WSR 02-11-067

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Adult Services Administration)

[ Filed May 10, 2002, 4:48 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-01-043.

Title of Rule: Amendments to WAC 388-79-010, 388-79-020, 388-79-030 and 388-79-040, concerning guardianship fees for Medicaid clients of the department.

Purpose: (1) To provide for a total of thirty days' notice of proceedings; (2) to prohibit deductions from participation for fees and costs occurred prior to Medicaid eligibility, during any subsequent period of ineligibility, or after the client has died; and (3) to limit, to the extent possible, the court's ability to advance fees at one accounting and then to award higher fees at the next accounting after the services as [are] rendered.

Statutory Authority for Adoption: RCW 11.92.180, 43.20B.460.

Statute Being Implemented: RCW 11.92.180 and 43.20B.460.

Summary: (1) To provide for a total of thirty days' notice of proceedings; (2) to prohibit deductions from participation for fees and costs occurred prior to Medicaid eligibility, during any subsequent period of ineligibility, or after the client has died; and (3) to limit, to the extent possible, the court's ability to advance fees at one accounting and then to award higher fees at the next accounting after the services as [are] rendered. AASA believes that these changes will not have a substantial impact or a more than minor cost to the small businesses affected.

Reasons Supporting Proposal: This will help our administration estimate and possibly close the accounting period once a regular payment on an account can be established and once deductions for participation during periods of ineligibility are eliminated. This rule will also help our regional administrators prepare by adding twenty days making notice of proceedings a total of providing thirty days. Eliminating deductions during periods of ineligibility will also save department money.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Kristi Olson, P.O. Box 45600, Olympia, WA 98504-5600, olsonkl2@dshs.wa.gov, (360) 725-2537.

Name of Proponent: Department of Social and Health Services, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: (1) To modify existing rules on guardianship fees charged to Medicaid recipients receiving long-term care services who are required to participate in the cost of their care; (2) to preclude allowance of prospective or retrospective guardianship fees and administrative costs prior to the Medicaid recipient's eligibility for long-term care services or after the recipient's death; and (3) to change the home and community services regional administrator notice by adding twenty days to the notice time.

The department expects the loss of revenue to the small businesses affected will be minor.

Proposal Changes the Following Existing Rules: WAC 388-79-010, clarifies the applicability of guardianship rules per RCW 11.92.180 and 43.20B.460.

WAC 388-79-020, clarifies definitions used in this chapter.

WAC 388-79-030, adding language to preclude the allowance of prospective or retrospective guardianship fees and administrative costs prior to the Medicaid recipient's eligibility for long-term care services or after the recipient's death.

WAC 388-79-040, language to allow the regional administrator an added twenty days notice before the guardian files with the court.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement has not been prepared because the department does not find the cost to the small businesses affected to be more than minor.

RCW 34.05.328 does not apply to this rule adoption. The rule does not meet the definition of a significant legislative rule per RCW 34.05.328 (5)(b)(vii), exempting DSHS rules relating only to client medical or financial eligibility or rules concerning liability for care of dependents.

Hearing Location: Office Building 2 Auditorium (DSHS Headquarters) (parking at 12th and Washington), 1115 Washington, Olympia, WA, 98504, on June 25, 2002, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by May 21, 2002, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaaxH@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov by 5 p.m., June 25, 2002.

Date of Intended Adoption: Not earlier than June 26, 2002.

May 8, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3061.4
AMENDATORY SECTION(Amending WSR 98-10-055, filed 4/30/98, effective 5/31/98)

WAC 388-79-010   ((Applicability and reason for the chapter)) Purpose.   ((It is the intent of this WAC to carry out RCW 43.20B.460, and that part of)) These rules implement RCW 11.92.180 ((which allows)) and 43.20B.460 to the extent that those statutes require the department to ((set maximum)) establish by rule the maximum amount of guardianship fees and additional compensation for administrative costs that may be allowed by ((courts in guardianships for a department of social and health services (DSHS) client residing in a nursing facility or in a residential or home setting, and who is required by DSHS to contribute a portion of their income towards the cost of residential or supportive services)) the court for a guardian or limited guardian of an incapacitated person who is a Medicaid client of the department and is thus required by federal law to contribute to the cost of the client's long-term care.

[Statutory Authority: RCW 11.92.180 and 43.20B.460. 98-10-055, 388-79-010, filed 4/30/98, effective 5/31/98.]


AMENDATORY SECTION(Amending WSR 98-10-055, filed 4/30/98, effective 5/31/98)

WAC 388-79-020   Definitions.   "Administrative costs" or "costs" means necessary costs paid by the guardian including attorney fees ((and costs of service of process at the least expensive level)).

(((2))) "((Department)) Client" means a person who ((has been approved to receive a grant or program administered by the department)) is eligible for and is receiving Medicaid-funded long-term care.

