1. Guardianship Fees and Participation Under the Medicaid State Plan and Home & Community-Based Waivers 1

2. This session will cover how DSHS uses the Medicaid State Plan and Home and Community-Based Waiver rules to allow deductions for persons with guardians. The discussion will include the rules around the personal needs allowance for certain living arrangements; a brief overview of “cost of care” rules, and how participation and room & board are different; and the specific rules regarding deductions to participation for approved guardianship fees and associated costs under Chapter 388-79 WAC. 2

3. Agenda Introduction to chapter 388-79 WAC Who Pays Participation? Post eligibility treatment of income (“PETI”) The personal needs allowance PETI and chapter 388-79 WAC Room & board Deeper look into chapter 388-79 WAC 3

4. CHAPTER 388-79 WAC introduction to 4

5. Chapter 388-79 WAC Guardianship fees for clients of the Department: – 388-79-010 Purpose – 388-79-020 Definitions – 388-79-030 Maximum fees and costs – 388-79-050 Procedure for allowing fees 5

6. WAC 388-79-050 (3) If the fees and costs requested and established by the order are equal to or less than the maximum...,then the department will adjust the client's current participation to reflect the amounts.... 6

7. WAC 388-79-050 (4)(c) Should the court determine after consideration of the facts and law that fees and costs in excess of the [maximum] are just and reasonable and should be allowed, then the department will adjust the client's current participation.... 7

8. WAC 388-79-030 The amount of fees shall not exceed $175 per month; The costs directly related to establishing a guardianship for a department client shall not exceed $700; and The costs shall not exceed a total of $600 during any three-year period. 8

9. WAC 388-79-020 "Participation" means the amount the client pays from current monthly income toward the cost of the client's long-term care. 9

10. Quick Summary Chapter 388-79 WAC only applies to people who are required to pay participation. It does not apply to any other Medicaid group who receive services from HCS or DDA. 10

11. WHO PAYS PARTICIPATION? (PART 1) medicaid state plan

12. Medicaid State Plan The state plan describes many “groups” of individuals that may be eligible for Medicaid, provided they meet the categorical and financial eligibility criteria. We will be focusing on the SSI and SSI-related groups today. 12

13. Medicaid State Plan A person who receives Supplemental Security Income (SSI) is eligible for categorically needy (CN) Medicaid in Washington, so long as they continue to receive an SSI payment. 13

14. Medicaid State Plan A person who does not receive SSI may also be eligible for SSI-related CN Medicaid if they meet (essentially) the same requirements to receive SSI. 14

15. Medicaid State Plan For SSI or SSI-related CN Medicaid in the community, there is no responsibility for the person to pay for any of the cost of their care. 15

16. Medicaid State Plan Services HCS and DDA services available to people eligible for CN Medicaid in the community are: – Medicaid Personal Care (MPC), for those with lower needs; and – Community First Choice (CFC), for those with higher needs. 16

17. Medicaid State Plan In addition to CN Medicaid in the community, the state plan also provides for CN and medically needy (MN) Medicaid in medical institutions, such as nursing facilities. This type of Medicaid is called “institutional Medicaid” or “long-term care” (LTC). 17

18. Medicaid State Plan Institutional Medicaid has similar categorical and financial eligibility rules to non- institutional, but there are significant differences. The biggest of which, where our topic today is leading us, is that a recipient of LTC in an institution is required to contribute to the cost of their care. 18

19. Medicaid State Plan The contribution towards the cost of care is calculated by a process known as “post- eligibility treatment of income” (PETI). – Shorthand: “participation” 19

20. Summary Non-Institutional Medicaid (with or without services) in the community Can receive CN if income requirements are met No responsibility towards the cost of care Institutional Medicaid with services in a medical institution Can receive CN or MN (depending on income) Required to pay towards their cost of care. 20

21. WHO PAYS PARTICIPATION? (PART 2) home & community-based waivers 21

22. Home & Community-Based Waiver Premise: – People eligible for CN Medicaid in the community have access to services in the community (e.g., personal care via CFC or MPC). – People eligible for CN or MN in a medical institution have access to LTC services. Issue: – What about people in the community who are not income eligible for CN, but need services? 22

23. HCB Waiver A home and community-based (HCB) waiver allows the state to provide services to people who would otherwise be eligible for CN or MN in a medical institution, but who want to remain in the community. 23

