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H. B. No. 178As Passed by the HouseAs Passed by the House
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVES Salerno, Willamowski, Seitz, DePiero, Jerse, Sulzer, Flowers, Widowfield, Wolpert, Calvert, Coates, Schmidt, Jolivette, Perry, Goodman, D. Miller, Sferra, Carano, Peterson, Webster, Hollister, Niehaus, Hagan, Setzer, Britton, Patton, Wilson, Strahorn, Key, Krupinski, Clancy, Young, Cirelli, Collier, Aslanides, G. Smith, Lendrum, Woodard, Olman
A BILL
To amend sections 1339.51, 5111.15, and 5121.04 of
the Revised Code relative to the creation of
trusts to fund supplemental services for certain
beneficiaries with physical or mental
disabilities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1339.51, 5111.15, and 5121.04 of the
Revised be amended to read as follows:
Sec. 1339.51. (A) As used in this section: (1)
"Ascertainable standard" includes a standard in a
trust
instrument requiring the trustee to provide for the care,
comfort,
maintenance, welfare, education, or general well-being
of the
beneficiary. (2)
"Disability" means any substantial, medically
determinable impairment that can be expected to result in death
or
that has lasted or can be expected to last for a continuous
period
of at least twelve months, except that
"disability" does
not
include an impairment that is the result of abuse of alcohol
or
drugs. (3)
"Political subdivision" and
"state" have the same
meanings as in section 2744.01 of the Revised Code. (4)
"Supplemental services" means services specified by
rule
of the department of mental health under section 5119.01 of
the
Revised Code or the department of mental retardation and
developmental disabilities under section 5123.04 of the Revised
Code that are provided to an individual with a disability in
addition to services
he
the individual is eligible to receive
under programs
authorized by federal or state law. (B) Any person may create a
testamentary trust under this
section to provide funding for supplemental services for the
benefit of another individual who meets either of the following
conditions: (1) The individual has a physical or mental disability and
is eligible to receive services through the department of mental
retardation and developmental disabilities or a county board of
mental retardation and developmental disabilities; (2) The individual has a mental disability and is eligible
to receive services through the department of mental health or a
board of alcohol, drug addiction, and mental health services. The trust may confer discretion upon the trustee and may
contain specific instructions or conditions governing the
exercise
of the discretion. (C) The general division of the court of common pleas and
the probate court of the county in which the beneficiary of a
trust authorized by division (B) of this section resides or is
confined have concurrent original jurisdiction to hear and
determine actions pertaining to the trust. In any action
pertaining to the trust in a court of common pleas or probate
court and in any appeal of the action, all of the following apply
to the trial or appellate court: (1) The court shall render determinations consistent with
the testator's or other settlor's intent in creating the trust,
as
evidenced by the terms of the trust instrument. (2) The court may order the trustee to exercise discretion
that the trust instrument confers upon
him
the trustee only if
the
instrument
contains specific instructions or conditions governing
the
exercise of that discretion and the trustee has failed to
comply
with the instructions or conditions. In issuing an order
pursuant to this division, the court shall require the trustee to
exercise
his
the trustee's discretion only in accordance with
the
instructions
or conditions. (3) The court may order the trustee to maintain the trust
and distribute assets in accordance with rules adopted by the
director of mental health under section 5119.01 of the Revised
Code or the director of mental retardation and developmental
disabilities under section 5123.04 of the Revised Code if the
trustee has failed to comply with such rules. (D) To the extent permitted by federal law and subject to
the provisions of division (C)(2) of this section pertaining to
the enforcement of specific instructions or conditions governing
a
trustee's discretion, a trust authorized by division (B) of
this
section that confers discretion upon the trustee shall not
be
considered an asset or resource of the beneficiary,
his
the
beneficiary's estate,
the settlor, or the
testator's
settlor's
estate and shall be exempt from
the
claims of creditors, political
subdivisions, the state, other
governmental entities, and other
claimants against the
beneficiary,
his
the beneficiary's estate,
the settlor, or the
testator's
settlor's
estate, including
claims
based on provisions of Chapters 5111., 5121., or 5123. of
the
Revised Code and claims sought to be satisfied by way of a
civil
action, subrogation, execution, garnishment, attachment,
judicial
sale, or other legal process, if all of the following
apply: (1) At the time the trust is created, the trust principal
does not exceed the maximum amount determined under division (E)
of this section; (2) The trust instrument contains a statement of the
testator's
settlor's intent, or otherwise clearly evidences
his
the
settlor's intent,
that the beneficiary does not have authority
to compel the
trustee under any circumstances to furnish the
beneficiary with
minimal or other maintenance or support, to make
payments from
the principal of the trust or from the income
derived from the
principal, or to convert any portion of the
principal into cash,
whether pursuant to an ascertainable standard
specified in the
instrument or otherwise; (3)
The testator is deceased; (4) The trust instrument provides that trust assets can be
used only to provide supplemental services, as defined by rule of
the director of mental health under section 5119.01 of the
Revised
Code or the director of mental retardation and
developmental
disabilities under section 5123.04 of the Revised
Code, to the
beneficiary;
(5)(4) The trust is maintained and assets are distributed in
accordance with rules adopted by the director of mental health
under section 5119.01 of the Revised Code or the director of
mental retardation and developmental disabilities under section
5123.04 of the Revised Code;
(6)(5) The trust instrument provides that on the death of
the
beneficiary, a portion of the remaining assets of the trust,
which shall be not less than fifty per cent of such assets, will
be deposited to the credit of the services fund for individuals
with mental illness created by section 5119.17 of the Revised
Code
or the services fund for individuals with mental retardation
and
developmental disabilities created by section 5123.40 of the
Revised Code.
