PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Original Notice.
Preproposal statement of inquiry was filed as WSR 07-12-065.
Title of Rule and Other Identifying Information: The department is amending WAC 388-515-1510 Division of developmental disabilities (DDD) waivers and outward bound residential alternatives (OBRA) and adding new sections to chapter 388-515 WAC, Alternate living -- Institutional medical.
Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on May 6, 2008, at 10:00 a.m.
Date of Intended Adoption: Not earlier than May 7, 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 May 6, 2008.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by April 29, 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: The department is amending WAC 388-515-1510 and adopting new rules to describe:
• General eligibility requirements under the four HCBS waivers;
• Financial requirements if you are eligible for medicaid under the noninstitutional categorically needy program (CN-P);
• Initial financial requirements if you are not eligible for medicaid under a categorically needy program (CN-P) listed in WAC;
• Post eligibility financial requirements if you are not eligible for medicaid under a categorically needy program listed in WAC;
• Instructions for community spouse income;
• Increases in the personal needs allowance to $40.12 effective July 1, 2007, and $41.44 effective July 1, 2008.
Reasons Supporting Proposal: See above.
Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.530.
Statute Being Implemented: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.530, Washington state 2007-09 operating budget (SHB 1128).
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: Steve Brink, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-3416.
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.
March 31, 2008
Stephanie E. Schiller
Rules Coordinator
3884.5(1) The four DDD waivers are:
(a) Basic,
(b) Basic Plus,
(c) Core, and
(d) Community protection.
(2) The requirements for services for DDD waivers are contained in chapter 388-845 WAC. The department establishes eligibility for DDD waivers and OBRA services for a client who:
(a) Is both Medicaid eligible under the categorically needy (CN) program and meets the requirements for services provided by the division of developmental disabilities (DDD);
(b) Has attained institutional status as described in WAC 388-513-1320;
(c) Has been assessed as requiring the level of care provided in an intermediate care facility for the mentally retarded (ICF/MR);
(d) Has a department-approved plan of care that includes support services to be provided in the community;
(e) Is able to reside in the community according to the plan of care and chooses to do so;
(f) Meets the income and resource requirements described in subsection (3); and
(g) For the OBRA program only, the client must be a medical facility resident at the time of application.
(3) 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 does not exceed the special income level (SIL). Refer to WAC 388-513-1315 for rules used to determine nonexcluded income and resources. During other months, financial requirements include the following:
(a) Nonexcluded income must be at or below the SIL; and
(b) Nonexcluded resources not allocated to participation in a prior month must be at or below the resource standard.
(4) A client who is eligible for supplemental security income (SSI) does not participate in the cost of care for DDD waivers or OBRA services.
(5) An SSI-related client retains a maintenance needs amount of up to the SIL, who is:
(a) Living at home; or
(b) Living in an alternate living facility described in WAC 388-513-1305(1).
(6) A client described in subsection (5)(b) retains the greater of:
(a) The SSI grant standard; or
(b) An amount equal to a total of the following:
(i) A personal needs allowance (PNA) of thirty-eight dollars and eighty-four cents; plus
(ii) The facility's monthly rate for board and room, which the client pays to the facility; plus
(iii) The first twenty dollars of monthly earned or unearned income; and
(iv) The first sixty-five dollars plus one-half of the remaining earned income not previously excluded.
(7) If a client has a spouse in the home who is not receiving DDD waivers or OBRA services, the department allocates the client's income in excess of the amounts described in subsections (5) and (6) as an additional maintenance needs amount in the following order:
(a) One for the spouse, as described in WAC 388-513-1380 (7)(b); and
(b) One for any other dependent family member in the home, as described in WAC 388-513-1380 (7)(c).
(8) A client's participation in the cost of care for DDD waivers or OBRA services is the client's income:
(a) That exceeds the amounts described in subsections (5), (6), and (7); and
(b) Remains after deductions for medical expenses not subject to third-party payment for which the client remains liable, included in the following:
(i) Medicare and other health insurance premiums, deductibles, or coinsurance charges; and
(ii) Necessary medical care recognized under state law but not covered by Medicaid)) The four sections that follow describe the general and financial eligibility requirements for the division of developmental disabilities (DDD) home and community based services (HCBS) waivers.
(1) WAC 388-515-1511 describes the general eligibility requirements under the four DDD HCBS waivers.
(2) WAC 388-515-1512 describes the financial requirements if you are eligible for Medicaid under the noninstitutional categorically needy program (CN-P).
(3) WAC 388-515-1513 describes the initial financial requirements if you are not eligible for Medicaid under a categorically needy program (CN-P) listed in WAC 388-515-1512(1).
