WSR 12-16-066

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed July 31, 2012, 9:11 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-12-061.

Title of Rule and Other Identifying Information: Chapter 296-31 WAC, Crime victims compensation mental health treatment rules and fees and chapter 296-33 WAC, Attendant services.

Hearing Location(s): 7273 Linderson Way S.W., Room S119, Tumwater, WA 98501, on September 13, 2012, at 2:00 p.m.

Date of Intended Adoption: October 23, 2012.

Submit Written Comments to: Cletus Nnanabu, P.O. Box 44520, Olympia, WA 98504-4520, e-mail Cletus.Nnanabu@lni.wa.gov, fax (360) 902-5333, by 5 p.m. on September 13, 2012.

Assistance for Persons with Disabilities: Contact Courtney Davis by August 30, 2012, at (360) 902-5341.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making will amend eight and repeal nine rules under chapter 296-31 WAC. The purpose is to be consistent with SSB 5691 (chapter 346, Laws of 2011). The amendments will include the removal of references to Title 51 RCW and WACs being repealed, explain the impacts of the new benefit maximum, add clarity, and correct references to the billing guidelines.

Chapter 296-33 WAC will be revised to improve quality of care and public health to victims. It will also increase the efficiency of staff time and will eliminate the uncertainty of employer/employee relationships between the program and care providers.

Reasons Supporting Proposal: The updates are needed to explain the impacts of the new benefit maximum, add clarity, and correct references to the billing guidelines. The amendments will also streamline the reporting process for mental health providers. The repealed WACs are repetitive with rules contained in chapter 296-30 WAC regarding provider responsibilities. The independent mental health or independent medical evaluations are no longer considered separate from regular medical exams and the rule under WAC 296-31-069 is redundant.

Statutory Authority for Adoption: Chapter 7.68 RCW.

Statute Being Implemented: SSB 5691 (chapter 346, Laws of 2011).

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

Name of Proponent: Department of labor and industries, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Cletus Nnanabu, Tumwater, Washington, (360) 902-5340.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule (chapter 296-31 WAC) is specifically exempt from the small business economic impact statement requirement because the proposed rule changes will clarify rule language without changing its effect (see RCW 19.85.025 referencing RCW 34.05.310 (4)(d)).

This rule (chapter 296-33 WAC) change is expected to impose no more than minor costs on the entire provider population that is required to comply with this rule.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Maty Brimmer, P.O. Box 44520, Olympia, WA 98504, phone (360) 902-6707, fax (360) 902-5333, e-mail maty.brimmer@lni.wa.gov.

July 31, 2012

Judy Schurke

Director

OTS-4809.1


AMENDATORY SECTION(Amending WSR 00-10-003, filed 4/20/00, effective 5/22/00)

WAC 296-31-012   What mental health treatment and services are not authorized?   (1) The crime victims compensation program will not authorize services and treatment:

(a) Beyond the point that the accepted condition becomes fixed and stable (i.e., maintenance care);

(b) After ((the date a permanent partial disability award is made;

(c) After a client is placed on a permanent pension roll, except as allowed in RCW 51.36.010)) a client is determined to be permanently totally disabled and while receiving financial support for lost wages except if the treatment is deemed medically necessary for previously accepted condition(s);

(((d))) (c) When services are not considered proper and necessary. Services that are inappropriate to the accepted condition, which present hazards in excess of the expected benefit, are controversial, obsolete, or experimental are presumed not to be proper and necessary, and shall only be authorized on an individual case basis with written authorization for the service from the department; ((or))

(d) That are not considered to be evidence-based and curative treatment; or

(e) For any therapies which focus on the recovery of repressed memory or recovery of memory which focuses on memories of physically impossible acts, highly improbable acts for which verification should be available, but is not, or unverified memories of acts occurring prior to the age of two.

(2) We will not pay for services or treatment, including medications:

(a) On rejected claims;


EXCEPTION: We will pay for assessments or diagnostic services used as a basis for the department's decision.

(b) After the date a claim is closed.