(E) In 1994, the trust principal maximum amount for a
trust
created under this section shall be two hundred thousand dollars.
The maximum amount for a trust created under this section prior to
the
effective date of this amendment
November
11,
1994, may be
increased to two hundred thousand
dollars. In 1995, the maximum amount for a trust created under this
section shall be
two hundred two thousand dollars. Each year
thereafter, the maximum amount
shall be the prior
year's amount
plus two thousand dollars. (F) This section does not limit or otherwise affect the
creation, validity, interpretation, or effect of any trust that
is
not created under this section.
Sec. 5111.15. If a recipient of medical assistance is the
beneficiary of a trust created pursuant to section 1339.51 of the
Revised
Code, then, notwithstanding any contrary provision of this
chapter or of a
rule adopted pursuant to this chapter, divisions
(C) and (D) of that section
shall apply in
determining the assets
or resources of the recipient,
his
the
recipient's estate,
the
settlor, or the
testator's
settlor's estate and to claims arising
under
this chapter against the recipient,
his
the recipient's
estate,
the settlor,
or the
testator's
settlor's estate.
Sec. 5121.04. (A) The department of mental health and the
department of mental retardation and developmental disabilities
shall investigate the financial condition of the patients in
hospitals and residents in institutions, residents
whose care or
treatment is being paid for in a private facility or home under
the control of the department of mental retardation and
developmental disabilities, and of the relatives named in section
5121.06 of the Revised Code as liable for the support of such
patients or residents, in order to determine the ability of any
patient, resident, or such relatives to pay for the support of
the
patient or resident and to provide suitable clothing as
required
by the superintendent of the institution.
The department of mental health shall investigate the
financial
condition of patients receiving state-operated community
mental health
services and of the liable relatives to determine
the patient's or
relative's ability to pay for the patient's
support.
In all cases,
in determining ability to pay and the
amount to be charged, due
regard shall be had for others who may
be dependent for support
upon such relatives or the estate of the
patient. (B) The department shall follow the provisions of this
division in determining the ability to pay of a patient or
resident or the patient's or resident's liable relatives and
the
amount to be charged
such patient or resident or liable relatives. (1) Subject to divisions (B)(10) and
(11) of this section, a
patient
or resident without dependents shall be liable for the
full applicable
cost. A patient or resident without dependents
who has a
gross annual income equal to or exceeding the sum of the
full applicable
cost, plus fifty dollars per month, regardless of
the source of
such income, shall pay currently the full amount of
the applicable cost;
if the patient's or resident's gross annual
income is less than such sum,
not more than fifty dollars per
month shall be kept for personal
use by or on behalf of the
patient or resident, except as
permitted in the state plan for
providing medical assistance
under Title XIX of the
"Social
Security Act," 49 Stat. 620
(1935), 42 U.S.C. 301, as amended, and
the balance shall be paid
currently on the patient's or resident's
support. Subject
to divisions (B)(10) and (11) of this
section,
the estate of a patient or resident without dependents
shall pay
currently any remaining difference between the applicable cost
and
the amounts prescribed in this section,
or shall
execute an
agreement with the department for payment to be made
at some
future date under terms suitable to the department.
