WSR 99-06-045

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Medical Assistance Administration)

[ Filed February 26, 1999, 3:25 p.m. ]

Date of Adoption: February 26, 1999.

Purpose: A housekeeping action to correct outdated Washington Administrative Code (WAC) references. The recent major rewrite of financial and medical assistance eligibility rules, in which the rules were renumbered, rendered the WAC citations in chapters 388-513 and 388-515 WAC incorrect. These citations are updated with the correct new WAC numbers.

Citation of Existing Rules Affected by this Order: Amending WAC 388-513-1305, 388-513-1315, 388-513-1320, 388-513-1330, 388-513-1350, 388-513-1360, 388-513-1365, 388-513-1395, 388-515-1510, and 388-515-1530.

Statutory Authority for Adoption: RCW 74.08.090 and 74.09.500.

Adopted under notice filed as WSR 98-24-126 on December 2, 1998.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 10, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

February 26, 1999

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

2480.2
AMENDATORY SECTION(Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-513-1305
Maintenance standard--Alternate living.

(1) The department shall ensure the categorically needy monthly standard for an SSI, SSI-related, or GAU client living in an adult family home (AFH), adult residential treatment facility (ARTF), adult residential rehabilitation center (ARRC), congregate care facility (CCF), or division of developmental disabilities (DDD) group home is the department cost standard of the facility plus a specified CPI.

(2) The department shall determine the medically needy monthly standard for an SSI-related client living in an AFH, ARTF, ARRC, CCF, or DDD group home to be the private facility rate based on a thirty-one-day month plus a specified CPI.

(3) See WAC 388-15-555, 388-15-568, ((388-250-1600,)) and ((388-250-1650)) 388-478-0045 for the definition of "department cost standard." The department shall ensure the monthly standard shall not exceed three hundred percent of the current SSI Federal Benefit Level.

(4) See chapters 388-450, 388-470, and 388-511 WAC and WAC 388-505-0595 for computation of available income and resources for an SSI-related person.

(5) See chapter 388-((219)) 450 WAC for computation of available income and resources for a GAU client.

[Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), 388-513-1305, filed 5/3/94, effective 6/3/94.  Formerly parts of WAC 388-83-036 and 388-99-036.]


AMENDATORY SECTION(Amending WSR 98-04-003, filed 1/22/98, effective 2/22/98)

WAC 388-513-1315
Eligibility determination--Institutional.

(1) A person is eligible for institutional care under the categorically needy program, if the person:

(a) Has achieved institutional status as described under WAC 388-513-1320; and

(b) Has gross nonexempt income:

(i) For an SSI-related person, no greater than three hundred percent of the SSI Federal Benefit Amount; or

(ii) For ((an AFDC or)) a TANF-related person, no greater than the one-person program standard as described under chapter 388-478 WAC ((388-505-0590, 388-508-0805, or 388-509-0960)).  

(c) Has resources which are:

(i) Not exempt under WAC 388-513-1360 and 388-513-1365, and

(ii) Less than the standards under WAC 388-513-1310 and 388-513-1395; and

(d) Is not subject to a period of ineligibility for transferring of resources under WAC 388-513-1365.

(2) A person is eligible for institutional care under the limited casualty program--medically needy, if the person meets the requirements in WAC 388-513-1395.

(3) For an AFDC- or TANF-related child under eighteen years of age residing or expected to reside in inpatient chemical dependency treatment or inpatient mental health treatment refer to chapters 388-408, 388-450, and 388-470 WAC ((388-506-0610 (1)(f))).

(4) For other institutionalized persons twenty years of age or younger, the income and resources of the parents are not considered available unless the income and resources are actually contributed.

(5) A person is eligible for Medicaid who:

(a) Meets institutional status as a psychiatric facility resident; and

(b) Is twenty years of age or younger or is sixty-five years of age or older.

(6) A client's income and resources are allocated as described under WAC 388-513-1380.

(7) When both spouses are institutionalized, the department shall determine the eligibility of each spouse individually.

(8) A person's transfer between medical institutions is not a change in institutional status.

[Statutory Authority: RCW 74.04.050, 74.08.090 and 42 CFR 435.1005.  98-04-003, 388-513-1315, filed 1/22/98, effective 2/22/98.  Statutory Authority: RCW 74.08.090.  96-11-072 (Order 3980), 388-513-1315, filed 5/10/96, effective 6/10/96.  Statutory Authority: RCW 74.08.090 and 1995 c 312 48.  95-19-007 (Order 3895), 388-513-1315, filed 9/6/95, effective 10/7/95.  Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), 388-513-1315, filed 5/3/94, effective 6/3/94.]


