Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-22-046.

     Title of Rule and Other Identifying Information: Amending WAC 388-527-2730 Definitions, 388-527-2733 Estate liability, 388-527-2737 Deferring recovery, 388-527-2742 Services subject to recovery, 388-527-2754 Assets not subject to recovery and other limits on recovery, 388-527-2790 Filing liens, and 388-527-2820 Liens prior to death.

     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://www.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on March 9, 2010, at 10:00 a.m.    

     Date of Intended Adoption: Not sooner than March 10, 2010.

     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 9, 2010.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by February 23, 2010, 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 chapter is intended to assure that medicaid resources will be available to those who truly need them by helping to ensure that those with resources can contribute to the cost of their long-term care (LTC). These amendments (1) remove medicare cost savings from estate recovery; (2) allow for future implementation of the LTC partnership agreement which will permit clients to protect assets or resources from both eligibility for LTC services and from estate recovery at the time of death through the purchase of a qualified LTC partnership agreement insurance policy; and (3) improve quality of care for DSHS clients through the application of agency policy that is transparent, consistent, cost-effective and complies with federal regulations.

     Reasons Supporting Proposal: These proposed rules are necessary to comply with rule changes enacted under the 2008 Medicare Improvements for Patients and Providers Act which amended Section 1917 (b)(1)(B)(ii) of the Social Security Act to eliminate medicare cost-sharing expenses from estate recovery and incorporate language regarding LTC partnership agreements approved under the Deficit Reduction Act of 2005. These permanent rules will replace the emergency rule currently in place under WSR 10-03-021.

     Statutory Authority for Adoption: RCW 74.08.090.

     Statute Being Implemented: RCW 74.08.090.

     Rule is necessary because of federal law, 42 USC 1396p (b)(1)(B)(ii), P.L. 109-171 (the Deficit Reduction Act of 2005).

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

     Name of Agency Personnel Responsible for Drafting: Wendy L. Boedigheimer, P.O. Box 45504, Olympia, WA 98504-5504, (360) 725-1306; Implementation and Enforcement: Shawn Hoage, P.O. Box 45862, Olympia, WA 98504-5862, (360) 664-5483.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department analyzed the proposed rule amendments and concludes that they will impose no new costs on small businesses. The preparation of a comprehensive small business economic impact statement is not required.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Shawn Hoage, Office of Financial Recovery, P.O. Box 45862, Olympia, WA 98504-5862, phone (360) 664-5483, fax (360) 586-9727, e-mail hoagesl@dshs.wa.gov.

January 29, 2010

Don Goldsby, Manager

Rules and Policies Assistance Unit

     "Contract health service delivery area (CHSDA)" means the geographic area within which contract health services will be made available by the Indian Health Service to members of an identified Indian community who reside in the area as identified in 42 C.F.R. Sec. 136.21(d) and 136.22.

     "Domestic partner" means an adult who meets the requirements for a valid registered domestic partnership as established by RCW 26.60.030 and who has been issued a certificate of state registered domestic partnership by the Washington Secretary of State. When the terms "domestic partner" or "domestic partnership" are used in this chapter, they mean "state registered domestic partner" or "state registered domestic partnership."

     "Estate" means all property and any other assets that pass upon the client's death under the client's will or by intestate succession pursuant to chapter 11.04 RCW or under chapter 11.62 RCW. The value of the estate will be reduced by any valid liability against the decedent's property at the time of death. An estate also includes:

     (1) For a client who died after June 30, 1995 and before July 27, 1997, nonprobate assets as defined by RCW 11.02.005, except property passing through a community property agreement; or

     (2) For a client who died after July 26, 1997 and before September 14, 2006, nonprobate assets as defined by RCW 11.02.005.

     (3) For a client who died on or after September 14, 2006, nonprobate assets as defined by RCW 11.02.005 and any life estate interest held by the recipient immediately before death.

     "Heir" means the decedent's surviving spouse and children (natural and adopted); or those persons who are entitled to inherit the decedent's property under a will properly executed under RCW 11.12.020 and accepted by the probate court as a valid will.

     "Joint tenancy" means ownership of property held under circumstances that entitle one or more owners to the whole of the property on the death of the other owner(s), including, but not limited to, joint tenancy with right of survivorship.

