Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-15-049.

     Title of Rule: WAC 388-513-1350 Defining the resource standard and determining available resources for long-term care (LTC) services and 388-513-1380 Determining a client's participation in cost of long-term care (LTC) services.

     Purpose: As mandated by ESHB 2257, adopted in the 2003 legislative session, the department is reducing the maximum resource allocation for a community spouse from $90,660 to $40,000 for clients institutionalized on or after August 1, 2003; and to permanently adopt the federal standard increases that have been in effect since January 1, 2003, and April 1, 2003.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, and 74.09.575; ESHB 2257 (chapter 28, Laws of 2003 1st sp.s.).

     Statute Being Implemented: ESHB 2257 (chapter 28, Laws of 2003 1st sp.s.); Section 1924 of the Social Security Act (42 U.S.C. 1396R-5).

     Summary: The maximum amount of resources allocated to the community spouse of a long-term care client is being reduced from $90,660 to $40,000 for clients institutionalized on or after August 1, 2003. Federal standard increases that were adopted by emergency rule on January 1, 2003, and April 1, 2003, are being permanently adopted.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Mary Lou Percival, Aging and Disabilities Administration, P.O. Box 45600, Olympia, 98504-5600, (360) 725-2318.

     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: See Purpose and Summary above, respectively. It is anticipated that the reduction in the maximum allowed resource allocation for community spouses will result in cost savings for the LTC Medicaid program.

     Proposal Changes the Following Existing Rules: See Purpose and Summary above, respectively.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule does not affect small businesses. It only affects DSHS clients.

     RCW 34.05.328 does not apply to this rule adoption. Client eligibility rules for medical assistance programs are exempt from this provision according to RCW 34.05.328 (5)(b)(vii).

     Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on January 6, 2004, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by January 2, 2004, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernnax@dshs.wa.gov.

     Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, mail to P.O. Box 45850, Olympia, WA 98504-5850, deliver to 4500 10th Avenue S.E., Lacey, WA, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., January 6, 2004.

     Date of Intended Adoption: Not sooner than January 7, 2004.

November 25, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (1) The resource standard used to determine eligibility for LTC services equals:

     (a) Two thousand dollars for:

     (i) A single client; or

     (ii) A legally married client with a community spouse, subject to the provisions described in subsections (5) through (8); or

     (b) Three thousand dollars for a legally married couple, unless subsection (2) applies.

     (2) If the department has already established eligibility for one spouse, then it applies the standard described in subsection (1)(a) to each spouse, unless doing so would make one of the spouses ineligible.

     (3) The department applies the following rules when determining available resources for LTC services:

     (a) WAC ((388-470-0005)) 388-475-0300, Resource eligibility and limits;

     (b) WAC ((388-470-0010)) 388-475-0250, How to determine who owns a resource;

     (c) ((WAC 388-470-0015, Availability of resources;

     (d))) WAC 388-470-0060(6), Resources of an alien's sponsor; and

     (((e))) (d) WAC 388-506-0620, SSI-related medical clients.

     (4) For LTC services the department determines a client's nonexcluded resources as follows:

     (a) For an SSI-related client, the department reduces available resources by excluding resources described in WAC ((388-513-1360)) 388-475-0350 through 388-475-0550;

     (b) For an SSI-related client who has a community spouse, the department:

     (i) Excludes resources described in WAC 388-513-1360; and

     (ii) Adds together the available resources of both spouses according to subsection (5)(a) or (b) as appropriate;

     (c) For a client not described in subsection (4)(a) or (b), the department applies the resource rules of the program used to relate the client to medical eligibility.

     (5) The department determines available resources of a legally married client, when both spouses are institutionalized, by following WAC 388-506-0620 (5) and (6). For legally married clients when only one spouse meets institutional status, the following rules apply. If the client's current period of institutional status began:

     (a) Before October 1, 1989, the department adds together one-half the total amount of nonexcluded resources held in the name of:

     (i) The institutionalized spouse; or

     (ii) Both spouses.

