EMERGENCY RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Effective Date of Rule: Immediately.
Purpose: DSHS is amending WAC 388-513-1350 to:
| • | Clarify the rules, increase the spousal resource maximum from $41,000 to $41,943 effective July 1, 2005, increase the community spousal share maximum to $99,540 effective January 1, 2006, and to $101,640 effective January 1, 2007. |
| • | Clarify that an individual retirement account (IRA) belonging to a community spouse is a countable resource when determining eligibility for long-term care (LTC) services. (Social Security Act section 1924 supersedes Social Security Income (SSI)-related rules.) |
Citation of Existing Rules Affected by this Order: Repealing WAC 388-513-1360; and amending WAC 388-513-1350.
Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530, 74.09.575.
Other Authority: 2005 Federal Deficit Reduction Act (DRA) Public Law 109-171; and Section 1924 of the Social Security Act (42 U.S.C. 1396r-5).
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: Congress recently adopted new standards for client available resources in P.L. 109-171 § 6104, which the state must adopt to remain eligible for federal Medicaid funding. Other revisions are needed to protect the health and welfare of clients by assuring that correct long-term care eligibility determinations are made, and that clients receive the services for which they are eligible. A public hearing on the proposed rule was held on November 21, 2006. The permanent rule has been filed, as WSR 07-01-073 and when effective will replace this emergency rule.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 1; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.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 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 1.
Date Adopted: December 18, 2006.
Andy Fernando, Manager
Rules and Policies Assistance Unit
3550.7(1) The resource standard used to determine eligibility for LTC services equals:
(a) Two thousand dollars for:
(i) A single client; or
(ii) A legally married client with a community spouse,
subject to the provisions described in subsections (((5))) (8)
through (((8))) (11) of this section; or
(b) Three thousand dollars for a legally married couple,
unless subsection (((2))) (3) of this section applies.
(2) ((If the department has already established
eligibility for one spouse, then it applies the standard
described in subsection (1)(a) to each spouse, unless doing so
would make one of the spouses ineligible.
(3))) When both spouses apply for LTC services the department considers the resources of both spouses as available to each other through the month in which the spouses stopped living together.
(3) When both spouses are institutionalized, the department will determine the eligibility of each spouse as a single client the month following the month of separation.
(4) If the department has already established eligibility and authorized services for one spouse, and the community spouse needs LTC services in the same month, (but after eligibility has been established and services authorized for the institutional spouse), then the department applies the standard described in subsection (1)(a) of this section to each spouse. If doing this would make one of the spouses ineligible, then the department applies (a)(b) of this section for a couple.
(5) When a single institutionalized individual marries, the department will redetermine eligibility applying the rules for a legally married couple.
(6) The department applies the following rules when determining available resources for LTC services:
(a) WAC 388-475-0300, Resource eligibility ((and
limits));
(b) WAC 388-475-0250, How to determine who owns a resource; and
(c) WAC 388-470-0060(6), Resources of an alien's
sponsor((; and
(d) WAC 388-506-0620, SSI-related medical clients)).
(((4))) (7) For LTC services the department determines a
client's nonexcluded resources as follows:
(a) ((For an SSI-related client, the department reduces
available resources by excluding resources described in WAC 388-475-0350 through 388-475-0550;
(b) For an SSI-related client who has a community spouse, the department:
(i) Excludes resources described in WAC 388-513-1360; and
(ii) Adds together the available resources of both spouses according to subsection (5)(a) or (b) as appropriate;
(c) For a client not described in subsection (4)(a) or (b), the department applies the resource rules of the program used to relate the client to medical eligibility.
(5) The department determines available resources of a legally married client, when both spouses are institutionalized, by following WAC 388-506-0620 (5) and (6).)) The department determines available resources for SSI-related clients as described in WAC 388-475-0350 through WAC 388-475-0550 and resources excluded by federal law with the exception of:
(i) WAC 388-475-0550(16);
(ii) WAC 388-475-0350 (1)(b) Clients who have submitted an application for LTC services on or after May 1, 2006 and have an equity interest greater than five hundred thousand dollars in their primary residence are ineligible for LTC services. This exception does not apply if a spouse or blind, disabled or dependent child under age twenty-one is lawfully residing in the primary residence. Clients denied or terminated LTC services due to excess home equity may apply for an undue hardship waiver.
(b) For an SSI-related client one automobile per household is excluded regardless of value if it is used for transportation of the eligible individual/couple.
(i) For an SSI-related client with a community spouse, the value of one automobile is excluded regardless of its use or value.
(ii) Vehicles not meeting the definition of automobile is a vehicle that has been junked or a vehicle that is used only as a recreational vehicle.
(c) For a SSI-related client, the department adds together the available resources of both spouses if subsections (2), (5), (6), (7) and (8)(a) or (b) apply, but not if subsection (3) or (4) apply.
(d) For an SSI-related client, excess resources are reduced in an amount equal to medical expenses incurred by the client (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;
(ii) Necessary medical care recognized under state law, but not covered under the state's Medicaid plan with the exception of the deduction for medical and remedial care expenses that were incurred during a transfer of asset penalty established per WAC 388-513-1363, WAC 388-513-1364 or WAC 388-515-1365; and
(iii) The amount of excess resources is limited to the following amounts:
(A) For LTC services provided under the categorically needy (CN) program, the amount described in WAC 388-513-1315(3); or
(B) For LTC services provided under the medically needy (MN) program, the amount described in WAC 388-513-1395 (2)(a) or (b).
