Purpose: To clarify income and resource allocations for the COPES (community options program entry system) waiver services program, including court-ordered guardianship and attorney fees in those allocations; and correct erroneous statement regarding SSI (supplemental security income) clients' income being used to participate in their cost of care. Also includes provision in subsection (9) stating total client income cannot exceed the special income allowance (SIL), which is included in the federal waiver but was unintentionally left out of the WAC.

     The permanent rule-making process is underway. The permanent rule has been proposed under WSR 04-24-077 and the public hearing is scheduled for January 4, 2005.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-515-1505.

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

     Under RCW 34.05.350 the agency for good cause finds 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 rule is not in compliance with federal rule 42 C.F.R. 435.735, and compliance with federal rule is necessary for the continued receipt of federal funds.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

     Date Adopted: December 15, 2004.

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (1) To be eligible for COPES a client must:

     (a) Be eighteen years of age or older;

     (b) Meet the disability criteria of the Supplemental Security Income (SSI) program as described in WAC 388-503-0510(1);

     (c) Require the level of care provided in a nursing facility as described in WAC ((388-71-0700)) 388-72A-0055;

     (d) Be residing in a medical facility as defined in WAC 388-513-1301, or likely be placed in one within the next thirty days in the absence of ((waivered)) waiver services described in WAC 388-71-0410 and 388-71-0415;

     (e) Have attained institutional status as described in WAC 388-513-1320;

     (f) Be determined in need of waivered services and be approved for a plan of care as described in WAC ((388-71-0435)) 388-72A-0055;

     (g) Be able to live at home with community support services and ((chooses)) choose to remain at home, or live in a department-contracted:

     (i) Enhanced adult residential care (EARC) facility;

     (ii) Licensed adult family home (AFH); or

     (iii) Assisted living (AL) facility.

     (h) Not be subject to a penalty period of ineligibility for the transfer of an asset as described in WAC 388-513-1364, 388-513-1365 and 388-513-1366; and

     (i) Meet the resource and income requirements described in subsections (2), (3) and (4).

     (2) Refer to WAC 388-513-1315 for rules used to determine nonexcluded resources and income.

     (3) Nonexcluded resources above the standard described in WAC 388-513-1350(1):

     (a) Are allowed during the month of an application or eligibility review ((if)), when ((excess resources are added to nonexcluded income,)) the combined total ((is not over)) of excess resources and nonexcluded income does not exceed the special income level (SIL).

     (b) Are reduced by incurred medical expenses (for definition, see WAC 388-519-0110(10)) that are not subject to third-party payment and for which the client is liable, including:

     (i) Health insurance and Medicare premiums, deductions, and co-insurance charges; and

     (ii) Necessary medical care recognized under state law, but not covered under the state's Medicaid plan.

     (c) Not allocated to participation must be at or below the resource standard, otherwise the client is ineligible.

     (((([(a)])))) (4) Nonexcluded income must be at or below the SIL and is allocated in the following order:

     (a) ((Must be at or below the SIL;

     (b) Is allocated in the following order:

     (i))) An earned income deduction of the first sixty-five dollars plus one-half of the remaining earned income;

     (((ii))) (b) Maintenance and personal needs allowances as described in subsection (6), (7), and (8) of this section;

     (((iii))) (c) Guardianship fees and administrative costs including any attorney fees paid by the guardian only as allowed by chapter ((388-079)) 388-79 WAC;

     (((iv))) (d) Income garnisheed for child support or withheld pursuant to a child support order:

     (((A))) (i) For the time period covered by the maintenance amount; and

     (((B))) (ii) Not deducted under another provision in the post-eligibility process.

     (((v))) (e) Monthly maintenance needs allowance for the community spouse not to exceed that in WAC 388-513-1380 (6)(b) unless a greater amount is allocated as described in subsection (5) of this section. This amount:

     (((A))) (i) Is allowed only to the extent that the client's income is made available to the community spouse; and

     (((B))) (ii) Consists of a combined total of both:

     (((I))) (A) An amount added to the community spouse's gross income to provide a total equal to the amount allocated in WAC 388-513-1380 (6)(b); and

     (((II))) (B) Excess shelter expenses. For the purposes of this section, excess shelter expenses are the actual required maintenance expenses for the community spouse's principal residence ((of)). These expenses are:

     ((•)) (I) Rent;

     ((•)) (II) Mortgage;

     ((•)) (III) Taxes and insurance;

     ((•)) (IV) Any maintenance care for a condominium or cooperative; and

     ((•)) (V) The food assistance standard utility allowance (for LTC services this is set at the standard utility allowance (SUA) for a four-person household), provided the utilities are not included in the maintenance charges for a condominium or cooperative;

     ((•)) (VI) LESS the standard shelter allocation listed in WAC 388-513-1380 (7)(a).