"Guardianship fees" or "fees" means necessary fees charged by a guardian for services rendered on behalf of a client.

"Participation" means the amount the client pays from current monthly income toward the cost of the client's long-term care.

[Statutory Authority: RCW 11.92.180 and 43.20B.460. 98-10-055, 388-79-020, filed 4/30/98, effective 5/31/98.]


AMENDATORY SECTION(Amending WSR 98-10-055, filed 4/30/98, effective 5/31/98)

WAC 388-79-030   ((Guardianship)) Maximum fees and ((administrative)) costs ((including attorney fees)).   The superior court may allow guardianship fees and administrative costs in an amount set out in an order. For orders entered after June 15, 1998, ((for a department client)) where the order establishes or continues a legal guardianship for a department client, and requires a future review or accounting; then unless otherwise modified by the process described in WAC 388-79-040:

(1) The amount of guardianship fees shall not exceed one hundred seventy-five dollars per month;

(2) The amount of administrative costs directly related to establishing a guardianship for a department client shall not exceed seven hundred dollars; and

(3) ((In any order on review)) The amount of administrative costs other than the costs of establishing the guardianship shall not exceed a total of six hundred dollars during any three-year period.

[Statutory Authority: RCW 11.92.180 and 43.20B.460. 98-10-055, 388-79-030, filed 4/30/98, effective 5/31/98.]


AMENDATORY SECTION(Amending WSR 98-10-055, filed 4/30/98, effective 5/31/98)

WAC 388-79-040   Procedure ((to revise award letter)) for allowing fees and costs from client participation.   (1) After June 15, 1998 where a ((department)) client is subject to a guardianship ((then)) the department shall be entitled to notice of proceedings as described in RCW 11.92.150.

(((1))) (2) The notice ((shall be given to the appropriate)) must be served to the department's regional administrator of the program ((serving the department)) that is providing services to the client. A list of the regional administrators will be ((available)) furnished upon request.

(((2))) (3) If the fees and costs requested and established by the order are equal to or ((lower)) less than the maximum ((amount set by this rule then the award letter or document setting the department's)) amounts allowed under WAC 388-79-030, then the department will adjust the client's current participation ((shall be adjusted)) to reflect ((that amount)) the amounts allowed upon receipt by the department of the court order setting ((a)) the monthly ((amount)) amounts.

(((3))) (4) Should fees and costs ((above those requested)) in excess of the amounts allowed in WAC 388-79-030 be requested:

(a) At least twenty days before filing the request with the court, the guardian must present the request in writing to the appropriate regional administrator ((will be given notice of the hearing as described in RCW 11.92.150, and provided with copies of all supporting documents filed with the court)) to allow the department an opportunity to consider whether the request should be granted on an exceptional basis.

(b) In considering a request for extraordinary fees or costs, the department must consider the following factors:

(i) The department's obligation under federal and state law to ensure that federal Medicaid funding is not jeopardized by noncompliance with federal regulations limiting deductions from the client's participation amount;

(ii) The usual and customary guardianship services for which the maximum fees and costs under WAC 388-79-030 must be deemed adequate for a Medicaid client, including, but not limited to:

(A) Acting as a representative payee;

(B) Managing the client's financial affairs;

(C) Preserving and/or disposing of property;

(D) Making health care decisions;

(E) Visiting and/or maintaining contact with the client;

(F) Accessing public assistance programs on behalf of the client;

(G) Communicating with the client's service providers; and

(H) Preparing any reports or accountings required by the court.

(iii) Extraordinary services provided by the guardian, such as:

(A) Unusually complicated property transactions;

(B) Substantial interactions with adult protective services or criminal justice agencies;

(C) Extensive medical services setup needs, and/or emergency hospitalizations; and

(D) Litigation other than litigating an award of guardianship fees or costs.

(c) Should the court determine after consideration of the facts((, law and evidence of the case)) and law, that fees and costs ((higher than normally)) in excess of the amounts allowed in WAC 388-79-030 are just and reasonable and should be allowed then the ((award letter or document setting the department)) department will adjust the client's current participation ((shall be adjusted)) to reflect ((that amount)) the amounts allowed upon receipt by the department of the court order setting ((a)) the monthly ((amount)) amounts.

(5) In no event may a client's participation be prospectively or retrospectively reduced to pay fees and costs incurred before the effective date of the client's Medicaid eligibility; or during any subsequent time period when the client was not eligible for or did not receive long-term care services; or after the client has died.

(6) If the court, at a prior accounting, has allowed the guardian to receive fees from the client's monthly income in advance of services rendered by the guardian, and the client dies before the next accounting the fees and costs allowed by the court at the final accounting may be less than, but may not exceed the amounts advanced and paid to the guardian from the client's income.

[Statutory Authority: RCW 11.92.180 and 43.20B.460. 98-10-055, 388-79-040, filed 4/30/98, effective 5/31/98.]

Washington State Code Reviser's Office