AMENDATORY SECTION(Amending WSR 97-15-025, filed 7/8/97, effective 8/8/97)

WAC 388-513-1320
Institutional status.

(1) The department shall find that a person has achieved institutional status when the person is residing or expected to reside in a Medicaid-certified medical facility for a period of at least:

(a) Ninety consecutive days for ((an AFDC)) TANF-related child seventeen years of age or younger in residential mental health or chemical dependency/substance abuse treatment; or

(b) Thirty consecutive days for an SSI-related person and ((AFDC)) TANF-related persons other than as described under subsection (1)(a) of this section.

(2) The department shall consider a person receiving waivered program services or hospice services to have achieved institutional status.

(3) The department shall make medical assistance available to an otherwise eligible person who has achieved institutional status as described under subsection (1) or (2) of this section.

(4) The department shall not deny Medicaid eligibility to a person in a nursing facility:

(a) On the grounds that the person did not establish residence in this state before entering the nursing facility; and

(b) When the person meets residency requirements described under chapter 388-((505)) 468 WAC at the time the person applies for medical assistance.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090 and 42 CFR 435.403 (j)(2).  97-15-025, 388-513-1320, filed 7/8/97, effective 8/8/97.  Statutory Authority: RCW 74.08.090.  96-11-072 (Order 3980), 388-513-1320, filed 5/10/96, effective 6/10/96; 94-10-065 (Order 3732), 388-513-1320, filed 5/3/94, effective 6/3/94.]


AMENDATORY SECTION(Amending WSR 97-10-022, filed 4/28/97, effective 5/29/97)

WAC 388-513-1330
Institutional--Available income.

(1) Income is defined under chapters 388-450 and 388-511 WAC for a SSI-related client and under chapter 388-450 WAC ((388-22-030 for an AFDC)) for a TANF-related client.

(2) The methodology and standards for determining and evaluating income are defined under chapter 388-513 WAC.

(3) The department shall consider the following income available to an institutionalized person when determining income eligibility unless the criteria in subsection (4) of this section is met:

(a) Income the institutionalized spouse receives in the institutionalized spouse's name;

(b) Income paid on the behalf of the institutionalized spouse, but received in the name of the institutionalized spouse's representative;

(c) One-half of the income the community and institutionalized spouses receive in both names; and

(d) Income from a trust as provided by the trust.

(4) The department shall consider income as available to an institutionalized person when:

(a) Both spouses are institutionalized; or

(b) An institutionalized person has a community spouse and income in excess of three hundred percent of the SSI federal benefit rate (FBR).  For the determination of eligibility only:

(i) Use community property law in determining ownership of income for purposes of Medicaid eligibility;

(ii) Presume all income received after marriage by husband or wife to be community income;

(iii) Divide the total of the community income, by two assigning one-half of the total to each person; and

(iv) Consider if the community income received in the name of the nonapplying spouse exceeds the community income received in the name of the applying spouse, the applicant's interest in that excess shall be unavailable to the applicant.

(5) The department shall consider income the community spouse receives in the community spouse's name as unavailable to the institutionalized spouse.

(6) The department shall consider an agreement between spouses transferring or assigning rights to future income from one spouse to the other spouse, or to a trust for the benefit of the other spouse, to the extent the income is not derived from a resource which has been transferred, as invalid in determining eligibility for medical assistance or the limited casualty program for the medically needy.

(7) The department shall consider any agreement or trust transferring or assigning rights to future income, to the extent the income is not derived from a resource which has been transferred, as invalid in determining eligibility for medical assistance or the limited casualty program for the medically needy.

(8) The department shall consider income produced by transferred or assigned resources as the separate income of the transferee.

(9) When an institutionalized spouse establishes the unavailability of income by a preponderance of evidence through a fair hearing, subsection (3) of this section shall not apply.

(10) See WAC 388-511-1130 for treatment of advance dated checks, and electronically transferred funds.

