Original Notice.

     Preproposal statement of inquiry was filed as WSR 07-05-012.

     Title of Rule and Other Identifying Information: The department is amending WAC 388-513-1315 Eligibility for long-term care (institutional, waiver, and hospice) services and 388-513-1395 Determining eligibility for institutional or hospice services and for facility care only under the medically needy (MN) program.

     Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on September 4, 2007, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than September 5, 2007.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail schilse@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on September 4, 2007.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS Rules Consultant, by August 28, 2007, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsljl4@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: DSHS is amending chapter 388-513 WAC as follows:

&sqbul;	Updating and clarifying language regarding when long-term care (LTC) rules are used and needed for the hospice program.
&sqbul;	Adding language to WAC 388-513-1395 indicating LTC medically needy rules apply to clients residing in medical institutions, including hospice elections in medical institutions.
&sqbul;	Clarifying language that hospice is paid as a service under noninstitutional categorically needy and medically needy programs when client is residing in a home or residential setting. Institutional medicaid rules are not used for hospice elections in noninstitutional settings unless beneficial to the client under WAC 388-515-1505. (Those with income over the medically needy income level (MNIL) and under 300% of the federal benefit rate (FBR), or with a community spouse.)
&sqbul;	Amending language to be consistent with WAC 388-438-0110, regarding alien emergency medical (AEM); indicating nursing facility and hospice services under AEM must be preapproved, for clarification purposes.
&sqbul;	Adding language limiting medical and remedial care expenses to zero if such expenses were incurred during a transfer of asset penalty, described in WAC 388-513-1363 through 388-513-1366.
&sqbul;	Updating WAC references and clarifying language.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530, 74.39.010.

     Statute Being Implemented: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530, 74.39.010.

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

     Name of Proponent: Department of social and health services, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Lori Rolley, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2271.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed these rules and determined that no new costs will be imposed on small businesses or nonprofits.

     A cost-benefit analysis is not required under RCW 34.05.328. Rules are exempt per RCW 34.05.328 (5)(b)(vii), relating only to client medical or financial eligibility.

July 27, 2007

Stephanie E. Schiller

Rules Coordinator

     (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) Meet functional eligibility described in chapter 388-106 WAC for waiver and nursing facility coverage; and

     (d) Not be subject to a penalty period of ineligibility as described in WAC ((388-513-1364 through)) 388-513-1363, 388-513-1364, 388-513-1365 and 388-513-1366.

     (2) To be eligible for institutional, waiver, 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 388-475-0050 (1), (2) and (3) ((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))) (8)(a) that does not exceed the special income level (SIL); and

     (ii) ((Nonexcluded)) Countable resources described in subsection (((6))) (7) that do not exceed the resource standard described in WAC 388-513-1350(1), unless subsection (((3))) (4) applies; or

     (b) Be approved and receiving the general assistance expedited Medicaid disability (GA-X) described in WAC 388-505-0110(6); or

     (c) Be eligible for the CN children's medical program as described in WAC ((388-505-0210)) 388-505-0230; 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)) countable 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)) 388-513-1350 when meeting the conditions of reducing excess resources described in WAC 388-513-1350.

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

     (a) WAC 388-515-1505 for COPES, New Freedom, Pace, MMIP and WMIP services; or

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

     (c) ((Chapter 388-551 WAC for hospice services)) WAC 388-515-1540 for the medically needy residential waiver (MNRW); or

     (d) WAC 388-515-1550 for the medically needy in-home waiver (MNIW).

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

     (a) ((Eligible for the MN children's medical program as described in WAC 388-505-0210; or)) Meet the program requirements described in chapter 388-551 WAC; and

     (b) ((Related to the SSI program as described in WAC 388-475-0050(1) and meet all requirements described in WAC 388-513-1395)) Be eligible for a noninstitutional categorically needy program (CN-P) if not residing in a medical institution thirty days or more; or

     (c) Reside at home and benefit by using home and community based waiver rules described in WAC 388-515-1505 (SSI related clients with income over the MNIL and at or below the 300 percent of the FBR or clients with a community spouse); or

     (d) Receive home and community waiver (HCS) or DDD waiver services in addition to hospice services. The client's responsibility to pay toward the cost of care (participation) is applied to the waiver service provider first; or

     (e) Reside in a state contracted and licensed alternate living facility and not on waiver services and receives medical assistance described in WAC 388-513-1305 as they are paying the facility privately.

