Date of Adoption: March 23, 2004.

     Purpose: The Division of Developmental Disabilities (DDD) has received approval from the federal Centers for Medicare and Medicaid Services (CMS) to implement four home and community based service (HCBS) waivers, which replace the current community alternatives program (CAP) waiver.

     These rules delete the CAP waiver from and add new DDD waivers to the definition section (WAC 388-513-1301) and change references from the CAP waiver to the new DDD waivers in WAC 388-513-1315 and 388-515-1510 to make the rules consistent with emergency rules adopted in chapter 388-825 WAC and new chapter 388-845 WAC.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-513-1301, 388-513-1315, and 388-515-1510.

     Statutory Authority for Adoption: RCW 71A.12.030, 71A.12.120.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: The approval of the HCBS waivers by CMS requires the department to implement new rules by April 1, 2004, to protect the health and welfare of eligible clients by ensuring no interruption in services to current participants in the CAP waiver occurs, and to ensure a continuation of federal matching funds under 42 C.F.R. 441, Subpart G -- Home and Community Based Services -- Waiver Requirements. These changes are necessary for the definitions to coincide with the new terminology.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 3, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 3, Repealed 0.
     Effective Date of Rule: April 1, 2004.

March 23, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     "Add-on hours" means additional hours the department purchases from providers to perform medically-oriented tasks for clients who require extra help because of a handicapping condition.

     "Alternate living facility (ALF)" means one of the following community residential facilities that are contracted with the department to provide certain services:

     (1) Adult family home (AFH), a licensed family home that provides its residents with personal care and board and room for two to six adults unrelated to the person(s) providing the care.

     (2) Adult residential care facility (ARC) (formerly known as a CCF) is a licensed facility that provides its residents with shelter, food, household maintenance, personal care and supervision.

     (3) Adult residential rehabilitation center (ARRC) or Adult residential treatment facility (ARTF), a licensed facility that provides its residents with twenty-four hour residential care for impairments related to mental illness.

     (4) Assisted living facility (AL), a licensed facility for aged and disabled low-income persons with functional disabilities. COPES eligible clients are often placed in assisted living.

     (5) Division of developmental disabilities (DDD) group home (GH), a licensed facility that provides its residents with twenty-four hour supervision.

     (6) Enhanced adult residential care facility (EARC), a licensed facility that provides its residents with those services provided in an ARC, in addition to those required because of the client's special needs.

     "Clothing and personal incidentals (CPI)" means the same as personal needs allowance (PNA) later in this section.

     (("Community alternatives program (CAP)" means a Medicaid-waivered program that provides home and community-based services as an alternative to an institution for the mentally retarded (ICF-MR) to persons determined eligible for services from DDD.))

     "Community options program entry system (COPES)" means a Medicaid-waivered program that provides an aged or disabled person assessed as needing nursing facility care with the option to remain at home or in an alternate living facility.

     "Community spouse (CS)" means a person who does not live in a medical institution or nursing facility, and who is legally married to an institutionalized client or to a person receiving services from home and community-based waiver programs.

     "Comprehensive assessment (CA)" means the evaluation process used by a department designated social services worker to determine the client's need for long-term care services.

     "Coordinated community AIDS service alternative (CASA)" means a Medicaid-waivered program that provides a person with acquired immune deficiency syndrome (AIDS) or disabled class IV human immunodeficiency virus (HIV) and at risk of hospitalization with the option to remain at home or in an alternate living facility.

     "DDD waiver" means Medicaid-waivered programs that provide home and community-based services as an alternative to an intermediate care facility for the mentally retarded (ICF-MR) to persons determined eligible for services from DDD. There are four waivers administered by DDD: Basic, Basic Plus, Core and Community Protection.

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

     "Federal benefit rate (FBR)" means the basic benefit amount the social security administration (SSA) pays to clients who are eligible for the supplemental security income (SSI) program.

     "Institutional services" means services paid for by Medicaid or state payment and provided in a nursing facility or equivalent care provided in a medical facility.

