Guardianship training

Allowing Guardianship Fees & Costs/Attorney fees

WAC 182-513-1530 states the maximum allowed deductions for guardian fees and associated costs.

We will allow the guardianship fees and expenses as long as those costs, plus the Personal Needs Allowance (PNA), plus the earnings deduction, and mandatory tax deduction does not exceed the Medically Needy Income Level (MNIL) if residing in a medical institution.

For HCBS waivers the combined PNA, earnings deduction, and guardianship fee cannot exceed the Special Income Level (SIL).

Guardianship fees are an allowable deduction for those in medical institutions and those on HCBS waiver services only. (L track programs).

Medical institutions are defined in WAC 182-500-0050

Clients in Medical Institutions

For participation, there is a limit to the deductions that can be allowed each month, in addition to the limits imposed by the Guardianship WACs. See WAC 182-513-1380

For a client in a medical institution, when added together the following deductions cannot exceed the MNIL:

• PNA
• Mandatory income tax
• Wages of a recipient in an approved employment/rehab plan
• Guardianship Fees and associated costs

Here are some examples of how this will look:

Example #1 - Medical Institution

A single client has $1500 in unearned income. No earned income. Client also has a deduction for mandatory income taxes from their pension of $50 per month. In addition, this client has a guardian, and we have a court order approving the monthly fee of $235 as well as $1,000 attorney’s fees for the initial guardianship.

Month 1 – client enters nursing facility on the 5th of the month from home. This is the first month of the guardianship court order.

Participation will look like this:

$1500 Income

- 841 PNA (month of admit) CNIL as of 1/1/2022

$ 659.00 Participation

But wait – what happened to the $50 income tax, the guardianship fees, and the attorney’s fees?

Well, we can’t allow them this month. Why? Because we cannot allow more than the MNIL for all of those deductions combined, and the PNA for the initial month is the MNIL. There isn’t any more of an allowance we can use.

Example #2 - Medical Institution

Month 2

The same client is in the nursing facility the entire month.

Participation would be:

$1500.00 Income

- 75.36 PNA

- 50.00 Mandatory income tax

- 235.00 Guardianship fee - Month 1

- 235.00 Guardianship fee - Month 2

- 245.64 Attorney’s fees you can allow ($754.36 remaining)

- $659.00 Participation

Notice that the combined total of PNA + mandatory income tax + the first two months of Guardianship Fees and allowed costs is $841.00. The remaining attorney’s fees will need to be allowed in future months. Always allow guardianship fees before allowing attorney’s fees.

Example #3 - Medical Institution

Month 3

The same client is in the nursing facility the entire month.

Participation would be:

$1500.00 Income

- 75.36 PNA

- 50.00 Mandatory income tax

- 235.00 Guardianship Fee – Month 3

- 480.64 Attorney’s fee you can allow ($273.72 remaining)

$659.00 Participation

Example #4 -Medical Institution

Month 4

The client is in the nursing facility the entire month.

Participation would be:

$1500.00 Income

- 75.36 PNA

- 50.00 Mandatory income tax

- 235.00 Guardianship Fee Month 4

-273.72 Attorney's fee you can allow (You have now allowed the full $1000 attorney's fees)

$ 865.92 Participation

Note: Of course, for new nursing facility clients with a Medicare premium as an allowable medical expense deduction, those expenses come after we allow for PNA, Mandatory Income Tax, Guardianship Fees & Attorney’s fees.

Now, on to COPES (HCBS Waiver)

The COPES waiver was written and approved by CMS differently.

WAC 388-515-1509 states:

The total of the following amounts cannot exceed the Medicaid SIL: The SIL is 300% of the Federal Benefit Rate (FBR).

• PNA
• Earned income deduction of the first sixty-five dollars plus one-half of the remaining earned income in subsection
• Guardianship fees and administrative costs

What is room and board and what is an alternate living facility? How do we deduct guardianship fees if there is only room and board?

