WSR 09-06-029

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Health and Recovery Services Administration)

[ Filed February 24, 2009, 7:19 a.m. , effective March 27, 2009 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The department is codifying institutional medical eligibility for clients who are categorically related to the temporary assistance for needy families (TANF) program. These rules also clarify program rules for children admitted to medical facilities and psychiatric inpatient treatment.

Statutory Authority for Adoption: RCW 74.04.055, 74.04.057, 74.08.090, 74.09.530, and 42 C.F.R. 441.151.

Adopted under notice filed as WSR 09-01-144 on December 22, 2008.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 9, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 9, Amended 0, Repealed 0.

Date Adopted: February 23, 2009.

Stephanie E. Schiller

Rules Coordinator

3913.5
NEW SECTION
WAC 388-505-0230   Long term care for families and children.   (1) The sections that follow describe the eligibility requirements for institutional medical benefits for parents and children who are not aged, blind or disabled, and who are admitted for a long term stay to a medical institution, an inpatient psychiatric facility or an institution for mental diseases (IMD):

(a) WAC 388-505-0235 Definitions;

(b) WAC 388-505-0240 General eligibility for family institutional medical coverage;

(c) WAC 388-505-0245 Resource eligibility for family institutional medical coverage;

(d) WAC 388-505-0250 Eligibility for family institutional medical for individuals twenty-one years of age or older;

(e) WAC 388-505-0255 Eligibility for family institutional medical for individuals nineteen and twenty years of age;

(f) WAC 388-505-0260 Eligibility for family institutional medical for children eighteen years of age or younger;

(g) WAC 388-505-0265 How the department determines how much of an institutionalized individual's income must be paid towards the cost of care; and

(h) WAC 388-505-0270 When an involuntary commitment to Eastern or Western State Hospital is covered by medicaid.

(2) Individuals who are already eligible for a noninstitutional family or children's medical program when they are admitted for long term care do not need to submit a new application for institutional medical coverage. The department treats their admittance to the facility as a change of circumstances and determines their eligibility based upon the length of stay at the facility.

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NEW SECTION
WAC 388-505-0235   Definitions.   The following terms are used in WAC 388-505-0230 through 388-505-0270:

"Categorically needy income level (CNIL)" - The standard used by the department to determine eligibility under a categorically needy medicaid program.

"Categorically needy (CN) medical" - Full scope of care medical benefits. CN medical may be either federally-funded under Title XIX of the social security act or state-funded.

"Categorically needy (CN) medicaid" - Federally-funded full scope of care medical benefits under Title XIX of the social security act.

"Federal benefit rate (FBR)" - The payment standard set by the social security administration for recipients of supplemental security income (SSI). This standard is adjusted annually in January.

"Federal poverty level" - The income standards published annually by the federal government in the Federal Register found at http://aspe.hhs.gov/poverty/index.shtml. The income standards change on April first every year.

"Institution for mental diseases (IMD)" - A hospital, nursing facility, or other institution of more than sixteen beds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services. Inpatient chemical dependency facilities of more than sixteen beds which provide residential treatment for alcohol and substance abuse are also considered an IMD.

"Institutional status" - An individual meets institutional status when he or she is admitted to a medical institution, inpatient psychiatric facility, or IMD for a period of thirty days or longer. The time period is ninety days or longer for individuals seventeen years of age and younger who are admitted to an inpatient psychiatric facility or institution for mental diseases. Institutional status is described in WAC 388-513-1320.

"Legal dependent" - A minor child, seventeen years of age and younger, and an individual eighteen years of age and older claimed as a dependent for income tax purposes; or a parent of either the applicant or the applicant's spouse claimed as a dependent for income tax purposes; or the brother or sister (including half and adoptive siblings) claimed by either the applicant or the applicant's spouse as a dependent for income tax purposes.