EXCEPTION: Therapy for eligible survivors of victims of homicide can be provided on closed claims.

(c) After the maximum benefit has been reached.

[Statutory Authority: RCW 7.68.030, 51.04.030, 51.36.010. 00-10-003, 296-31-012, filed 4/20/00, effective 5/22/00; 99-20-031, 296-31-012, filed 9/29/99, effective 11/1/99.]


AMENDATORY SECTION(Amending WSR 99-20-031, filed 9/29/99, effective 11/1/99)

WAC 296-31-016   What treatment or services require authorization from the crime victims compensation program?   (1) The program must authorize the following mental health services and/or treatment:

(a) ((Treatment beyond thirty sessions for adults or forty sessions for children;

(b) Treatment beyond fifty sessions for adults or sixty sessions for children;

(c))) Consultations beyond what are allowed in WAC 296-31-065;

(((d))) (b) Inpatient hospitalization;

(((e))) (c) Concurrent treatment with more than one provider;

(((f))) (d) Electroconvulsive therapy;

(((g))) (e) Neuropsychological evaluation (testing);

(((h))) (f) Day treatment for seriously ill children under eighteen years old;

(((i))) (g) Referrals for services or treatment not in our fee schedule (((see WAC 296-31-040)));

(h) Teleconsultations and other telehealth services.

(2) Your request for authorization must be in writing and include:

(a) A statement of the condition(s) diagnosed;

(b) Current DSM or ICD codes;

(c) The relationship of the condition(s) diagnosed to the criminal act; and

(d) An outline of the proposed treatment program that includes its length, components, procedure codes and expected prognosis.

[Statutory Authority: RCW 7.68.030 and 51.04.030. 99-20-031, 296-31-016, filed 9/29/99, effective 11/1/99.]


AMENDATORY SECTION(Amending WSR 99-20-031, filed 9/29/99, effective 11/1/99)

WAC 296-31-060   What reports are required from mental health providers?   The crime victims compensation program requires the following reports from mental health providers:

(1) Initial response and assessment: Form I: This report is required if you are seeing the client for six sessions or less, and must contain:

(a) The client's initial description of the criminal act for which they have filed a crime victims compensation claim;

(b) The client's presenting symptoms/issues by your observations and the client's report;

(c) ((An estimate of time loss from work as a result of the crime injury, if any. Provide an estimate of when the individual will return to work, why they are unable to work, the extent of impairment and the prognosis for future occupational functioning)) If the claimant is unable to work as a result of the crime injury, provide an estimate of when the claimant will return to work and why they are unable to work; and

(d) What type of intervention(s) you provided.


EXCEPTION: If you will be providing more than six sessions it is not necessary to complete Form I, instead complete Form II.

(2) Initial response and assessment: Form II: This report is required if more than six sessions are anticipated. Form II must be submitted no later than the sixth session, and must contain:

(a) The client's initial description of the criminal act for which they have filed a crime victims compensation claim;

(b) A summary of the essential features of the client's symptoms related to the criminal act, beliefs/attributions, vulnerabilities, defenses and/or resources that lead to your clinical impression (refer to current DSM and crime victims compensation program guidelines);

(c) Any preexisting or coexisting emotional/behavioral or health conditions relevant to the crime impact if present, and how they may have been exacerbated by the crime victimization;

(d) Specific diagnoses with current DSM or ICD code(s), including axes 1 through 5, and the highest GAF in the past year;

(e) Treatment plan based on diagnoses and related symptoms, to include:

(i) Specific treatment goals you and the client have set;

(ii) Treatment strategies to achieve the goals;

(iii) How you will measure progress toward the goals; and

(iv) Any auxiliary care that will be incorporated.

(f) A description of your assessment of the client's treatment prognosis, as well as any extenuating circumstances and/or barriers that might affect treatment progress; and

(g) ((An estimate of time loss from work as a result of the crime injury, if any. Provide an estimate of when the individual will return to work, why they are unable to work, the extent of impairment and the prognosis for future occupational functioning.)) If the claimant is unable to work as a result of the crime injury, provide an estimate of when the claimant will return to work and why they are unable to work.