[Statutory Authority: RCW 74.08.090, 74.05.040 and 20 CFR 416.1110-1112, 1123 and 1160.  97-10-022, 388-513-1330, filed 4/28/97, effective 5/29/97.  Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter #94-33.  95-02-028 (Order 3819), 388-513-1330, filed 12/28/94, effective 1/28/95.  Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), 388-513-1330, filed 5/3/94, effective 6/3/94.  Formerly parts of WAC 388-95-335 and 388-95-340.]


AMENDATORY SECTION(Amending WSR 98-11-033, filed 5/14/98, effective 6/14/98)

WAC 388-513-1350
Institutional--Available resources.

This section describes those resources which are considered available to an institutionalized client.

(1) Resources are defined under chapter 388-((511)) 470 WAC for an SSI-related client and ((under chapter 388-216 WAC for)) a TANF-related client.

(2) The methodology and standards for determining and evaluating resources are under WAC 388-513-1310, 388-513-1350, and 388-513-1360.  Transfers of resources are evaluated under WAC 388-513-1365. Trusts are described under WAC 388-505-0595.

(3) "Continuously institutionalized" means a person is residing in a nursing facility or receiving home-based or community-based waivered services and the person has not had an absence or break in receiving services of thirty-consecutive days.

(4) For a person whose most recent period of continuous institutionalization began on or before September 30, 1989:

(a) Available resources are one-half of the total value of nonexempt resources held in the:

(i) Names of both the institutionalized spouse and the community spouse; or

(ii) Name of the institutionalized spouse only.

(b) Unavailable resources are:

(i) The other half of the total value of nonexempt resources determined under subsection (3)(a) of this section;

(ii) Held solely in the name of the community spouse; or

(iii) Transferred between spouses as described under subsection (4)(b) of this section.

(5) For a person, whose most recent period of continuous institutionalization starts on or after October 1, 1989, available resources include all nonexempt resources in the name of either the community spouse or the institutionalized spouse except;

(a) The following resources are exempt when the institutionalized person has a community spouse:

(i) One vehicle without regard to use or value; and

(ii) Effective January 1, 1998, eighty thousand seven hundred sixty dollars; or

(b) An amount greater than the amount in subsection (4)(a)(ii) of this section if:

(i) Established by a fair hearing under chapter 388-08 WAC when the community spouse's resource allowance is inadequate to provide a minimum monthly maintenance needs allowance; or

(ii) Transferred to the community spouse by court order.

(6) Resources of the institutional spouse must be transferred to the community spouse or to another person for the sole benefit of the community spouse:

(i) Before the first regularly scheduled eligibility review; or

(ii) As soon as possible, taking into account the time necessary to obtain a court order for the support of the community spouse.

(7) The resources of the community spouse are:

(a) Unavailable to the institutionalized spouse:

(i) The month after the institutionalized spouse is determined eligible for institutional benefits; and

(ii) While the institutionalized spouse is continuously institutionalized.

(b) Available to the institutionalized spouse when the institutionalized spouse:

(i) Acquires resources which, when added to resources held by the institutionalized spouse, exceed the one-person resource maximum, if the most recent period of institutionalization began on or after October 1, 1989; or

(ii) Is not continuously institutionalized.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.530, 74.09.575 and Section 1924 (42 USC 1396r-5).  98-11-033, 388-513-1350, filed 5/14/98, effective 6/14/98.  Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090 and 74.09.575.  97-09-112, 388-513-1350, filed 4/23/97, effective 5/24/97.  Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter 95-44.  96-09-033 (Order 3963), 388-513-1350, filed 4/10/96, effective 5/11/96.  Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter 94-49, notice of increase in SSI level.  95-05-022 (Order 3832), 388-513-1350, filed 2/8/95, effective 3/11/95.  Statutory Authority: RCW 74.08.090.  94-23-129 (Order 3808), 388-513-1350, filed 11/23/94, effective 12/24/94; 94-10-065 (Order 3732), 388-513-1350, filed 5/3/94, effective 6/3/94.  Formerly parts of WAC 388-95-337 and 388-95-340.]


AMENDATORY SECTION(Amending Order 3982, filed 5/22/96, effective 6/22/96)

WAC 388-513-1360
Resource exemptions.

(1) In determining eligibility, the department shall exempt resources specified under chapter 388-470 WAC ((388-511-1160)).

(2) Effective July 1, 1996, the department shall exempt resources:

(a) For an aged, blind, or disabled person who has purchased a long-term care insurance policy approved by the Washington insurance commissioner under the Washington long-term care partnership program; and

(b) In an amount equal to the extent such policy has paid for licensed nursing facility and/or home- and community-based services covered under Medicaid.

