WAC 182-516-0125 Irrevocable pooled self-settled trusts for a disabled client established on or after August 11, 1993.

Effective March 2, 2018

1. This section governs how the agency or the agency's designee treats pooled self-settled trusts, for a disabled client established under 42 U.S.C.1396p(d)(4)(c) on or after August 11, 1993, for medicaid eligibility purposes.
2. A pooled self-settled trust established on or after August 11, 1993, is not an available resource if:
   1. The beneficiary is disabled under WAC 182-512-0050 (1)(c) when the trust is established;
   2. The trust is irrevocable;
   3. An account in the trust was established for the sole benefit of that beneficiary;
   4. An account in the trust was established by that beneficiary, the beneficiary's parent, grandparent, legal guardian, or by a court;
   5. The trust was established by and is managed by a nonprofit association;
   6. A separate account is maintained for each beneficiary of the trust, but, for the purposes of the investment and management of funds, the trust pools these accounts; and
   7. The trust says that:
      1. Upon the death of the beneficiary, or, for trust accounts es­tablished on or after August 1, 2003, when the trust account terminates or the beneficiary's disability ends, the funds will remain in the trust to benefit other disabled beneficiaries; or
      2. The states that have spent medicaid funds for the beneficia­ry will receive all amounts remaining in the trust account for that beneficiary up to the amount of medicaid funds spent for the beneficiary.
         1. For trust accounts established from August 11, 1993, to July 31, 2003, the trust must pay the states when the beneficiary dies.
         2. For trust accounts established on or after August 1, 2003, the trust must pay the states when the beneficiary dies, the trust terminates, or the beneficiary's disability ends.
3. The medicaid agency or the agency's designee does not apply a penalty period to a beneficiary for asset transfers into a trust, described under subsection (2) of this section, when the beneficiary is under age sixty-five as of the date of the transfer.
4. Assets in trusts under subsection (2) of this section continue to be unavailable resources, even after the beneficiary turns age sixty-five.
5. Asset transfers to the trust from the beneficiary, after the beneficiary turns age sixty-five, may be subject to a transfer penalty under WAC 182-513-1363.
6. If a trust does not meet the requirements under subsection (2) of this section, see WAC 182-516-0130.

WAC 182-516-0120 Irrevocable self-settled trusts for a disabled client under age sixty-five established on or after August 11, 1993.

Effective March 2, 2018

1. This section governs how the agency or the agency's designee treats self-settled trusts, for a disabled client under age sixty-five established under 42 U.S.C. 1396p(d)(4)(a) on or after August 11, 1993, for medicaid eligibility purposes.
2. A self-settled trust established on or after August 11, 1993, is not an available resource if:
   1. The beneficiary is under age sixty-five and disabled under WAC 182-512-0050 (1)(c) when the trust is established;
   2. The trust is irrevocable;
   3. The trust was established for the sole benefit of that bene­ficiary;
   4. The trust was established by the beneficiary's parent, the beneficiary's grandparent, the beneficiary's legal guardian, by a court, or on or after December 13, 2016, the beneficiary; and
   5. The trust says that the states that have spent medicaid funds for the beneficiary will receive all amounts remaining in the trust up to the amount of medicaid funds spent for the beneficiary.
      1. For trusts established from August 11, 1993, to July 31, 2003, the trust must pay the states when the beneficiary dies.
      2. For trusts established on or after August 1, 2003, the trust must pay the states when the beneficiary dies, the trust terminates, or the beneficiary's disability ends.
3. The medicaid agency or the agency's designee does not apply a penalty period to a beneficiary for asset transfers into a trust, described under subsection (2) of this section, when the beneficiary is under age sixty-five as of the date of the transfer.
4. Assets in trusts under subsection (2) of this section contin­ue to be unavailable resources, even after the beneficiary turns age sixty-five.
5. Asset transfers to the trust from the beneficiary, after the beneficiary turns age sixty-five, may be subject to a transfer penalty under WAC 182-513-1363.
6. If a trust does not meet the requirements under subsection (2) of this section, see WAC 182-516-0130.

WAC 182-516-0115 Revocable self-settled trusts established on or after August 11, 1993.