(3) Progress note: Form III: This report must be completed after session fifteen has been conducted, and must contain:

(a) Whether there has been substantial progress towards recovery for the crime related condition(s);

(b) If you expect treatment will be completed within thirty visits (for adults) or forty visits (for children); and

(c) What complicating or confounding issues are hindering recovery.

(4) Treatment report: Form IV: This report must be completed for authorization for treatment beyond thirty sessions for adults or forty sessions for children, and again for authorization if treatment will go beyond fifty sessions for adults or sixty sessions for children. Form IV must contain:

(a) The diagnoses at treatment onset with current DSM or ICD code(s), including axes 1 through 5, and the highest GAF in the past year;

(b) The current diagnoses, if different now, with current DSM or ICD code(s), including axes 1 through 5, and the highest GAF in the past year; and

(c) Proposed plan for treatment and number of sessions requested, and an explanation of:

(i) Substantial progress toward treatment goals;

(ii) Partial progress toward treatment goals; or

(iii) Little or no progress toward treatment goals.

(5) ((Treatment report: Form V: This report must be completed for authorization for treatment beyond fifty sessions for adults or sixty sessions for children, and must contain:

(a) The diagnoses at treatment onset with current DSM or ICD code(s), including axes 1 through 5, and the highest GAF in the past year;

(b) The current diagnoses, if different now, with current DSM or ICD code(s), including axes 1 through 5, and the highest GAF in the past year;

(c) Proposed plan for treatment and number of sessions requested, and an explanation of:

(i) Substantial progress toward treatment goals;

(ii) Partial progress toward treatment goals; or

(iii) Little or no progress toward treatment goals.

(6))) Termination report: Form ((VI)) V: If you discontinue treatment of a client for any reason, a termination report should be completed within sixty days of the client's last visit, and must contain:

(a) Date of last session;

(b) Diagnosis at the time client stopped treatment;

(c) Reason for termination (e.g., goals achieved, client terminated treatment, client relocated, referred to other services, etc.); and

(d) At this point in time do you believe there is any permanent loss in functioning as a result of the crime injury? If yes, describe symptoms based on diagnostic criteria for a DSM diagnosis.

(((7))) (6) Reopening application: This application is required to reopen a claim that has been closed more than ninety days, to demonstrate a worsening of the client's condition and a need for treatment. Benefits are limited to fifty thousand dollars per claim. If the claimant has met or exceeded the maximum benefit, we will be unable to pay for reopening exams or diagnostic tests. If the benefits paid on this claim are less than the fifty thousand dollar maximum benefit, we will reimburse you for filing the application, for an office visit, and diagnostic studies needed to complete the application up to the fifty thousand dollar maximum benefit. No other benefits will be paid until a decision is made on the reopening. If the claim is reopened, we will pay benefits for a maximum of sixty days prior to the date we received the reopening application.

[Statutory Authority: RCW 7.68.030, 51.04.030 and 51.36.060. 99-20-031, 296-31-060, filed 9/29/99, effective 11/1/99. Statutory Authority: RCW 7.68.030, 51.04.020(1) and 51.04.030. 95-15-004, 296-31-060, filed 7/5/95, effective 8/5/95. Statutory Authority: Chapter 7.68 RCW. 94-02-015, 296-31-060, filed 12/23/93, effective 1/24/94. Statutory Authority: RCW 43.22.050. 92-23-033, 296-31-060, filed 11/13/92, effective 12/14/92.]


AMENDATORY SECTION(Amending WSR 99-20-031, filed 9/29/99, effective 11/1/99)

WAC 296-31-065   Can my client be referred for a consultation?   (1) There may be instances when the ((client's accepted mental health condition presents a diagnostic or therapeutic challenge. In such cases, you or the department may refer the client for a consultation or you may ask the department for an independent mental health examination)) department or the claimant's mental health provider may want to refer the claimant for a consultation. For example, if the claimant's accepted mental health condition presents a diagnostic or therapeutic challenge, or if the department needs additional information to make a decision on the claim.