     (f) Be eligible for institutional CN if residing in a medical institution thirty days or more (use institutional rules for eligibility when in a medical institution thirty days or more).

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

     (a) Eligible for MN children's medical program described in WAC 388-505-0230;or

     (b) Related to the SSI program as described in WAC 388-478-0050(1) and meet all requirements described in WAC 388-513-1395; or

     (c) Eligible for the MN SSI related program described in WAC 388-475-0150 for hospice clients residing in a home setting; or

     (d) Eligible for the MN SSI related program described in WAC 388-513-1305 for hospice clients not on a medically needy waiver and residing in an alternate living facility.

     (e) Be eligible for institutional MN if residing in a medical institution thirty days or more (use institutional rules for eligibility when in a medical institution thirty days or more).

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

     (a) Considers resource((s available as)) eligibility and standards described in WAC 388-513-1350; and

     (b) ((Excludes resources described in WAC 388-513-1360 and 388-513-1364 through)) Evaluates the transfer of assets as described in WAC 388-513-1363, 388-513-1364, 388-513-1365 and 388-513-1366((; and

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

     (((7))) (8) 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))) (9) 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) Waiver services at home or in an alternate living facility; or

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

     (((9))) (10) 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))) (6) for:

     (a) Institutional services in a medical facility; or

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

     (((10))) (11) The department determines eligibility for ((LTC)) nursing facility and hospice 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. Nursing facility and hospice services under the AEM program must be pre-approved by the department's medical consultant.

     (((11))) (12) 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))) (9) through (((10))) (11).

     (((12))) (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)) at application and approval; or

     (c) Is receiving active psychiatric treatment just prior to their twenty-first birthday and the services extend beyond this date and the client has not yet reached age twenty-two; or

     (d) Is at least sixty-five years old.

     (((13))) (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.

     (((14))) (15) The department considers the parents' income and resources available 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.

     (((15))) (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.

     (((16))) (17) The department determines a client's participation in the cost of care for LTC services as described in WAC 388-513-1380 and WAC 388-515-1505 for long-term care services under COPES, New Freedom, PACE, MMIP and WMIP or WAC 388-515-1510 for DDD waivers.

     (18) Clients not living in a medical institution who are considered to be receiving SSI benefits for the purposes of Medicaid do not pay service participation toward their cost of care. Clients living in a residential setting do pay room and board as described in WAC 388-515-1505. Groups deemed to be receiving SSI and for Medicaid purposes are eligible to receive CN-P Medicaid. These groups are described in WAC 388-475-0880.

[Statutory Authority: RCW 74.08.090. 06-07-077, § 388-513-1315, filed 3/13/06, effective 4/13/06. Statutory Authority: RCW 71A.12.030, 71A.10.020, chapters 71A.10 and 71A.12 RCW, 2004 c 276. 04-18-054, § 388-513-1315, filed 8/27/04, effective 9/27/04. 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) To be eligible for institutional or hospice services under the MN program for individuals living in a medical institution, a client must meet the financial requirements described in subsection (5)(((a))). In addition, a client must meet program requirements described in WAC 388-513-1315; and

     (a) Be an SSI-related client with ((nonexcluded)) countable income as described in subsection (4)(a) that is more than the special income level (SIL); or

     (b) Be a child not described in subsection (1)(a) with ((nonexcluded)) countable income as described in subsection (4)(b) that exceeds the categorically needy (CN) standard for the children's medical program.

     (2) ((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 is less than the:

     (a) Private facility rate plus the amount of recurring medical expenses, for institutional services; or

     (b) Private hospice rate plus the amount of recurring medical expenses, for hospice services received at home)) For an SSI-related client, excess resources can be reduced by medical expenses as described in WAC 388-513-1350.

     (3) The department determines a client's ((nonexcluded)) countable resources for institutional and hospice services under the MN programs ((in the following way)) as follows:

     (a) For an SSI-related client, the department ((reduces available resources described in)) determines countable resources per WAC 388-513-1350 ((by excluding resources described in WAC 388-513-1360;)).