     "Institutional status" means what is described in WAC 388-513-1320.

     "Institutionalized client" means a client who has attained institutional status as described in WAC 388-513-1320.

     "Institutionalized spouse" means a client who has attained institutional status as described in WAC 388-513-1320 and is legally married to a person who is not an institutionalized client.

     "Legally married" means persons legally married to each other under provision of Washington state law. Washington recognizes other states' legal and common-law marriages. Persons are considered married if they are not divorced, even when they are physically or legally separated.

     "Likely to reside" means there is a reasonable expectation the client will remain in a medical facility for thirty consecutive days. Once made, the determination stands, even if the client does not actually remain in the facility for that length of time.

     "Look-back period" means the number of months prior to the month of application for LTC services that the department will consider for transfer of assets.

     "Maintenance needs amount" means a monthly income amount a client keeps or that is allocated to a spouse or dependent family member who lives in the client's home.

     "Medically intensive children (MIC)" program means a Medicaid-waivered program that enables medically fragile children under age eighteen to live in the community. The program allows them to obtain medical and support services necessary for them to remain at home or in a home setting instead of in a hospital. Eligibility is included in the OBRA program described in WAC 388-515-1510.

     "Noninstitutional medical assistance" means medical benefits provided by Medicaid or state-funded programs that do not include LTC services.

     "Nursing facility turnaround document (TAD)" means the billing document nursing facilities use to request payment for institutionalized clients.

     "Outward bound residential alternative (OBRA)" means a Medicaid-waivered program that provides a person approved for services from DDD with the option to remain at home or in an alternate living facility.

     "Participation" means the amount a client is responsible to pay each month toward the total cost of care they receive each month. It is the amount remaining after subtracting allowable deductions and allocations from available monthly income.

     "Penalty period" means a period of time for which a client is not eligible to receive LTC services.

     "Personal needs allowance (PNA)" means a standard allowance for clothing and other personal needs for clients who live in a medical or alternate living facility. This allowance is sometimes referred to as "CPI."

     "Prouty benefits" means special "age seventy-two" Social Security benefits available to persons born before 1896 who are not otherwise eligible for Social Security.

     "Short stay" means a person who has entered a medical facility but is not likely to remain institutionalized for thirty consecutive days.

     "Special income level (SIL)" means the monthly income standard for the categorically needy (CN) program that is three hundred percent of the SSI federal benefit rate (FBR).

     "Swing bed" means a bed in a medical facility that is contracted as both a hospital and a nursing facility bed.

     "Transfer of a resource or asset" means any act or failure to act, by a person 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.

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

     "Undue hardship" means the person is not able to meet shelter, food, clothing, or health needs.

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

     (1) All money, real or personal property, food, shelter, or services the person receives under a legally enforceable purchase agreement whereby the person transfers the asset; and

     (2) The payment or assumption of a legal debt the seller owes in exchange for the asset.

     "Veterans benefits" means different types of benefits paid by the federal Department of Veterans Affairs (VA). Some may include additional allowances for:

     (1) Aid and attendance for an individual needing regular help from another person with activities of daily living;

     (2) "Housebound" for an individual who, when without assistance from another person, is confined to the home;

     (3) Improved pension, the newest type of VA disability pension, available to veterans and their survivors whose income from other sources (including service connected disability) is below the improved pension amount; or

     (4) Unusual medical expenses (UME), determined by the VA based on the amount of unreimbursed medical expenses reported by the person who receives a needs-based benefit. The VA can use UME to reduce countable income to allow the person to receive a higher monthly VA payment, a one-time adjustment payment, or both.

     "Waivered programs/services" means programs for which the federal government authorizes exceptions to Medicaid rules. Such programs provide to an eligible client a variety of services not normally covered under Medicaid. In Washington state, waivered programs are ((CAP)) DDD waivers, CASA, COPES, MIC, and OBRA.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.575. 02-09-052, § 388-513-1301, filed 4/12/02, effective 5/13/02. 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, § 388-513-1301, filed 12/8/99, effective 1/8/00.]

