WSR 04-23-084

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed November 16, 2004, 4:28 p.m. , effective November 16, 2004 ]


Purpose: The Division of Developmental Disabilities has received approval from the federal Centers for Medicare and Medicaid Services (CMS) to implement four home and community based service (HCBS) waivers, which replace the current community alternatives program (CAP) waiver.

These rules will clarify eligibility, provider qualifications and client appeal rights. This filing includes new WAC 388-825-125 through 388-825-165 and 388-825-300 through 388-825-400. These rules separate the rules on provider qualifications and appeals from the new rules contained in chapter 388-845 WAC and replace the emergency rules related to WAC 388-825-120 and new WAC 388-825-125 through 388-825-165 and 388-825-300 through 388-825-400 filed as WSR 04-16-019. The new rules contained in chapter 388-845 WAC are contained in emergency filing WSR 04-20-018.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-825-170, 388-825-180, 388-825-190, 388-825-260, 388-825-262, 388-825-264, 388-825-266, 388-825-268, 388-825-270, 388-825-272, 388-825-276, 388-825-278, 388-825-280, 388-825-282 and 388-825-294; and amending WAC 388-825-120.

Statutory Authority for Adoption: RCW 71A.12.030, 71A.12.120.

Other Authority: Chapter 71A.12 RCW.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: The approval of the HCBS waivers by CMS required the department to implement new rules by April 1, 2004, to protect the health and welfare of eligible clients by ensuring no interruption in services to current participants in the CAP waiver occurs, and to ensure a continuation of federal matching funds under 42 C.F.R. 441, Subpart G Home and Community Based Services--Waiver Requirements.

These rules were originally filed on an emergency basis as WSR 04-08-020. The department has filed a notice of intent to adopt permanent rules as WSR 03-20-103. Ongoing negotiations with CMS and the need to obtain extensive feedback from stakeholders have delayed the filing of proposed rules for adoption on a permanent basis until the negotiations are completed and the feedback is obtained.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 29, Amended 1, Repealed 15; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 29, Amended 1, Repealed 15.

Date Adopted: November 15, 2004.

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3380.5
AMENDATORY SECTION(Amending WSR 04-02-014, filed 12/29/03, effective 1/29/04)

WAC 388-825-120   ((Adjudicative proceeding.)) When can I appeal department decisions through a fair hearing process?    (1) Fair hearings are governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 71A.10.050, the rules in this chapter and by chapter 388-02 WAC. If any provision in this chapter conflicts with chapter 388-02 WAC, the provision in this chapter shall prevail.

(2) A client, former client, or applicant acting on the applicant's own behalf or through an authorized representative has the right to ((an adjudicative proceeding to contest the following department actions:

(a))) a fair hearing.

(3) You have the right to a fair hearing to dispute the following department actions:

(a) Denial or termination of eligibility set forth in WAC 388-825-030 and 388-825-035;

(b) ((Development or modification of the individual service plan set forth in WAC 388-825-050;

(c))) Authorization, denial, reduction, or termination of ((services or funds paid directly to the client set forth in WAC 388-825-055 or)) payment of SSP set forth in chapter 388-827 WAC authorized by DDD;

(((d))) (c) Admission or readmission to, or discharge from, a residential habilitation center;

(((e))) (d) Refusal to abide by your request not to send notices to any other person;

(e) Refusal to consult with other persons involved in your life during the process of making the decision being disputed;

(f) A decision to move you to a different type of residential service;

(g) Denial or termination of the provider of your choice;

(h) An unreasonable delay to act on an application for eligibility or service;

(i) A claim the client, former client, or applicant owes an overpayment debt((;

(f) A decision of the secretary under RCW 71A.10.060 or 71A.10.070;

(g) A decision to change a client's placement from one category of residential services to a different category of residential services.

(2) Adjudicative proceedings are governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 71A.10.050, the rules in this chapter, and by chapter 388-02 WAC. If any provision in this chapter conflicts with chapter 388-02 WAC, the provision in this chapter shall govern.