     (b) On or after October 1, 1989, the department adds together the total amount of nonexcluded resources held in the name of:

     (i) Either spouse; or

     (ii) Both spouses.

     (6) If subsection (5)(b) applies, the department ((allocates the maximum)) determines the amount of resources ((ordinarily allowed by law)) that are allocated to the community spouse before determining nonexcluded resources used to establish eligibility for the institutionalized spouse((. The maximum allocation amount is eighty-seven thousand dollars effective January 1, 2001.

     (7))), as follows:

     (a) If the client's current period of institutional status began on or after October 1, 1989 and before August 1, 2003, the department allocates the maximum amount of resources ordinarily allowed by law. The maximum allocation amount is ninety thousand six hundred sixty dollars effective January 1, 2003; or

     (b) If the client's current period of institutional status began on or after August 1, 2003, the department allocates the greater of:

     (i) A spousal share equal to one-half of the couple's combined nonexcluded resources as of the beginning of the current period of institutional status, up to the amount described in subsection (6)(a); or

     (ii) The state spousal resource standard of forty thousand dollars.

     (7) The amount of the spousal share described in (6)(b)(i) is determined sometime between the date that the current period of institutional status began and the date that eligibility for LTC services is determined. The following rules apply to the determination of the spousal share:

     (a) Prior to an application for LTC services, the couple's combined countable resources are evaluated from the date of the current period of institutional status at the request of either member of the couple. The determination of the spousal share is completed when necessary documentation and/or verification is provided; or

     (b) The determination of the spousal share is completed as part of the application for LTC services if the client was institutionalized prior to the month of application, and declares the spousal share exceeds the state spousal resource standard. The client will be required to provide verification of the couple's combined countable resources held at the beginning of the current period of institutional status.

     (8) The amount of allocated resources described in subsection (6) can be increased, only if:

     (a) A court transfers additional resources to the community spouse; or

     (b) An administrative law judge establishes in a fair hearing described in chapter 388-02 WAC or by consent order, that the amount is inadequate to provide a minimum monthly maintenance needs amount for the community spouse.

     (((8))) (9) The department considers resources of the community spouse unavailable to the institutionalized spouse the month after eligibility for LTC services is established, unless subsection (((9))) (10)(a), (b), or (c) applies.

     (((9))) (10) A redetermination of the couple's resources as described in subsections (4)(b) or (c) is required, if:

     (a) The institutionalized spouse has a break of at least thirty consecutive days in a period of institutional status;

     (b) The institutionalized spouse's nonexcluded resources exceed the standard described in subsection (1)(a), if subsection (5)(b) applies; or

     (c) The institutionalized spouse does not transfer the amount described in subsections (6) or (((7))) (8) to the community spouse or to another person for the sole benefit of the community spouse as described in WAC 388-513-1365(4) by either:

     (i) The first regularly scheduled eligibility review; or

     (ii) The reasonable amount of additional time necessary to obtain a court order for the support of the community spouse.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500 and Section 1924 (42 U.S.C. 1396R-5). 01-18-055, § 388-513-1350, filed 8/30/01, effective 9/30/01. 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, § 388-513-1350, filed 12/8/99, effective 1/8/00. Statutory Authority: RCW 74.08.090 and 74.09.500. 99-06-045, § 388-513-1350, filed 2/26/99, effective 3/29/99. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.530, 74.09.575 and Section 1924 (42 USC 1396r-5). 98-11-033, § 388-513-1350, filed 5/14/98, effective 6/14/98. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090 and 74.09.575. 97-09-112, § 388-513-1350, filed 4/23/97, effective 5/24/97. Statutory Authority: RCW 74.08.090 and Title XIX State Agency Letter 95-44. 96-09-033 (Order 3963), § 388-513-1350, filed 4/10/96, effective 5/11/96. 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), § 388-513-1350, filed 2/8/95, effective 3/11/95. Statutory Authority: RCW 74.08.090. 94-23-129 (Order 3808), § 388-513-1350, filed 11/23/94, effective 12/24/94; 94-10-065 (Order 3732), § 388-513-1350, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-95-337 and 388-95-340.]