     (b) For a child not described in subsection (3)(a), no determination of resource eligibility is required.

     (4) The department determines a client's ((nonexcluded)) countable income for institutional and hospice services under the MN program ((in the following way)) as follows:

     (a) For an SSI-related client, the department reduces available income as described in WAC 388-513-1325 and 388-513-1330 by:

     (i) Excluding income described in WAC 388-513-1340;

     (ii) Disregarding income described in WAC 388-513-1345; and

     (iii) Subtracting previously incurred medical expenses ((that:

     (A) Are not subject to third-party payment;

     (B) Have not been used to satisfy a previous spenddown liability; and

     (C) Are amounts for which the client remains liable)) incurred by the client and not used to reduce excess resources. Allowable medical expenses and reducing excess resources are described in WAC 388-513-1350.

     (b) For a child not described in subsection (4)(a), the department:

     (i) Follows the income rules described in WAC 388-505-0210 for the children's medical program; and

     (ii) Subtracts the medical expenses described in subsection (4)(((a)(iii))).

     (5) If the combined total of a client's ((nonexcluded)) countable income, ((which)) when added to ((nonexcluded)) countable resources in excess of the standard described in WAC 388-513-1350(1), is less than the department-contracted rate plus the amount of recurring medical expenses, the client:

     (a) ((Less than the department-contracted rate plus the amount of recurring medical expenses, the client:

     (i) Is eligible for institutional and hospice services and noninstitutional medical assistance;

     (ii))) Is eligible for institutional or hospice services in a medical institution, and noninstitutional medical assistance;

     (b) Is approved for ((a choice of three or six months as described in chapter 388-416 WAC)) twelve months; and

     (((iii))) (c) Participates in the cost of care as described in WAC 388-513-1380((;)).

     (((b) Less than the private facility rate plus the amount of recurring medical expenses, but more than the department-contracted rate, the client:

     (i))) (6) If the combined total of a client's countable income, which when added to countable resources in excess of the standard described in WAC 388-513-1350(1) is less than the private nursing facility rate plus the amount of recurring medical expenses, but more than the department contracted rate, the client:

     (a) Is eligible for nursing facility care only ((that)) and is approved for a ((choice of)) three or six month((s)) base period as described in chapter ((388-416)) 388-519 WAC; and

     (i) Pays the nursing home at the current state rate;

     (ii) Participates in the cost of care as described in WAC 388-513-1380; and

     (iii) Is not eligible for medical assistance or hospice services unless the requirements in (6)(b) or (c) are met.

     (b) Is approved for ((noninstitutional)) medical assistance for a ((choice of)) three or six month((s)) base period as described in chapter((s 388-416 and)) 388-519 WAC, if:

     (i) No income and resources remain((ing after allocations)) after the post eligibility treatment of income process described in WAC 388-513-1380 ((are used to satisfy any spenddown liability)).

     (ii) Medicaid certification is approved beginning with the first day of the base period.

     (c) Is approved for medical assistance for up to three or six months when they incur additional medical expenses that are equal to or more than excess income and resources remaining after the post eligibility treatment of income process described in WAC 388-513-1380.

     (i) This process is known as spenddown and is described in WAC 388-519-0100.

     (ii) Medicaid certification is approved on the day the spenddown is met.

     (7) If the combined total of a client's nonexcluded income, which when added to nonexcluded resources is above the facility monthly private rate:

     (a) The client is ineligible using institutional rules.

     (b) Eligibility is considered under a noninstitutional medical assistance program described in chapter 388-416 and 388-519 WAC.

[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, § 388-513-1395, filed 12/8/99, effective 1/8/00. Statutory Authority: RCW 74.08.090 and 74.09.500. 99-06-045, § 388-513-1395, filed 2/26/99, effective 3/29/99. Statutory Authority: RCW 74.08.090 and Budget Note 17. 96-16-092, § 388-513-1395, filed 8/7/96, effective 8/29/96. Statutory Authority: RCW 74.08.090 and 1995 2nd sp.s. c 18 §§ 2095a and 5b. 95-24-017 (Order 3921, #100267), § 388-513-1395, filed 11/22/95, effective 1/1/96. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-513-1395, filed 5/3/94, effective 6/3/94. Formerly WAC 388-95-400.]

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