WSR 05-22-067



(Health and Recovery Services Administration)

[ Filed October 31, 2005, 4:26 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-18-062.

     Title of Rule and Other Identifying Information: WAC 388-438-0110 Alien emergency medical (AEM).

     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 or by calling (360) 664-6097), on December 6, 2005, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than December 7, 2005.

     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, fax (360) 664-6185, by 5:00 p.m., December 6, 2005.

     Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by December 2, 2005, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To comply with federal regulations as clarified by the federal Centers for Medicare and Medicaid (CMS), the department is amending the eligibility criteria for the alien emergency medical (AEM) program. Clients who meet COPES/nursing facility level of care will no longer automatically qualify for the AEM program; and personal care services, waiver services, and nursing facility services will no longer be covered under AEM.

     Reasons Supporting Proposal: The department is amending these rules to preserve federal financial participation in the state of Washington's AEM program.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, 74.09.500, and 74.09.530.

     Statute Being Implemented: 42 C.F.R. § 440.255.

     Rule is necessary because of federal law, 42 C.F.R. § 440.255.

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

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Joanie Scotson, P.O. Box 45534, Olympia, WA 98504-5534, (360) 725-1330.

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

     A cost-benefit analysis is not required under RCW 34.05.328. Client eligibility rules or medical assistance programs are exempt under RCW 34.05.328 (5)(b)(vii).

October 26, 2005

Andy Fernando, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION(Amending WSR 04-15-057, filed 7/13/04, effective 8/13/04)

WAC 388-438-0110   The alien emergency medical (AEM) program.   (1) The alien emergency medical (AEM) program is a required federally funded program. It is for aliens who are ineligible for other Medicaid programs, due to the citizenship or alien status requirements described in WAC 388-424-0010.

     (2) Except for the social security number, citizenship, or alien status requirements, an alien must meet categorical Medicaid eligibility requirements as described in:

     (a) WAC 388-505-0110, for an SSI-related person;

     (b) WAC 388-505-0220, for family medical programs;

     (c) WAC 388-505-0210, for a child under the age of nineteen; or

     (d) WAC 388-523-0100, for medical extensions.

     (3) When an alien has monthly income that exceeds the CN medical standards, the department will consider AEM medically needy coverage for children or for adults who are age sixty-five or over or who meet SSI disability criteria. See WAC 388-519-0100.

     (4) To qualify for the AEM program, the alien must meet one of the criteria described in subsection (2) of this section and have((:

     (a) A)) a qualifying emergency medical condition as described in WAC 388-500-0005((; or

     (b) Been approved by the department for, and receiving, nursing facility or COPES level of care)).

     (5) The alien's date of arrival in the United States is not used when determining eligibility for the AEM program.

     (6) The department does not deem a sponsor's income and resources as available to the client when determining eligibility for the AEM program. The department counts only the income and resources a sponsor makes available to the client.

     (7) Under the AEM program, a person receives CN scope of care, as described in WAC 388-529-0100. Covered services are limited to those medical services necessary for treatment of the person's emergency medical condition. The following services are not covered:

     (a) Organ transplants and related services;

     (b) Prenatal care, except labor and delivery; ((and))

     (c) School-based services;

     (d) Personal care services;

     (e) Waiver services; and

     (f) Nursing facility services, unless they are approved by the department's medical consultant.

     (8) When a person's income exceeds the CN income standard as described in subsection (3) of this section, the person has spend down liability and MN scope of care. MN scope of care is described in WAC 388-529-0100. The medical service limitations and exclusions described in subsection (7) ((are)) also ((excluded)) apply under the MN program.

     (9) A person determined eligible for the AEM program is certified for three months. The number of three-month certification periods is not limited, but, the person must continue to meet eligibility criteria in subsection (2) and (4) of this section.

     (10) A person is not eligible for the AEM program if they entered the state specifically to obtain medical care.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-057, § 388-438-0110, filed 7/13/04, effective 8/13/04. Statutory Authority: RCW 74.08.090, 74.04.050, 74.04.057, 74.09.530, and Section 1903 (v)(2)(c) of the Social Security Act. 03-24-058, § 388-438-0110, filed 12/1/03, effective 1/1/04. Statutory Authority: RCW 74.08.090, 74.08A.100, 74.09.080, and 74.09.415. 02-17-030, § 388-438-0110, filed 8/12/02, effective 9/12/02. Statutory Authority: RCW 74.08.090 and C.F.R. 436.128, 436.406(c) and 440.255. 01-05-041, § 388-438-0110, filed 2/14/01, effective 3/17/01. Statutory Authority: RCW 74.08.090, 74.04.050, 74.04.057, 74.09.530, 42 C.F.R. 435.139 and 42 C.F.R. 440.255. 99-23-082, § 388-438-0110, filed 11/16/99, effective 12/17/99. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, § 388-438-0110, filed 7/31/98, effective 9/1/98.]