulation;
      2. (b) Voluntarily chooses, or the participant’s authorized representative chooses on the participant’s behalf, to disenroll from the waiver program;
      3. (c) Moves to another state;
      4. (d) Is an inpatient for 30 consecutive days or more in a hospital or nursing facility; or
      5. (e) Dies.
   2. (2) If an individual is terminated from the waiver, the same individual may re-enter the waiver during the same waiver year, or within 90 days of termination contingent on waiver capacity, provided that the individual meets all of the eligibility requirements of the waiver.

Authority: Health-General Article, §§2-104(b), 15-103, 15-105, 15-132, and 15-141.2, Annotated Code of Maryland

Effective date:

Regulations .01—19 adopted as an emergency provision effective July 22, 1993 (20:16 Md. R. 1275); adopted permanently effective October 26, 1993 (20:21 Md. R. 1654)

Chapter revised effective December 25, 2000 (27:25 Md. R. 2281)

Chapter revised effective June 21, 2004 (31:12 Md. R. 912)

Regulation .05A amended effective July 17, 2006 (33:14 Md. R. 1164)

Regulation .33C amended effective June 20, 2005 (32:12 Md. R. 1046); July 17, 2006 (33:14 Md. R. 1164)

Chapter revised effective April 9, 2007 (34:7 Md. R. 698)

Regulation .03C amended effective September 20, 2010 (37:19 Md. R. 1284)

Regulation .14 adopted as an emergency provision effective July 1, 2008 (35:17 Md. R. 1482); adopted permanently effective December 1, 2008 (35:24 Md. R. 2078)

Regulation .14-1 adopted effective April 15, 2013 (40:7 Md. R. 610)

Regulation .15 amended as an emergency provision effective July 1, 2008 (35:17 Md. R. 1482); amended permanently effective December 1, 2008 (35:24 Md. R. 2078)

Regulation .17 adopted as an emergency provision effective June 18, 2009 (36:15 Md. R. 1163); adopted permanently effective September 21, 2009 (36:19 Md. R. 1436)

Regulation .30 adopted as an emergency provision effective July 1, 2008 (35:17 Md. R. 1482); adopted permanently effective December 1, 2008 (35:24 Md. R. 2078)

Regulation .30-1 adopted effective April 15, 2013 (40:7 Md. R. 610)

Regulation .32F, G amended as an emergency provision effective July 1, 2008 (35:17 Md. R. 1482); amended permanently effective December 1, 2008 (35:24 Md. R. 2078)

Regulation .32H adopted as an emergency provision effective June 18, 2009 (36:15 Md. R. 1163); adopted permanently effective September 21, 2009 (36:19 Md. R. 1436)

Regulation .33A, C amended as an emergency provision effective July 1, 2008 (35:17 Md. R. 1482); amended permanently effective December 1, 2008 (35:24 Md. R. 2078)

Regulation .33C amended effective April 6, 2009 (36:7 Md. R. 524); February 8, 2010 (37:3 Md. R. 176); October 31, 2011 (38:22 Md. R. 1346); April 15, 2013 (40:7 Md. R. 610)

Regulation .33D adopted effective January 6, 2014 (40:26 Md. R. 2163)

Regulations .01—.37 repealed and new Regulations .01—.27 adopted effective April 28, 2014 (41:8 Md. R. 471)

Regulation .01 amended effective November 27, 2023 (50:23 Md. R. 1004)

Regulation .04A amended effective November 27, 2023 (50:23 Md. R. 1004); May 11, 2026 (53:9 Md. R. 413)

Regulation .04D adopted effective May 11, 2026 (53:9 Md. R. 413)

Regulation .10-1 adopted effective December 11, 2014 (41:24 Md. R. 1427)

Regulation .13 amended effective January 30, 2017 (44:2 Md. R. 84)

Regulation .14 amended effective January 30, 2017 (44:2 Md. R. 84); November 27, 2023 (50:23 Md. R. 1004)

Regulation .15A amended effective January 30, 2017 (44:2 Md. R. 84)

Regulation .16A amended effective January 30, 2017 (44:2 Md. R. 84)

Regulation .16E, F, G adopted effective November 27, 2023 (50:23 Md. R. 1004)

Regulation .17 amended effective January 30, 2017 (44:2 Md. R. 84)

Regulation .17D, E, F adopted effective November 27, 2023 (50:23 Md. R. 1004)

Regulation .18 amended effective January 30, 2017 (44:2 Md. R. 84)

Regulation .18-1 adopted effective December 11, 2014 (41:24 Md. R. 1427)

Regulation .18-1 amended effective January 30, 2017 (44:2 Md. R. 84)

Regulation .19 amended effective January 30, 2017 (44:2 Md. R. 84)

Regulation .21B amended effective December 11, 2014 (41:24 Md. R. 1427)

Regulation .21C adopted effective December 11, 2014 (41:24 Md. R. 1427)

Regulation .22A amended effective May 11, 2026 (53:9 Md. R. 413)

Regulation .22C amended effective July 4, 2016 (43:13 Md. R. 712); November 27, 2023 (50:23 Md. R. 1004); May 11, 2026 (53:9 Md. R. 413)

Regulation .22D amended effective January 30, 2017 (44:2 Md. R. 84); May 20, 2019 (46:10 Md. R. 486); November 27, 2023 (50:23 Md. R. 1004); May 11, 2026 (53:9 Md. R. 413)