"Medical institution" - A medical facility that provides twenty-four hour supervision and skilled nursing care. Facilities which meet this definition include:

(1) Hospitals;

(2) Nursing homes or the nursing home section of a state veteran's facility;

(3) Hospice care centers;

(4) An intermediate care facility for the mentally retarded (ICF/MR); or

(5) A residential habilitation center (RHC).

"Medically needy income level (MNIL)" - The standard used by the department to determine eligibility under the medically needy medicaid program. The MNIL standards are described in WAC 388-478-0070.

"Medically needy (MN) medicaid" - Federally-funded medical coverage under title XIX of the social security act. MN coverage has a more limited scope of care than CN coverage.

"Personal needs allowance (PNA)" - An amount designated to cover the expenses of an individual's clothing and personal incidentals while living in a medical institution, inpatient psychiatric facility, or institution for mental diseases.

"Psychiatric facility" - Designated long term inpatient psychiatric residential treatment facilities, state psychiatric hospitals, designated distinct psychiatric units, and medicare-certified distinct units in acute care hospitals.

"Spenddown" - The amount of medical expenses an individual is required to incur prior to medical benefits being authorized. Spenddown is described in WAC 388-519-0100 and 388-519-0110.

"Title XIX" - The portion of the federal social security act, 42 U.S.C. 1396, that authorizes grants to states for medical assistance programs. Title XIX is also called medicaid.

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NEW SECTION
WAC 388-505-0240   General eligibility for family institutional medical coverage.   (1) This section applies to all individuals applying for long term care services under the family institutional medical program. Additional rules may apply based upon an individual's age at the time he or she applies for long term care services and whether the facility the individual is admitted to is a medical institution, inpatient psychiatric facility, or an institution for mental diseases (IMD). Additional rules are described in WAC 388-505-0245 through 388-505-0265.

(2) Individuals must meet the following requirements to qualify for family institutional coverage:

(a) Institutional status described in WAC 388-513-1320. An individual meets institutional status if he or she is admitted to:

(i) A medical institution and resides, or is likely to reside, there for thirty days or longer, regardless of age;

(ii) An inpatient psychiatric facility or IMD and resides, or is likely to reside, there for thirty days or longer and is eighteen through twenty years of age; or

(iii) An inpatient psychiatric facility or IMD and resides, or is likely to reside, there for ninety days or longer and is seventeen years of age or younger.

(b) General eligibility requirements described in WAC 388-503-0505 (with the exception that subsections (3)(c) and (3)(d) of that section do not apply to individuals who are eligible under the alien emergency medical (AEM) program) and meet one of the following:

(i) Be a parent of, or a relative caring for, an eligible dependent child and meet the program requirements under:

(A) A family medical program described in WAC 388-505-0220;

(B) A transitional family medical program described in WAC 388-523-0100; or

(C) The temporary assistance for needy families (TANF) cash assistance program.

(ii) Be a child and meet the program requirements under apple health for kids as described in WAC 388-505-0210;

(iii) Be a pregnant woman and meet the program requirements for a pregnancy medical program as described in WAC 388-462-0015;

(iv) Meet the alien emergency medical (AEM) program requirements as described in WAC 388-438-0110 (with the exception that for family long term care services, AEM coverage may be authorized for children through twenty-one years of age) and:

(A) Have a qualifying emergency condition; and

(B) For payment for long term care services and room and board costs in the institution, request authorization from the department's medical consultant if the individual is admitted to a medical institution under hospice or is admitted to a nursing facility.

(v) Be an individual nineteen through twenty years of age but not eligible under subsections (i) through (iv) of this section.

(c) Resource requirements described in WAC 388-505-0245;

(d) Have countable income below the applicable standard described in WAC 388-505-0250(4), 388-505-0255(3) or 388-505-0260(4);

(e) Contribute income remaining after the post eligibility process described in WAC 388-505-0265 towards the cost of care in the facility; and

(f) Be assessed as needing nursing facility level of care as described in WAC 388-106-0355 if the admission is to a nursing facility. (This does not apply to nursing facility admissions under the hospice program.)