(3) The applicant's application for an adjudicative proceeding shall be in writing and filed with the DSHS office of appeals within twenty-eight days of receipt of the decision the appellant wishes to contest.

(4) The department shall not implement the following actions while an adjudicative proceeding is pending:

(a) Termination of eligibility;

(b) Reduction or termination of service, except when the action to reduce or terminate the service is based on the availability of funding and/or service; or

(c) Removal or transfer of a client from a service, except when a condition in subsection (5)(f) of this section is present.

(5) The department shall implement the following actions while an adjudicative proceeding is pending:

(a) Denial of eligibility;

(b) Development or modification of an individual service plan;

(c) Denial of service;

(d) Reduction or termination of service when the action to reduce or terminate the service is based on the availability of funding or service;

(e) After notification of an administrative law judge's (or review judge) ruling that the appellant has caused an unreasonable delay in the proceedings; or

(f) Removal or transfer of a client from a service when:

(i) An immediate threat to the client's life or health is present;

(ii) Service termination or transfer for a specific group of clients in order to meet the intent of and comply with sections 205 and 207, chapter 371, Laws of 2002;

(iii) The client's service provider is no longer able to provide services due to:

(A) Termination of the provider's contract;

(B) Decertification of the provider;

(C) Nonrenewal of provider's contract;

(D) Revocation of provider's license; or

(E) Emergency license suspension.

(iv) The client, the parent when the client is a minor, or the guardian when the client is an adult, approves the decision.

(6) When the appellant files an application to contest a decision to return a resident of a state residential school to the community, the procedures specified in RCW 71A.10.050(2) shall govern the proceeding. These procedures include:

(a) A placement decision shall not be implemented during any period during which an appeal can be taken or while an appeal is pending and undecided unless the:

(i) Client's or the client's representative gives written consent; or

(ii) Administrative law judge (or review judge) after notice to the parties rules the appellant has caused an unreasonable delay in the proceedings.

(b) The burden of proof is on the department; and

(c) The burden of proof is whether the specific placement proposed by the department is in the best interests of the resident.

(7) The administrative law judge shall issue an initial or final order within sixty days of the department's receipt of the application for an adjudicative proceeding. When a party files a petition for administrative review, allowed under WAC 388-02-0215 (4)(w)(x) and/or (y), the review order shall be made within sixty days of the department's receipt of the petition. The decision-rendering time is extended by as many days as the proceeding is continued on motion by, or with the assent of, the appellant)).

[Statutory Authority: RCW 71A.12.030, 71A.10.020 and 2002 c 371. 04-02-014, 388-825-120, filed 12/29/03, effective 1/29/04. Statutory Authority: RCW 71A.16.010, 71A.16.030, 71A.12.030, chapter 71A.20 RCW, RCW 72.01.090, and 72.33.125. 02-16-014, 388-825-120, filed 7/25/02, effective 8/25/02; 99-19-104, recodified as 388-825-120, filed 9/20/99, effective 9/20/99. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), 275-27-500, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 34.05.220 (1)(a) and 71.12.030 [71A.12.030]. 90-04-074 (Order 2997), 275-27-500, filed 2/5/90, effective 3/1/90. Statutory Authority: RCW 71.20.070. 86-18-049 (Order 2418), 275-27-500, filed 8/29/86. Statutory Authority: RCW 72.33.161. 84-15-038 (Order 2122), 275-27-500, filed 7/13/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), 275-27-500, filed 3/16/78; Order 1143, 275-27-500, filed 8/11/76.]


NEW SECTION
WAC 388-825-125   How do I request a fair hearing?   Your notice of the department decision will include instructions on how to file an appeal, where to send it, and the length of time you have to file for a hearing.

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NEW SECTION
WAC 388-825-130   How long do I have to file a request for a fair hearing?   You have to file a written request within twenty-eight days of receipt of the notification of the decision you are disputing with the Office of Administrative Hearings, P.O. Box 42489, Olympia, WA 98504-2489.