     (((III))) (f) A monthly maintenance needs amount for each minor or dependent child, dependent parent or dependent sibling of the community or institutionalized spouse based on the living arrangement of the dependent. If the dependent:

     ((•)) (i) Resides with the community spouse, the amount is equal to one-third of the community spouse income allocation as described in WAC 388-513-1380 (6)(b)(I)(A) that exceeds the dependent family member's income;

     ((•)) (ii) Does not reside with the community spouse, the amount is equal to the MNIL for the number of dependent family members in the home less the income of the dependent family members. Child support received from an absent parent is the child's income;

     ((•)) (g) Incurred medical expenses described in subsection (3)(b) not used to reduce excess resources.

     (5) The amount allocated to the community spouse may be greater than the amount in subsection (((4)(b)(iv))) (4)(e) only when:

     (a) A court enters an order against the client for the support of the community spouse; or

     (b) A hearings officer determines a greater amount is needed because of exceptional circumstances resulting in extreme financial duress.

     (6) A client who receives SSI does not use income to participate in the cost of personal care, but does use SSI income to participate in paying costs of board and room. ((Other income an SSI client receives is used to participate in the cost of personal care.)) When such a client ((who)) lives:

     (a) At home, the client retains a maintenance needs amount equal to the following:

     (i) Up to one hundred percent of the one-person Federal Poverty Level (FPL), if the client is:

     (A) Single; or

     (B) Married, and is:

     (I) Not living with the community spouse; or

     (II) Whose spouse is receiving long-term care (LTC) services outside of the home.

     (ii) Up to one hundred percent of the one-person FPL for each client, if both spouses are receiving COPES services;

     (iii) Up to the one-person MNIL if the client is living with a community spouse who is not receiving LTC services.

     (b) In an EARC, AFH, or AL the client:

     (i) Retains a personal needs allowance (PNA) of fifty-eight dollars and eighty-four cents; ((and))

     (ii) Pays ((remaining SSI income to)) the facility for the cost of ((board and)) room and board. Room and board is the SSI Federal Benefit Rate (FBR) minus fifty-eight dollars and eighty-four cents: and

     (iii) Retains the remainder of the income.

     (7) An SSI-related client living:

     (a) At home, retains a maintenance needs amount equal to the following:

     (i) Up to one hundred percent of the one-person ((Federal Poverty Level ())FPL(())), if the client is:

     (A) Single; or

     (B) Married, and is:

     (I) Not living with the community spouse; or

     (II) Whose spouse is receiving long-term care (LTC) services outside of the home.

     (ii) Up to one hundred percent of the one-person FPL for each client, if both spouses are receiving COPES services;

     (iii) Up to the one-person medically needy income level (MNIL) for a married client who is living with a community spouse who is not receiving COPES.

     (b) In an ARC, EARC, AFH, or AL retains a maintenance needs amount equal to the ((one-person MNIL)) SSI FBR and:

     (i) Retains a ((PNA taken from the MNIL)) personal needs allowance (PNA) of fifty-eight dollars and eighty-four cents from the maintenance needs; and

     (ii) Pays the remainder of the ((MNIL to the)) maintenance needs to the facility for the cost of board and room.

     (8) A client who is eligible for the general assistance expedited Medicaid disability (GAX) program does not participate in the cost of personal care. When such a client ((who)) lives:

     (a) At home, the client retains the cash grant amount authorized under the general assistance program; ((or))

     (b) In an AFH, ((EARC, or AL,)) the client retains a PNA of thirty-eight dollars and eighty-four cents, and pays remaining income and GAX grant to the facility for the cost of board and room; or

     (c) In an EARC or AL, the client only receives a PNA of thirty-eight dollars and eighty-four cents and retains it.

     (9) The total of the following amounts cannot exceed the SIL:

     (a) Maintenance and personal needs allowances as described in subsections (6), (7), and (8);

     (b) Earned income deduction of the first sixty-five dollars plus one-half of the remaining earned income in subsection (4)(a); and

     (c) Guardianship fees and administrative costs in subsection (4)(c).

     (((9))) (10) The client's remaining income after the allocations described in subsections (4) through (8) is the client's participation in the total cost of care.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.575. 02-05-003, § 388-515-1505, filed 2/7/02, effective 3/10/02. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.500. 01-02-052, § 388-515-1505, filed 12/28/00, effective 1/28/01. Statutory Authority: RCW 74.08.090, 74.04.050, 74.04.057, 42 C.F.R. 435.601, 42 C.F.R. 435.725-726, and Sections 4715 and 4735 of the Federal Balanced Budget Act of 1997 (P.L. 105-33) (H.R. 2015). 00-01-087, § 388-515-1505, filed 12/14/99, effective 1/14/00. Statutory Authority: RCW 74.08.090. 96-14-058 (Order 100346), § 388-515-1505, filed 6/27/96, effective 7/28/96; 95-20-030 (Order 3899), § 388-515-1505, filed 9/27/95, effective 10/28/95; 94-10-065 (Order 3732), § 388-515-1505, filed 5/3/94, effective 6/3/94. Formerly WAC 388-83-200.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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