However, no
security interest, mortgage, or lien shall be taken,
granted, or
charged against any principal residence of a patient
or resident
without dependents under an agreement or otherwise to
secure
support payments, and no foreclosure actions shall be
taken on
security interests, mortgages, or liens taken, granted,
or charged
against principal residences of patients or residents
prior to
October 7, 1977. (2) The ability to pay of a patient or resident with
dependents, or of a liable relative of a patient or resident
either with or without dependents, shall be determined in
accordance with the patient's, resident's, or liable
relative's
income or other assets, the needs of others
who are dependent on
such income and other assets for support,
and, if applicable,
divisions (B)(10) and
(11) of this section. For the first thirty days of care and treatment of each
admission and for the first thirty days of care and treatment from
state-operated community mental health services, but in no event
for more
than thirty days in any
calendar year, the mentally ill
patient or mentally retarded
resident with dependents or the
liable relative of a mentally ill
patient or a mentally retarded
resident either with or without
dependents shall be charged an
amount equal to the percentage of
the average applicable cost
determined in accordance
with the
schedule of adjusted gross
annual income contained after this
paragraph. After such first
thirty days of care and treatment,
such mentally ill patient or
mentally retarded resident or such
liable relative shall be
charged an amount equal to the
percentage of a base support rate
of four dollars per day for
mentally ill patients and mentally
retarded residents, as
determined in accordance with the schedule
of gross annual income
contained after this paragraph, or in
accordance with division
(B)(5) of this section. Beginning
January 1, 1978, the
department shall increase the base rate when
the consumer price
index average is more than 4.0 for the
preceding calendar year by
not more than the average for such
calendar year.
Adjusted Gross Annual |
|
Income of Patient or Resident |
|
or Liable Relative (FN a) |
Number of Dependents (FN b) |
|
|
|
|
|
|
|
|
8 or |
|
1 |
2 |
3 |
4 |
5 |
6 |
7 |
more |
|
Rate of Support (In Percentages) |
$15,000 or less |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
15,001 to 17,500 |
20 |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
17,501 to 20,000 |
25 |
20 |
-- |
-- |
-- |
-- |
-- |
-- |
20,001 to 21,000 |
30 |
25 |
20 |
-- |
-- |
-- |
-- |
-- |
21,001 to 22,000 |
35 |
30 |
25 |
20 |
-- |
-- |
-- |
-- |
22,001 to 23,000 |
40 |
35 |
30 |
25 |
20 |
-- |
-- |
-- |
23,001 to 24,000 |
45 |
40 |
35 |
30 |
25 |
20 |
-- |
-- |
24,001 to 25,000 |
50 |
45 |
40 |
35 |
30 |
25 |
20 |
-- |
25,001 to 26,000 |
55 |
50 |
45 |
40 |
35 |
30 |
25 |
20 |
26,001 to 27,000 |
60 |
55 |
50 |
45 |
40 |
35 |
30 |
25 |
27,001 to 28,000 |
70 |
60 |
55 |
50 |
45 |
40 |
35 |
30 |
28,001 to 30,000 |
80 |
70 |
60 |
55 |
50 |
45 |
40 |
35 |
30,001 to 40,000 |
90 |
80 |
70 |
60 |
55 |
50 |
45 |
40 |
40,001 and over |
100 |
90 |
80 |
70 |
60 |
55 |
50 |
45 |
Footnote a. The patient or resident or relative shall
furnish a copy of the patient's, resident's, or relative's
federal
income tax return as evidence of
gross annual
income. Footnote b. The number of dependents includes the liable
relative but excludes the patient or resident in the hospital or
institution.
"Dependent" includes any person who receives more
than half the person's support from the patient or
the patient's
liable relative. (3) A patient or resident or liable relative having
medical,
funeral, or related expenses in excess of four per cent
of the
adjusted gross annual income, which expenses were not
covered by
insurance, may adjust such gross annual income by
reducing the
adjusted gross annual income by the full amount of
such expenses.
Proof of such expenses satisfactory to the
department must be
furnished. (4) Additional dependencies may be claimed if: (a) The liable relative is blind; (b) The liable relative is over sixty-five; (c) A child is a college student with expenses in excess
of
fifty dollars per month; (d) The services of a housekeeper, costing in excess of
fifty dollars per month, are required if the person who normally
keeps house for minor children is the patient or resident. (5) If with respect to any patient or resident with
dependents there is chargeable under division (B)(2) of this
section less than fifty per cent of the applicable
cost or, if the
base support rate was used, less than fifty per cent of the
amount
determined by use of the base support rate, and if with
respect to
such patient or resident there is a liable relative
who has an
estate having a value in excess of fifteen thousand
dollars or if
such patient or resident has a dependent and an
estate having a
value in excess of fifteen thousand dollars,
there shall be paid
with respect to such patient or resident a
total of fifty per cent
of the applicable cost or the
base support rate amount, as the
case may be, on a current basis or
there shall be executed with
respect to such patient or resident
an agreement with the
department for payment to be made at some
future date under terms
suitable to the department. (6) When a person has been a patient or resident for
fifteen
years and the support charges for which a relative is
liable have
been paid for the fifteen-year period, the liable
relative shall
be relieved of any further support charges. (7) The department shall accept voluntary payments from
patients or residents or liable relatives whose incomes are below
the minimum shown in the schedule set forth in this division.