Effective March 2, 2018

1. This section applies to revocable trusts that are self-settled and established on or after August 11, 1993.
2. This section does not apply to assets in a revocable trust established before August 11, 1993.
3. A revocable trust is a self-settled trust if:
   1. The assets of the trust are at least partially from the bene­ficiary or the beneficiary's spouse;
   2. The trust is not established by will; and
   3. The trust was established by:
      1. The beneficiary or that beneficiary's spouse;
      2. A person, including a court or administrative body, with legal authority to act in place or on behalf of the beneficiary or that beneficiary's spouse; or
      3. A person, including a court or administrative body, acting at the direction or upon the request of the beneficiary or that beneficiary's spouse.
4. The medicaid agency or the agency's designee treats assets in a revocable self-settled trust under this section as follows:
   1. Assets are subject to the resource exclusions under chapter 182-512 WAC; however, for an institutionalized individual, the resource exclusion for the home under WAC 182-512-0350 does not apply; and
   2. Assets not excluded under chapter 182-512 WAC are available resources.
5. Payments from assets in the trust under this section to or for the benefit of the beneficiary are unearned income of the beneficiary.
6. If unearned income under subsection (5) of this section was from an available resource under subsection (4) of this section, then the value of the available resource will be reduced by the amount of unearned income under subsection (5) of this section.
7. Any payments from the revocable trust, other than payments under subsections (5) and (6) of this section, are uncompensated asset transfers.

WAC 182-516-0110 Self-settled trusts overview.

Effective March 2, 2018

1. A trust containing the assets of a beneficiary's spouse may be a self-settled trust based on the date it was established. For specific rules regard­ ing this, see WAC 182-516-0130.
2. To determine whether the assets of the self-settled trust should be counted as income, a resource, or an asset transfer, the medicaid agency or the agency's designee applies the following rules based on when the trust was established:
   1. For revocable self-settled trusts, see WAC 182-516-0115.
   2. For irrevocable self-settled trusts for a disabled client under age sixty-five established on or after August 11, 1993, see WAC 182-516-0120.
   3. For irrevocable pooled self-settled trusts for a disabled client established on or after August 11, 1993, see WAC 182-516-0125.
   4. For all other irrevocable self-settled trusts:
      1. Established on or after August 11, 1993, see WAC 182-516-0130.
      2. Established before August 11, 1993, see WAC 182-516-0135.

WAC 182-516-0105 General rules that apply to all trusts.

Effective March 2, 2018

1. Regardless of treatment under this chapter, all trusts remain subject to Title 182 WAC, which include income and resource rules under chapter 182-512 WAC and asset transfer rules under WAC 182-513-1363, un­less specified otherwise.
2. The medicaid agency or the agency's designee treats the trust or a distribution from the trust as a third-party resource under WAC 182-501-0200 if:
   1. The agency or the agency's designee determines the trust is not an available resource or determines the distributions from a trust are not income; and
   2. The terms of the trust or how the trust is being administered meet the third-party resource rules under WAC 182-501-0200.
3. The agency or the agency's designee applies the rules under WAC 182-516-0100 to both the language of the trust and how the trust is being administered.
4. Assets in a trust are available resources to the beneficiary if the beneficiary:
   1. Is a trustee; or
   2. Can direct the use of the trust principal or income, or di­rect the trustee's use of trust principal or income, for that benefi­ciary's support and maintenance under the terms of the trust.
5. Cash distributions from a trust to the beneficiary are un­ earned income to the beneficiary in the month they are received or should have been received under the trust's terms.
6. For asset transfer dates for trusts, the transfer date of an asset under WAC 182-513-1363 is the latest of:
   1. The date the trust was established;
   2. The date the asset being evaluated was transferred into the trust; or
   3. The date access to the asset was foreclosed by any action, inaction, or language in the trust, which prevents the beneficiary from accessing the asset.
7. A client who is denied or terminated from medicaid due to the application of any rules under WAC 182-516-0100 may apply for a hard­ship waiver under WAC 182-513-1367.

WAC 182-513-1105 Personal needs allowance (PNA) and room and board standards in a medical institution and alternate living facility (ALF).

Effective April 6, 2024

1. This section describes the personal needs allowance (PNA), which is an amount set aside from a client's income that is intended for personal needs, and the room and board standard.
2. The PNA in a state veteran's nursing facility:
   1. Is indicated on the chart described in subsection (8) of this section as "All other PNA Med Inst.", for a veteran without a spouse or dependent children receiving a needs-based veteran's pension in excess of $90;
   2. Is indicated on the chart described in subsection (8) of this section as "All other PNA Med Inst.", for a veteran's surviving spouse with no dependent children receiving a needs-based veteran's pension in excess of $90; or
   3. Is $160 for a client who does not receive a needs-based vet­eran's pension.
3. The PNA in a medical institution for clients receiving aged, blind, or disabled (ABD) cash assistance or temporary assistance for needy families (TANF) cash assistance is the client's personal and in­cidental (CPI) cash payment, as described in WAC 388-478-0006, based on residing in a medical institu­tion, which is $41.62.
4. The PNA in an alternate living facility (ALF) for clients re­ceiving ABD cash assistance or TANF cash assistance is the CPI, as described in WAC 388-478-006, based on residing in an ALF that is not an adult family home, which is $38.84.
5. The PNA for clients not described in subsections (2), (3), and (4) of this section who reside in a medical institu­tion or in an ALF, is indicated on the chart described in subsection (8) of this section as "All other PNA Med Inst." and "HCS & DDA Waivers, CFC & MPC PNA in ALF."
6. Effective January 1, 2024, and each year thereafter, the amount of the PNA in subsection (5) of this section will be adjusted by the percentage of the cost-of-living adjustment (COLA) for old-age, survivors, and disability social security benefits as published by the federal Social Security Administration per RCW 74.09.340.
7. The room and board standard in an ALF used by home and com­munity services (HCS) and the developmental disabilities administra­tion (DDA) is based on the federal benefit rate (FBR) minus the cur­rent PNA as described under subsection (5)(b) of this section.
8. The current PNA and room and board standards used in long- term services and supports are published under the institutional standards on the Washington apple health (medicaid) income and re­source standards chart located at www.hca.wa.gov/free-or-low-cost-health-care/i-help-others-apply-and-access-apple-health/program-standard-income-and-resources.