     "Life estate" means an ownership interest in a property only during the lifetime of the person(s) owning the life estate. In some cases, the ownership interest lasts only until the occurrence of some specific event, such as remarriage of the life estate owner. A life estate owner may not have the legal title or deed to the property, but may have rights to possession, use, income and/or selling their life estate interest in the property.

     "Lis pendens" means a notice filed in public records warning that title to certain real property is in litigation and the outcome of the litigation may affect the title.

     "Long-term care services" means, for the purposes of this chapter only, the services administered directly or through contract by the department of social and health services for clients of the home and community services division and division of developmental disabilities including, but not limited to, nursing facility care and home and community services.

     "Medicaid" means the state and federally funded program that provides medical services under Title XIX of the Federal Social Security Act.

     "Medical assistance" means ((both)) medicaid ((and medical care)) services funded under title XIX or state-funded medical services.

     "Medicare Savings programs" means the programs described in WAC 388-517-0300 that help a client pay some of the costs that medicare does not cover.

     "Property": Examples include, but are not limited to, personal property, real property, title property, and trust property as described below:

     (1) "Personal property" means any property that is not classified as real, title, or trust property in the definitions provided here;

     (2) "Real property" means land and anything growing on, attached to, or erected thereon;

     (3) "Title property" means, for the purposes of this chapter only, property with a title such as motor homes, mobile homes, boats, motorcycles, and vehicles.

     (4) "Trust property" means any type of property interest titled in, or held by, a trustee for the benefit of another person or entity.

     "State-only funded long-term care" means the long-term care services that are financed with state funds only.

     "Qualified long-term care insurance partnership" means an agreement between the centers for medicare and medicaid services (CMS), the Washington state insurance commission which allows for the disregard of any assets or resources in an amount equal to the insurance benefit payments that are made to or on behalf of an individual who is a beneficiary under a long-term care insurance policy that has been determined by the Washington state insurance commission to meet the requirements of section 1917 (b)(1)(C)(iii) of the act.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and chapter 26.60 RCW. 09-07-038, § 388-527-2730, filed 3/10/09, effective 4/10/09. Statutory Authority: 2005 c 292, RCW 43.20B.080, 74.39A.170, 42 U.S.C. Section 1396p. 06-17-075, § 388-527-2730, filed 8/14/06, effective 9/14/06. Statutory Authority: RCW 43.17.240, 43.20B.80 [43.20B.080], 74.08.090, 74.34.090, Section 1917(b) of the Social Security Act and 2001 2nd sp.s. c 7, Part II. 04-10-060, § 388-527-2730, filed 4/30/04, effective 6/1/04. Statutory Authority: RCW 43.20B.080, 74.08.090 and 74.34.010. 99-11-076, § 388-527-2730, filed 5/18/99, effective 6/18/99. Statutory Authority: 1995 1st sp.s. c 18 and RCW 74.08.090. 95-19-001 and 95-24-037 (Orders 3893 and 3893A), § 388-527-2730, filed 9/6/95 and 11/29/95, effective 10/7/95 and 12/30/95.]

     (2) The client's estate is not liable when the client died before July 1, 1994 and on the date of death there was:

     (a) A surviving spouse; or

     (b) A surviving child who was either:

     (i) Under twenty-one years of age; or

     (ii) Blind or disabled as defined under chapter 388-511 WAC.

     (3) The estate of a frail elder or vulnerable adult under RCW 74.34.005 is not liable for the cost of adult protective services (APS) financed with state funds only.

     (4) On or before December 31, 2009, the client's estate is not liable for amounts paid for medicare premiums and other cost-sharing expenses incurred on behalf of a client who is eligible only for the medicare savings programs (MSP), and not otherwise medicaid eligible.

     (5) On or after January 1, 2010, the client's estate is not liable for amounts paid for medical assistance cost-sharing for benefits for clients who received coverage under a MSP only or for clients who receive coverage under a medicare savings program and medicaid as described in 42 USC 1396a (a)(10)(E).

[Statutory Authority: RCW 43.17.240, 43.20B.80 [43.20B.080], 74.08.090, 74.34.090, Section 1917(b) of the Social Security Act and 2001 2nd sp.s. c 7, Part II. 04-10-060, § 388-527-2733, filed 4/30/04, effective 6/1/04. Statutory Authority: RCW 43.20B.080, 74.08.090 and 74.34.010. 99-11-076, § 388-527-2733, filed 5/18/99, effective 6/18/99.]

