Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-21-069.

     Title of Rule and Other Identifying Information: WAC 388-515-1550 Medically needy in-home wavier (MNIW).

     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, behind Goodyear Tire. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on January 9, 2007, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than January 10, 2007.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. on January 9, 2007.

     Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by January 5, 2007, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

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

•	This proposed change increases the personal needs allowance (PNA) for the medically needy in-home waiver program to match the PNA allowed for the categorically needy waiver described in WAC 388-515-1505.
•	The deduction for medical and remedial care expenses that were incurred as a result of imposition of assets penalty period is limited to zero.
•	DSHS is making changes to the language in order to make rules clearer.

     Reasons Supporting Proposal: See above.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.520, 74.09.530, chapter 276 (6)(b), Laws of 2004.

     Statute Being Implemented: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, 74.09.520, 74.09.530, chapter 276 (6)(b), Laws of 2004.

     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: 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 these rules and determined that no new costs will be imposed on small businesses or nonprofits.

     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.

November 30, 2006

Andy Fernando, Manager

Rules and Policies Assistance Unit

     (1) To be eligible for MNIW, a client must:

     (a) Not meet financial eligibility for Medicaid personal care or the COPES program;

     (b) Be eighteen years of age or older;

     (c) Meet the SSI-related criteria described in WAC 388-475-0050(1);

     (d) Require the level of care provided in a nursing facility as described in WAC 388-106-0355;

     (e) In the absence of waiver services described in WAC 388-106-0500, continue to reside in a medical facility as defined in WAC 388-513-1301, or will likely be placed in one within the next thirty days;

     (f) Have attained institutional status as described in WAC 388-513-1320;

     (g) Have been determined to be in need of waiver services as described in WAC 388-106-0510;

     (h) Be able to live at home with community support services and choose to remain at home;

     (i) Not be subject to a penalty period of ineligibility for the transfer of an asset as described in WAC 388-513-1363, 388-513-1364, 388-513-1365 and 388-513-1366; and

     (j) Meet the resource and income requirements described in subsections (2) through (6) of this section.

     (2) The department determines a client's nonexcluded resources under MNIW as described in WAC 388-513-1350 (((1) through (4)(a) and 388-513-1360;)).

     (3) Nonexcluded resources, after disregarding excess resources described in subsection (4) of this section, must be at or below the resource standard described in WAC 388-513-1350 (((1) and (2))).

     (4) In determining a client's resource eligibility, the department disregards excess resources above the standard described in subsection (3) of this section:

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

     (i) Premiums, deductibles, and co-insurance/co-payment charges for health insurance and Medicare premiums;

     (ii) Necessary medical care recognized under state law, but not covered under the state's Medicaid plan; or

     (iii) Necessary medical care covered under the state's Medicaid plan.

     (b) As long as the incurred medical expenses:

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

     (ii) Are not the result of medical and remedial care expenses that were incurred as the result of imposition of a transfer of asset penalty described in WAC 388-513-1363, 388-513-1364 and 388-513-1365.

     (iii) Have not been used to satisfy a previous spenddown liability;

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

     (((iv))) (v) Have not been used to reduce client responsibility toward cost of care; and

     (((v))) (vi) Are amounts for which the client remains liable.

     (5) The department determines a client's countable income under MNIW in the following way:

     (a) Considers income available described in WAC 388-513-1325 and 388-513-1330 (1), (2), and (3);

     (b) Excludes income described in WAC 388-513-1340;

     (c) Disregards income described in WAC 388-513-1345;

     (d) Deducts monthly health insurance premiums, except Medicare premiums, not used to reduce excess resources in subsection (4) of this section;

     (e) Allows an income deduction for a nonapplying spouse, equal to the one person medically needy income level (MNIL) less the nonapplying spouse's income, if the nonapplying spouse is living in the same home as the applying person.

     (6) A client whose countable income exceeds the MNIL may become eligible for MNIW:

     (a) When they have or expect to have medical expenses to offset their income which is over the MNIL; and

     (b) Subject to availability in WAC 388-106-0535.

     (7) The portion of a client's countable income over the MNIL is called "excess income."

     (8) A client who has or will have "excess income" is not eligible for MNIW until the client has medical expenses which are equal in amount to that excess income. This is the process of meeting "spenddown." The excess income from each of the months in the base period is added together to determine the total "spenddown" amount.

     (9) The following medical expenses may be used to meet spenddown if not already used in subsection (4) of this section to disregard excess resources or to reduce countable income as described in subsection (5)(d) of this section:

     (a) An amount equal to incurred medical expenses such as:

     (i) Premiums, deductibles, and co-insurance/co-payment charges for health insurance and Medicare premiums;

     (ii) Necessary medical care recognized under state law, but not covered under the state's Medicaid plan; and

     (iii) Necessary medical care covered under the state's Medicaid plan.

     (b) The cost of waiver services authorized during the base period.

     (c) As long as the incurred medical expenses:

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

     (ii) Are not the result of medical and remedial care expenses that were incurred as the result of imposition of a transfer of asses penalty described in WAC 388-513-1363, 388-513-1364 and 388-513-1365.

     (iii) Have not been used to satisfy a previous spenddown liability;

     (((iii))) (iv) Have not been used to reduce client responsibility toward cost of care; and

     (((iv))) (v) Are amounts for which the client remains liable.

     (10) Eligibility for MNIW is effective the first full month the client has met spenddown.

     (11) In cases where spenddown has been met, medical coverage and MNIW begin the day services are authorized.

     (12) A client who meets the requirements for MNIW chooses a three or six month base period. The months must be consecutive calendar months.

     (13) The client's income that remains after determining available income in WAC 388-513-1325 and 388-513-1330 (1), (2), (3) and excluded income in WAC 388-513-1340 is paid towards the cost of care after deducting the following amounts in the order listed:

     (a) An earned income deduction of the first sixty-five dollars plus one-half of the remaining earned income;

     (b) Personal needs allowance (PNA) in an amount equal to the one-person ((MNIL)) Federal Poverty Level (FPL) described in WAC ((388-478-0070 (1)(a))) 388-478-0075(4);

     (c) Medicare and health insurance premiums not used to meet spenddown or reduce excess resources;

     (d) Incurred medical expenses described in subsection (4) of this section not used to meet spenddown or reduce excess resources.

[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-515-1550, filed 5/17/05, effective 6/17/05. Statutory Authority: 2004 c 276 § 206 (6)(b) and Townsend vs. DSHS, U.S. District Court, Western District of Washington, No. C 00-0944Z. 04-16-029, § 388-515-1550, filed 7/26/04, effective 8/26/04.]

     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.

© Washington State Code Reviser's Office