WSR 98-24-127
PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Medical Assistance Administration)
[Filed December 2, 1998, 11:20 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 98-05-052, and 98-05-051.
Title of Rule: WAC 388-513-1340 Institutional--Exempt income, 388-513-1345 Institutional--Disregarded income, and 388-515-1505 Community options program entry system (COPES).
Purpose: WAC 388-513-1340 and 388-513-1345, federal law exempts funds received under the Susan B. Walker v. Bayer Corporation et al., 96-C-5024 (N.D. III. May 8, 1997) class settlement as income when determining institutional Medicaid eligibility and post-eligibility. Certain veteran's benefits (currently exempt) will be considered as income when determining Medicaid post-eligibility. WAC 388-515-1505, the rule will be amended to allow: 1) COPES-eligible individuals living in residential settings to retain a personal maintenance allowance of $58.84, and 2) certain veterans will be allowed to retain a personal maintenance allowance of $90.
Statutory Authority for Adoption: RCW 74.08.090, 74.04.050, 74.04.057, 42 CFR 435.601, 42 CFR 435.725-726, and sections 4715 and 4735 of the Federal Balanced Budget Act of 1997 (Public Law 105-33) (H.R. 2015).
Statute Being Implemented: Sections 4715 and 4735 of the Federal Balanced Budget Act of 1997 (Public Law 105-33) (H.R. 2015); and RCW 74.08.090.
Summary: See Purpose above.
Reasons Supporting Proposal: Most of the changes proposed are beneficial to clients receiving institutional medical care. The lone exception, certain veterans' benefits which have been exempt will now be considered as income when determining Medicaid post-eligibility, is a change mandated by federal law.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Stephen Kozak, Medical Assistance Administration, 617 8th Avenue S.E., Olympia, WA 98504, (360) 586-1034.
Name of Proponent: Department of Social and Health Services, Medical Assistance Administration, governmental.
Rule is necessary because of federal law, sections 4715 and 4735 of the Federal Balanced Budget Act of 1997 (Public Law 105-33) (H.R. 2015).
Explanation of Rule, its Purpose, and Anticipated Effects: To incorporate the following federal changes: Funds received under the Susan B. Walker v. Bayer Corporation et al., 96-C-5024 (N.D. III. May 8, 1997) class settlement are considered exempt income when determining institutional Medicaid eligibility and post-eligibility; certain veterans' benefits that were exempt will now be considered as income when determining institutional Medicaid post-eligibility; and certain veterans will be allowed to retain a personal maintenance allowance of $90. The department is also increasing the amount a person who is COPES-eligible is allowed to retain for their personal maintenance.
Proposal Changes the Following Existing Rules: See Explanation of Rule above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule change does not impact small businesses.
RCW 34.05.328 applies to this rule adoption. These rules do fit the definition of a significant legislative rule but the Department of Social and Health Services is exempt from preparing further analysis under (RCW 34.05.328 (5)(b)(vii)).
Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on January 5, 1999, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Paige Wall by December 31, 1998, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.
Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 902-8292, by January 5, 1999.
Date of Intended Adoption: January 6, 1999.
December 1, 1998
Marie Myerchin-Redifer, Manager
Rules and Policies Assistance Unit
AMENDATORY SECTION (Amending WSR 95-02-028, filed 12/28/94, effective 1/28/95)
WAC 388-513-1340 Institutional--((Exempt))
Excluded income. ((The department shall consider a client's income
exemptions as unavailable income when determining initial institutional eligibility or
post-eligibility. The department shall exempt sequentially from income)) This
section describes income which is excluded when determining a client's eligibility and
participation in the cost of care for institutional services. These deductions are taken
in the following order:
(1) Any public agency's refund of taxes paid on real property and/or on food;
(2) Supplemental security income (SSI) and state public assistance based on financial need;
(3) Any portion of a grant, scholarship, or fellowship used to pay tuition, fees, and/or other necessary educational expenses at any educational institution;
(4) Child support received by a parent from an absent parent, for a minor child who is not institutionalized;
(5) Tax exempt payments received by Alaska natives under the Alaska Native Claims Act;
(6) Tax rebates or special payments excluded by other statutes;
(7) Compensation provided to volunteers in ACTION programs established by P.L. 93-113, The Domestic Volunteer Service Act of 1973;
(8) Veteran's Administration benefits designated for:
(a) The veteran's dependent; and
(b) Unusual medical ((expense; and
(c))) expenses, aid and attendance ((and
housebound)) allowance, and household allowance, except for a veteran or a
veteran's surviving spouse who:
(i) Resides in a state veterans home; and
(ii) Has no dependents.