(4) WAC 388-515-1514 describes the post eligibility financial requirements if you are not eligible for Medicaid under a categorically needy program (CN-P) listed in WAC 388-515-1512(1).
[Statutory Authority: RCW 71A.12.030, 71A.10.020, chapters 71A.10 and 71A.12 RCW, 2004 c 276. 04-18-054, § 388-515-1510, filed 8/27/04, effective 9/27/04. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.500. 01-02-052, § 388-515-1510, filed 12/28/00, effective 1/28/01. 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, § 388-515-1510, filed 12/8/99, effective 1/8/00. Statutory Authority: RCW 74.08.090 and 74.09.500. 99-06-045, § 388-515-1510, filed 2/26/99, effective 3/29/99. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-515-1510, filed 5/3/94, effective 6/3/94. Formerly WAC 388-83-210.]
(1) The four DDD HCBS waivers are:
(a) Basic;
(b) Basic plus;
(c) Core; and
(d) Community protection.
(2) The requirements for services for DDD HCBS waivers are described in chapter 388-845 WAC. The department establishes eligibility for DDD HCBS waivers. To be eligible, you must:
(a) Be an eligible client of the division of developmental disabilities (DDD);
(b) Meet the disability criteria for the supplemental security income (SSI) program as described in WAC 388-475-0050;
(c) Require the level of care provided in an intermediate care facility for the mentally retarded (ICF/MR);
(d) Have attained institutional status as described in WAC 388-513-1320;
(e) Be able to reside in the community and choose to do so as an alternative to living in an ICF/MR;
(f) Need waiver services as determined by your plan of care or individual support plan, and:
(i) Be able to live at home with waiver services; or
(ii) Live in a department contracted facility, which includes:
(A) A group home;
(B) Group training home;
(C) Child foster home, group home or staffed residential facility;
(D) Adult family home (AFH); or
(E) Adult residential care (ARC) facility.
(iii) Live in your own home with supported living services from a certified residential provider; or
(iv) Live in the home of a contracted companion home provider; and
(g) Be both Medicaid eligible under the categorically needy program (CN-P) and be approved for services by the division of developmental disabilities.
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(a) Supplemental security income (SSI) eligibility described in WAC 388-474-0001. This includes SSI clients under 1619B status. These clients have Medicaid eligibility determined and maintained by the Social Security Administration;
(b) Healthcare for workers with disabilities (HWD) described in WAC 388-475-1000 through 388-475-1250;
(c) SSI-related CN-P Medicaid described in WAC 388-475-0100 (2)(a) and (b) or meets the requirements in WAC 388-475-0880 and remains CN-P eligible after the income disregards have been applied;
(d) CN-P Medicaid for a child as described in WAC 388-505-0210 (1), (2), (7) or (8); or
(e) General assistance expedited Medicaid disability (GA-X) or general assistance based on aged/blind/disabled criteria described in WAC 388-505-0110(6).
(2) If you are eligible for a CN-P Medicaid program listed in subsection (1) above, you do not have to pay (participate) toward the cost of your personal care and/or habilitation services.
(3) If you are eligible for a CN-P Medicaid program listed in subsection (1) above, you do not need to meet the initial eligibility income test of gross income at or below the special income level (SIL), which is three hundred percent of the federal benefit rate (FBR).
(4) If you are eligible for a CN-P Medicaid program listed in subsection (1), you pay up to the ADSA room and board standard described in WAC 388-515-1505. Room and board and long-term care standards are located at http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml.
(a) If you live in an ARC, AFH or DDD group home, you keep a personal needs allowance (PNA) and use your income to pay up to the ADSA room and board standard. The PNA from July 1, 2007 through June 30, 2008 is forty dollars and twelve cents. Effective July 1, 2008 the PNA increases to forty-one dollars and forty-four cents.
(b) If you receive nonSSI income, you may keep up to an additional twenty dollars.
(5) If you are eligible for a premium based Medicaid program such as healthcare for workers with disabilities (HWD), you must continue to pay the Medicaid premium to remain eligible for that CN-P program.
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(1) If you have resources which are higher than the standard allowed under WAC 388-515-1350, we may reduce the amount we are required to count if you have unpaid medical expenses.
(a) We will reduce your resources in an amount equal to the unpaid medical expenses you verify. The anticipated cost of your waiver services cannot be used as a medical expense to qualify for this deduction.
(b) If your remaining resources, after the deduction in section (1)(a) are still over the standard, you are ineligible until your resources are below the standard.
(c) You are not subject to a transfer of asset penalty described in WAC 388-513-1363 through 388-513-1366.