24. HCB Waiver Under §1915(c) of the Social Security Act (Act), we essentially “waive” the requirement for a person to be physically in a medical institution to received Medicaid-funded LTC services. 24

25. HCB Waiver What this means: – An HCB waiver is not non-institutional Medicaid in the community. – An HCB waiver is institutional Medicaid, just like services in a medical institution. – Just like LTC recipients in a medical institution, (most) HCB waiver recipients pay participation. 25

26. HCB Waiver Special eligibility note: – HCB waivers fill a “gap” where a person would otherwise need to be in a medical institution to get the care they need, because their income is too high to be eligible for CN Medicaid in the community. 26

27. HCB Waiver Special eligibility note: – Further, people who are “otherwise eligible” for CN Medicaid in the community (because they meet the income requirements) are eligible for HCB waivers, too. – This group of HCB waiver recipients, however, does not participate. 27

28. HCB Waiver Special eligibility note: – One way to think about this is that people who need to use the higher-income HCB waiver rules participate. – Those who don’t need to use the higher-income HCB waiver rules, because they are already eligible for CN Medicaid, don’t participate. 28

29. Comparing HCB Waiver Groups Lower Income Institutional Medicaid Otherwise eligible for CN under the state plan in the community, but needs HCB waiver services Does not pay participation Higher Income Institutional Medicaid Not eligible for CN under the state plan, but would be CN/MN in a medical institution Pays participation 29

30. Comparing HCB Waiver & Institutional Institutional Physically in an institution receiving services Pays participation (regardless of income) HCB Waiver Would be in an institution if no HCB waiver services May pay participation (based on income) 30

31. Summary Allowance of deductions for guardianship fees and costs apply only to those HCS or DDA clients who pay participation: – Persons physically in medical institutions; and – Persons who received HCB waiver services, and their income is too high to be otherwise eligible for CN Medicaid in the community. 31

32. POST-ELIGIBILITY TREATMENT OF INCOME (PETI) what is “participation”? 32

33. PETI The PETI process is a series of deductions from a LTC recipients gross income to determine a final amount that they are to contribute towards their cost of care. 33

34. PETI Federal rule (C.F.R.) requires that only certain, and specific, deductions are allowed as a deduction. The amounts are deducted in sequence, meaning if no income is left after the first deduction, there is no income to allow further deductions. 34

35. 42 C.F.R. 435.725 – Institutional 42 C.F.R. 435.726 – HCB Waiver Deductions: – Personal needs allowance – Maintenance needs of spouse – Maintenance needs of family – Medical expenses – Home maintenance (institutional only) 35

36. Important Point Notice under C.F.R. – there is no mandatory or optional deduction for guardian fees or costs. Federal rule does not allow this deduction. However, Washington came up with a way to allow the deduction, but that deduction still remains limited by federal rule. 36

37. THE PERSONAL NEEDS ALLOWANCE federal limits and state options 37

38. PNA – Institutional The first PETI deduction under federal rule is the personal needs allowance (PNA). The federal “floor” of this deduction is $30. The federal “ceiling” of this deduction is the medically needy income level (MNIL). – For 2016, this is $733 in Washington. 38

39. PNA – Institutional Under the Medicaid state plan, an institutional LTC recipient’s PNA is $57.28. The remainder of the difference between the PNA ceiling and the $57.28 is utilized to allow deductions from participation not allowed by federal rule. 39

40. PNA – Institutional In essence, we have the MNIL as the PNA, with four, in sequence, specific, and defined types of deductions “within” the PNA. The last of these deductions is the allowance for guardianship related fees and costs. The total of these four can’t exceed the MNIL. 40

41. PNA – HCB Waiver Very similar to how we approach the PNA under the state plan, we also choose the “ceiling” for HCB waiver. The ceiling in this case is the special income level (SIL), which is 3x the SSI standard. – For 2016, this is $733 x 3 = $2,199. 41

42. PNA – HCB Waiver Although there are different deductions under the HCB waiver PNA, guardianship related fees and costs are also included last. Again, the total of these deductions cannot exceed the federal maximum of the SIL. 42

43. APPLYING CHAPTER 388-79 WAC TO PETI for persons in medical institutions 43

44. WAC 182-513-1380 This WAC describes the PETI process and applies federal law, federal rule, and chapter 388-79 WAC to LTC Medicaid clients in medical institutions. This WAC does not apply to Medicaid recipients in the community (state plan or HCB waiver). 44