WAC 182-527-2753 Hearings.

Effective March 14, 2016

For the purposes of this section, the term "agency" includes the agency's designee.

1. An administrative hearing to contest action under this chapter determines only:
   1. In the case of a lien filed during the client's lifetime under WAC 182-527-2734:
      1. Whether the client can reasonably be expected to return home from the medical institution;
      2. Whether the client, or the client's estate, holds legal title to the identified property; and
      3. Whether the client received services subject to recovery.
   2. In the case of a lien filed after the client's death:
      1. The cost the agency correctly paid for services subject to recovery;
      2. Whether the client, or the client's estate, holds legal title to the identified property; and
      3. Whether the agency's denial of an heir's request for a delay of recovery for undue hardship under WAC 182-527-2750 was correct.
2. A request for an administrative hearing must:
   1. Be in writing;
   2. State the basis for contesting the agency's proposed action;
   3. Be signed by the requestor and include the client's name, the requestor's address and telephone number; and
   4. Within twenty-eight days of the date on the agency's notice, be filed with the office of financial recovery either:
      1. In person at the Office of Financial Recovery, 712 Pear St. S.E., Olympia, WA 98504-0001; or
      2. By certified mail, return receipt requested, to Office of Financial Recovery, P.O. Box 9501, Olympia, WA 98507-9501.
3. Upon receiving a request for an administrative hearing, the office of administrative hearings notifies any known titleholder of the time and place of the administrative hearing.
4. An administrative hearing under this subsection is governed by chapters 34.05 RCW and 182-526 WAC and this section. If a provision in this section conflicts with a provision in chapter 182-526 WAC, the provision in this section governs.
5. Disputed assets must not be distributed while in litigation.
6. Absent an administrative or court order to the contrary, the agency may file a lien twenty-eight calendar days after the date the agency mailed notice of its intent to file a lien.

WAC 182-527-2746 Estate recovery—Asset-related limitations.

Effective March 14, 2016

For the purposes of this section, the term "agency" includes the agency's designee.

1. Before July 25, 1993. For services received before July 25, 1993, that are subject to recovery, the agency may exempt:
   1. The first fifty thousand dollars of the estate's value at the time of the client's death; and
   2. Sixty-five percent of the remaining value of the estate.
2. July 24, 1993, through June 30, 1994. For services that are subject to recovery that were received on or after July 25, 1993, through June 30, 1994, the agency exempts two thousand dollars' worth of personal property.
3. Life estate.
   1. The agency may file a lien against a client's life estate interest in real property.
   2. The agency's lien against the property may not exceed the value of the client's life estate. Under this subsection, value means the fair market value of the property multiplied by the life estate factor that corresponds to the client's age on the client's last birthday. For a list of life estate factors, see the life estate and remainder interest tables maintained by the Social Security Administration.
   3. The agency may not enforce a lien under this subsection against any property right that vested before July 1, 2005.
4. Joint tenancy.
   1. The agency may file a lien against property in which a client was a joint tenant when the client died.
   2. The agency's lien against the property may not exceed the value of the client's interest in the property. Under this subsection, value means the fair market value of the property divided by the number of joint tenants on the day the client died.
   3. The agency may not enforce a lien under this subsection against any property right that vested before July 1, 2005.
5. Qualified long-term care partnership.
   1. Assets designated as protected by a qualified long-term care partnership (QLTCP) policy issued after November 30, 2011, may be disregarded for estate recovery purposes if:
      1. The insured person's estate is the recipient of the estate recovery exemption; or
      2. The insured person holds title to property which is potentially subject to a predeath lien and that person asserts the property is protected under the QLTCP policy.
   2. A person must provide clear and convincing evidence to the office of financial recovery that the asset in question was designated as protected, including:
      1. Proof of a valid QLTCP policy;
      2. Verification from the LTC insurance company of the dollar amount paid out by the policy; and
      3. A current department of social and health services QLTCP asset designation form when the QLTCP policy paid out more than was previously designated.
   3. The insured person's estate must provide clear and convincing evidence proving an asset is protected before the final recovery settlement.
6. Rules specific to American Indians and Alaska natives.
   1. Certain properties belonging to American Indians/Alaska natives (AI/AN) are exempt from estate recovery if at the time of death:
      1. The deceased client was enrolled in a federally recognized tribe; and
      2. The estate or heir documents the deceased client's ownership interest in trust or nontrust real property and improvements located on a reservation, near a reservation as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior, or located:
         1. Within the most recent boundaries of a prior federal reservation; or
         2. Within the contract health service delivery area boundary for social services provided by the deceased client's tribe to its enrolled members.
   2. Protection of trust and nontrust property under subsection (4) of this section is limited to circumstances when the real property and improvements pass from an Indian (as defined in 25 U.S.C. Chapter 17, Sec. 1452(b)) to one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as members of a tribe and non-Indians, such as spouses and stepchildren, that their tribe would nonetheless recognize as family members, to a tribe or tribal organization and/or to one or more Indians.
   3. Certain AI/AN income and resources (such as interests in and income derived from tribal land and other resources currently held in trust status and judgment funds from the Indian Claims Commission and the U.S. Claims Court) are exempt from estate recovery by other laws and regulations.
   4. Ownership interests in or usage rights to items that have unique religious, spiritual, traditional, and/or cultural significance or rights that support subsistence or a traditional life style according to applicable tribal law or custom.
   5. Government reparation payments specifically excluded by federal law in determining eligibility are exempt from estate recovery as long as such funds have been kept segregated and not commingled with other countable resources and remain identifiable.

