Original Notice.

     Preproposal statement of inquiry was filed as WSR 07-22-063.

     Title of Rule and Other Identifying Information: The department is amending WAC 388-513-1350 Defining the resource standard and determining resource eligibility for long-term care (LTC) services and 388-513-1380 Determining a client's financial participation in the cost of care for long-term care (LTC) services.

     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 March 25, 2008, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than March 26, 2008.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by

5 p.m. on March 25, 2008.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by March 18, 2008, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules:

•     DSHS is updating the 2008 federal maximum resource standard that increases January 1, 2008. This includes the formula and a link to the long-term care standards.

•     DSHS is updating the 2008 federal maximum maintenance standard that increases January 1, 2008. This includes the formula and a link to the long-term care standards.

•     Because both standards increase annually, the links to the updated standards will show the updated amounts starting in January 2009 and each year thereafter.

     Reasons Supporting Proposal: See above.

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

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

     Rule is necessary because of federal law, Public Law 106-554; Section 1924 of the Social Security Act (42 U.S.C.).

     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 the rules and determined that no new costs will be imposed on small businesses or nonprofit organizations.

     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.

February 6, 2008

Stephanie E. Schiller

Rules Coordinator

     (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 (8) through (11) of this section; or

     (b) Three thousand dollars for a legally married couple, unless subsection (3) of this section applies.

     (2) 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 (1)(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;

     (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.

     (7) For LTC services the department determines a client's countable resources as follows:

     (a) The department determines countable resources for SSI-related clients as described in WAC 388-475-0350 through 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) A vehicle((s)) 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 an SSI-related client, the department adds together the countable resources of both spouses if subsections (2), (5) and (8)(a) or (b) apply, but not if subsection (3) or (4) apply.

     (d) For an SSI-related client, excess resources are reduced:

     (i) In an amount equal to incurred medical expenses such as:

     (A) Premiums, deductibles, and coinsurance/copayment charges for health insurance and medicare;

     (B) Necessary medical care recognized under state law, but not covered under the state's medicaid plan;

     (C) Necessary medical care covered under the state's medicaid plan incurred prior to medicaid eligibility.

     (ii) As long as the incurred medical expenses:

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

     (B) Have not been used to satisfy a previous spend down liability;

     (C) Have not previously been used to reduce excess resources;

     (D) Have not been used to reduce client responsibility toward cost of care;

     (E) Were not incurred during a transfer of asset penalty described in WAC 388-513-1363, 388-513-1364, 388-513-1365 and 388-513-1366; and

     (F) Are amounts for which the client remains liable.

     (e) Expenses not allowed to reduce excess resources or participation in personal care:

     (i) Unpaid expense(s) prior to waiver eligibility to an adult family home (AFH) or boarding home is not a medical expense.

     (ii) Personal care cost in excess of approved hours determined by the CARE assessment described in chapter 388-106 WAC is not a medical expense.

     (f) The amount of excess resources is limited to the following amounts:

     (i) For LTC services provided under the categorically needy (CN) program:

     (A) Gross income must be at or below the special income level (SIL), 300% of the federal benefit rate (FBR).

     (B) In a medical institution, excess resources and income must be under the state medicaid rate.

     (C) For CN waiver eligibility, incurred medical expenses must reduce resources within allowable resource limits for CN-waiver eligibility. The cost of care for the waiver services cannot be allowed as a projected expense.

     (ii) For LTC services provided under the medically needy (MN) program when excess resources are added to nonexcluded income, the combined total is less than the:

     (A) Private medical institution 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 in a medical institution.

     (C) For MN waiver eligibility, incurred medical expenses must reduce resources within allowable resource limits for MN-waiver eligibility. The cost of care for the waiver services cannot be allowed as a projected expense.

     (g) 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 countable 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.

     (9) If subsection (8)(b) of this section applies, the department determines the amount of resources that are allocated to the community spouse before determining countable 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-nine thousand five hundred forty dollars effective January 1, 2006.)) Effective January 1, ((2007)) 2008, the maximum allocation is one hundred and ((one)) four thousand ((six)) four hundred ((and forty)) dollars. ((())This standard increases annually on January 1st based on the consumer price index. (For the current standard starting January 2008 and each year thereafter, see long-term care standards at http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml); 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 countable resources as of the beginning of the current period of institutional status, up to the amount described in subsection (9)(a) of this section; or

     (ii) The state spousal resource standard of forty-five thousand one hundred four dollars effective July 1, 2007 (this standard increases every odd year on July 1st). This increase is based on the consumer price index published by the federal bureau of labor statistics. For the current standard starting July 2007 and each year thereafter, see long-term care standards at http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml.