(3) Once the department determines an individual meets institutional status, it does not count the income of parent(s), a spouse, or dependent child(ren) when determining countable income. The department counts the following as the individual's income:

(a) Income received by the individual in his or her own name;

(b) Funds given to him or her by another individual towards meeting his or her needs; and

(c) Current child support received on behalf of the individual by his or her parents.

(4) Individuals eligible for a cash grant under the temporary assistance for needy families (TANF) program can remain eligible for a cash payment and the categorically needy (CN) medicaid program while in the institution. The expected length of stay in the institution may impact the amount of the TANF payment.

(a) When the institutionalized individual is expected to return to the home within one hundred and eighty days, the department considers this to be a temporary absence from the home and the individual remains eligible for their full TANF grant. Rules defining a temporary absence are described in WAC 388-454-0015.

(b) When the department determines that the institutionalized individual's stay in the facility is likely to exceed one hundred and eighty days, the department reduces his or her share of the TANF grant to the personal needs allowance (PNA) described in WAC 388-478-0040. This is also referred to as the clothing, personal maintenance and necessary incidentals (CPI) amount.

(5) Individuals who are not United States citizens or qualified aliens do not need to provide or apply for a social security number or meet the citizenship requirements under WAC 388-424-0010(1) or 388-424-0010(2) as long as the requirements in subsection (2) of this section are met.

(6) Individuals who are aged, blind or disabled under federal criteria may qualify for institutional benefits with income of up to three hundred percent of the federal benefit rate (FBR). Rules relating to institutional eligibility for aged, blind or disabled individuals are described in WAC 388-513-1315.

(7) If an individual does not meet institutional status, the department determines his or her eligibility for a noninstitutional medical program. An individual who is determined eligible for CN or medically needy (MN) coverage under a noninstitutional program who is admitted to a nursing facility for less than thirty days is approved for coverage for the nursing facility room and board costs, as long as the individual is assessed by the department as meeting nursing home level of care as described in WAC 388-106-0355.

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NEW SECTION
WAC 388-505-0245   Resource eligibility for family institutional medical coverage.   (1) The department does not restrict or limit resources available to individuals eighteen years of age or younger when determining eligibility for family institutional medical coverage. The department does not consider, or count towards eligibility, any resources owned by the individual in this age category, or any resources owned by the individual's parent(s), spouse, or child(ren), if applicable.

(2) For individuals nineteen years of age or older, there is a one thousand dollar countable resource limit for new applicants for family medical coverage not meeting the additional resource exclusion of WAC 388-470-0026, and all of the following apply:

(a) In order to determine which resources it must count, the department follows rules in WAC 388-470-0026, 388-470-0045 (with the exception of subsection (3) relating to primary residence), 388-470-0060, and 388-470-0070.

(b) Applicants and current categorically needy (CN) or medically needy (MN) medical assistance clients receiving long term care services under the family institutional medical program are subject to transfer of asset regulations as described in WAC 388-513-1363 through 388-513-1366.

(c) Individuals who apply for long term care services on or after May 1, 2006, who have an equity interest greater than five hundred thousand dollars in their primary residence are not eligible for long term care services. This does not apply if the individual's spouse or blind, disabled or dependent child under twenty-one years of age is lawfully residing in the primary residence. Individuals who are denied or terminated from long term care services due to excess home equity may apply for an undue hardship waiver as described in WAC 388-513-1367.

(d) Once an individual has been determined eligible for any family medical program, the department does not consider any subsequent increase in that individual's resources after the month of application, as described in WAC 388-470-0026. Subsequent increases in a family's resources are not applied towards the cost of care in any month in which the resources have exceeded the eligibility standard.

(e) When both spouses of a legally married couple are institutionalized, the department determines resource eligibility for each spouse separately, as if each were a single individual.

(f) When only one spouse in a legally married couple applies for family institutional coverage, the rules in WAC 388-513-1350 (8) through (13) apply.