(2) There are two levels of consultations that can be performed: Limited and extensive. Descriptions and procedure codes are included in the Crime Victims Compensation Program Mental Health ((Treatment Rules and)) Fee((s)) Schedule and Billing Guidelines.

(3) The consultant will be required to submit a report to the department that contains the following elements:

(a) The reason(s) for the consultation referral; ((and))

(b) Consultants related recommendations;

(c) Other information as requested by the department.

(4) Authorization from the department is required for:

(a) More than two consultations before the thirtieth session for adults or fortieth session for children; and

(b) More than one consultation between thirty and fifty sessions for adults or between forty and sixty sessions for children.

(5) You may not make a referral for a consultation if:

(a) An independent ((mental health)) medical examination has been scheduled;

(b) A consultation has been scheduled by the department;

(c) Claim reopening is pending; or

(((c))) (d) The claim is closed.


Note: The consultant must meet provider registration requirements per WAC 296-31-030.

[Statutory Authority: RCW 7.68.030 and 51.04.030. 99-20-031, 296-31-065, filed 9/29/99, effective 11/1/99. Statutory Authority: RCW 7.68.030, 51.04.020(1) and 51.04.030. 95-15-004, 296-31-065, filed 7/5/95, effective 8/5/95. Statutory Authority: Chapter 7.68 RCW. 94-02-015, 296-31-065, filed 12/23/93, effective 1/24/94. Statutory Authority: RCW 43.22.050. 92-23-033, 296-31-065, filed 11/13/92, effective 12/14/92.]


AMENDATORY SECTION(Amending WSR 99-20-031, filed 9/29/99, effective 11/1/99)

WAC 296-31-067   When is concurrent treatment allowed?   (1) In some cases, treatment by more than one provider may be allowed by the crime victims compensation program. We may authorize concurrent treatment on an individual basis:

(a) If the accepted condition requires specialty or multidisciplinary care.


Note: Individual and group counseling sessions given by more than one provider is not concurrent treatment.

(b) If we receive and approve your written request that contains:

(i) The name, address, discipline, and specialty of each provider requested to assist in treating the client;

(ii) An outline of each provider's responsibility in the case; and

(iii) An estimated length for the period of concurrent treatment.

(2) If we approve concurrent treatment, we will recognize one primary attending mental health treatment provider. That provider will be responsible for:

(a) Directing the overall treatment program for the client;

(b) Providing us with copies of all reports received from involved providers; and

(c) In ((time)) wage loss cases, providing us with adequate evidence certifying the claimant's inability to work.

[Statutory Authority: RCW 7.68.030 and 51.04.030. 99-20-031, 296-31-067, filed 9/29/99, effective 11/1/99.]


AMENDATORY SECTION(Amending WSR 99-20-031, filed 9/29/99, effective 11/1/99)

WAC 296-31-068   When can a ((client)) claimant transfer providers?   (1) RCW ((51.36.010)) 7.68.095 provides that ((clients)) claimants are entitled to a free choice of attending providers, who are registered with the department, subject to the limits of RCW 7.68.130 and the requirements of the claimant's public or private insurance. The provider must meet registration requirements of WAC 296-31-030.

(2) The department must be notified if a ((client)) claimant changes providers.

(3) We may require a ((client)) claimant to select another provider for treatment under the following conditions:

(a) When a provider, qualified and available to provide treatment, is more conveniently located;

(b) When the attending provider fails to comply with our rules;

(c) Subject to the limits of RCW 7.68.130 outlined in subsection (1) of this section.

[Statutory Authority: RCW 7.68.030, 7.68.130 and 51.36.010. 99-20-031, 296-31-068, filed 9/29/99, effective 11/1/99.]