(d) Equity in your home is five hundred thousand dollars or less as described in WAC 388-513-1350.
(2) Your gross nonexcluded income must be at or below the special income level (SIL) which is three hundred percent of the federal benefit level. The department follows the rules in WAC 388-515-1325, 388-513-1330 and 388-513-1340 to determine available income and income exclusions.
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(1) If you are an SSI-related client living at home as defined in WAC 388-106-0010, you keep all your income up to the SIL (three hundred percent of the FBR) for your personal needs allowance (PNA).
(2) If you are an SSI-related client and you live in an ARC, AFH or DDD group home, you:
(a) Keep a personal needs allowance (PNA) from your gross nonexcluded income. The PNA from July 1, 2007 through June 30, 2008 is forty dollars and twelve cents. Effective July 1, 2008 the PNA increases to forty-one dollars and forty-four cents.
(b) May keep up to an additional twenty dollars from your nonSSI income; and
(c) Pay for your room and board up to the ADSA room and board rate described in http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml.
(3) Income that remains after the allocation described in (2) above, is reduced by allowable deductions in the following order:
(a) If you are working, we allow an earned income deduction of the first sixty-five dollars plus one-half of the remaining earned income;
(b) Guardianship fees and administrative costs including any attorney fees paid by the guardian only as allowed by chapter 388-79 WAC;
(c) Current or back child support garnished from your income or withheld according to a child support order in the month of the garnishment if it is for the current month. If we allow this as deduction from your income, we will not count it as your child's income when determining the family allocation amount;
(d) A monthly maintenance needs allowance for your community spouse not to exceed that in WAC 388-513-1380 (5)(b) unless a greater amount is allocated as described in subsection (e) of this section. This amount:
(i) Is allowed only to the extent that your income is made available to your community spouse; and
(ii) 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. For the purposes of this section, excess shelter expenses are the actual required maintenance expenses for your community spouse's principal residence. These expenses are determined in the following manner:
(I) Rent, including space rent for mobile homes, plus;
(II) Mortgage, plus;
(III) Taxes and insurance, plus;
(IV) Any required payments for maintenance care for a condominium or cooperative minus;
(V) The food assistance standard utility allowance (for long term care 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, minus;
(VI) The standard shelter allocation. This standard 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
(VII) Is reduced by your community spouse's gross countable income.
(iii) May be greater than the amount in subsection (d)(ii) only when:
(A) There is a court order approving a higher amount for the support of your community spouse; or
(B) A hearings officer determines a greater amount is needed because of exceptional circumstances resulting in extreme financial duress.
(e) A monthly maintenance needs amount for each minor or dependent child, dependent parent or dependent sibling of your community or institutionalized spouse. The amount we allow is based on the living arrangement of the dependent. If the dependent:
(i) Resides with your community spouse, the amount is equal to one-third of the community spouse allocation as described in WAC 388-513-1380 (5)(b)(i)(A) that exceeds the dependent family member's income (child support received from a noncustodial parent is considered the child's income);
(ii) Does not reside with the community spouse, the amount is equal to the MNIL based on the number of dependent family members in the home less their separate income (child support received from a noncustodial parent is considered the child's income).
(f) Your unpaid medical expenses which have not been used to reduce excess resources. Allowable medical expenses are described in WAC 388-513-1350.
(g) The total of the following deductions cannot exceed the SIL (three hundred percent of the FBR):
(i) Personal needs allowances in subsection (1) for in home or subsection (2)(a) in a residential setting; and
(ii) Earned income deduction of the first sixty-five dollars plus one-half of the remaining earned income in subsection (3)(a); and
(iii) Guardianship fees and administrative costs in subsection (3)(b).
(5) If you are eligible for general assistance expedited Medicaid disability (GA-X) or general assistance based on aged/blind/disabled criteria described in WAC 388-505-0110(6), you do not participate in the cost of personal care and you may keep the following:
(a) When you live at home, you keep the cash grant amount authorized under the general assistance program;
(b) When you live in an AFH, you keep a PNA of thirty-eight dollars and eighty-four cents, and pay any remaining income and general assistance grant to the facility for the cost of room and board up to the ADSA room and board standard described in http://www1.dshs.wa.gov/manuals/eaz/sections/LongTermCare/LTCstandardspna.shtml; or
(c) When you live in an ARC or DDD group home, you are only eligible to receive a cash grant of thirty-eight dollars and eighty-four cents which you keep for your PNA.
(6) The combination of the room and board amount and the cost of personal care and/or habilitation services (participation) after all allowable deductions have been considered is called your total responsibility. You pay this amount to the ARC, AFH or DDD group home provider.
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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.