(g) For countable resources over one thousand dollars that are not otherwise excluded by WAC 388-470-0026:

(i) The department reduces the excess resources in an amount equal to medical expenses incurred by the institutionalized individual, such as:

(A) Premiums, deductibles, coinsurance or copayments for health insurance and medicare;

(B) Necessary medical care recognized under state law, but not covered under the state's medical plan; and

(C) Necessary medical care recognized under state law, but incurred prior to medicaid eligibility.

(ii) Medical expenses that the department uses to reduce excess resources must not:

(A) Be the responsibility of a third party payer;

(B) Have been used to satisfy a previous spenddown liability;

(C) Have been previously used to reduce excess resources;

(D) Have been used to reduce client responsibility toward cost of care;

(E) Have been incurred during a transfer of asset penalty; or

(F) Have been written off by the medical provider (the individual must be financially liable for the expense).

(h) If an individual has excess resources remaining, after using incurred medical expenses to reduce those resources, the department uses the following calculations to determine if an individual is eligible for family institutional medical coverage under the CN or MN program:

(i) If countable income is below the CN income standard, and the combination of countable income plus excess resources is below the monthly cost of care at the state medicaid rate, the individual is eligible for family institutional medical coverage under the CN program.

(ii) If countable income is below the CN income standard, but the combination of countable income plus excess resources is above the monthly cost of care at the state medicaid rate, the individual is not eligible for family institutional medical coverage.

(iii) If countable income is over the CN income standard, and the combination of countable income plus excess resources is below the monthly cost of care at the institution's private rate plus the amount of any recurring medical expenses for institutional services, the individual is eligible for family institutional coverage under the MN program. (MN coverage applies only to individuals twenty years of age or younger.)

(iv) If countable income is over the CN income standard, but the combination of countable income plus excess resources is higher than the monthly cost of care at the institution's private rate plus the amount of any recurring medical expenses for institutional services, the individual is not eligible for family institutional coverage under the MN program. (MN coverage applies only to individuals twenty years of age or younger.)

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NEW SECTION
WAC 388-505-0250   Eligibility for family institutional medical for individuals twenty-one years of age or older.   (1) Individuals twenty-one years of age or older must meet the requirements in WAC 388-505-0240 to qualify for family institutional medical coverage.

(2) Individuals, twenty-one through sixty-four years of age who are admitted to an institution for mental diseases (IMD) are not eligible for coverage under this section. Individuals who are voluntarily admitted to a psychiatric hospital may be eligible for coverage under the psychiatric indigent inpatient program described in WAC 388-865-0217.

(3) Rules governing resources are described in WAC 388-505-0245. However, if an applicant has countable resources over the standard described in WAC 388-505-0245, he or she may spend down any excess amount towards his or her cost of care as described in WAC 388-505-0265(6).

(4) The categorically needy income level (CNIL) for individuals who qualify for family institutional medical coverage under this section is the temporary assistance for needy families (TANF) one person payment standard based on the requirement to pay shelter costs described in WAC 388-478-0020. An individual's countable income must be at or below this amount to be eligible.

(5) If the individual's income exceeds the standards to be eligible under a categorically needy (CN) medicaid family program, he or she is not eligible for coverage under the medically needy (MN) medicaid program.

(6) Individuals eligible under the provisions of this section may be required to contribute a portion of their income towards the cost of care as described in WAC 388-505-0265.

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NEW SECTION
WAC 388-505-0255   Eligibility for family institutional medical for individuals nineteen and twenty years of age.   (1) Individuals nineteen and twenty years of age must meet the requirements in WAC 388-505-0240 to qualify for family institutional medical coverage.

(2) Rules governing resources are described in WAC 388-505-0245. However, if an applicant has countable resources over the standard described in WAC 388-505-0245, he or she may spend down any excess resources over the standard by applying the excess amount towards his or her cost of care as described in WAC 388-505-0265(6).

(3) The categorically needy income level (CNIL) for individuals who qualify for family institutional medical coverage under this section is the temporary assistance for needy families (TANF) one person payment standard based on the requirement to pay shelter costs described in WAC 388-478-0020. An individual's countable income must be at or below this amount to be eligible.