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NEW SECTION
WAC 388-825-135   What if I need help to request an appeal?   You may call the department staff person listed in your notification letter and tell them you want to appeal the decision. The department staff person will notify the office of administrative hearings on your behalf.

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NEW SECTION
WAC 388-825-140   Who else can help me appeal a department decision?   You can authorize anyone except an employee of the department to file an appeal on your behalf.

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NEW SECTION
WAC 388-825-145   Will the department decision go into effect if I appeal?   No action will be taken by the department until there is a final decision on your appeal to terminate eligibility; reduce or terminate a service or funds paid directly to you set forth in WAC 388-825-055 or the payment of SSP set forth in chapter 388-827 WAC. Also, no action will be taken by the department until there is a final decision on your appeal to remove or transfer you to another residential service or terminate your provider of choice unless the circumstances described in WAC 388-825-150(5) or (6) apply.

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NEW SECTION
WAC 388-825-150   When can the department proceed to take action during my appeal?   The department will proceed to take action if:

(1) It is an eligibility denial and you are not currently an eligible client.

(2) Your DDD eligibility has expired.

(3) There is no longer funding for the service.

(4) The service no longer exists in rule or statute.

(5) The administrative law judge or review judge rules that you have caused unreasonable delay in the proceedings.

(6) You are in imminent jeopardy.

(7) Your provider is no longer qualified to provide services due to:

(a) A lack of a contract;

(b) Decertification;

(c) Revocation or suspension of a license; or

(d) Lack of required registration, certification, or licensure.

(8) The parent of a person under the age of eighteen or the legal guardian approves the department's decision.

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NEW SECTION
WAC 388-825-155   What are my appeal rights if I am appealing a decision to move me from a state residential habilitation center to the community?   The procedures in RCW 71A.10.050(2) govern the proceeding.

(1) No action is taken until there is a final decision on the appeal unless you or your legal representative consent or the administrative law judge rules that you have caused an unreasonable delay in the proceedings.

(2) The burden of proof is on the department.

(3) The burden of proof is whether the proposed placement is in your best interest.

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NEW SECTION
WAC 388-825-160   When will a decision on my appeal be made?   The administrative law judge shall issue a hearing decision within ninety calendar days after the record is closed, in accordance with WAC 388-02-0515.

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NEW SECTION
WAC 388-825-165   Can I appeal the initial order of the administrative law judge?   You may file a petition for administrative review, allowed under WAC 388-02-0215.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-825-170 Community alternatives program (CAP).
WAC 388-825-180 Eligible persons.
WAC 388-825-190 Community alternatives program (CAP) -- Services.
3381.5INDIVIDUAL PROVIDER AND AGENCY PROVIDER QUALIFICATIONS
NEW SECTION
WAC 388-825-300   What is the purpose of WAC 388-825-300 through 388-825-400?   A client/legal representative may choose a qualified individual, agency, or licensed provider. The intent of WAC 388-825-300 through 388-825-400 is to describe:

(1) Qualification for individuals and agencies providing DDD services in the client's residence or the provider's residence or other setting; and

(2) Conditions under which the department will pay for the services of an individual provider or a home care agency provider or other provider.

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NEW SECTION
WAC 388-825-305   What service providers are governed by the qualifications in these rules?   These rules govern individuals and agencies contracted with to provide:

(1) Respite care services;

(2) Companion home services;

(3) Personal care services through the Medicaid Personal Care program or DDD HCBS Basic, Basic Plus, or CORE waivers; or

(4) Alternative living services.

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NEW SECTION
WAC 388-825-310   What are the qualifications for providers?   (1) Individuals and agency providers of Medicaid personal care (chapter 388-71 and 388-72A WAC) and DDD HCBS waiver personal care (chapter 388-845 WAC) must meet the qualifications and training requirements in WAC 388-71-0500 through 388-71-05909.