     (10) The amount of the spousal share described in (9)(b)(i) can be determined 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 is required to provide verification of the couple's combined countable resources held at the beginning of the current period of institutional status.

     (11) The amount of allocated resources described in subsection (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, that the amount is inadequate to provide a minimum monthly maintenance needs amount for the community spouse.

     (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 (5) or (13)(a), (b), or (c) of this section applies.

     (13) A redetermination of the couple's resources as described in subsection (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 countable resources exceed the standard described in subsection (1)(a), if subsection (8)(b) applies; or

     (c) The institutionalized spouse does not transfer the amount described in subsections (9) or (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, 74.09.575, 74.09.500, and 74.09.530. 07-19-128, § 388-513-1350, filed 9/19/07, effective 10/20/07. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530, 74.09.575, 2005 Federal Deficit Reduction Act (DRA) Public Law 109-171, and Section 1924 of the Social Security Act (42 U.S.C. 1396r-5). 07-01-073, § 388-513-1350, filed 12/18/06, effective 1/18/07. 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.]

     (1) For a client receiving institutional or hospice services in a medical institution, the department applies all subsections of this rule.

     (2) For a client receiving waiver services at home or in an alternate living facility, the department applies only those subsections of this rule that are cited in the rules for those programs.

     (3) For a client receiving hospice services at home, or in an alternate living facility, the department applies rules used for the community options program entry system (COPES) for hospice applicants with income under the Medicaid special income level (SIL) (300% of the federal benefit rate (FBR)), if the client is not otherwise eligible for another noninstitutional categorically needy Medicaid program. (Note: For hospice applicants with income over the Medicaid SIL, medically needy Medicaid rules apply.)

     (4) The department allocates nonexcluded income in the following order and the combined total of (4)(a), (b), (c), and (d) cannot exceed the medically needy income level (MNIL):

     (a) A personal needs allowance (PNA) of:

     (i) One hundred sixty dollars for a client living in a state veterans' home;

     (ii) Ninety dollars for a veteran or a veteran's surviving spouse, who receives the ninety dollar VA improved pension and does not live in a state veterans' home; or

     (iii) Forty-one dollars and sixty-two cents for all clients in a medical institution receiving general assistance.

     (iv) Effective July 1, 2007, fifty-five dollars and forty-five cents for all other clients in a medical institution.

     (v) Current PNA and long-term care standards can be found at http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml.

     (b) Mandatory federal, state, or local income taxes owed by the client.

     (c) Wages for a client who:

     (i) Is related to the supplemental security income (SSI) program as described in WAC ((388-503-0510(1))) 388-475-0050(1); and

     (ii) Receives the wages as part of a department-approved training or rehabilitative program designed to prepare the client for a less restrictive placement. When determining this deduction employment expenses are not deducted.

     (d) Guardianship fees and administrative costs including any attorney fees paid by the guardian, after June 15, 1998, only as allowed by chapter 388-79 WAC.

     (5) The department allocates nonexcluded income after deducting amounts described in subsection (4) in the following order:

     (a) Income garnished for child support or withheld according to a child support order in the month of garnishment (for current and back support):

     (i) For the time period covered by the PNA; and

     (ii) Is not counted as the dependent member's income when determining the family allocation amount.

     (b) A monthly maintenance needs allowance for the community spouse not to exceed, effective January 1, ((2007)) 2008, two thousand ((five)) six hundred ((forty-one)) ten dollars, unless a greater amount is allocated as described in subsection (7) of this section. The community spouse maintenance allowance is increased each January based on the consumer price index increase (from September to September, http://www.bls.gov/cpi/). Starting January 1, 2008 and each year thereafter the community spouse maintenance allocation can be found in the long-term care standards chart at http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml. The monthly maintenance needs allowance:

     (i) Consists of a combined total of both:

     (A) One hundred fifty percent of the two person federal poverty level. This standard increases annually on July 1st (http://aspe.os.dhhs.gov/poverty/); and

     (B) Excess shelter expenses as described under subsection (6) of this section.