AMENDATORY SECTION(Amending WSR 00-03-056, filed 1/14/00, effective 2/14/00)

WAC 296-31-074   What if ((my patient)) the claimant has an unrelated condition?   (1) You must immediately notify us when you are treating an unrelated condition concurrently with an accepted condition and provide us with the following information:

(a) Diagnosis and/or nature of unrelated condition;

(b) Treatment being provided; and

(c) The effect, if any, on the accepted condition.

(2) Temporary treatment of an unrelated condition may be allowed and payment for service authorized if:

(a) We approve your request for authorization prior to treatment;

(b) You give us a thorough explanation of how the unrelated condition is affecting the accepted condition;

(c) Treatment of the unrelated condition is retarding recovery of the accepted condition; and

(d) We receive monthly reports from you, outlining treatment and its effect on both the unrelated and accepted conditions.

(3) We will not approve or pay for treatment of:

(a) An unrelated condition that has no influence or no longer influences the existing condition.

(b) A preexisting unrelated condition that was treated prior to acceptance of the crime victim's claim, unless it is retarding recovery of the accepted condition.

[Statutory Authority: RCW 7.68.030. 00-03-056, 296-31-074, filed 1/14/00, effective 2/14/00.]


AMENDATORY SECTION(Amending WSR 99-07-004, filed 3/4/99, effective 4/4/99)

WAC 296-31-075   What is excess recovery?   The remaining balance of a recovery, which is paid to the ((victim)) claimant but must be used to offset future payment of benefits.

How does excess effect the bill payment process?

(1) When an excess recovery exists, the department is not responsible for payment of bills.

(2) The provider must bill the department in accordance with the department's medical aid rules and maximum fee schedules.

(3) The department will:

(a) Determine the amount payable according to the fee schedule;

(b) Credit the excess recovery with the amount payable; and

(c) Send the provider a remittance advice showing the amount due from the ((victim)) claimant.

(4) The ((victim)) claimant must pay the provider in accordance with the remittance advice.

(5) When the excess is reduced to zero the department will resume responsibility for payment of bills.

[Statutory Authority: RCW 7.68.030, 7.68.050 and 7.68.130. 99-07-004, 296-31-075, filed 3/4/99, effective 4/4/99. Statutory Authority: RCW 7.68.030, 51.04.020(1) and 51.04.030. 95-15-004, 296-31-075, filed 7/5/95, effective 8/5/95. Statutory Authority: RCW 43.22.050. 92-23-033, 296-31-075, filed 11/13/92, effective 12/14/92.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 296-31-040 Can the department purchase or authorize a special service or treatment that does not appear in its fee schedule?
WAC 296-31-057 Can the department penalize a provider?
WAC 296-31-069 For what reasons may the department require independent mental health or independent medical evaluations be obtained?
WAC 296-31-06901 What is required in an independent mental health evaluation report?
WAC 296-31-06903 Who may perform independent mental health evaluations for the crime victims compensation program?
WAC 296-31-06905 How does a provider become an approved examiner to perform independent mental health evaluations for the crime victims compensation program?
WAC 296-31-06907 What factors does the crime victims compensation program consider in approving or removing examiners from the approved examiners list?
WAC 296-31-06909 Is there a fee schedule for independent mental health evaluations?
WAC 296-31-070 What are my general obligations as an approved mental health provider?

OTS-4808.1


AMENDATORY SECTION(Amending WSR 02-06-024, filed 2/25/02, effective 3/28/02)

WAC 296-33-010   Attendant services.   (1) What are attendant services?

Attendant services are proper and necessary personal care services (custodial care) provided to maintain the ((victim)) claimant in their residence.

(2) Who may receive attendant services?

((Victims)) Claimants who are temporarily or permanently totally disabled and rendered physically unable to care for themselves due to the crime may receive attendant services.

(3) Is prior authorization required for attendant services?

Yes. To be covered by the crime victims compensation program, attendant services must be requested by the attending physician and authorized by the department before services begin.

(4) Am I required to use other insurance coverage before the crime victims compensation program will cover attendant services?

Yes, all other insurances both private and public must be used first.

(5) When will the crime victims program stop paying for attendant care services?

