Date of Adoption: June 20, 2003.

     Purpose: To add a closing date to WAC 388-513-1365 now that new WAC 388-513-1364 became effective April 1, 2003.

     WAC 388-513-1365 and 388-561-0100 were both proposed under WSR 03-09-117. Upon adopting the permanent rules filed as WSR 03-13-113 on June 17, 2003, WAC 388-513-1365 was inadvertently left out.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-513-1365.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.575.

      Adopted under notice filed as WSR 03-09-117 on April 22, 2003.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.
     Effective Date of Rule: August 1, 2003.

June 20, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (1) The department disregards 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 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 that satisfies 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

     (iii) A son or daughter, who:

     (A) Lived in the home for at least two years immediately before the client's current period of institutional status; and

     (B) Provided care that enabled the client to remain in the home; or

     (iv) A 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 other than the home, if the transfer meets the conditions described in subsection (4), and the asset is transferred:

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

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

     (f) The transfer of an asset to a member of the client's family in exchange for care the family member provided the client before the current period of institutional status, if a written agreement that describes the terms of the exchange:

     (i) Was established at the time the care began;

     (ii) Defines a reasonable FMV for the care provided that reflects a time frame based on the actuarial life expectancy of the client who transfers the asset; and

     (iii) States that the transferred asset is considered payment for the care provided.

     (2) When the fair market value of the care described in subsection (1)(f) is less than the value of the transferred asset, the department considers the difference the transfer of an asset without adequate consideration.

     (3) The department considers the transfer of an asset in exchange for care given by a family member without a written agreement as described under subsection (1)(f) as the transfer of an asset without adequate consideration.

     (4) The transfer of an asset or the establishment of a trust is considered 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; and

     (b) Provides for spending all funds involved for the benefit of the person for whom the transfer is made within a time frame based on the actuarial life expectancy of that person.

     (5) When evaluating the effect of the transfer of an asset on a client's eligibility for LTC services received on or after October 1, 1993, the department counts the number of months before the month of application to establish what is referred to as the "look-back" period. The following number of months apply as described:

     (a) Thirty-six months, if all or part of the assets were transferred on or after August 11, 1993; and

     (b) Sixty months, if all or part of the assets were transferred into a trust as described in WAC ((388-505-0595)) 388-561-0100.

     (6) If a client or the client's spouse transfers an asset within the look-back period 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 March 1, 1997 and before 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 months found by dividing the total uncompensated value of the assets by the statewide average monthly 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) The first day of the month in which the transfer is made; or

     (B) The first day after any previous penalty period has ended; and

     (ii) End on the last day of the whole number of months as described in subsection (6)(a)(ii).

     (7) 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 remains after an acquisition described in subsection (7)(a) becomes an available resource as of the first day of the following month.

     (8) 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).

     (9) 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 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 (9)(a) is divided by the statewide average monthly private cost for nursing facilities at the time of application; and

     (c) A penalty period equal to the number of whole months found by following subsections (9)(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.

     (10) 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.

     (11) 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 74.08.090. 01-02-076, § 388-513-1365, filed 12/29/00, effective 1/29/01. Statutory Authority: RCW 11.92.180, 43.20B.460, 48.85.020, 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530, 74.[09.]575, 74.09.585; 20 C.F.R. 416.1110-1112, 1123 and 1160; 42 C.F.R. 435.403 (j)(2) and 1005; and Sections 17, 1915(c), and 1924 (42 U.S.C. 1396) of the Social Security Act. 00-01-051, § 388-513-1365, filed 12/8/99, effective 1/8/00. Statutory Authority: RCW 74.08.090 and 74.09.500. 99-06-045, § 388-513-1365, filed 2/26/99, effective 3/29/99. 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.]

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