Title of Rule: WAC 388-513-1364 Evaluating the transfer of an asset made on or after April 1, 2003, for long-term care (LTC) services.

     Purpose: To (1) correct an outdated cross-reference to WAC 388-561-0100 in subsection (4)(d). The recent amendment to WAC 388-561-0100 Trusts, resulted in some of the subsections being renumbered; and (2) correct outline numbering in subsection (5)(b).

     Statutory Authority for Adoption: RCW 74.08.090.

     Statute Being Implemented: RCW 74.08.090.

     Summary: In subsection (4)(d), the cross-reference to WAC 388-561-0100 (5)(a) and (b) is being changed to WAC 388-561-0100 (6)(a) and (b). In subsection (5)(b) outline numbering of subsections (i) and (ii) are corrected without changing the effect of the rule.

     Reasons Supporting Proposal: See Purpose and Summary above.

     Name of Agency Personnel Responsible for Drafting: Kevin Sullivan, P.O. Box 45533, Olympia, WA 98504-5533, (360) 725-1344; Implementation and Enforcement: Mary Lou Percival, ADSA, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2318.

     Name of Proponent: Department of Social and Health Services, Medical Assistance Administration, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: To correct an outdated cross-reference to WAC 388-561-0100 in subsection (4)(d). The recent amendment to WAC 388-561-0100 Trusts, resulted in some of the subsections being renumbered. Also, to correct outline numbering in subsection (5)(b).

     Proposal Changes the Following Existing Rules: In subsection (4)(d), the cross-reference to WAC 388-561-0100 (5)(a) and (b) is being changed to WAC 388-561-0100 (6)(a) and (b). In subsection (5)(b) outline numbering of subsections (i) and (ii) are corrected without changing the effect of the rule.

June 13, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (1) The department does not apply a penalty period to the following transfers by the client, if they meet the conditions described:

     (a) Gifts or donations totaling one thousand dollars or less in any month;

     (b) The transfer of an excluded resource described in WAC 388-513-1360 with the exception of the client's home, unless the transfer of the client's home meets the conditions described in subsection (1)(d);

     (c) The transfer of an asset for less than fair market value (FMV), if the client can provide evidence to the department of one of the following:

     (i) An intent to transfer the asset at FMV or other adequate compensation;

     (ii) The transfer is not made to qualify for LTC services;

     (iii) The client is given back ownership of the asset;

     (iv) The denial of eligibility would result in an undue hardship.

     (d) The transfer of ownership of the client's home, if it is transferred to the client's:

     (i) Spouse; or

     (ii) Child, who:

     (A) Meets the disability criteria described in WAC 388-511-1105 (1)(b) or (c); or

     (B) Is less than twenty-one years old; or

     (C) Lived in the home for at least two years immediately before the client's current period of institutional status, and provided care that enabled the client to remain in the home; or

     (iii) Brother or sister, who has:

     (A) Equity in the home; and

     (B) Lived in the home for at least one year immediately before the client's current period of institutional status.

     (e) The transfer of an asset, if the transfer meets the conditions described in subsection (4), and the asset is transferred:

     (i) To another person for the sole benefit of the spouse;

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

     (iii) To trust established for the sole benefit of the client's child who meets the disability criteria described in WAC 388-511-1105 (1)(b) or (c);

     (iv) To a trust established for the sole benefit of a person who is sixty-four years old or younger and meets the disability criteria described in WAC 388-511-1105 (1)(b) or (c); or

     (f) The asset is transferred to the client's spouse or to the client's child, if the child meets the disability criteria described in WAC 388-511-1105 (1)(b) or (c).

     (2) The department does not establish a period of ineligibility for the transfer of an asset to a family member prior to the current period of institutional status, if:

     (a) The transfer is in exchange for care services the family member provided the client;

     (b) The client has a documented need for the care services provided by the family member;

     (c) The care services provided by the family member are allowed under the Medicaid state plan or the department's waivered services;

     (d) The care services provided by the family member do not duplicate those that another party is being paid to provide;

     (e) The FMV of the asset transferred is comparable to the FMV of the care services provided;

     (f) The time for which care services are claimed is reasonable based on the kind of services provided; and

     (g) Compensation has been paid as the care services were performed or with no more time delay than one month between the provision of the service and payment.

     (3) The department considers the transfer of an asset in exchange for care services given by a family member that does not meet the criteria as described under subsection (2) as the transfer of an asset without adequate consideration.

     (4) The department considers the transfer of an asset or the establishment of a trust to be for the sole benefit of a person described in subsection (1)(e), if the transfer or trust:

     (a) Is established by a legal document that makes the transfer irrevocable;

     (b) Provides that no individual or entity except the spouse, blind or disabled child, or disabled individual can benefit from the assets transferred in any way, whether at the time of the transfer or at any time during the life of the primary beneficiary; and

     (c) Provides for spending all assets involved for the sole benefit of the individual on a basis that is actuarially sound based on the life expectancy of that individual or the term or the trust, whichever is less; and

     (d) The requirements in subsection (4)(c) of this section do not apply to trusts described in WAC 388-561-0100 (((5)))(6)(a) and (b).

     (5) If a client or the client's spouse transfers an asset within the look-back period described in WAC 388-513-1365 without receiving adequate compensation, the result is a penalty period in which the client is not eligible for LTC services. If a client or the client's spouse transfers an asset on or after April 1, 2003, the department must establish a penalty period as follows:

     (a) If a single or multiple transfers are made within a single month, then the penalty period:

     (i) Begins on the first day of the month in which the transfer is made; and

     (ii) Ends on the last day of the number of whole days found by dividing the total uncompensated value of the assets by the statewide average daily private cost for nursing facilities at the time of application.

     (b) If multiple transfers are made during multiple months, then the transfers are treated as separate events and multiple penalty periods are established that((:

     (i))) begin on the latter of:

     (((A))) (i) The first day of the month in which the transfer is made; or

     (((B))) (ii) The first day after any previous penalty period has ended and end on the last day of the whole number of days as described in subsection (5)(a)(ii).

     (6) If an asset is sold, transferred, or exchanged, the portion of the proceeds:

     (a) That is used within the same month to acquire an excluded resource described in WAC 388-513-1360 does not affect the client's eligibility;

     (b) That remain after an acquisition described in subsection (6)(a) becomes an available resource as of the first day of the following month.

     (7) If the transfer of an asset to the client's spouse includes the right to receive a stream of income not generated by a transferred resource, the department must apply rules described in WAC 388-513-1330 (6) through (8).

     (8) If the transfer of an asset for which adequate compensation is not received is made to a person other than the client's spouse and includes the right to receive a stream of income not generated by a transferred resource, the length of the penalty period is determined and applied in the following way:

     (a) The total amount of income that reflects a time frame based on the actuarial life expectancy of the client who transfers the income is added together;

     (b) The amount described in subsection (8)(a) is divided by the statewide average daily private cost for nursing facilities at the time of application; and

     (c) A penalty period equal to the number of whole days found by following subsections (5)(a) and (b) and (8)(a) and (b) is applied that begins on the latter of:

     (i) The first day of the month in which the client transfers the income; or

     (ii) The first day of the month after any previous penalty period has ended.

     (9) A penalty period for the transfer of an asset that is applied to one spouse is not applied to the other spouse, unless:

     (a) Both spouses are receiving LTC services; and

     (b) A division of the penalty period between the spouses is requested.

     (10) If a client or the client's spouse disagrees with the determination or application of a penalty period, that person may request a hearing as described in chapter 388-02 WAC.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.575. 03-06-048, § 388-513-1364, filed 2/28/03, effective 4/1/03.]

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