(3) The department shall consider exempt resources described under subsection (2) of this section subject to estate recovery rules when the client has retained such resources.

(4) The department shall apply WAC 388-513-1365 for transfers of resources with the exception of resources exempted under subsection (2) of this section.

[Statutory Authority: RCW 74.08.090 and 48.85.020.  96-12-002 (Order 3982), 388-513-1360, filed 5/22/96, effective 6/22/96.  Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), 388-513-1360, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-95-380.]


AMENDATORY SECTION(Amending WSR 97-05-040, filed 2/14/97, effective 3/17/97)

WAC 388-513-1365
Transfer of assets.

(1) The terms in this section shall have the following definitions:

(a) "Assets" means all income and resources of a client and the client's spouse, including such income or resources the person is entitled to but does not receive because of action by:

(i) The client or the client's spouse;

(ii) A person, court or administrative body, with legal authority to act in place of or on behalf of the client or the client's spouse; or

(iii) A person, court or administrative body, acting at the direction or upon the request of the client or the client's spouse.

(b) "Community spouse" means the person married to an institutionalized client.

(c) "Fair market value (FMV)" means the price the asset may reasonably sell for on the open market at the time of transfer or assignment.  A transfer of assets for love and affection is not considered a transfer for FMV.

(d) "Institutional services" means a level of care provided in a nursing facility, equivalent nursing facility in a medical institution, or in a home-based or community-based program under WAC 388-515-1505 or 388-515-1510.

(e) "Institutional spouse" means a client who meets the requirements of subsection (1)(f) of this section and is married to a spouse who is not:

(i) In a medical institution;

(ii) In a nursing facility; or

(iii) Receiving home-based or community-based services under WAC 388-515-1505 or 388-515-1510.

(f) "Institutionalized client" means a person who is:

(i) An inpatient in a nursing facility;

(ii) An inpatient in a medical institution where the payment is made for a level of care provided in a nursing facility; or

(iii) In need of the level of care provided in a nursing facility or medical institution, but receiving home-based or community-based services under WAC 388-515-1505 or 388-515-1510; and

(iv) Expected to be in a nursing facility, in a medical institution, or receiving home-based or community-based services under WAC 388-515-1505 or 388-515-1510 for thirty consecutive days or more.

(g) "Transfer" means any act or omission to act, by a client or a nonapplying joint tenant, whereby title to or any interest in property is assigned, set over, or otherwise vested or allowed to vest in another person, including but not limited to:

(i) Delivery of personal property;

(ii) Bills of sale, deeds, mortgages, and pledges; or

(iii) Any other instrument conveying or relinquishing an interest in property.

(h) "Uncompensated value" means the FMV of an asset at the time of transfer minus the value of compensation the person receives in exchange for the resource.

(i) "Undue hardship" means the client's inability to meet shelter, food, clothing, and health needs.

(j) "Value of compensation received" means the consideration the purchaser pays or agrees to pay.  Compensation includes:

(i) All money, real or personal property, food, shelter, or services the person receives under a legally enforceable agreement whereby the eligible client shall transfer the resource; and

(ii) The payment or assumption of a legal debt the client owes in exchange for the resource.

(2) The department shall not impose any penalty for the transfer of any exempt asset for less than FMV except as specified under subsection (11) of this section when the client transfers the client's home.

(3) The department shall determine whether the client or the client's spouse transferred an asset within a look-back period of the following duration:

(a) Thirty months when determining eligibility for services received:

(i) On or before September 30, 1993; or

(ii) On or after October 1, 1993, with respect to transfers of assets on or before August 10, 1993;

(b) Thirty-six months when determining eligibility for services on or after October 1, 1993, with respect to transfers of assets on or after August 11, 1993; or

(c) Sixty months when determining eligibility for services received on or after October 1, 1993, and all or part of the transferred assets are placed in a trust established on or after August 11, 1993, and all or part of the assets are deemed transferred as described under WAC 388-505-0595.

(4) The department shall consider the look-back period as the number of months described under subsection (3) of this section but not including any month before August, 1993 in the case of subsections (3)(b) and (3)(c) of this section, before the first day of the month the client:

(a) Becomes an institutionalized person, if the client is eligible for medical assistance on that date; or

(b) Applies for institutional care when the client is not eligible for medical assistance as of the date the client initially became institutionalized.

