Original Notice.

Preproposal statement of inquiry was filed as WSR 01-11-095.

Title of Rule: WAC 388-515-1505 Community options program entry system (COPES).

Purpose: This proposed amendment clarifies income and resource allocations for the COPES waivered services program, including court-ordered guardianship and attorney fees.

Statutory Authority for Adoption: RCW 74.04.057, 74.04.050, 74.08.090, and 74.09.575.

Statute Being Implemented: RCW 74.04.057, 74.04.050, 74.08.090, and 74.09.575.

Summary: Clarifies income and resource allocations for the COPES waivered services program and includes court-ordered guardianship and attorney fees in those allocations.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Mary Beth Ingram, Program Manager, 925 Plum Street, Building 4, Floor 2, Olympia, WA 98504, (360) 725-1327.

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: This amendment will simplify language and clarify rules for income and resource allocation in the COPES waivered services program.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not apply to businesses.

RCW 34.05.328 does not apply to this rule adoption. This does not meet the definition of a significant legislative rule.

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on November 6, 2001, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Fred Swenson by November 1, 2001, phone (360) 664-6097, TTY (360) 664-6178, e-mail swensfh@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Department of Social and Health Services, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by November 6, 2001.

Date of Intended Adoption: No sooner than November 7, 2001.

September 26, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

(1) ((The department establishes eligibility)) To be eligible for COPES ((for)) a client ((who)) must:

(a) ((Is)) Be eighteen years of age or older;

(b) Meet((s)) the disability criteria of the Supplemental Security Income (SSI) program as described in WAC 388-503-0510(1);

(c) Require((s)) the level of care provided in a nursing facility as described in WAC 388-71-0700;

(d) ((Is)) Be residing in a medical facility as defined in WAC 388-513-1301, or ((will)) likely be placed in one within the next thirty days in the absence of waivered services described in WAC 388-71-0410 and 388-71-0415;

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

(f) ((Has been)) Be determined ((to be)) in need of waivered services and ((is)) be approved for a plan of care as described in WAC 388-71-0435;

(g) ((Is)) Be able to live at home with community support services and chooses to ((do so)) remain at home, or live in a department-contracted:

(i) ((Adult residential care (ARC) facility;

(ii)))Enhanced adult residential care (EARC) facility;

(((iii))) (ii) Licensed adult family home (AFH); or

(((iv))) (iii) Assisted living (AL) facility.

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

(i) Meet((s)) the resource and income ((and resource)) requirements described in subsections (2), (3) and (4).

(2) ((The department allows a client to have nonexcluded resources in excess of the standard described in WAC 388-513-1350(1) during the month of either an application or eligibility review if, when excess resources are added to nonexcluded income, the combined total does not exceed the special income level (SIL).)) Refer to WAC 388-513-1315 for rules used to determine nonexcluded resources and income ((and resources)). ((During other months, financial requirements include the following:))

(3) Nonexcluded resources above the standard described in WAC 388-513-1350(1):

(a) Are allowed during the month of an application or eligibility review if, when excess resources are added to nonexcluded income, the combined total is not over the special income level (SIL).

(b) Are reduced by 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:

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

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

(c) Not allocated to participation must be at or below the resource standard.

(4) Nonexcluded income:

(a) Must be at or below the SIL; ((and))

(b) ((Nonexcluded resources not allocated to participation in a prior month must be at or below the resource standard.

(3))) Is allocated in the following order:

(i) Maintenance and personal needs allowances as described in subsection (6), (7), and (8) of this section;

(ii) Guardianship fees and administrative costs including any attorney fees paid by the guardian only as allowed by chapter 388-079 WAC;

(iii) Income garnisheed for child support or withheld pursuant to a child support order:

(A) For the time period covered by the maintenance amount; and

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

(iv) Monthly maintenance needs allowance for the community spouse not to exceed that in WAC 388-513-1380 (6)(b) unless a greater amount is allocated as described in subsection (5) of this section. This amount:

(A) Is allowed only to the extent that the client's income is made available to the community spouse; and

(B) Consists of a combined total of both:

(I) An amount added to the community spouse's gross income to provide a total equal to the amount allocated in WAC 388-513-1380 (6)(b); and

(II) Excess shelter expenses. For the purposes of this section, excess shelter expenses are the actual required maintenance expenses for the community spouse's principal residence of:

Rent;

Mortgage;

Taxes and insurance;

Any maintenance care for a condominium or cooperative; and

The food assistance standard utility allowance (for LTC services this is set at the standard utility allowance (SUA) for a four-person household), provided the utilities are not included in the maintenance charges for a condominium or cooperative;

LESS the standard shelter allocation listed in WAC 388-513-1380 (7)(a).