     (ii) Is reduced by the community spouse's gross countable income; and

     (iii) Is allowed only to the extent the client's income is made available to the community spouse.

     (c) A monthly maintenance needs amount for each minor or dependent child, dependent parent or dependent sibling of the community spouse or institutionalized person who:

     (i) Resides with the community spouse:

     (A) In an amount equal to one-third of one hundred fifty percent of the two person federal poverty level less the dependent family member's income. This standard increases annually on July 1st (http://aspe.os.dhhs.gov/poverty/).

     (ii) Does not reside with the community spouse or institutionalized person, in an amount equal to the MNIL for the number of dependent family members in the home less the dependent family member's income.

     (iii) Child support received from a noncustodial parent is the child's income.

     (d) Medical expenses incurred by the institutional client and not used to reduce excess resources. Allowable medical expenses and reducing excess resources are described in WAC 388-513-1350.

     (e) Maintenance of the home of a single institutionalized client or institutionalized couple:

     (i) Up to one hundred percent of the one-person federal poverty level per month;

     (ii) Limited to a six-month period;

     (iii) When a physician has certified that the client is likely to return to the home within the six-month period; and

     (iv) When social services staff documents the need for the income exemption.

     (6) For the purposes of this section, "excess shelter expenses" means the actual expenses under subsection (6)(b) less the standard shelter allocation under subsection (6)(a). For the purposes of this rule:

     (a) The standard shelter allocation is based on thirty percent of one hundred fifty percent of the two person federal poverty level. This standard increases annually on July 1st (http://aspe.os.dhhs.gov/poverty/); and

     (b) Shelter expenses are the actual required maintenance expenses for the community spouse's principal residence for:

     (i) Rent;

     (ii) Mortgage;

     (iii) Taxes and insurance;

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

     (v) The food stamp standard utility allowance for four persons, provided the utilities are not included in the maintenance charges for a condominium or cooperative.

     (7) The amount allocated to the community spouse may be greater than the amount in subsection (6)(b) 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.

     (8) A client who is admitted to a medical facility for ninety days or less and continues to receive full SSI benefits is not required to use the SSI income in the cost of care for medical services. Income allocations are allowed as described in this section from non-SSI income.

     (9) Standards described in this section for long-term care can be found at: http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530, and 2006 c 372. 07-19-126, § 388-513-1380, filed 9/19/07, effective 10/20/07; 07-01-072, § 388-513-1380, filed 12/18/06, effective 1/18/07. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.530 and 2005 c 518 § 207 and Sec. 1924 Social Security Act (42 U.S.C. 1396r-5). 06-07-144, § 388-513-1380, filed 3/21/06, effective 4/21/06. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 42 U.S.C. 9902(2). 05-07-033, § 388-513-1380, 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, § 388-513-1380, 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, § 388-513-1380, filed 8/30/01, effective 9/30/01. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, and Section 1924(g) of the Social Security Act. 00-17-058, § 388-513-1380, filed 8/9/00, effective 9/9/00. Statutory Authority: RCW 72.36.160, 74.04.050, 74.04.057, 74.08.090, 74.09.500 and Section 1924(g) of the Social Security Act, Section 4715 of the BBA of 1997 (Public Law 105-33, HR 2015). 99-11-017, § 388-513-1380, filed 5/10/99, effective 6/10/99. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 43.20B.460, 11.92.180, and Section 1924 (42 USC 396r-5). 98-08-077, § 388-513-1380, filed 3/31/98, effective 4/1/98. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.530 and Social Security Act, Federal Register, March 10, 1997, pgs. 10856 - 10859, 42 U.S.C. 1396 (a)(l)(m). 97-16-008, § 388-513-1380, filed 7/24/97, effective 7/24/97. Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter 95-44. 96-09-033 (Order 3963), § 388-513-1380, filed 4/10/96, effective 5/11/96. Statutory Authority: RCW 74.08.090. 95-11-045 (Order 3848), § 388-513-1380, filed 5/10/95, effective 6/10/95. 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), § 388-513-1380, filed 2/8/95, effective 3/11/95. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-513-1380, filed 5/3/94, effective 6/3/94. Formerly WAC 388-95-360.]

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