The definitions for Room and Board and Alternate Living Facility (ALF) can be found under WAC 182-513-1100

• What makes an ALF so complicated?
  • 2 parts
    • Federal part of the computation is what the client pays towards their cost of personal care, otherwise known as participation.
    • State funded part of the computation is called room and board (R & B). This is considered the shelter and food portion of the cost. Think of R & B as the rent. It is the part that does NOT cover personal care.
      • The R & B amount is the FBR minus the residential COPES PNA 
      • When a deduction is taken from R & B, it is coming from state funds.
      • HCS requires an ETR process to deduct anything from R & B because it is coming out of state funds. However, R&B deductions for guardianship fees and costs are allowed per rule effective June 1, 2018. Although an exception-to-rule (ETR) is no longer required to allow the deduction, Public Benefits Specialist (PBS) staff must code as a “Room and Board Exception” in ACES to allow the R&B deduction. The maximum deductions allowed for fees and costs are either the amounts in WAC 182-513-1530, or the court order, whichever is less. Any exceptions to these amounts are subject to the eligibility ETR WAC 182-503-0090.

Example #1 - HCBS Waiver
Single individual receiving HCBS waiver services at home:  $2836 unearned income, $50 mandatory income taxes, $235 guardianship fees with $1000 initial attorney’s fees.
AT HOME:

$2836.00 Income

- 2523.00 PNA (as of 7/1/2022)

$ 313.00 Participation

Did you forget the Guardianship fees and $50 mandatory income taxes?

No. WAC 182-515-1509 states that the total of PNA, earned income deduction, and guardianship fees can't exceed the Special Income Level (SIL). Because the PNA, in this case, is the SIL, guardianship fees are not allowed as a deduction. Aditionally, the waiver does not allow for a reduction for mandatory income taxes. A client who is on HCBS Waiver at home must use their PNA to cover this cost.

Note: Unlike nursing homes, however, Medicare and medical expenses are allowed after PNA but before guardianship fees and attorney’s fees. So, if this client had medical expenses, we would be able to reduce the remaining participation by that amount.

Example #2 HCBS Waiver

If this was month 1 of eligibility, and the same client had allowance medical expenses, it would look like this:

$2836.00 Income

- 2523.00 PNA

- 180.00 Allowable medical expenses

$ 133.00 - Participation

Example #3 HCBS Waiver

Same client in an ALF – admit month:

$2836.00 Income

- 841.00 PNA/Room & Board ($75.36 + $765.64)

- 180.00 Allowable Medical Deduction

- 235.00 Guardianship Fees

- 530.64 Attorney’s Fees (Remainder is $469.36 to be allowed in the next month)

$ 1,049.36 - Participation

+ 765.64 Room & Board

$ 1815.00 Client’s Cost of Care

Just like at home, Medicare and medical expenses are allowed after PNA but before guardianship fees and attorney’s fees. They are allowed out of participation, not out of room and board. If you must reduce R & B, then you must have an approved ETR to do so. R & B consists of state funds and is considered the portion for shelter and food.

What about Guardianship fees for non-institutional Medicaid programs?

• A court ordered guardianship fee is not an allowable deduction in non institutional Medicaid.
• Guardianship fees are only allowed in institutional programs with the limitations indicated above.
• For individuals on Medicaid Personal Care (MPC) residing in an ALF, an ETR referral can be made to the HCS Regional designee. Before considering an ETR, consult the social worker about the possibility of services through the HCBS Waiver if the client would have available participation that we could apply the guardianship fee deduction.
• HCBS Waiver cannot be used for Adult Residential Centers (ARC), but can be used for Adult Family Homes (AFH).

Example #1 MPC client residing in an adult family home.

Gross income is $2436 SSA.

Court order for $235 guardianship fee received.

Rather than doing an ETR to consider a deduction from the R & B, this case should be switched to the HCBS Waiver if the client meets the functional criteria.

The $235.00 would be an allowable deduction from the HCBS Waiver.

HCS Social Services determines the client cost of care for MPC, but in this circumstance a discussion with the financial worker and social worker should occur about the possibility of HCBS Waiver services.

The HCBS Waiver is considered the priority program over MPC for:

• Clients meeting functional criteria for HCBS waiver and
• Have income over the CNIL and
• Reside in an adult family home.

Example #2 MPC client residing in an ARC.

Gross income is $2436 SSA

Court order for $235 guardianship fee received.

HCBS Waiver services are not authorized in an ARC setting, only MPC. An ETR to consider a deduction from room and board should be considered by the HCS Social Worker.

Example #3 MPC client on S02 living at home.

Guardianship fees are not an allowable deduction for non institutional Medicaid programs. An MPC client at home does not participate in the cost of personal care nor is there R & B. In this example there is no deduction for the guardianship fee.