(4) If an individual's countable income exceeds the standard described in subsection (3) of this section, the department determines whether he or she is eligible for coverage under the medically needy (MN) medicaid program.

(a) Individuals with countable income below the state monthly cost of care in the facility are eligible for MN without spenddown.

(b) If the individual's countable income exceeds the state monthly cost of care but is under the private cost of care plus the amount of any recurring medical expenses for institutional services, he or she may be required to spend down their income as described in WAC 388-519-0110.

(c) If the individual's countable income exceeds the private monthly cost of care plus the amount of any recurring medical expenses for institutional services, he or she is not eligible for family institutional medical coverage.

(5) If an individual is a medicaid applicant or current medical assistance client in the month of his or her twenty-first birthday and receives active inpatient psychiatric or inpatient chemical dependency treatment which extends beyond his or her twenty-first birthday, the department approves or continues CN or MN medicaid coverage until the date the individual is discharged from the facility or until his or her twenty-second birthday, whichever occurs first.

(6) Individuals eligible under the provisions of this section may be required to contribute a portion of their income towards the cost of care as described in WAC 388-505-0265.

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NEW SECTION
WAC 388-505-0260   Eligibility for family institutional medical for children eighteen years of age or younger.   (1) Individuals eighteen years of age or younger must meet the requirements in WAC 388-505-0240 to qualify for family institutional medical coverage.

(2) When an individual eighteen years of age or younger is eligible for premium-based categorically needy (CN) coverage under apple health for kids as described in WAC 388-505-0210(4), the department re-determines his or her eligibility using the provisions of this section so that the individual is not required to pay the premium.

(3) The department does not restrict or limit the resources available to individuals eighteen years of age or younger when determining eligibility for family institutional medical coverage. The department does not consider, or count towards eligibility any resources owned by the individual in this age category, or any resources owned by the individual's parent(s), spouse, or child(ren), if applicable.

(4) The categorically needy income level (CNIL) for individuals who qualify for family institutional medical coverage under this section is two hundred percent of the federal poverty level income standard. Once the department determines an individual meets institutional status, it does not count the income of a parent(s), spouse, or dependent children (if applicable) when determining the individual's countable income.

(5) The department approves CN medical coverage under this section for twelve calendar months. If an individual is discharged from the facility before the end of his or her certification period, he or she remains continuously eligible for CN medical coverage through the end of the original certification date, unless he or she ages out of the program, moves out of state, is incarcerated, or dies.

(6) If an individual is not eligible for CN medical coverage under this section, the department determines his or her eligibility for coverage under the medically needy (MN) program.

(a) MN coverage is only available for an individual who meets the citizenship requirements under WAC 388-424-0010(1) or (2).

(b) Individuals with countable income below the state monthly cost of care in the facility are eligible for MN without spenddown.

(c) If the individual's countable income exceeds the state monthly cost of care, but is under the private monthly cost of care plus the amount of any recurring medical expenses for institutional services, the department may require the individual to spend down his or her income as described in WAC 388-519-0110.

(d) If the individual's countable income exceeds the private monthly cost of care plus the amount of any recurring medical expenses for institutional services, he or she is not eligible for family institutional medical coverage.

(7) The facility where the individual resides may submit an application on the individual's behalf and may act as an authorized representative for the individual if the individual is:

(a) In a court ordered, out-of-home placement under chapter 13.34 RCW; or

(b) Involuntarily committed to an inpatient treatment program by a court order under chapter 71.34 RCW.

(8) Individuals eligible for family institutional medical coverage under the provisions of this section may be required to contribute a portion of their income towards the cost of care as described in WAC 388-505-0265.

