PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Original Notice.
Preproposal statement of inquiry was filed as WSR 03-20-103.
Title of Rule and Other Identifying Information: Chapter 388-825 WAC, Division of Developmental Disabilities Service rules, proposing new sections WAC 388-825-125 through 388-825-165 and 388-825-300 through 388-825-400; amending WAC 388-825-120; and 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 388-825-284.
Hearing Location(s): Blake Office Park East (behind Goodyear Courtesy Tire), Rose Room, 4500 10th Avenue S.E., Lacey, WA, on July 26, 2005, at 10:00 a.m.
Date of Intended Adoption: Not earlier than July 27, 2005.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., July 26, 2005.
Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by July 22, 2005, TTY (360) 664-6178 or (360) 664-6097.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: 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.
The proposed rules establish provider qualifications and clarify client appeal rights.
Reasons Supporting Proposal: See above.
Statutory Authority for Adoption: RCW 71A.12.030, 71A.12.120.
Statute Being Implemented: Chapter 71A.12 RCW.
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: Steve Brink, P.O. Box 5310, Olympia, WA 98507-5310, (360) 725-3416; Implementation: Shannon Manion, P.O. Box 5310, Olympia, WA 98507-5310, (360) 725-3445; and Enforcement: Sue Poltl, P.O. Box 5310, Olympia, WA 98507-5310, (360) 725-3454.
No small business economic impact statement has been prepared under chapter 19.85 RCW. DDD has analyzed these proposed rule amendments and concludes that costs to small businesses would be minor. The preparation of a comprehensive SBEIS is not required.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Steve Brink, P.O. Box 5310, Olympia, WA 98507, phone (360) 725-3416, fax (360) 407-0955, e-mail brinksc@dshs.wa.gov.
June 1, 2005
Andy Fernando, Manager
Rules and Policies Assistance Unit
3380.8 (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))) an administrative hearing.
(3) You have the right to an administrative hearing to dispute the following department actions:
(a) Authorization, denial, reduction, or termination of
((eligibility set forth in WAC 388-825-030 and 388-825-035))
services;
(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)) eligibility;
(((d))) (c) Authorization, denial, reduction, or
termination of payment of SSP authorized by DDD set forth in
chapter 388-827 WAC;
(d) Admission or readmission to, or discharge from, a residential habilitation center;
(((e))) (e) Refusal to abide by your request not to send
notices to any other person;
(f) Refusal to comply with your request to consult only with you;
(g) A decision to move you to a different type of residential service;
(h) Denial or termination of the provider of your choice or the denial of payment for any reason listed in WAC 388-825-375 through WAC 388-825-390;
(i) An unreasonable delay to act on an application for eligibility or service;
(j) 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.]
(2) Your request may be made orally or in writing.
(3) You may request assistance in requesting an administrative hearing by calling DDD staff as stated in WAC 388-825-135.
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(2) You must request an administrative hearing within the ten-day notice period, as described in chapter 388-458 WAC, if you wish to maintain current services during the appeal process.
(3) The notification sent to you will include the date that the ten-day notice period ends.
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(2) An oral request for an administrative hearing is complete if it contains enough information to identify the person making the request, the DDD action, and the case involved in the hearing request.
(3) The effective date of an oral request for an administrative hearing is the date that someone makes a complete oral request for hearing to any DDD representative in person or by leaving a message on the automated voice mail system of any DDD field office.
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(a) Terminate your eligibility;
(b) Reduce or terminate your services; or
(c) Reduce or terminate the payment of SSP set forth in chapter 388-827 WAC.
(2) The department will take no action until there is a final decision on your appeal of the department's decision to remove or transfer you to another residential service unless one or more of the conditions in WAC 388-825-150 applies.
(3) The department will take no action to terminate your provider of choice unless one or more of the circumstances described in WAC 388-825-150 applies.
(4) After the administrative hearing, you have to pay back continued benefits you get, as described in chapter 388-410 WAC, if the administrative hearing decision is in favor of the department.
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(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.
(9) You did not file your request for an administrative hearing within the ten-day notice period, as described in chapter 388-458 WAC.
(10) You:
(a) Tell us in writing that you do not want continued benefits;
(b) Withdraw your administrative hearing request in writing; or
(c) Do not follow through with the administrative hearing process.
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(1) The department will take no action until there is a final decision on your appeal to move you from a state residential habilitation center to the community unless you or your legal representative consent or the administrative law judge or review 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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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. |
(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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(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;
(4) Alternative living services; or
(5) Attendant care services.
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(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.
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(1) Have the primary responsibility for locating, screening, hiring, supervising, and terminating an individual respite care, attendant care or personal care provider;
(2) Establish an employer/employee relationship with the individual provider; and
(3) May receive assistance from the social worker/case manager or other resources in this process.
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(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) Complete orientation, if contracting as an individual provider.
(6) Sign a service provider contract to provide services to a DDD client.
(7) Meet additional requirements in WAC 388-825-355.
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(a) Adequately maintain records of services performed and payments received;
(b) Read and understand the person's service plan. Translation services may be used if needed;
(c) Be kind and caring to the DSHS client for whom services are authorized;
(d) Identify problem situations and take the necessary action;
(e) Respond to emergencies without direct supervision;
(f) Understand the way your employer wants you to do things and carry out instructions;
(g) Work independently;
(h) Be dependable and responsible;
(i) Know when and how to contact the client's representative and the client's case resource manager;
(j) Participate in any quality assurance reviews required by DSHS;
(2) 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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(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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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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, step-parent, step-brother, step-sister, uncle, aunt, first cousin, niece or nephew.
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(2) If you are an individual contracted to provide companion homes services or alternative living 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 provide personal care for children, or provide respite care, there is no required training but DDD retains the authority to require training of any provider.
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(1) If an individual wishes to "quit" or terminate employment as a provider, the individual must give at least two weeks written notice to his/her employer, their representative (if applicable) and the DDD case manager.
(2) The individual will be expected to continue working until the termination date unless otherwise determined by DSHS.
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(1) Understand the client's individual service plan or plan of care 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 388-71-0215 and WAC 388-71-0230;
(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 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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(a) 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;
(b) Is providing services under this chapter to their natural/step/adoptive minor client aged seventeen or younger;
(c) 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;
(d) Has abused, neglected, abandoned, or exploited a minor or vulnerable adult, as defined in chapter 74.34 RCW;
(e) 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;
(f) Does not successfully complete the training requirements within the time limits required in WAC 388-71-05665 through 388-71-05909; or
(g) 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).
(2) The department will deny payment for the services of an individual or a home care agency providing companion home services or alternative living services to their natural/step/adoptive adult child.
(3) The department will deny payment for services of a legal representative appointed by the courts providing companion home services to the client for whom they are the legal representative.
(4) In addition, the department may deny payment to or terminate the contract of an individual provider as provided under WAC 388-825-380, 388-825-381, 388-825-385 and 388-825-390.
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(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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(1) The department has assessed the client to need more than forty hours of alternative living services, thereby requiring services be provided by a DDD certified supportive living agency per chapter 388-820 WAC; and/or
(2) The client's choice of companion home provider is the client's parent or court appointed legal representative unless the provider was contracted and paid to provide companion home services prior to February 2005.
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(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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(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 or home care agency, 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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(2) The provider of respite care, attendant care, personal care, companion home services or alternative living services does not have a right to a fair hearing.
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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? |