(5) The department shall calculate a period of ineligibility for nursing facility services, equivalent nursing facility services in a medical institution, and services described under WAC 388-515-1505 and 388-515-1510, for the institutionalized client when the client or the client's spouse transfers an asset for less than FMV during or after the look-back periods as described under subsections (3) and (4) of this section.

(6) When the client or the client's spouse has transferred assets, the department shall establish a period of ineligibility:

(a) Under subsection (7) of this section for assets transferred on or before August 10, 1993;

(b) Under subsection (8) of this section for assets transferred on or after August 11, 1993 and on or before February 28, 1997; and

(c) Under subsection (9) of this section for assets transferred on or after March 1, 1997.

(7) With respect to transfers of assets on or before August 10, 1993, and in any month within the applicable look-back period, the department shall establish a period of ineligibility which:

(a) Begins the first day of the month in which the assets were transferred;

(b) Is the lessor of:

(i) Thirty months; or

(ii) The number of whole months found by dividing the total uncompensated value of the assets transferred in the month by the state-wide average monthly cost of nursing facility services to a private patient at the time of the application; and

(c) Runs concurrently when transfers of assets have been made in multiple months during the look-back period.

(8) With respect to transfers of assets on or after August 11, 1993 and on or before February 28, 1997, and in any month within the applicable look-back period occurring on or after August 11, 1993, the department shall establish a period of ineligibility as follows:

(a) For such transfers during the look-back period:

(i) The period of ineligibility shall begin on the first day of the month in which such assets were transferred; and

(ii) Equal the number of whole months found by dividing the total, cumulative uncompensated value of all such assets transferred during the look-back period by the state-wide average monthly cost of nursing facility services to a private patient at the time of application.

(b) For such transfers of assets made while receiving medical assistance as an institutionalized client, or for such transfers made during a period of ineligibility established under this section:

(i) The period of ineligibility shall begin on the first day of the month in which such assets were transferred, or after the expiration of all other periods of ineligibility established under this section, whichever is later; and

(ii) Equal the number of whole months found by dividing the total, uncompensated value of such transferred assets by the state-wide average monthly cost of nursing facility services to a private patient at the time of application.

(9) With respect to transfers of assets on or after March 1, 1997 and in any month within the applicable look-back period occurring on or after August 11, 1993, the department shall:

(a) For a single transfer or multiple transfers within a single month during the look-back period:

(i) Add the value of all transferred assets;

(ii) Divide the total value of all transferred assets by the statewide average monthly cost of nursing facility services to a private patient at the time of application; and

(iii) Establish a period of ineligibility:

(A) Equal to the number of whole months as established under subsection (9)(a)(i) and (ii) of this section; and

(B) Which begins on the first day of the month of transfer.

(b) For multiple transfers during multiple months during the look-back period:

(i) Treat assets transferred in each month as a separate event with its own period of ineligibility;

(ii) Divide the total value of assets transferred in a month by the statewide average monthly cost of nursing facility services to a private patient at the time of application; and

(iii) Establish multiple periods of ineligibility:

(A) Equal to the number of whole months as established under subsection (9)(b)(i) and (ii) of this section; and

(B) Which begin the latter of:

(I) The first day of the month of each transfer; or

(II) The first day of the month following the expiration of a previously computed period of ineligibility.

(10) The department shall not consider gifts or donations totaling one thousand dollars or under in any month as transfers of assets under subsections (7), (8), or (9) of this section.

(11) The department shall not find the institutionalized client ineligible for institutionalized services when the transferred asset was a home and the home was transferred to the client's:

(a) Spouse; or

(b) Child who is:

(i) Blind, or permanently and totally disabled; or

(ii) Twenty years of age or under.

(c) Sibling who has:

(i) Equity in the home; and

(ii) Lived in the home for at least one year immediately before the client became institutionalized.

(d) Child, other than described under subsection (11)(b) of this section who:

(i) Lived in the home for two years or more immediately before the client became institutionalized; and

(ii) Provided care to the client to permit the client to remain at home.