(9) Income received by an ineligible or nonapplying spouse from a governmental agency for services provided to an eligible client, for example, chore services;
(10) Funds received from the Agent Orange Settlement Fund or any other funds established to settle Agent Orange liability claims under P.L. 101-201;
(11) Payments to certain survivors of the Holocaust under the
Federal Republic of Germany's Law for Compensation of National Socialist Persecution or
German Restitution Act. Interest earned ((on conserved)) from such
payments is not ((exempt)) excluded;
(12) Payments under the Radiation Exposure Compensation Act received by the injured person, the surviving spouse, children, grandchildren, or grandparents;
(13) Payments under sections 500 through 506 of the Austrian
General Social Insurance Act. ((The department shall consider the earned))
Interest earned from such payments ((as countable income)) is
not excluded;
(14) Certain cash payments a client receives from a governmental or nongovernmental medical or social service agency to pay for medical or social services;
(15) Restitution payment, and interest earned on such payment to a civilian of Japanese or Aleut ancestry under P.L. 100-383;
(16) Payments from Susan Walker v. Bayer Corporation, et. al., 95-C-5024 (N.D. Ill.) (May 8, 1997) settlement funds. Interest earned from such payments is not excluded;
(17) The amount of expenses directly related to a client's impairment that allows the permanently and totally disabled client to continue to work;
(((17))) (18) The amount of
blindness-related work expenses of a blind client;
(((18))) (19) Interest earned on excluded
burial funds and any appreciation in the value of an exempt burial arrangement which are
left to accumulate and become part of the separately identified burial funds set aside on
or after November 1, 1982;
(((19))) (20) Earned income tax credit
(EITC); ((and
(20))) (21) Victim's compensation;
(22) Native American benefits excluded by federal statute;
(23) Payments from the Dutch government, under the Netherlands' Act on Benefits for Victims of Persecution (WUV). Interest earned from such payments is not excluded;
(24) Up to two thousand dollars per year derived from an individual interest in Indian trust or restricted land;
(25) Self-employment income allowed as a deduction by the Internal Revenue Service (IRS);
(26) Emergency Energy Conservation Services program funds;
(27) Assistance (other than wages or salary) received under the Older Americans Act;
(28) Assistance (other than wages or salary) received under the foster grandparent program; and
(29) The amount a guardian or representative payee charges to provide services necessary for the client to receive the income.
[Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter #94-33. 95-02-028 (Order 3819), § 388-513-1340, filed 12/28/94, effective 1/28/95. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-513-1340, filed 5/3/94, effective 6/3/94. Formerly WAC 388-95-340 (part).]
AMENDATORY SECTION (Amending Order WSR 95-02-028, filed 12/28/94, effective 1/28/95)
WAC 388-513-1345 Institutional--Disregarded
income. ((The department shall consider)) This section
describes income which is disregarded ((income as unavailable income))
when determining ((initial eligibility but shall consider the income available
during post-eligibility. See WAC 388-513-1380 for post-)) a medically needy
client's eligibility ((treatment of income. The department shall disregard
sequentially from income:)) for institutional services. Disregarded income is
not deducted, however, when determining a client's participation in the cost of care.
(1) The following deductions are taken in the following order:
(a) Income that is not reasonably anticipated, or is received infrequently or irregularly, when such income does not exceed:
(((a))) (i) Twenty dollars per month if
unearned; or
(((b))) (ii) Ten dollars per month if
earned.
(((2))) (b) The first twenty dollars per
month of earned or unearned income with the following exception. ((The
department may not exclude)) Income paid to a client on the basis of need
((and)), which is totally or partially funded by the federal
government or by a private agency is not disregarded.
(((3))) (2) For an SSI-related person, the
first sixty-five dollars per month of earned income not exempted under WAC 388-513-1340,
plus one-half of the remainder.
(((4))) (3) For ((an AFDC))
a TANF-related person, ((the first ninety dollars)) fifty
percent of gross earned income.
(4) Veteran's Administration benefits if:
(a) Benefits are designated for:
(i) Unusual medical expenses;
(ii) Aid and attendance allowance; or
(iii) Housebound allowance; and
(b) The client is a veteran or veteran's surviving spouse who:
(i) Resides in a state veterans home; and
(ii) Has no dependents.
(5) Money voluntarily withheld from SSA Title II benefits by the
Social Security Administration for the recovery of an SSI overpayment((; and)).
(6) ((A fee charged by)) The amount a
guardian ((as reimbursement for provided)) or representative payee
charges to provide services((, when such guardianship services are a
requirement)) necessary for the client to receive ((payment of))
the income.
[Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter #94-33. 95-02-028 (Order 3819), § 388-513-1345, filed 12/28/94, effective 1/28/95. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-513-1345, filed 5/3/94, effective 6/3/94. Formerly WAC 388-95-340 (part).]