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NEW SECTION
WAC 388-505-0265   How the department determines how much of an institutionalized individual's income must be paid towards the cost of care.   (1) Individuals who reside in a medical institution, inpatient psychiatric facility or an institution for mental diseases (IMD) may be required to pay a portion of their income towards the cost of care. This section explains how the department calculates how much an individual is required to pay to the facility. This process is known as the post-eligibility process. If an individual does not have income, he or she does not have to pay.

(2) The department determines available income by considering an individual's total gross income before any mandatory deductions from earnings. Income that was not counted in the initial eligibility process is counted for the post-eligibility process unless the income is excluded under federal or state law. See WAC 388-450-0015 for examples of excluded income types.

(3) The following income allocations and exemptions are deducted from an individual's total gross income to determine his or her available income. The department uses the rules described in WAC 388-513-1380 to calculate the amount of these allocations and exemptions, with the exception that under the family institutional medical program, there is no deduction for earned income in the post-eligibility process.

(a) Personal needs allowance (PNA) and maintenance allocation. The combined totals of all of the following deductions cannot exceed the medically needy income level (MNIL):

(i) PNA as allowed under WAC 388-478-0040;

(ii) Mandatory federal, state, or local income taxes owed by the client; and

(iii) Court ordered guardianship fees and administrative costs, including attorney fees, as described in chapter 388-79 WAC.

(b) Income garnished to comply with a court order for child support.

(c) Community spouse allocation.

(d) Family maintenance allocation if married with dependents.

(e) Legal dependent allocation for an unmarried client with dependents. The maximum allocation is based upon the MNIL standard for the number of dependents minus the dependent's income.

(f) Medical expense allocation. The department allows a deduction for unpaid medical expenses for which the individual is still liable. Medical expenses allowed for this allocation are described in WAC 388-513-1350.

(g) Housing maintenance exemption:

(i) For an individual who is financially responsible for the costs of maintaining a home while he or she is in an institution, the department allows a deduction, limited to a six-month period, of up to one hundred percent of the one-person poverty level per month, when a physician has certified that the individual is likely to return to the home within the six-month period.

(ii) An individual eighteen years of age or younger is not eligible for the housing maintenance exemption unless the housing expense is the individual's financial responsibility. Children are not financially responsible for the housing expenses incurred by their parents.

(4) Individuals may keep a personal needs allowance of up to the one person temporary assistance for needy families (TANF) payment standard (based upon the requirement to pay shelter costs) in the month they are admitted and in the month they are discharged from the facility.

(5) Any income which remains must be paid to the facility towards the cost of care.

(6) Individuals nineteen years of age or older who qualify for categorically needy (CN) or medically needy (MN) coverage but have countable resources in excess of the resource limits as described in WAC 388-505-0245 must pay an amount equal to the excess amount to the facility towards the cost of their care in the month of application. This amount is in addition to the amount calculated under subsections (2) through (4) of this section (if any).

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NEW SECTION
WAC 388-505-0270   When an involuntary commitment to Eastern or Western State Hospital is covered by medicaid.   (1) Individuals admitted to Eastern or Western State Hospital for inpatient psychiatric treatment may qualify for categorically needy (CN) medicaid coverage and general assistance (GA) cash benefits to cover their personal needs allowance (PNA).

(2) To be eligible under this program, individuals must:

(a) Be eighteen through twenty years of age or sixty-five years of age or older;

(b) Meet institutional status under WAC 388-513-1320;

(c) Be involuntarily committed to an inpatient treatment program by a court order under chapter 71.34 RCW;

(d) Meet the general eligibility requirements for the GA cash program as described in WAC 388-400-0025;

(e) Have countable income below the payment standard described in WAC 388-478-0040; and

(f) Have countable resources below one thousand dollars. Individuals eligible under the provisions of this section may not apply excess resources towards the cost of care to become eligible. An individual with resources over the standard is not eligible for assistance under this section.

(3) GA clients who receive active psychiatric treatment in Eastern or Western State Hospital at the time of their twenty-first birthday continue to be eligible for medicaid coverage until the date they are discharged from the facility or until their twenty-second birthday, whichever occurs first.

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Washington State Code Reviser's Office