45. WAC 182-513-1380 The agency allocates income in the following order, the total cannot exceed the MNIL: – PNA; – Income taxes actually owed; – Wages for certain people; and – Guardianship fees/costs only as allowed under chapter 388-79 WAC. 45

46. APPLYING CHAPTER 388-79 WAC TO PETI for persons in the community 46

47. WAC 182-515-1509/1514 Before we discuss participation deductions for HCB waiver clients, a reminder. There is only one “group” of people who pay participation when receiving HCB waiver services: – Those who are not otherwise eligible for CN Medicaid in the community, and need to use HCB waiver rules to be eligible (i.e., high income). 47

48. Who Pays Again? No Participation SSI recipients People deemed to be receiving SSI – Pickle people – Protected DACs SSI-related CN recipients Participation Generally, people without SSI income, whose income is over $733 after all Medicaid deductions and exclusions 48

49. WAC 182-515-1509/1514 This WAC describes the PETI process and applies federal law, federal rule, and chapter 388-79 WAC to LTC Medicaid clients in the community who are required to pay participation. This WAC does not apply to Medicaid recipients in medical institutions. 49

50. WAC 182-515-1509/1514 The agency allocates income in the following order, the total cannot exceed the SIL: – PNA; – Room & board liability (if residential); – Earned income deduction; and – Guardianship fees/costs only as allowed under chapter 388-79 WAC. 50

51. WAC 182-515-1514 Special note about DDA clients on HCB waiver services at home: – The income limit for DDA HCB waivers is the SIL; – The in-home PNA for these folks is the SIL;. In almost all circumstances, a DDA HCB waiver recipient has $0 participation while in-home. 51

52. WHAT IS ROOM & BOARD? applicable to both hcb waiver and state plan services 52

53. Room & Board Is the client’s liability for the costs of their food, shelter, and heat in a residential setting. It is not part of their “cost of care” nor is it considered a share of their “medical assistance.” Room & board is not participation. 53

54. Who Pays Room & Board? Any Medicaid service recipient who is living in a residential setting, including those who are not required to pay participation: – State plan services (CFC, MPC, PACE) – HCB waiver (both groups) 54

55. Deductions from Room & Board? There are no allowed deductions from Room & board. Chapter 388-79 WAC does not give authority to reduce Room & board. 55

56. WAC 388-79-050 a deeper look 56

57. RCW 11.92.180 The amount of guardianship fees and additional compensation for administrative costs shall not exceed the amount allowed by the department of social and health services by rule. 57

58. Exceeding Maximum Fees “Usual and customary” – The maximum allowed by WAC 388-79-030 must be deemed adequate for clients who receive usual and customary guardianship services. 58

59. Exceeding Maximum Fees If “extraordinary services” are provided, DSHS must weight several factors in determining whether the fees are appropriate. Should the court determine, after the consideration of the facts and this rule, that the fees are “just and reasonable,” DSHS will adjust participation. 59

60. Exceeding Maximum Fees Once in receipt of a court order, DSHS will adjust participation, constrained by the requirements of our participation WACs. In no circumstance can the court order DSHS to violate WAC (and in turn, federal rule and law regarding Medicaid). 60

61. Other Issues Chapter 388-79 WAC gives the court no other jurisdiction over DSHS other than to allow deductions to participation. Meaning, court orders direct how much to deduct in the participation calculation, not how much income to “exclude” or “disregard” for Medicaid (before the calculation). 61

62. Other Issues When a person does not pay participation, Chapter 388-79 WAC does not even apply to that person. In other words, it’s not that applying Chapter 388-79 WAC to a person who does not pay participation results in a $0 deduction, it’s that the rule does not even apply to them. 62

63. SUMMARY 63

64. Summary Deductions in participation for guardianship fees and costs are only applicable to those who pay participation. Federal rule does not allow this deduction, so an agreement was made to roll such deductions into the PNA. 64

65. Summary Chapter 388-79 WAC determines how much to allow as a deduction from participation. Title 182 WAC determines how to allow the deduction from participation. 65

66. Summary Chapter 388-79 cannot be construed to conflict with Title 182 WAC, the Medicaid state plan, approved HCB waivers, federal rule, and federal law. 66

67. Thank You Will Reeves william.p.reeves@dshs.wa.gov 67