     (1) To be eligible for long-term care (LTC) services described in this section, a client must:

     (a) Meet the general eligibility requirements for medical programs described in WAC 388-503-0505 (2) and (3)(a) through (f);

     (b) Attain institutional status as described in WAC 388-513-1320; and

     (c) Not be subject to a penalty period of ineligibility as described in WAC 388-513-1365 and 388-513-1366.

     (2) To be eligible for institutional, waivered, or hospice services under the CN program, a client must either:

     (a) Be related to the Supplemental Security Income (SSI) program as described in WAC 388-503-0510(1) or be approved for the general assistance expedited Medicaid disability (GA-X) program; and

     (b) Meet the following financial requirements, by having:

     (i) Gross nonexcluded income described in subsection (7)(a) that does not exceed the special income level (SIL); and

     (ii) Nonexcluded resources described in subsection (6) that do not exceed the resource standard described in WAC 388-513-1350(1), unless subsection (3) applies; or

     (c) Be eligible for the CN children's medical program as described in WAC 388-505-0210; or

     (d) Be eligible for the temporary assistance for needy families (TANF) program or state family assistance (SFA) program as described in WAC 388-505-0220.

     (3) The department allows a client to have nonexcluded resources in excess of the standard described in WAC 388-513-1350(1) during the month of either an application or eligibility review if, when excess resources are added to nonexcluded income, the combined total does not exceed the SIL.

     (4) To be eligible for waivered or hospice services, a client must also meet the program requirements described in:

     (a) WAC 388-515-1505 for COPES services;

     (b) WAC 388-515-1510 for ((CAP)) DDD waiver and OBRA services; or

     (c) ((WAC 388-515-1530 for CASA services; or

     (d))) Chapter 388-551 WAC for hospice services.

     (5) To be eligible for institutional or hospice services under the MN program, a client must be:

     (a) Eligible for the MN children's medical program as described in WAC 388-505-0210; or

     (b) Related to the SSI program as described in WAC 388-503-0510(1) and meet all requirements described in WAC 388-513-1395.

     (6) To determine resource eligibility for an SSI-related client under the CN or MN program, the department:

     (a) Considers resources available as described in WAC 388-513-1350;

     (b) Excludes resources described in WAC 388-513-1360, 388-513-1365, and 388-513-1366; and

     (c) Compares the nonexcluded resources to the standard described in WAC 388-513-1350(1).

     (7) To determine income eligibility for an SSI-related client under the CN or MN program, the department:

     (a) Considers income available as described in WAC 388-513-1325 and 388-513-1330;

     (b) Excludes income for CN and MN programs as described in WAC 388-513-1340;

     (c) Disregards income for the MN program as described in WAC 388-513-1345; and

     (d) Follows program rules for the MN program as described in WAC 388-513-1395.

     (8) A client who meets the requirements of the CN program is approved for a period of up to twelve months for:

     (a) Institutional services in a medical facility;

     (b) Waivered services at home or in an alternate living facility; or

     (c) Hospice services at home or in a medical facility.

     (9) A client who meets the requirements of the MN program is approved for a period of months described in WAC 388-513-1395 (5)(a)(ii) for:

     (a) Institutional services in a medical facility; or

     (b) Hospice services at home or in a medical facility.

     (10) The department determines eligibility for LTC services under the alien emergency medical (AEM) program described in WAC 388-438-0110 for a client who meets all other requirements for such services but does not meet citizenship requirements.

     (11) The department determines eligibility for institutional services under the GA program described in WAC 388-448-0001 for a client who meets all other requirements for such services but is not eligible for programs described in subsections (8) through (10).

     (12) The department determines eligibility for institutional services under the medically indigent program described in WAC 388-438-0100 for a client who meets all other requirements for such services but is not eligible for programs described in subsections (8) through (11).

     (13) A client is eligible for Medicaid as a resident in a psychiatric facility, if the client:

     (a) Has attained institutional status as described in WAC 388-513-1320; and

     (b) Is less than twenty-one years old or is at least sixty-five years old.