The program will stop payment of attendant care services if the service is no longer medically necessary, or the maximum benefit of fifty thousand dollars is reached.

(6) What attendant services does the crime victims program cover?

The program covers proper and necessary attendant services that are provided consistent with the ((victim's)) claimant's needs, abilities and safety. Only attendant services that are necessary due to the physical restrictions caused by the crime are covered.

The following are examples of attendant services that may be covered:


Bathing and personal hygiene;

Dressing;

Administration of medications;

Specialized skin care, including changing or caring for dressings or ostomies;

Tube feeding;

Feeding assistance (not meal preparation);

Mobility assistance, including walking, toileting and other transfers;

Turning and positioning;

Bowel and incontinent care; and

Assistance with basic range of motion exercises.

(((6))) (7) What attendant services are not covered?

Services the department considers everyday environmental needs, unrelated to the medical needs of the ((victim)) claimant, are not covered. The following are examples of some chore services that are not covered:

Housecleaning;

Laundry;

Shopping;

Meal planning and preparation;

Transportation of the ((victim)) claimant;

Errands for the ((victim)) claimant;

Recreational activities;

Yard work;

Child care.

(((7))) (8) Will the crime victims compensation program review the attendant services being provided?

Yes. Periodic evaluations by the crime victims compensation program or its designee will be performed. Evaluations may include, but not be limited to, a medical records review and an on-site review of appropriate attendant services consistent with the ((victim's)) claimant's needs, ability, and safety.

(((8))) (9) Who is eligible to become a provider of attendant services?

((Any person eighteen years of age and over that maintains an active provider account with the crime victims compensation program. Attendant service providers can be family members or others who the victim hires to perform nonskilled home nursing services.

(9) Is my attendant service provider(s) an employee(s) of the crime victims compensation program?

No. Even though the crime victims compensation program is required by the federal government to withhold certain payroll taxes from moneys paid to some nonagency providers, the victim is the common law employer of attendant service provider(s).)) Attendant services must be provided through and agency licensed, certified or registered to provide home care or home health services.

(10) How can a provider obtain a provider account number from the department?

In order to receive a provider account number from the department, a provider must:

Complete a provider account application;

Sign a provider agreement;

Provide a copy of any practice or other license held;

Complete, sign and return Form W-9; and

Meet the department's provider eligibility requirements.


Note: A provider account number is required to receive payment from the department but is not a guarantee of payment for services.

(11) How many hours will be authorized for attendant services?

The crime victims compensation program will determine the maximum hours of authorized care based on an independent nursing assessment conducted in the ((victim's)) claimant's residence. More than one provider may be authorized, based on the ((victim's)) claimant's needs and the availability of providers. Attendant service providers are limited to a maximum of seventy hours per week per provider.

(12) What are the provider account status definitions?

Active - Account information is current and provider is eligible to receive payment.

Inactive - Account is not eligible to receive payment based on action by the department or at provider request. These accounts can be reactivated.

Terminated - Account is not eligible to receive payment based on action by the department or at provider request. These accounts cannot be reactivated.

(13) When may the department inactivate a provider account?

The department may inactivate a provider account when:

There has been no billing activity on the account for ((thirty-six)) eighteen months; or

The provider requests inactivation; or

Provider communications are returned due to address changes; or

The department changes the provider application or application procedures; or

Provider does not comply with department request to update information.

(14) When may the department terminate a provider account?

The department may terminate a provider account when:

The provider is found ineligible to treat per department rules; or

The provider requests termination; or

The provider dies or is no longer in active business status.

(15) How can a provider reactivate a provider account?

To reactivate a provider account, the provider may call or write the department. The department may require the provider to update the provider application and/or agreement or complete other needed forms prior to reactivation. Account reactivation is subject to department review. If a provider account has been terminated, a new provider application will be required.

[Statutory Authority: RCW 7.68.030. 02-06-024, 296-33-010, filed 2/25/02, effective 3/28/02.]

Washington State Code Reviser's Office