     (a) The death of the surviving spouse, if any; and

     (b) There is no surviving child who is:

     (i) Twenty years of age or younger; or

     (ii) Blind or disabled at the time of the client's death, as defined under WAC 388-475-0050.

     (((2) The department may place a lien against property to evidence the department's right to recover after the deferral period specified in subsection (1) of this section.))

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and chapter 26.60 RCW. 09-07-038, § 388-527-2737, filed 3/10/09, effective 4/10/09. Statutory Authority: 2005 c 292, RCW 43.20B.080, 74.39A.170, 42 U.S.C. Section 1396p. 06-17-075, § 388-527-2737, filed 8/14/06, effective 9/14/06. Statutory Authority: RCW 43.20B.080, 74.08.090 and 74.34.010. 99-11-076, § 388-527-2737, filed 5/18/99, effective 6/18/99.]

     (1) The client's estate is liable for:

     (a) All medicaid services provided from July 26, 1987 through June 30, 1994;

     (b) The following medicaid services provided after June 30, 1994 and before July 1, 1995:

     (i) Nursing facility services;

     (ii) Home and community-based services; and

     (iii) Hospital and prescription drug services provided to a client while receiving nursing facility services or home and community-based services.

     (c) The following medicaid services provided after June 30, 1995 and before June 1, 2004:

     (i) Nursing facility services;

     (ii) Home and community-based services;

     (iii) Adult day health;

     (iv) Medicaid personal care;

     (v) Private duty nursing administered by the aging and disability services administration of the department; and

     (vi) Hospital and prescription drug services provided to a client while receiving services described under (c)(i), (ii), (iii), (iv), or (v) of this subsection.

     (d) The following services provided on and after June 1, 2004 through December 31, 2009:

     (i) All medicaid services, including those services described in subsection (c) of this section;

     (ii) Medicare savings programs services for individuals also receiving medicaid;

     (iii) Medicare premiums only for individuals also receiving medicaid; and

     (iv) Premium payments to managed care organizations.

     (e) The following services provided on or after January 1, 2010:

     (i) All medicaid services except those defined under subsection (d)(ii) and (d)(iii) of this section;

     (ii) All institutional medicaid services described in subsection (c) of this section;

     (iii) Premium payments to managed care organizations; and

     (iv) The client's proportional share of the state's monthly contribution to the centers for medicare and medicaid services (CMS) to defray the costs for outpatient prescription drug coverage provided to a person who is eligible for medicare Part D and medicaid.

     (2) The client's estate is liable for all state-only funded long-term care services and related hospital and prescription drug services provided to:

     (a) Home and community services' clients on and after July 1, 1995; and

     (b) Division of developmental disabilities' clients on and after June 1, 2004.

     (3) The client's estate is liable for all state-funded services provided regardless of the age of the client at the time the services were provided.

[Statutory Authority: 2005 c 292, RCW 43.20B.080, 74.39A.170, 42 U.S.C. Section 1396p. 06-17-075, § 388-527-2742, filed 8/14/06, effective 9/14/06. Statutory Authority: RCW 43.17.240, 43.20B.80 [43.20B.080], 74.08.090, 74.34.090, Section 1917(b) of the Social Security Act and 2001 2nd sp.s. c 7, Part II. 04-10-060, § 388-527-2742, filed 4/30/04, effective 6/1/04. Statutory Authority: RCW 43.20B.080, 74.08.090 and 74.34.010. 99-11-076, § 388-527-2742, filed 5/18/99, effective 6/18/99. Statutory Authority: RCW 74.08.090 and 1995 1st sp.s. c 18. 95-19-001 (Order 3893), § 388-527-2742, filed 9/6/95, effective 10/7/95.]

     (a) Received before July 25, 1993; and

     (b) When the client died with:

     (i) No surviving spouse;

     (ii) No surviving child who is:

     (A) Under twenty-one years of age;

     (B) Blind; or

     (C) Disabled.

     (iii) A surviving child who is twenty-one years of age or older.

     (2) For services received after July 24, 1993, all services recoverable under WAC 388-527-2742 will be recovered, even from the first fifty thousand dollars of estate value that is exempt above, except as set forth in subsections (3) through (8) of this section.

     (3) For a client who received services after July 24, 1993 and before July 1, 1994, the following property, up to a combined fair market value of two thousand dollars, is not recovered from the estate of the client:

     (a) Family heirlooms;

     (b) Collectibles;

     (c) Antiques;

     (d) Papers;

     (e) Jewelry;

     (f) Photos; and

     (g) Other personal effects of the deceased client and to which a surviving child is entitled.

