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DRA Update as of September 2013


In September of 2012, the Department of Health Care Services released copies of the DRA Asset Eligibility regulation packages, which included the DRA Transfer of Assets, Annuities, CCRC and Home Equity draft regulations. An informal comment period allowed interested persons to submit comments and suggested changes. These are only draft regulations released under the Public Records Act and permitting preliminary comments. Government Code section 11346.45 requires an agency to engage in pre-notice public discussions (also called “workshopping”) if the proposal is large or complex. 
(see link above for copies of these draft regulations)

Depending on the number and type of comments, it would have taken several months for the Department to go over all of them, change the language, submit to legal, etc. It is our understanding that, while some of the packages of regulations are still under review by the Department’s Legal Office, other parts are not yet completed. Nevertheless, the regulations are still expected to be filed – we just don’t know when.

The administrative process goes like this:

Once the Legal Office has completed review of all four packages and the regulations are approved by the powers that be in the Department, the regulations need to be sent to the Office of Regulations- then publishing of proposed regulations, a 45 day public comment period, then time to review comments, then publish again and if any significant changes, than a 15 day comment period follows. The proposed regulations must be submitted to the Office of Administrative Law within one year of the date that the notice of rulemaking was published, and OAL then has 30 days to conduct a review.  If approved, final regulations are then filed with the Secretary of State and become effective immediately.

It could be some time between when the DRA regulations are published at Office of Regulations and finalized and filed with the Secretary of State.

For a detailed description of the administrative law process - see this OAL link:

http://www.oal.ca.gov/Regular_Rulemaking_Process.htm

Meanwhile – remember:

  • The DRA regulations must comply with the provisions of SB 483 (Kuehl) which includes a number of consumer protections and hardship criteria.

  • Transfer penalties cannot be retroactively applied since law in SB 483 prohibits this.  Any transfers made prior to the date that the regulations are filed with the Secretary of State will be subject to current law, not the DRA regulations.

  • When the DRA regulations are implemented, the 60 month look-back period for the DRA implementation will be phased in one month at a time over a 60 month period.  

  • The DRA regulations only impact Medi-Cal eligibility and do not change the recovery regulations.