(2) Individuals and agencies providing nonwaiver DDD home and community based services (HCBS) in the client's residence or the provider's residence or other setting must meet the requirements in WAC 388-825-300 through 388-825-400.

(3) Individuals and agencies providing HCBS waiver services must meet the provider qualifications in chapter 388-845 WAC for the specific service.

(4) Parent providers are excluded from providing services to their own natural, step, or adopted children aged seventeen or younger.

(5) Agencies/entities providing certified residential services under chapter 388-820 WAC must meet the provider qualifications in those program rules.

(6) Companion home providers are excluded from providing respite care, attendant care, personal care, or alternative living services in addition to their companion home contract.

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NEW SECTION
WAC 388-825-315   How do I hire an individual provider?   You or your legal representative:

(1) Have the primary responsibility for locating, screening, hiring, supervising, and terminating an individual provider;

(2) Establish an employer/employee relationship with the provider; and

(3) May receive assistance from the social worker/case manager or other resources in this process.

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NEW SECTION
WAC 388-825-320   How does a person become an individual provider?   In order to become an individual provider, a person must:

(1) Be eighteen years of age or older.

(2) Provide the social worker/case manager/designee with:

(a) Picture identification; and

(b) A Social Security card.

(3) Complete and submit to the social worker/case manager/designee the department's criminal conviction background inquiry application, unless the provider is also the parent of the adult DDD client and exempted, per chapter 74.15 RCW.

(a) Preliminary results may require a thumbprint for identification purposes.

(b) An FBI fingerprint-based background check is required if the person has lived in the state of Washington less than three years.

(4) Provide references as requested.

(5) Sign a service provider contract to provide services to a DDD client.

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NEW SECTION
WAC 388-825-325   What are required skills and abilities for this job?   You must be able to:

(1) Adequately maintain records of services performed and payments received;

(2) Read and understand the person's service plan. Translation services may be used if needed;

(3) Be kind and caring to the DSHS client for whom services are authorized;

(4) Identify problem situations and take the necessary action;

(5) Respond to emergencies without direct supervision;

(6) Understand the way your employer wants you to do things and carry out instructions;

(7) Work independently;

(8) Be dependable and responsible;

(9) Know when and how to contact the client's representative and the client's case manager;

(10) Participate in any quality assurance reviews required by DSHS;

(11) If you are working with an adult client of DSHS as a provider of alternative living, attendant care or companion home services, you must also:

(a) Be knowledgeable about the person's preferences regarding the care provided;

(b) Know the resources in the community the person prefers to use and enable the person to use them;

(c) Know who the person's friends are and enable the person to see those friends; and

(d) Enable the person to keep in touch with his/her family as preferred by the person.

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NEW SECTION
WAC 388-825-330   What is required for agencies wanting to provide care in the home of a person with developmental disabilities?   (1) Unless the agency is certified per chapter 388-820 WAC, agencies providing personal care services must be licensed as a home care agency or a home health agency through the department of health.

(2) If a residential agency certified per chapter 388-820 WAC wishes to provide Medicaid personal care or respite care in the client's home, the agency must have home care agency certification or a home health license.

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NEW SECTION
WAC 388-825-335   Is a background check required of a home care agency provider?   In order to be a home care agency provider, a person must complete the department's criminal conviction background inquiry application, which is submitted by the agency to the department. This includes an FBI fingerprint-based background check if the home care agency provider has lived in the state of Washington less than three years.

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NEW SECTION
WAC 388-835-340   What is required for a provider to provide respite or residential service in their home?   Unless you are related to the client, services must take place in a DSHS licensed home.

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NEW SECTION
WAC 388-825-345   What "related" providers are exempt from licensing?   (1) Relatives of a specified degree are exempt from the licensing requirement and may provide out-of-home respite in their home.

(2) Relatives of specified degree include parents, grandparents, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, first cousin, niece or nephew.

