Date of Adoption: August 25, 1999.

Purpose: This rule adopts changes in the federal standards for community spouses and family needs allowances. It incorporates a state plan amendment allowing an increase in the personal needs allowance (PNA) for certain persons. It 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 participate in the cost of long-term care services. This rule was permanently filed under WSR 99-11-017, but due to an error, the increased amounts were not reflected in the filed text. This filing implements those increases.

Citation of Existing Rules Affected by this Order: Amending WAC 388-513-1380.

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

Other Authority: Section 1924(g) of the Social Security Act, Section 4715 of the BBA of 1997 (Public Law 105-33, HR 2015).

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: Federal regulations require this increase in standards to be effective January 1, 1999, in order for the state to continue receiving federal funds. These regulations were initially implemented under emergency rule filed under WSR 99-01-168. A permanent rule was filed under WSR 99-11-012 but, due to an error, the increased amounts were not reflected in the filed text.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0. Effective Date of Rule: Immediately.

August 25, 1999

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

This section describes allocations of income and excess resources 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) 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 charges; and

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

(2) Allocations used to reduce countable income are made in the following order:

(a) Amounts described in subsection (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 person living in a state veterans' home;

(B) Ninety dollars for a veteran or a 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 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 person; or

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

(iii) Wages for a 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 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, 1999, two thousand forty-nine dollars, unless a greater amount is allocated as described in subsection (4) of this section.  The monthly 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 three hundred ((fifty-eight)) eighty-three dollars; and

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

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

(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-seven)) eighty-three 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.

(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 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.

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

(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 ((seven)) thirteen dollars, effective April 1, 1998.

(4) The amount allocated to the community spouse may be greater than the amount in subsection (2)(c) only when:

(a) A court enters an order against the 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.

(5) A person receiving SSI 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 person plans to return to former living arrangements.

[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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