     (4) Certain properties belonging to American Indians/Alaska Natives (AI/AN) are exempt from estate recovery if at the time of death:

     (a) The deceased client was enrolled in a federally recognized tribe; and

     (b) The estate or heir documents the deceased client's ownership interest in trust or nontrust real property and improvements located on a reservation, near a reservation as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior, or located:

     (i) Within the most recent boundaries of a prior federal reservation; or

     (ii) Within the Contract Health Service Delivery Area boundary for social services provided by the deceased client's tribe to its enrolled members.

     (5) Protection of trust and nontrust property under subsection (4) is limited to circumstances when the real property and improvements pass from an Indian (as defined in 25 U.S.C. Chapter 17, Sec. 1452(b)) to one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as members of a tribe and non-Indians, such as spouses and step-children, that their culture would nonetheless protect as family members, to a tribe or tribal organization and/or to one or more Indians.

     (6) Certain AI/AN income and resources (such as interests in and income derived from tribal land and other resources currently held in trust status and judgment funds from the Indian Claims Commission and the U.S. Claims Court) are exempt from estate recovery by other laws and regulations.

     (7) Ownership interests in or usage rights to items that have unique religious, spiritual, traditional, and/or cultural significance or rights that support subsistence or a traditional life style according to applicable Tribal law or custom.

     (8) Government reparation payments specifically excluded by federal law in determining eligibility are exempt from estate recovery as long as such funds have been kept segregated and not commingled with other countable resources and remain identifiable.

     (9) Assets protected under a qualified long term care partnership agreement.

[Statutory Authority: RCW 43.17.240, 43.20B.80 [43.20B.080], 74.08.090, 74.34.090, Section 1917(b) of the Social Security Act and 2001 2nd sp.s. c 7, Part II. 04-10-060, § 388-527-2754, filed 4/30/04, effective 6/1/04. Statutory Authority: RCW 43.20B.080, 74.08.090 and 74.34.010. 99-11-076, § 388-527-2754, filed 5/18/99, effective 6/18/99. Statutory Authority: 1995 1st sp.s. c 18 and RCW 74.08.090. 95-19-001 and 95-24-037 (Orders 3893 and 3893A), § 388-527-2754, filed 9/6/95 and 11/29/95, effective 10/7/95 and 12/30/95.]

     (2) Prior to the department filing a lien under this section, the department sends a notice via first class mail to:

     (a) The address of the property and other assets subject to the lien;

     (b) The probate estate's personal representative, if any;

     (c) Any other person known to have title to the affected property and/or to the decedent's heir(s) as defined by WAC 388-527-2730; and

     (d) The decedent's last known address or the address listed on the title, if any.

     (3) The notice in subsection (2) of this section includes:

     (a) The decedent's name, identification number, date of birth, and date of death;

     (b) The amount of medical assistance or state-only funded long-term care services, or both, correctly paid on behalf of the deceased client that the department seeks to recover;

     (c) The department's intent to file a lien against the deceased client's property and other assets to recover the amount of medical assistance or state-only funded long-term care services, or both, correctly paid on behalf of the deceased client;

     (d) The county in which the property and other assets are located; and

     (e) The procedures to contest the department's decision to file a lien by applying for an administrative hearing.

     (4) An administrative hearing only determines:

     (a) Whether the medical assistance or state-only funded long-term care services, or both, correctly paid on behalf of the decedent alleged by the department's notice is correct;

     (b) Whether the decedent had legal title to the property; and

     (c) Whether a lien is allowed under the provisions of Title 42 USC Section 1396p (a) and (b).

     (5) A request for an administrative hearing must:

     (a) Be in writing;

     (b) State the basis for contesting the lien;

     (c) Be signed by the requester and must include the requester's address and telephone number; and

     (d) Be served to the office of financial recovery (OFR) as described in WAC 388-527-2870, within twenty-eight calendar days of the date the department mailed the notice.

     (6) Upon receiving a request for an administrative hearing, the department notifies persons known to have title to the property and other assets of the time and place of the administrative hearing.

     (7) Disputed assets must not be distributed while in litigation.