WAC 182-527-2738 Estate recovery—General right to recover.

Effective March 14, 2016

For the purposes of this section, the term "agency" includes the agency's designee.

1. When the agency may file. After a Washington apple health client has died, the medicaid agency may file liens to recover the cost of services subject to recovery that were correctly paid on the client's behalf.
2. Notice requirement.
   1. Before the agency may file a lien under this section, it sends notice via first class mail as follows:
      1. If the estate has a personal representative, the agency sends notification to:
         1. The personal representative; and
         2. Any known title holder.
      2. If the estate has known heirs but no personal representative, the agency sends notification to:
         1. Any known heir; and
         2. Any known title holder.
      3. If the estate has no personal representative and no known heirs, the agency sends notification to:
         1. The address listed on the title; and
         2. Any known title holder.
   2. The notice states:
      1. The agency's intent to file a lien against the deceased client's property;
      2. The amount the agency seeks to recover;
      3. The deceased client's name, identification number, date of birth, and date of death;
      4. The county in which the property is located; and
      5. How to request an administrative hearing.
3. The agency may not recover from the client's estate so long as there remains:
   1. A surviving spouse; or
   2. A surviving child who:
      1. Is age twenty or younger; or
      2. Is blind or disabled as defined in WAC 182-512-0050.
4. Interest assessed on past-due debt.
   1. Interest on a past-due debt accrues at a rate of one percent per month under RCW 43.17.240.
   2. A lien under this section becomes a past-due debt when the agency has recorded the lien in the county where the property is located and nine months have passed since the lien was recorded or a creditor's claim was filed, whichever is sooner.
   3. The agency may waive interest if reasonable efforts to sell the property have failed.
5. Administrative hearing. An administrative hearing under this section is governed by WAC 182-527-2753.

WAC 182-514-0263 Non-SSI-related institutional medically needy coverage for pregnant people and people age 20 and younger.

Effective June 26, 2022

1. Medically needy (MN) coverage under this section is only available for people age 20 and younger or pregnant people. The medicaid agency determines a client who meets SSI-related criteria under WAC 182-512-0050 eligible for institutional MN coverage under WAC 182-513-1395. If a client meets requirements in both this section and WAC 182-513-1395, the client may choose which program to enroll in for coverage.
2. A client whose income exceeds the categorically needy (CN) standards under WAC 182-514-0250 and 182-514-0260 is:
   1. Eligible for MN coverage with no spenddown if the client's countable income (CI) is equal to or less than the department-contracted daily rate times the number of days in the institution;
   2. Eligible for MN coverage after a spenddown under WAC 182-519-0110 is met if the client's CI is above the department-contracted daily rate times the number of days in the institution but less than the institution's private rate;
   3. Not eligible for payment of long-term care services provided by the institution if the person's CI exceeds the institution's private rate;
   4. Responsible for paying up to the monthly state rate for the facility as participation in the cost of care; and
   5. Allowed to keep a monthly personal needs allowance (PNA) under WAC 182-513-1105. Current PNA and long-term care standards can be found at the agency's program standard for income and resources webpage.
3. If a client's CI exceeds the institution's private rate, the agency determines eligibility for medical coverage under chapter 182-519 WAC.