(12) The department shall not find the institutionalized client ineligible for institutionalized services if the asset other than the home was transferred:

(a) To the client's spouse or to another person for the sole benefit of the client's spouse;

(b) From the client's spouse to another person for the sole benefit of the client's spouse;

(c) To the client's blind or permanently and totally disabled child, or to a trust established solely for the benefit of such child; or

(d) To a trust established solely for the benefit of a person sixty-four years of age or younger who is disabled according to SSI criteria.

(13) The department shall only consider a transfer of assets or trust established under subsection (12) of this section for the sole benefit of the named person when:

(a) The transfer or trust document provides for the expenditure of funds for the benefit of the person; and

(b) Such expenditures must be on a basis that is actuarially sound, based on the life expectancy of the person.

(14) The department shall consider a transfer of asset or trust established under subsection (12) of this section which does not meet the criteria found under subsection (13) of this section under subsection (7), (8), or (9) of this section.

(15) The department shall not find a person ineligible under this section when the client can satisfactorily show the department that:

(a) The client intended to transfer the asset at FMV or other valuable consideration;

(b) The client transferred the asset exclusively for a purpose other than to qualify for medical assistance;

(c) All assets transferred by the client for less than FMV have been returned to the client; or

(d) The client's denial of eligibility would cause an undue hardship.

(16) The department shall not impose a period of ineligibility on a client unless the client is subject to a period of ineligibility, as calculated under this section, with respect to any month for which eligibility for institutional services is sought.

(17) A client or the spouse of such a client, the department determines ineligible under this section, may request a hearing to appeal the determination of ineligibility.  The procedure for the hearing is described under chapter 388-08 WAC.

(18) The department shall:

(a) Exempt cash received from the sale, transfer, or exchange of an asset to the extent that the cash is used for an exempt asset within the same month, except as specified under chapter 388-470 WAC ((388-511-1160)); and

(b) Consider any cash remaining as an available asset.

(19) When the transfer of an asset has resulted in a period of ineligibility for one spouse, the department shall not impose a period of ineligibility for the other spouse for the transfer of the same asset.

(20) The department shall disregard the transfer of assets to a family member when:

(a) The family member has received the assets for providing care to the client which keeps the client out of a nursing facility;

(b) The client and the family member initiated a written agreement at the time the care began; and

(c) The written agreement states:

(i) The fair market value of the care; and

(ii) That the care is to be paid from the assets of the client.

(21) When the fair market value of the care described under subsection (20) of this section is less than the value of the transferred asset, the department shall consider the difference as the transfer of an asset without adequate consideration.

(22) The department shall consider the transfer of an asset in exchange for care given by a family member without a written agreement as described under subsection (20) of this section as a transfer of an asset without adequate consideration.

(23) When the transfer of an asset includes the right to receive a stream of income received on a regular basis which has been transferred to a spouse, to the extent the income is not derived from a transferred resource, the department shall consider such a transfer under WAC 388-513-1330(6).

(24) When the transfer of an asset includes the right to receive a stream of income received on a regular basis which has been transferred to a person other than a spouse, to the extent the income is not derived from a transferred resource, the department shall:

(a) Add the total amount of income expected to be transferred during the person's lifetime, based on an actuarial projection of the person's life expectancy to the extent the income is not derived from a transferred resource; and

(b) Divide the total value of the transferred income by the statewide average monthly cost of nursing facility services to a private patient at the time of application; and

(c) Establish a period of ineligibility:

(i) Equal to the number of whole months as established under subsection (24)(a) and (b) of this section; and

(ii) Which begins the latter of:

(A) The first day of the month the person transferred the income stream; or

(B) The first day of the month following the expiration of a previously computed period of ineligibility.

[Statutory Authority: RCW 74.08.090, 74.04.050, 74.04.057, 74.09.585 and 17 of the Social Security Act.  97-05-040, 388-513-1365, filed 2/14/97, effective 3/17/97.  Statutory Authority: RCW 74.08.090.  95-02-027 (Order 3818), 388-513-1365, filed 12/28/94, effective 1/28/95; 94-10-065 (Order 3732), 388-513-1365, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-95-395.]


AMENDATORY SECTION(Amending WSR 96-16-092, filed 8/7/96, effective 8/29/96)

WAC 388-513-1395
Institutional--Medically needy.

(1) The department shall consider a person institutionalized when the person resides in or is expected to reside in a medical facility for thirty consecutive days or more.