(III) A monthly maintenance needs amount for each minor or dependent child, dependent parent or dependent sibling of the community or institutionalized spouse based on the living arrangement of the dependent. If the dependent:

Resides with the community spouse, the amount is equal to one-third of the community spouse income allocation as described in WAC 388-513-1380 (6)(b)(I)(A) that exceeds the dependent family member's income;

Does not reside with the community spouse, the amount is equal to the MNIL for the number of dependent family members in the home less the income of the dependent family members. Child support received from an absent parent is the child's income;

Incurred medical expenses described in subsection (3)(b) not used to reduce excess resources.

(5) The amount allocated to the community spouse may be greater than the amount in subsection (4)(b)(iv) 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.

(6) A client who ((is eligible for)) receives SSI does not use income to participate in the cost of personal care, but does use SSI income to participate in paying costs of board and room. Other income an SSI client receives is used to participate in the cost of personal care. Such a client who ((is)) lives:

(a) ((Living)) At home, retains a maintenance needs amount ((as described in subsection (5); or

(b) Living in an ARC, EARC, AFH, or AL:)) equal to the following:

(i) Up to one hundred percent of the one-person Federal Poverty Level (FPL), if the client is:

(A) Single; or

(B) Married, and is:

(I) Not living with the community spouse; or

(II) Whose spouse is receiving long-term care (LTC) services outside of the home.

(ii) Up to one hundred percent of the one-person FPL for each client, if both are receiving COPES services;

(iii) Up to the one-person MNIL if the client is living with a community spouse who is not receiving LTC services.

(b) In an EARC, AFH, or AL:

(i) Retains a personal needs allowance (PNA) of fifty-eight dollars and eighty-four cents; and

(ii) Pays remaining SSI income to the facility for the cost of board and room.

(((4) A client who is eligible for the general assistance expedited Medicaid disability (GAX) program does not participate in the cost of care. Such a client who is:

(a) Living))

(7) An SSI-related client living:

(a) At home, retains a maintenance needs amount ((as described in subsection (5); or

(b) Living in an ARC, EARC, AFH, or AL:

(i) Retains a PNA of thirty-eight dollars and eighty-four cents; and

(ii) Pays remaining income and GAX grant to the facility for the cost of board and room.

(5) An SSI-related client living at home retains a maintenance needs amount equal to the following:

(a))) equal to the following:

(i) Up to one hundred percent of the one-person Federal Poverty Level (FPL), if the client is:

(((i))) (A) Single; or

(((ii))) (B) Married, and is:

(((A))) (I) Not living with the community spouse; or

(((B))) (II) Whose spouse is receiving long-term care (LTC) services outside of the home.

(((b))) (ii) Up to one hundred percent of the one-person FPL for each client, if both are receiving COPES services;

(((c))) (iii) Up to the one-person medically needy income level (MNIL) for a married client who is living with a community spouse who is not receiving COPES.

(((6) An SSI-related client living))

(b) In an ARC, EARC, AFH, or AL ((receives)) retains a maintenance needs amount equal to the one-person MNIL and:

(((a))) (i) Retains a PNA taken from the MNIL of fifty-eight dollars and eighty-four cents; and

(((b))) (ii) Pays the remainder of the MNIL to the facility for the cost of board and room.

(((7) The client's income that remains:

(a) After allocations described in subsection (5) or (6) is allocated as described in WAC 388-513-1380 (7)(a) through (d), (8) and (9); and

(b) After allocations described in subsection (7)(a) is the client's participation in the cost of care))

(8) A client who is eligible for the general assistance expedited Medicaid disability (GAX) program does not participate in the cost of personal care. Such a client who lives:

(a) At home, retains the cash grant amount authorized under the general assistance program; or

(b) In an AFH, EARC, or AL, retains a PNA of thirty-eight dollars and eighty-four cents, and pays remaining income and GAX grant to the facility for the cost of board and room.

(9) The client's remaining income after the allocations described in subsections (4) through (8) is the client's participation in the total cost of care.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.500. 01-02-052, 388-515-1505, filed 12/28/00, effective 1/28/01. Statutory Authority: RCW 74.08.090, 74.04.050, 74.04.057, 42 C.F.R. 435.601, 42 C.F.R. 435.725-726, and Sections 4715 and 4735 of the Federal Balanced Budget Act of 1997 (P.L. 105-33) (H.R. 2015). 00-01-087, 388-515-1505, filed 12/14/99, effective 1/14/00. Statutory Authority: RCW 74.08.090. 96-14-058 (Order 100346), 388-515-1505, filed 6/27/96, effective 7/28/96; 95-20-030 (Order 3899), 388-515-1505, filed 9/27/95, effective 10/28/95; 94-10-065 (Order 3732), 388-515-1505, filed 5/3/94, effective 6/3/94. Formerly WAC 388-83-200.]

Washington State Code Reviser's Office