WSR 04-17-107



(Aging and Disability Services Administration)

[ Filed August 17, 2004, 1:40 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-12-095.

Title of Rule and Other Identifying Information: Amending WAC 388-97-017 Nursing homes -- Discrimination prohibited, nursing facilities under common ownership with boarding homes or independent housing are not required to place the names of applicants from those facilities on the same waiting list as outside applicants for their nursing facility placements.

Hearing Location(s): Office Building 2 Auditorium, DSHS headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson), on September 21, 2004, at 10:00 a.m.

Date of Intended Adoption: Not earlier than September 22, 2004.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail, fax (360) 664-6185, by 5:00 p.m., September 21, 2004.

Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by September 17, 2004, TTY (360) 664-6178 or (360) 664-6097.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of amending this rule is to be consistent with recently passed legislation SSB 6466 (chapter 34, Laws of 2004) - an act regarding the admission of residents to nursing facilities.

Reasons Supporting Proposal: To comply with state law.

Statutory Authority for Adoption: RCW 18.51.070 and 74.42.620.

Statute Being Implemented: RCW 74.42.055.

Rule is not necessitated by federal law, federal or state court decision.

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

Name of Agency Personnel Responsible for Drafting: Lisa Yanagida, 640 Woodland Square Loop, (360) 725-2589; Implementation and Enforcement: Joyce Stockwell, 640 Woodland Square Loop, (360) 725-2404.

No small business economic impact statement has been prepared under chapter 19.85 RCW. It is unlikely that any licensed nursing homes regulated under chapters 18.51 and 74.42 RCW have fewer than fifty employees. In the event that there is such a nursing home, RCS has analyzed its proposed rule and has concluded that they do not impose an increase in existing costs, an imposition of a new cost, or a decrease in benefit. The purpose of amending this rule is to conform with recently passed legislation SSB 6466 - an act regarding the admission of residents to nursing facilities. As a result, the preparation of a small business economic impact statement is not required.

A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b)(iii) the proposed changes in WAC 388-97-017 are exempt from a cost benefit analysis since the rule is adopting language from a recent state statute (chapter 34, Laws of 2004) without material change.

August 11, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION(Amending WSR 00-06-028, filed 2/24/00, effective 3/26/00)

WAC 388-97-017   Discrimination prohibited.   (1) A nursing facility must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services covered under the state Medicaid plan for all individuals regardless of source of payment.

(2) A nursing facility must not require or request:

(a) Residents or potential residents to waive their rights to Medicare or Medicaid;

(b) Oral or written assurance that residents or potential residents are not eligible for, or will not apply for Medicare or Medicaid benefits; and

(c) A third party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may require an individual who has legal access to a resident's income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident's income or resources.

(3) A nursing facility must inform, in writing, a prospective resident, and where applicable, the resident's representative, before or at the time of admission, that a third party may not be required or requested to personally guarantee payment to the nursing home, as specified in subsection (2)(c) of this section.

(4) A nursing facility must readmit a resident, who has been hospitalized or on therapeutic leave, immediately to the first available bed in a semiprivate room if the resident:

(a) Requires the services provided by the facility; and

(b) Is eligible for Medicaid nursing facility services.

(5) A nursing facility must not:

(a) Deny or delay admission or readmission of an individual to the facility because of the individual's status as a Medicaid recipient;

(b) Transfer a resident, except from a single room to another room within the facility, because of the resident's status as a Medicaid recipient;

(c) Discharge a resident from a facility because of the resident's status as a Medicaid recipient; or

(d) Charge Medicaid recipients any amounts in excess of the Medicaid rate from the date of eligibility, except for any supplementation that may be permitted by department regulation.

(((5))) (6) A nursing facility must maintain only one list of names of individuals seeking admission to the facility, which is ordered by the date of request for admission, and must:

(a) Offer admission to individuals in the order they appear on the list, ((provided)) except as provided in subsection (7), as long as the facility can meet the needs of the individual with available staff or through the provision of reasonable accommodations required by state or federal laws;

(b) Retain the list of individuals seeking admission for one year from the month admission was requested; and

(c) Offer admission to the portions of the facility certified under Medicare and Medicaid without discrimination against persons eligible for Medicaid((.

(6))) , except as provided in subsection (7).

(7) A nursing facility is permitted to give preferential admission to individuals who seek admission from a boarding home, licensed under chapter 18.20 RCW, or from independent retirement housing, if:

(a) The nursing facility is owned by the same entity that owns the boarding home or independent housing; and

(b) They are located within the same proximate geographic area; and

(c) The purpose of the preferential admission is to allow continued provision of culturally or faith-based services, or services provided by a continuing care retirement community as defined in RCW 74.38.025.

(8) A nursing facility must develop and implement written policies and procedures to ensure nondiscrimination in accordance with this section and RCW 74.42.055.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, 388-97-017, filed 2/24/00, effective 3/26/00.]

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