AMENDATORY SECTION (Amending WSR 96-14-058, filed 6/27/96, effective 7/28/96)
WAC 388-515-1505 Community
options program entry system (COPES). This section describes eligibility
criteria related to COPES. (1) ((The department shall determine)) A
person eligible for COPES ((when a person)):
(a) Is eighteen years of age or over ((and:
(a) Meets the categorically needy eligibility requirements
for an SSI-related institutionalized person. For the purposes of COPES, a person is
considered institutionalized as of the date all eligibility criteria, except
institutionalized status, is met));
(b) ((Requires the level of care provided in a nursing
facility)) Meets SSI-related criteria;
(c) Has income and resources at or below the standards for institutional care as described under WAC 388-513-1315 (1)(a)-(d), 388-513-1330, 388-513-1340, and 388-513-1350;
(d) Has ((a department-approved plan of care that
meets the eligibility requirements for COPES personal care)) attained
institutional status as described under WAC ((388-15-610; and
(d))) 388-513-1320(1), but is able and
chooses to reside at home with community support services, or in a((:
(i) Congregate care facility (CCF);
(ii))) department-contracted:
(i) Adult residential care (ARC) facility;
(ii) Enhanced adult residential care (EARC) facility;
(iii) Licensed adult family home (AFH); ((or
(iii))) (iv) Licensed boarding home (LBH);
or
(v) Assisted living (AL) facility.
(e) ((Is institutionalized, or the department determines
is likely to be institutionalized within the next thirty days in the absence of waivered
services under WAC 388-15-615)) Is approved for a plan of care as described
under WAC 388-15-610.
(2) ((The department shall exempt SSI income from
participation)) An SSI client does not participate in the cost of COPES ((care))
services. An SSI client:
(a) Living at home, retains all income; or
(b) Living in an ARC, EARC, AFH, LBH, or AL:
(i) Retains a personal needs allowance (PNA) of:
(A) Ninety dollars, if the client is a veteran or a veteran's surviving spouse, who has no dependents, and receives an improved pension; or
(B) Fifty-eight dollars and eighty-four cents; and
(ii) Pays remaining SSI income to the facility for the cost of board and room.
(3) ((The department shall allocate available income of
the SSI-related COPES client as described under WAC 388-513-1380 (1), (2), (3), (4), (d),
(e), (f), (g), and (h), (5), and (6). The client shall retain for maintenance needs an
amount equal to:
(a) For a single person or a married person not living
with a community spouse, one hundred percent of the one-person Federal Poverty Level
(FPL);
(b) For a married couple who are both receiving COPES, one
hundred percent of the one-person FPL for each person; or
(c) For a married person living with a community spouse,
the one-person MNIL)) A general assistance (GA) client does not participate in
the cost of COPES services. A GA client:
(a) Living at home, retains full amount of GA grant; or
(b) Living in an ARC, EARC, AFH, LBH, or AL:
(i) Retains a PNA of:
(A) Ninety dollars, if the client is a veteran or a veteran's surviving spouse, who has no dependents, and receives an improved pension; or
(B) Thirty-eight dollars and eighty-four cents; and
(ii) Pays remaining GA income to the facility for the cost of board and room.
(4) ((The SSI-related client residing in a CCF, AFH, or
LBH shall:
(a) Retain from a maintenance needs amount, a personal
needs allowance of fifty dollars; and
(b) Pay the remaining maintenance needs amount to the
facility for the cost of board and room.
(5) The department shall include the remaining income
after allocations as the participation amount for COPES services as described under WAC
388-15-620)) Countable income of the SSI-related client is allocated as
described under WAC 388-513-1380 (1), (2), (3)(b)-(d), (4) and (5).
(a) The client living in the home retains a maintenance needs amount equal to the following:
(i) For a single person or a married person not living with a community spouse, one hundred percent of the one-person Federal Poverty Level (FPL);
(ii) For a married couple who are both receiving COPES, one hundred percent of the one-person FPL for each person; or
(iii) For a married person living with a community spouse, the one-person medically needy income level (MNIL).
(b) The client living in an ARC, EARC, AFH, LBH, or AL receives a maintenance needs amount equal to the one-person MNIL:
(i) Retains a PNA taken from the MNIL of:
(A) Ninety dollars, if the client is a veteran or a veteran's surviving spouse, who has no dependents, and receives an improved pension; or
(B) Fifty-eight dollars and eighty-four cents; and
(ii) Pays the remainder of the MNIL to the facility for the cost of board and room.
(c) Any income remaining after allocations under subsection (5)(a) or (b) of this section is the client's participation in the cost of care for COPES services.
[Statutory Authority: RCW 74.08.090. 96-14-058 (Order 100346), § 388-515-1505, filed 6/27/96, effective 7/28/96; 95-20-030 (Order 3899), § 388-515-1505, filed 9/27/95, effective 10/28/95; 94-10-065 (Order 3732), § 388-515-1505, filed 5/3/94, effective 6/3/94. Formerly WAC 388-83-200.]
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.