Effective Date of Rule: Thirty-one days after filing.

     Purpose: The department is adopting new WAC 388-513-1367 Hardship waivers for long-term care (LTC) services, to explain the process of hardship waivers for long-term care services, including notice, time frames, and the process of appeal for adverse action.

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

     Other Authority: Section 1917 (c)(2)(D) of the Social Security Act (42 U.S.C. 1396p (c)(2)(D); Section 6011(d) of the federal Deficit Reduction Act of 2005.

      Adopted under notice filed as WSR 07-13-099 on June 20, 2007.

     Changes Other than Editing from Proposed to Adopted Version: Amended WAC 388-513-1367 (3)(a)(v): With the consent of the client or their guardian, a medical facility institution, as defined in WAC 388-500-0005, in which an institutionalized client resides.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 1, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 0, Repealed 0.

     Date Adopted: July 31, 2007.

Stephanie E. Schiller

Rules Coordinator

     • Defines undue hardship;

     • Specifies the approval criteria for an undue hardship request;

     • Establishes the process the department follows for determining undue hardship; and

     • Establishes the appeal process for a client whose request for an undue hardship is denied.

     (1) When does undue hardship exist?

     (a) Undue hardship may exist:

     (i) When a client who transferred the assets or income, or on whose behalf the assets or income were transferred, either personally or through a spouse, guardian or attorney-in-fact, has exhausted all reasonable means including legal remedies to recover the assets or income or the value of the transferred assets or income that have caused a penalty period; and

     (ii) The client provides sufficient documentation to support their efforts to recover the assets or income; or

     (iii) The client is unable to access home equity in excess of five hundred thousand dollars due to a lien or legal impediment; and

     (iv) When, without LTC benefits, the client is unable to obtain:

     (A) Medical care to the extent that his or her health or life is endangered; or

     (B) Food, clothing, shelter or other basic necessities of life.

     (b) Undue hardship can be approved for an interim period while the client is pursuing recovery of the assets or income.

     (2) Undue hardship does not exist:

     (a) When the transfer of asset penalty period or excess home equity provision inconveniences a client or restricts their lifestyle but does not seriously deprive him or her as defined in subsection (1)(a)(iii) of this section;

     (b) When the resource is transferred to a person who is handling the financial affairs of the client; or

     (c) When the resource is transferred to another person by the individual that handles the financial affairs of the client.

     (d) Undue hardship may exist under (b) and (c) if DSHS has found evidence of financial exploitation.

     (3) How is an undue hardship waiver requested?

     (a) An undue hardship waiver may be requested by:

     (i) The client;

     (ii) The client's spouse;

     (iii) The client's authorized representative;

     (iv) The client's power of attorney; or

     (v) With the consent of the client or their guardian, a medical institution, as defined in WAC 388-500-0005, in which an institutionalized client resides.

     (b) Request must:

     (i) Be in writing;

     (ii) State the reason for requesting the hardship waiver;

     (iii) Be signed by the requestor and include the requestor's name, address and telephone number. If the request is being made on behalf of a client, then the client's name, address and telephone number must be included;

     (iv) Be made within thirty days of the date of denial or termination of LTC services; and

     (v) Returned to the originating address on the denial/termination letter.

     (4) What if additional information is needed to determine a hardship waiver?

     (a) A written notice to the client is sent requesting additional information within fifteen days of the request for an undue hardship waiver. Additional time to provide the information can be requested by the client.

     (5) What happens if my hardship waiver is approved?

     (a) The department sends a notice within fifteen days of receiving all information needed to determine a hardship waiver. The approval notice specifies a time period the undue hardship waiver is approved.

     (b) Any changes in a client's situation that led to the approval of a hardship must be reported to the department by the tenth of the month following the change per WAC 388-418-0007.

     (6) What happens if my hardship waiver is denied?

     (a) The department sends a denial notice within fifteen days of receiving the requested information. The letter will state the reason it was not approved.

     (b) The denial notice will have instructions on how to request an administrative hearing. The department must receive an administrative hearing request within ninety days of the date of the adverse action or denial.

     (7) What statute or rules govern administrative hearings?

     (a) An administrative hearing held under this section is governed by chapters 34.05 RCW and chapter 388-02 WAC and this section. If a provision in this section conflicts with a provision in chapter 388-02 WAC, the provision in this section governs.

     (8) Can the department revoke an approved undue hardship waiver?

     (a) The department may revoke approval of an undue hardship waiver if any of the following occur:

     (i) A client, or his or her authorized representative, fails to provide timely information and/or resource verifications as it applies to the hardship waiver when requested by the department per WAC 388-490-0005 and 388-418-0007;

     (ii) The lien or legal impediment that restricted access to home equity in excess of five hundred thousand dollars is removed; or

     (iii) Circumstances for which the undue hardship was approved have changed.

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