     (8) An administrative hearing under this section is governed by chapters 34.05 RCW and 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))) (9) If an administrative hearing is conducted in accordance with this regulation, and the final agency decision is issued, the department only files a lien against the decedent's property and other assets only if upheld by the final agency decision.

     (((9))) (10) If no known title holder requests an administrative hearing, the department files a lien twenty-eight calendar days after the date the department mailed the notice described in subsection (2) of this section.

[Statutory Authority: 2005 c 292, RCW 43.20B.080, 74.39A.170, 42 U.S.C. Section 1396p. 06-17-075, § 388-527-2790, filed 8/14/06, effective 9/14/06. Statutory Authority: RCW 43.17.240, 43.20B.80 [43.20B.080], 74.08.090, 74.34.090, Section 1917(b) of the Social Security Act and 2001 2nd sp.s. c 7, Part II. 04-10-060, § 388-527-2790, filed 4/30/04, effective 6/1/04. Statutory Authority: RCW 74.08.090. 01-02-076, § 388-527-2790, filed 12/29/00, effective 1/29/01. Statutory Authority: RCW 43.20B.080, 74.08.090 and 74.34.010. 99-11-076, § 388-527-2790, filed 5/18/99, effective 6/18/99. Statutory Authority: 1995 1st sp.s. c 18 and RCW 74.08.090. 95-19-001 and 95-24-037 (Orders 3893 and 3893A), § 388-527-2790, filed 9/6/95 and 11/29/95, effective 10/7/95 and 12/30/95.]

     (a) The client is permanently an inpatient in a nursing facility, intermediate care facility for individuals with mental retardation, or other medical institution as described in WAC 388-500-0005;

     (b) The department determines, after notice and opportunity for a hearing, that the client cannot reasonably be expected to be discharged from the medical institution and return home; and

     (c) None of the following are lawfully residing, in the client's home:

     (i) The client's spouse or domestic partner;

     (ii) The client's child who at the time of the client's death is twenty years of age or younger, or is blind or permanently and totally disabled as defined in Title 42 USC Section 1382c; or

     (iii) A sibling of the client (who has an equity interest in such home and who was residing in the client's home for a period of at least one year immediately before the date of the client's admission to the medical institution).

     (2) If the client is discharged from the medical facility and returns home, the department dissolves the lien.

     (3) Prior to the department filing a lien under this section, the department sends a notice via first class mail to:

     (a) The address of the property and other assets subject to the lien;

     (b) The client's known address;

     (c) Any other person known to have title to the affected property and the client's authorized representative, if any.

     (4) The notice in subsection (3) of this section includes:

     (a) The client's name, and the date the client began to receive services;

     (b) The department's intent to file a lien against the client's property to recover the amount of medical assistance or state-only funded long-term care services, or both correctly paid on behalf of the client;

     (c) The county in which the property and other assets are located; and

     (d) The procedures to contest the department's decision to file a lien by applying for an administrative hearing.

     (5) An administrative hearing only determines:

     (a) Whether the medical assistance or state-only funded long-term care services, or both, on behalf of the decedent alleged by the department's notice is correct; and

     (b) Whether the decedent had legal title to the identified property.

     (6) A request for an administrative hearing must:

     (a) Be in writing;

     (b) State the basis for contesting the lien;

     (c) Be signed by the requester and must include the requester's address and telephone number; and

     (d) Be served to the office of financial recovery (OFR) as described in WAC 388-527-2870, within twenty-eight calendar days of the date the department mailed the notice.

     (7) Upon receiving a request for an administrative hearing, the department notifies persons known to have title to the property of the time and place of the administrative hearing.

     (8) Distributed assets must not be distributed while in litigation.

     (9) An administrative hearing under this subsection is governed by chapters 34.05 RCW and 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.

     (((9))) (10) If an administrative hearing is conducted in accordance with this regulation, and the final agency decision is issued, the department only files a lien against the client's property and other assets only if upheld by the final agency decision.

     (((10))) (11) If no known title holder requests an administrative hearing, the department files a lien twenty-eight calendar days after the date the department mailed the notice described in subsection (3) of this section.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and chapter 26.60 RCW. 09-07-038, § 388-527-2820, filed 3/10/09, effective 4/10/09. Statutory Authority: 2005 c 292, RCW 43.20B.080, 74.39A.170, 42 U.S.C. Section 1396p. 06-17-075, § 388-527-2820, filed 8/14/06, effective 9/14/06.]

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