(a) The department shall determine:

(i) An SSI/SSP-related person in a medical facility as medically needy when the person's gross income exceeds three hundred percent of the SSI benefit amount;

(ii) ((An AFDC)) A TANF-related child in a medical facility as medically needy if countable income exceeds the one-person ((AFDC)) TANF grant standard; and

(iii) ((An AFDC)) A TANF-related adult as ineligible.

(b) The department shall determine a client ineligible for the medically needy program when the countable income is more than the private nursing facility rate plus verifiable recurring medical expenses.

(c) The department shall determine countable income of a medically needy client residing in a nursing facility by deducting the following amounts from gross income:

(i) Amounts that would be deducted in determining eligibility for ((AFDC)) TANF or SSI/SSP; and

(ii) Previously incurred medical expenses not subject to third-party payment and which are the current liability of the client.

(d) The department shall determine a client eligible for nursing facility care when the client's countable income and the amount of resources in excess of the amount in WAC 388-513-1310 are less than the department's contracted rate plus verifiable recurring medical expenses.  These clients shall:

(i) Participate in the cost of nursing facility care per WAC 388-513-1380 for post-eligibility allocation of income and post-eligibility allocation of resources; and

(ii) Be certified for a three-, six-, or twelve-month period as described under chapters 388-416 and 388-519 WAC ((388-519-1905)).

(e) The department shall determine a client eligible for nursing facility care when the client's countable income and the amount of resources in excess of the amount in WAC 388-513-1310 are:

(i) Less than the private nursing facility rate plus recurring medical expenses; but

(ii) More than the department's contracted rate.

(f) The client shall:

(i) Participate in the cost of nursing facility care.  See WAC 388-513-1380 for post-eligibility allocation of income;

(ii) Spenddown all income remaining after allocating income to the department's contracted rate to be eligible for nonnursing facility medical care.  The department shall only certify medical assistance for noninstitutional eligibility after spenddown has been met; and

(iii) Choose a certification period of three or six months for nursing facility care.  The department shall determine spenddown of a person's nonnursing facility medical expenses be on a three-month or six-month basis.

(g) For the effect of a social absence from an institutional living arrangement, see WAC ((388-88-115)) 388-97-280.

(h) The department shall not change a client's institutional status when the client is transferred between institutions.

(2) The department shall use other SSI financial criteria for consideration of resources as defined in WAC 388-513-1310 and 388-513-1360.

[Statutory Authority: RCW 74.08.090 and Budget Note 17.  96-16-092, 388-513-1395, filed 8/7/96, effective 8/29/96.  Statutory Authority: RCW 74.08.090 and 1995 2nd sp.s. c 18 2095a and 5b.  95-24-017 (Order 3921, #100267), 388-513-1395, filed 11/22/95, effective 1/1/96.  Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), 388-513-1395, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-95-400.]

2481.2
AMENDATORY SECTION(Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-515-1510
Community alternatives program (CAP) and outward bound residential alternatives (OBRA).

(1) The department shall determine an eligible person for CAP is a person:

(a) Meeting the requirements and eligible for division of developmental disabilities (DDD) services and disabled according to SSI rules;

(b) Meeting the categorically needy eligibility requirements for an SSI-related institutionalized person.  For the purposes of CAP and OBRA, a person is considered institutionalized as of the date all eligibility criteria, except institutionalized status is met;

(c) The department assesses as requiring the level of care provided in an intermediate care facility for the mentally retarded (IMR);

(d) For whom the department approves an individual plan of care describing the provided community support services; and

(e) Able and choosing to reside in the community with community support services according to the plan of care.

(2) The department shall determine an eligible person for the OBRA home-based and community-based services program is a person:

(a) Meeting the CAP eligibility standards in WAC 388-515-1510(1); and

(b) Residing in a Medicaid nursing facility at the time of application for OBRA services.

(3) The department shall not require participation in the cost of CAP or OBRA services by a person:

(a) Receiving SSI; or

(b) Remaining eligible for SSI under 1619(b) of the Social Security Act, but not receiving a cash grant.

(4) The department shall allocate available total income, including amounts disregarded in determining eligibility, of a SSI-related CAP or OBRA client as follows:

(a) For a client living in the client's residence, including a client receiving intensive tenant support services, the department shall use an amount equal to a maximum of three hundred percent of the SSI Federal Benefit Rate for one person for the client's maintenance needs;

(b) For a client residing in a state-contracted or state-operated group home, adult family home, or congregate care facility, the department shall use the following amounts for the client's maintenance needs:

(i) A specified personal needs allowance, as described under WAC ((388-250-1600 and 388-250-1650)) 388-478-0045;

(ii) An amount equal to the monthly room and board cost for the facility where the client resides;

(iii) The first twenty dollars per month of earned or unearned income; and

(iv) The first sixty-five dollars plus one-half of the remaining earned income not previously excluded.