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NEW SECTION
WAC 388-825-355   Are there any educational requirements for individual providers?   (1) If you are a Medicaid personal care provider of adults, you must meet the training requirements in WAC 388-71-05665 through 388-71-05909.

(2) If you are an individuals contracted to provide companion homes services, you must:

(a) Have a high school diploma or GED;

(b) Successfully complete DDD specialty training within the first six months of beginning service; and

(c) Complete ten hours of continuing education related to the job responsibilities each subsequent calendar year.

(3) If you are an MPC provider of children, or a provider of respite care, or alternative living there is no required training but DDD retains the authority to require training of any provider.

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NEW SECTION
WAC 388-825-360   What is "abandonment of a vulnerable adult"?   State law makes it a crime to abandon a vulnerable adult. "Abandon" means leaving a person without the means or ability to obtain any of the basic necessities of life.

(1) If you wish to "quit" or terminate your employment, you must give at least two weeks written notice to your employer, their representative (if applicable) and the DDD case manager.

(2) You will be expected to continue working until the termination date unless otherwise determined by DSHS.

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NEW SECTION
WAC 388-825-365   Are providers expected to report abuse?   You are expected to report any abuse or suspected abuse immediately to child protective services, adult protective services or local law enforcement and make a follow-up call to the person's case manager.

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NEW SECTION
WAC 388-825-370   What are the responsibilities of an individual provider or home care agency provider when employed to provide care to a client?   An individual provider or home care agency provider must:

(1) Understand the client's service plan that is signed by the client or legal representative and social worker/case manager, and translated or interpreted, as necessary, for the client and the provider;

(2) Provide the services as outlined on the client's service plan, within the scope of practice in WAC 388-71-0202 and 388-71-0203;

(3) Accommodate client's individual preferences and differences in providing care, within the scope of the service plan;

(4) Contact the client's representative and case manager when there are changes which affect the personal care and other tasks listed on the service plan;

(5) Observe the client for change(s) in health, take appropriate action, and respond to emergencies;

(6) Notify the case manager immediately when the client enters a hospital, or moves to another setting;

(7) Notify the case manager immediately if the client dies;

(8) Notify the department immediately when unable to staff/serve the client; and

(9) Notify the department when the individual provider or home care agency will no longer provide services. Notification to the client/legal guardian must:

(a) Give at least two weeks' notice, and

(b) Be in writing.

(10) Complete and keep accurate time sheets that are accessible to the social worker/case manager; and

(11) Comply with all applicable laws, regulations and contract requirements.

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NEW SECTION
WAC 388-825-375   When will the department deny payment for services of an individual provider or home care agency provider?   The department will deny payment for the services of an individual provider or home care agency provider who:

(1) Is the client's spouse, per 42 C.F.R. 441.360(g), except in the case of an individual provider for a Chore services client. Note: For Chore spousal providers, the department pays a rate not to exceed the amount of a one-person standard for a continuing general assistance grant, per WAC 388-478-0030;

(2) Is the natural/step/adoptive parent of a minor client aged seventeen or younger receiving services under this chapter;

(3) Has been convicted of a disqualifying crime, under RCW 43.43.830 and 43.43.842 or of a crime relating to drugs as defined in RCW 43.43.830;

(4) Has abused, neglected, abandoned, or exploited a minor or vulnerable adult, as defined in chapter 74.34 RCW;

(5) Has had a license, certification, or a contract for the care of children or vulnerable adults denied, suspended, revoked, or terminated for noncompliance with state and/or federal regulations;

(6) Does not successfully complete the training requirements within the time limits required in WAC 388-71-05665 through 388-71-05909;

(7) Is already meeting the client's needs on an informal basis, and the client's assessment or reassessment does not identify any unmet need; and/or

(8) Is terminated by the client (in the case of an individual provider) or by the home care agency (in the case of an agency provider).

(9) In addition, the department may deny payment to or terminate the contract of an individual provider as provided under WAC 388-71-0546, 388-71-0551, and 388-71-0556.