     (1) For a client receiving institutional or hospice services in a medical facility, the department applies all subsections of this rule.

     (2) For a client receiving waivered services at home or in an alternate living facility, the department applies only those subsections of this rule that are cited in the rules for those programs.

     (3) For a client receiving hospice services at home, the department applies rules used for the community options program entry system (COPES).

     (4) Excess resources are reduced in an amount equal to incurred medical expenses (for definition see WAC 388-519-0110(10)) that are not subject to third-party payment and for which the client is liable, including:

     (a) Health insurance and Medicare premiums, deductions, and co-insurance charges;

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

     (c) The amount of excess resources is limited to the following amounts:

     (i) For LTC services provided under the categorically needy (CN) program, the amount described in WAC 388-513-1315(3); or

     (ii) For LTC services provided under the medically needy (MN) program, the amount described in WAC 388-513-1395 (2)(a) or (b).

     (5) The department allocates nonexcluded income up to a total of the medically needy income level (MNIL) in the following order:

     (a) A personal needs allowance (PNA) of:

     (i) One hundred sixty dollars for a client living in a state veterans' home;

     (ii) Ninety dollars for a veteran or a veteran's surviving spouse, who receives a VA improved pension and does not live in a state veterans' home; or

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

     (b) Federal, state, or local income taxes ((incurred during the time period covered by the PNA, whether paid or unpaid)) owed by the client.

     (c) Wages for a client who:

     (i) Is related to the supplemental security income (SSI) program as described in WAC 388-503-0510(1); and

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

     (d) 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.

     (6) The department allocates nonexcluded income after deducting amounts described in subsection (5) in the following order:

     (a) 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.

     (b) A monthly maintenance needs allowance for the community spouse not to exceed, effective January 1, ((2001)) 2003, two thousand ((one)) two hundred ((seventy-five)) sixty-seven dollars, unless a greater amount is allocated as described in subsection (8) of this section. The monthly maintenance needs allowance:

     (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 ((four)) five hundred ((fifty-two)) fifteen dollars; and

     (B) Excess shelter expenses as specified under subsection (7) of this section; and

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

     (c) A monthly maintenance needs amount for each minor or dependent child, dependent parent or dependent sibling of the community or institutionalized spouse who:

     (i) Resides with the community spouse, equal to one-third of the amount that one thousand ((four)) five hundred ((fifty-two)) fifteen dollars exceeds the dependent family member's income.

     (ii) Does not reside with the community spouse, equal to the MNIL for the number of dependent family members in the home less the income of the dependent family members.

     (iii) Child support received from noncustodial parent is the child's income.

     (d) Incurred medical expenses described in subsections (4)(a) and (b) not used to reduce excess resources.

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

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

     (7) For the purposes of this section, "excess shelter expenses" means the actual expenses under subsection (7)(b) less the standard shelter allocation under subsection (7)(a). For the purposes of this rule:

     (a) The standard shelter allocation is four hundred ((thirty-six)) fifty-five dollars, effective April 1, ((2001)) 2003; and

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

     (8) The amount allocated to the community spouse may be greater than the amount in subsection (6)(b) only when:

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

     (9) A client who is admitted to a medical facility for ninety days or less and continues to receive full SSI benefits is not required to use the SSI income in the cost of care for medical services. Income allocations are allowed as described in this section from non-SSI income.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500 and Section 1924 (42 U.S.C. 1396R-5). 01-18-055, § 388-513-1380, filed 8/30/01, effective 9/30/01. Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, and Section 1924(g) of the Social Security Act. 00-17-058, § 388-513-1380, filed 8/9/00, effective 9/9/00. Statutory Authority: RCW 72.36.160, 74.04.050, 74.04.057, 74.08.090, 74.09.500 and Section 1924(g) of the Social Security Act, Section 4715 of the BBA of 1997 (Public Law 105-33, HR 2015). 99-11-017, § 388-513-1380, filed 5/10/99, effective 6/10/99. 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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