     (14) The department determines a client's eligibility as it does for a single person when the client's spouse has already been determined eligible for LTC services.

     (15) The department considers the parents' income and resources available as described in WAC 388-405-0055 (1)(c) for a minor who is less than eighteen years old and is receiving or is expected to receive inpatient chemical dependency and/or inpatient mental health treatment.

     (16) The department considers the parents' income and resources available only as contributed for a client who is less than twenty-one years old and has attained institutional status as described in WAC 388-513-1320

     (17) The department determines a client's participation in the cost of care for LTC services as described in WAC 388-513-1380.

[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, § 388-513-1315, filed 12/8/99, effective 1/8/00. Statutory Authority: RCW 74.08.090 and 74.09.500. 99-06-045, § 388-513-1315, filed 2/26/99, effective 3/29/99. 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.]

     (1) The four DDD waivers are:

     (a) Basic,

     (b) Basic Plus,

     (c) Core, and

     (d) Community protection.

     (2) The department establishes eligibility for ((CAP)) DDD waivers and OBRA services for a client who:

     (a) Is both Medicaid eligible under the categorically needy (CN) program and meets the requirements for services provided by the division of developmental disabilities (DDD);

     (b) Has attained institutional status as described in WAC 388-513-1320;

     (c) Has been assessed as requiring the level of care provided in an intermediate care facility for the mentally retarded (ICF/IMR);

     (d) Has a department-approved plan of care that includes support services to be provided in the community;

     (e) Is able to reside in the community according to the plan of care and chooses to do so;

     (f) Meets the income and resource requirements described in subsection (((2)))(3); and

     (g) For the OBRA program only, the client must be a medical facility resident at the time of application.

     (((2))) (3) The department allows a client to have nonexcluded resources in excess of the standard described in WAC 388-513-1350(1) during the month of either an application or eligibility review if, when excess resources are added to nonexcluded income, the combined total does not exceed the special income level (SIL). Refer to WAC 388-513-1315 for rules used to determine nonexcluded income and resources. During other months, financial requirements include the following:

     (a) Nonexcluded income must be at or below the SIL; and

     (b) Nonexcluded resources not allocated to participation in a prior month must be at or below the resource standard.

     (((3))) (4) A client who is eligible for supplemental security income (SSI) does not participate in the cost of care for ((CAP)) DDD waivers or OBRA services.

     (((4))) (5) An SSI-related client retains a maintenance needs amount of up to the SIL, who is:

     (a) Living at home; or

     (b) Living in an alternate living facility described in WAC 388-513-1305(1).

     (((5))) (6) A client described in subsection (((4)))(5)(b) retains the greater of:

     (a) The SSI grant standard; or

     (b) An amount equal to a total of the following:

     (i) A personal needs allowance (PNA) of thirty-eight dollars and eighty-four cents; plus

     (ii) The facility's monthly rate for board and room, which the client pays to the facility; plus

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

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

     (((6))) (7) If a client has a spouse in the home who is not receiving ((CAP)) DDD waivers or OBRA services, the department allocates the client's income in excess of the amounts described in subsections (((4) and (5))) (5) and (6) as an additional maintenance needs amount in the following order:

     (a) One for the spouse, as described in WAC 388-513-1380 (7)(b); and

     (b) One for any other dependent family member in the home, as described in WAC 388-513-1380 (7)(c).

     (((7))) (8) A client's participation in the cost of care for ((CAP)) DDD waivers or OBRA services is the client's income:

     (a) That exceeds the amounts described in subsections (((4), (5), and (6))) (5), (6) ,and (7); and

     (b) Remains after deductions for medical expenses not subject to third-party payment for which the client remains liable, included in the following:

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

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

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.500. 01-02-052, § 388-515-1510, filed 12/28/00, effective 1/28/01. 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, § 388-515-1510, filed 12/8/99, effective 1/8/00. Statutory Authority: RCW 74.08.090 and 74.09.500. 99-06-045, § 388-515-1510, filed 2/26/99, effective 3/29/99. 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.]

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