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NEW SECTION
WAC 388-825-380   When can the department reject the client's choice of an individual provider?   The department may reject a client's request to have a family member or other person serve as his or her individual provider if the case manager has a reasonable, good faith belief that the person will be unable to appropriately meet the client's needs. Examples of circumstances indicating an inability to meet the client's needs could include, without limitation:

(1) Evidence of alcohol or drug abuse;

(2) A reported history of domestic violence, no-contact orders, or criminal conduct (whether or not the conduct is disqualifying under RCW 43.43.830 and 43.43.842;

(3) A report from the client's health care provider or other knowledgeable person that the requested provider lacks the ability or willingness to provide adequate care;

(4) Other employment or responsibilities that prevent or interfere with the provision of required services;

(5) Excessive commuting distance that would make it impractical to provide services as they are needed and outlined in the client's service plan.

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NEW SECTION
WAC 388-825-385   When can the department terminate or summarily suspend an individual provider's contract?   The department may take action to terminate an individual provider's contract if the provider's inadequate performance or inability to deliver quality care is jeopardizing the client's health, safety, or well-being. The department may summarily or immediately suspend the contract pending a hearing based on a reasonable, good faith belief that the client's health, safety, or well-being is in imminent jeopardy. Examples of circumstances indicating jeopardy to the client could include, without limitation:

(1) Domestic violence or abuse, neglect, abandonment, or exploitation of a minor or vulnerable adult;

(2) Using or being under the influence of alcohol or illegal drugs during working hours;

(3) Other behavior directed toward the client or other persons involved in the client's life that places the client at risk of harm;

(4) A report from the client's health care provider that the client's health is negatively affected by inadequate care;

(5) A complaint from the client or client's representative that the client is not receiving adequate care;

(6) The absence of essential interventions identified in the service plan, such as medications or medical supplies; and/or

(7) Failure to respond appropriately to emergencies.

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NEW SECTION
WAC 388-825-390   When can the department otherwise terminate an individual provider's contract?   The department may otherwise terminate the individual provider's contract for default or convenience in accordance with the terms of the contract and to the extent that those terms are not inconsistent with these rules.

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NEW SECTION
WAC 388-825-395   What are the client's rights if the department denies, terminates, or summarily suspends an individual provider's contract?   If the department denies, terminates, or summarily (immediately) suspends the individual provider's contract, the client has the right to:

(1) A fair hearing to appeal the decision, per chapter 388-02 WAC and WAC 388-825-120; and

(2) Receive services from another currently contracted individual provider or home care agency provider, or other options the client is eligible for, if a contract is summarily suspended.

(3) The hearing rights afforded under this section are those of the client, not the individual provider.

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NEW SECTION
WAC 388-825-400   Self-directed care -- Who must direct self-directed care?   Self-directed care under chapter 74.39 RCW must be directed by an adult client for whom the health-related tasks are provided. The adult client is responsible to train the individual provider in the health-related tasks which the client self-directs.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-825-260 What are qualifications for individual service providers?
WAC 388-825-262 What services do individuals provide for persons with developmental disabilities?
WAC 388-825-264 If I want to provide services to persons with developmental disabilities, what do I do?
WAC 388-825-266 If I want to provide respite care in my home, what is required?
WAC 388-825-268 What is required for agencies wanting to provide care in the home of a person with developmental disabilities?
WAC 388-825-270 Are there exceptions to the licensing requirement?
WAC 388-825-272 What are the minimum requirements to become an individual provider?
WAC 388-825-276 What are required skills and abilities for this job?
WAC 388-825-278 Are there any educational requirements for individual providers?
WAC 388-825-280 What are the requirements for an individual supportive living service (also known as a companion home) contract?
WAC 388-825-282 What is "abandonment of a vulnerable adult"?
WAC 388-825-284 Are providers expected to report abuse?

Washington State Code Reviser's Office