(e) For a client not related to SSI, the department applies the resource rules of the program used to relate the client to medical eligibility.
(8) For legally married clients when only one spouse meets institutional status, the following rules apply. If the client's current period of institutional status began:
(a) Before October 1, 1989, the department adds together one-half the total amount of nonexcluded resources held in the name of:
(i) The institutionalized spouse; or
(ii) Both spouses.
(b) On or after October 1, 1989, the department adds together the total amount of nonexcluded resources held in the name of:
(i) Either spouse; or
(ii) Both spouses.
(((6))) (9) If subsection (((5))) (8)(b) of this section
applies, the department determines the amount of resources
that are allocated to the community spouse before determining
nonexcluded resources used to establish eligibility for the
institutionalized spouse, as follows:
(a) If the client's current period of institutional
status began on or after October 1, 1989 and before August 1,
2003, the department allocates the maximum amount of resources
ordinarily allowed by law. The maximum allocation amount is
((ninety-five)) ninety-nine thousand ((one)) five hundred
forty dollars effective January 1, ((2005)) 2006. Effective
January 1, 2007, the maximum allocation is one hundred one
thousand six hundred and forty dollars. (this standard
increases annually on January 1st based on the consumer price
index); or
(b) If the client's current period of institutional status began on or after August 1, 2003, the department allocates the greater of:
(i) A spousal share equal to one-half of the couple's
combined nonexcluded resources as of the beginning of the
current period of institutional status, up to the amount
described in subsection (((6))) (9)(a) of this section; or
(ii) The state spousal resource standard of ((forty
thousand)) forty-one thousand nine-hundred forty-three dollars
effective July 1, 2005 (this standard increases every odd year
on July 1st).
(((7))) (10) The amount of the spousal share described in
(((6))) (9)(b)(i) ((is)) can be determined ((sometime))
anytime between the date that the current period of
institutional status began and the date that eligibility for
LTC services is determined. The following rules apply to the
determination of the spousal share:
(a) Prior to an application for LTC services, the couple's combined countable resources are evaluated from the date of the current period of institutional status at the request of either member of the couple. The determination of the spousal share is completed when necessary documentation and/or verification is provided; or
(b) The determination of the spousal share is completed
as part of the application for LTC services if the client was
institutionalized prior to the month of application, and
declares the spousal share exceeds the state spousal resource
standard. The client ((will be)) is required to provide
verification of the couple's combined countable resources held
at the beginning of the current period of institutional
status.
(((8))) (11) The amount of allocated resources described
in subsection (((6))) (9) of this section can be increased,
only if:
(a) A court transfers additional resources to the community spouse; or
(b) An administrative law judge establishes in a fair
hearing described in chapter 388-02 WAC ((or by consent
order)), that the amount is inadequate to provide a minimum
monthly maintenance needs amount for the community spouse.
(((9))) (12) The department considers resources of the
community spouse unavailable to the institutionalized spouse
the month after eligibility for LTC services is established,
unless subsection (((10))) (13)(a), (b), or (c) of this
section applies.
(((10))) (13) A redetermination of the couple's resources
as described in subsections (((4)(b) or (c))) (7) is required,
if:
(a) The institutionalized spouse has a break of at least thirty consecutive days in a period of institutional status;
(b) The institutionalized spouse's nonexcluded resources
exceed the standard described in subsection (1)(a), if
subsection (((5))) (8)(b) applies; or
(c) The institutionalized spouse does not transfer the
amount described in subsections (((6))) (9) or (((8))) (11) to
the community spouse or to another person for the sole benefit
of the community spouse as described in WAC 388-513-1365(4) by
either:
(i) The first regularly scheduled eligibility review; or
(ii) The reasonable amount of additional time necessary to obtain a court order for the support of the community spouse.
[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 42 U.S.C. 9902(2). 05-07-033, § 388-513-1350, filed 3/9/05, effective 4/9/05. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.575; 2003 1st sp.s. c 28, and section 1924 of the Social Security Act (42 U.S.C. 1396R-5). 04-04-072, § 388-513-1350, filed 2/2/04, effective 3/4/04. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500 and Section 1924 (42 U.S.C. 1396R-5). 01-18-055, § 388-513-1350, filed 8/30/01, effective 9/30/01. 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, § 388-513-1350, filed 12/8/99, effective 1/8/00. Statutory Authority: RCW 74.08.090 and 74.09.500. 99-06-045, § 388-513-1350, filed 2/26/99, effective 3/29/99. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.530, 74.09.575 and Section 1924 (42 USC 1396r-5). 98-11-033, § 388-513-1350, filed 5/14/98, effective 6/14/98. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090 and 74.09.575. 97-09-112, § 388-513-1350, filed 4/23/97, effective 5/24/97. Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter 95-44. 96-09-033 (Order 3963), § 388-513-1350, filed 4/10/96, effective 5/11/96. Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter 94-49, notice of increase in SSI level. 95-05-022 (Order 3832), § 388-513-1350, filed 2/8/95, effective 3/11/95. Statutory Authority: RCW 74.08.090. 94-23-129 (Order 3808), § 388-513-1350, filed 11/23/94, effective 12/24/94; 94-10-065 (Order 3732), § 388-513-1350, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-95-337 and 388-95-340.]
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER
The following section of the Washington Administrative Code is repealed:
| WAC 388-513-1360 | Determining excluded resources for long-term care (LTC) services. |