Original Notice.

Preproposal statement of inquiry was filed as WSR 98-21-123.

Title of Rule: WAC 388-513-1380 Institutional--Participation, client cost of care.

Purpose: To adopt changes in the federal standards for community spouses and family needs allowances. To incorporate a state plan amendment allowing an increase in the personal needs allowance (PNA) for certain persons. To implement a section of the Balanced Budget Act (BBA) of 1997 that mandates including certain veteran benefits when the department determines how much a person is able to participate in the cost of long-term care services.

Statutory Authority for Adoption: RCW 72.36.160, 74.04.050, 74.04.057, 74.08.090, and 74.09.500.

Statute Being Implemented: Section 1924(g) of the Social Security Act; Section 4715 of the BBA of 1997 (Public Law 105-33 (H.R. 2015)).

Summary: This rule adopts increases in federal standards for resources and income for community spouses and family needs allowances. It also incorporates a state plan amendment that allows an increase in the personal needs allowance (PNA) by the amount of income garnisheed for child support, and the allocation of a PNA to a veteran's surviving spouse who lives in a state veterans home. The rule implements a section of the Balanced Budget Act (BBA) of 1997 that mandates including certain veteran benefits when the department determines how much a person is able to contribute to the cost of long-term care services.

Reasons Supporting Proposal: To adopt into rule changes in federal standards, amendments to the state plan, and federally mandated provisions of the BBA of 1997.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Steven Kozak, Department of Social and Health Services, Medical Assistance Administration, 617 8th Avenue S.E., Olympia, WA 98504, (360) 586-1034.

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

Rule is necessary because of federal law, Section 1924(g) of the Social Security Act; Section 4715 of the BBA of 1997 (Public Law 105-33 (H.R. 2015)).

Explanation of Rule, its Purpose, and Anticipated Effects: To adopt into rule those federal and state changes that affect how the department determines how much a person is able to contribute to the cost of long-term care services. The purpose is to implement federal and state mandated regulations. The anticipated effect is that by increasing allocation amounts for persons in various situations, this will increase the possibility that these persons may obtain assistance.

Proposal Changes the Following Existing Rules: It increases the allowances for community spouse resources and family needs allowances. It increases the personal needs allowance (PNA) for persons and veterans' surviving spouses who live in a state veterans home, for persons in a medical facility, and for the amount of income garnisheed for child support during the PNA period. It increases the standard shelter allocation.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not affect small businesses.

RCW 34.05.328 does not apply to this rule adoption. This rule applies only to client and financial eligibility. RCW 34.05.328 (5)(b)(vii) exempts DSHS rules that [apply] only to client medical or financial eligibility.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on April 6, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by March 26, 1999, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 902-8292, by April 6, 1999.

Date of Intended Adoption: April 7, 1999.

March 1, 1999

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

This section describes ((the)) allocations ((which can be deducted from the institutional client's)) of income and excess resources ((in order to determine the amount available for the client's participation in the cost of care)) used to determine a person’s participation in the cost of care for institutional services in a medical facility. Income allocations described in this section are used to reduce countable income that remains after exclusions described in WAC 388-513-1340.

(1) ((The client's excess resources are available to meet the cost of care after the following deductions in this order)) Allocations used to reduce excess resources are amounts for incurred medical expenses, not subject to third-party payment, for which the person is liable, including:

(a) Health insurance and Medicare premiums, deductions, and co-insurance ((not paid by a third party)) charges; and

(b) ((Noncovered medical bills which are the liability of the client and not paid by a third party)) Necessary medical care recognized under state law, but not covered under the state’s Medicaid plan.

(2) ((The allocations used to reduce excess resources under subsection (1) of this section cannot be used to reduce income under subsection (3) of this section.

(3) The client's nonexempt income is available to meet the cost of care after the following deductions in this)) Allocations used to reduce countable income are made in the following order:

(a) ((Deductions)) Amounts described in subsection (((3))) (2)(a) may not total more than the one-person medically needy income level (MNIL):

(i) A personal needs allowance (PNA) as follows:

(A) One hundred sixty dollars for a ((veteran)) person living in a ((Medicaid-certified)) state veteran(('))s‘ home ((nursing facility));

(B) Ninety dollars for a ((single)) veteran((,)) or ((widow or widower of)) a ((veteran receiving an improved)) veteran's surviving spouse, who receives an improved pension and does not live in a state veterans’ home; or

(C) Forty-one dollars and sixty-two cents for all other ((clients)) persons in a medical facility.

(ii) Federal, state, or local income taxes:

(A) Mandatorily withheld from earned or unearned income for income tax purposes before receipt by the ((client)) person; or

(B) Not covered by withholding, but are owed, become an obligation, or have been paid by the ((client)) person during the time period covered by the PNA.

(iii) Wages for a ((client)) person who:

(A) Is SSI-related; and

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

(iv) 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.

(b) Income garnisheed for child support:

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

(ii) Not deducted under another provision in the post-eligibility process.

(c) A monthly needs allowance for the community spouse not to exceed, effective January 1, ((1998)) 1999, two thousand ((nineteen)) forty-nine dollars, unless ((specified)) a greater amount is allocated as described in subsection (((5))) (4) of this section.  The monthly needs allowance ((is)):

(i) Consists of a combined total of both:

(A) An amount added to the community spouse's gross income to provide a total of one thousand three hundred fifty-eight dollars;

(((ii))) and

(B) Excess shelter expenses as specified under subsection (((4))) (3) of this section; and

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

(((c))) (d) A monthly maintenance needs amount for each dependent or minor child, dependent parent or dependent sibling:

(i) Residing with the community spouse, equal to one-third of the amount that one thousand three hundred fifty-((eight)) seven dollars exceeds the family member's income.  Child support received from an absent parent is the child's income.

(ii) Not residing with the community spouse, equal to the MNIL for the number of family members in the home less the income of the family members.

(((d) Incurred medical expenses, not subject to third-party payment, which are the current liability of the client including:

(i) Health insurance premiums, deductions, and coinsurance amounts; and

(ii) Necessary medical care recognized under state law, but not covered under Medicaid.))

(e) Incurred medical expenses described in subsections (1)(a) and (b) not used to reduce excess resources.

(f) Maintenance of the home of a single person 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)) person is likely to return to the home within the six-month period; and

(iv) When social service staff documents initial need for the income exemption and reviews the person's circumstances after ninety days.

(((4))) (3) For the purposes of this section, "excess shelter expenses" equal the actual expenses under subsection (((4))) (3)(a) ((of this section)) less the standard shelter allocation under subsection (((4))) (3)(b) ((of this section)):

(a) 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, provided the utilities are not included in the maintenance charges for a condominium or cooperative.

(b) The standard shelter allocation is four hundred ((eight)) seven dollars, effective April 1, ((1997)) 1998.

(((5))) (4) The amount ((the institutional spouse may allocate)) allocated to the community spouse may be greater than the amount in subsection (((3)(b) of this section)) (2)(c) only when:

(a) A court enters an order against the ((institutionalized client)) person 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.

(((6))) (5) A person receiving SSI ((clients)) shall continue to receive total payment under 1611 (b)(1) of the Social Security Act for the first three full calendar months of institutionalization in a public or Medicaid-approved medical institution or facility when the:

(a) Stay in the institution or facility is not expected to exceed three months; and

(b) The ((client)) person plans to return to former living arrangements.

[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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