The
department also shall accept voluntary payments in excess of
required amounts from both liable and nonliable relatives. (8) If a patient or resident is covered by an insurance
policy, or other contract that provides for payment of expenses
for care and treatment for mental illness or mental retardation
at
or from an institution, facility
(including a hospital or
community
service unit under the jurisdiction of the department),
or
state-operated community mental health service, the other
provisions of this section, except divisions (B)(8),
(10), and
(11) of this section, and of section 5121.03
of the Revised Code
shall be
suspended to the extent that such insurance policy or
other
contract is in force, and such patient or resident shall be
charged the full amount of the applicable cost. Any insurance
carrier
or other third party payor providing coverage for such
care and
treatment shall pay for this support obligation in an
amount
equal to the lesser of either the applicable cost or the
benefits
provided under the policy or other contract. Whether or
not an insured, owner
of, or other person having an interest in
such policy or other
contract is liable for support payments under
other provisions of
this chapter, the insured, policy owner, or
other person
shall assign payment directly to the department
of
all assignable benefits under the policy or other contract and
shall pay over to the department, within ten days of receipt, all
insurance or other benefits received as
reimbursement or
payment
for expenses incurred by the patient or resident or for
any other
reason. If the insured, policy owner, or other
person refuses to
assign such payment to the
department or refuses to pay such
received reimbursements or
payments over to the department within
ten days of receipt, the
insured's, policy owners', or other
person's
total liability for the services equals the applicable
statutory liability
for payment for the services as determined
under other provisions
of this chapter, plus the amounts payable
under the terms of the
policy or other contract. In no event
shall this total liability
exceed the full amount of the
applicable cost. Upon its request, the
department is
entitled to
a court order that compels the insured, owner of, or
other person
having an interest in the policy or other contract
to comply with
the assignment requirements of this division or
that itself serves
as a legally sufficient assignment in
compliance with such
requirements. Notwithstanding section
5122.31 of the Revised Code
and any other law relating to
confidentiality of records, the
managing officer of the
institution or facility where a person is
or has been a patient
or resident, or the managing officer of the
state-operated community
mental health services from which the
patient receives services,
shall disclose pertinent medical
information
concerning the patient or resident to the insurance
carrier or
other third party payor in question, in order to effect
collection from the carrier or payor of the state's claim for
care
and treatment under this division. For such disclosure, the
managing officer is not subject to any civil or criminal
liability. (9) The rate to be charged for pre-admission care,
after-care, day-care, or routine consultation and treatment
services shall be based upon the ability of the patient or
resident or the patient's or resident's liable relatives to
pay.
When it is determined
by the department that a charge shall be
made, such charge shall
be computed as provided in divisions
(B)(1) and (2) of this
section. (10) If a patient or resident with or without dependents
is
the beneficiary of a trust created pursuant to section 1339.51
of
the Revised Code, then, notwithstanding any contrary provision
of
this chapter or of a rule adopted pursuant to this chapter,
divisions (C) and (D) of that section shall apply in determining
the assets or resources of the patient or resident, the
patient's
or resident's estate,
the settlor,
or the
testator's
settlor's
estate and to claims
arising under this chapter
against the
patient or resident, the
patient's or resident's
estate,
the
settlor, or the
testator's
settlor's
estate. (11) If the department of mental retardation and
developmental
disabilities waives the liability of an individual
and the individual's liable
relatives pursuant to section 5123.194
of the Revised Code, the
liability of the individual
and relative
ceases in accordance with the waiver's terms. (C) The department may enter into agreements with a
patient
or resident or a liable relative for support payments to
be made
in the future. However, no security interest, mortgage,
or lien
shall be taken, granted, or charged against any principal
family
residence of a patient or resident with dependents or a
liable
relative under an agreement or otherwise to secure support
payments, and no foreclosure actions shall be taken on security
interests, mortgages or liens taken, granted, or charged against
principal residences of patients or residents or liable relatives
prior to October 7, 1977. (D) The department shall make all investigations and
determinations required by this section within ninety days after
a
patient or resident is admitted to an institution under the
department's control or a patient begins to receive state-operated
community mental health services, and immediately shall notify by
mail the
persons liable of the amount to be charged. (E) All actions to enforce the collection of payments
agreed
upon or charged by the department shall be commenced
within six
years after the date of default of an agreement to pay
support
charges or the date such payment becomes delinquent. If
a payment
is made pursuant to an agreement which is in default, a
new
six-year period for actions to enforce the collection of
payments
under such agreement shall be computed from the date of
such
payment. For purposes of this division an agreement is in
default
or a payment is delinquent if a payment is not made
within thirty
days after it is incurred or a payment, pursuant to
an agreement,
is not made within thirty days after the date
specified for such
payment. In all actions to enforce the
collection of payment for
the liability for support, every court
of record shall receive
into evidence the proof of claim made by
the state together with
all debts and credits, and it shall be
prima-facie evidence of the
facts contained in it.
Section 2. That existing sections 1339.51, 5111.15, and
5121.04
of the Revised Code are hereby repealed.
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