(c) For a client described in (b) of this subsection, the maximum amount allowed for any client's individual maintenance needs shall not exceed three hundred percent of the SSI Federal Benefit Rate.  The department shall not allow a client an individual maintenance needs deduction of less than the SSI payment standard;

(d) For a client with a spouse at home who is not receiving CAP or OBRA services, the department shall allocate an amount for the spouse's maintenance needs as computed under WAC 388-513-1380 (((4)(e))) (3)(b);

(e) For a client with a dependent relative living with the spouse not receiving CAP or OBRA services, the department shall designate an amount for the relative's maintenance needs as computed in WAC 388-513-1380 (((4)(f))) (3)(c);

(f) The department shall use amounts for incurred medical expenses not subject to third-party payment, including:

(i) Medicare and other health insurance premiums, deductibles, or coinsurance charges; and

(ii) Necessary medical care recognized under state law but not covered under Medicaid.

(g) The department shall ensure income remaining after deductions in (a), (b), (c), (d), (e), and (f) of this subsection will be the participation amount for CAP or OBRA services.

[Statutory Authority: RCW 74.08.090.  94-10-065 (Order 3732), 388-515-1510, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-83-210.]


AMENDATORY SECTION(Amending Order 3882, filed 8/23/95, effective 9/23/95)

WAC 388-515-1530
Coordinated community AIDS services alternatives (CASA) program.

(1) The department shall determine that a person is eligible for CASA if the person:

(a) Meets the categorically needy eligibility requirements for an SSI-related institutionalized person.  For the purposes of CASA, the department shall consider a person institutionalized the date the person meets eligibility criteria, except institutionalized status;

(b) Has a diagnosis of:

(i) Acquired immune deficiency syndrome or disabling Class IV human immunodeficiency virus disease; or

(ii) P2 HIV/AIDS diagnosis, if fourteen years of age or under.

(c) Is determined medically at risk of need for the level of hospital-provided care;

(d) Is certified by the person's physician or nurse practitioner as in the terminal state of life;

(e) Agrees to receive services in the person's own home, a licensed congregate care facility, or adult family home;

(f) Has a plan of care approved by the department and the department of health; and

(g) Does not have private insurance, including COBRA extensions, that covers inpatient hospital care.

(2) The department shall not require participation in the cost of CASA services by a person:

(a) Receiving SSI; or

(b) Remaining eligible for SSI under 1619(b) of the Social Security Act, but not receiving a cash grant.

(3) The department shall allocate available total income, including amounts disregarded in determining eligibility of a SSI-related CASA client residing at home, as follows:

(a) The client retains as maintenance needs an amount equal to the special income level (SIL) for one person; and

(b) As described under WAC 388-513-1380 (1), (2), (3)(b), (c) and (d), (4)(((b), (c), (d), (e), (f), (g))), and (((h),)) (5)((, and (6))).

(4) The department shall allocate available total income, including amounts disregarded in determining eligibility of a CASA client residing in an adult family home or congregate care facility, as follows:

(a) The client shall retain a specified personal needs allowance as described under WAC ((388-250-1600 or 388-250-1650)) 388-478-0045;

(b) As described under WAC 388-513-1380 (1), (2), (3)(b), (c) and (d), (4)(((c), (d), (e), (f), and (g))), (5), and (6); and

(c) Pay remaining income up to the SIL to the facility for the cost of board and room.

(5) The SSI-related CASA client's income remaining after deductions in subsection (3) or (4) of this section shall be the participation amount for CASA services.

(6) When the department has determined that the client has financial participation under subsection (5) of this section, the department shall require the client to meet the participation obligation to remain eligible.

[Statutory Authority: RCW 74.08.090.  95-18-001 (Order 3882), 388-515-1530, filed 8/23/95, effective 9/23/95; 94-10-065 (Order 3732), 388-515-1530, filed 5/3/94, effective 6/3/94.  Formerly WAC 388-83-220.]

Washington State Code Reviser's Office