WSR 12-16-101

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed August 1, 2012, 9:43 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-12-076.

Title of Rule and Other Identifying Information: The department is proposing the amendment of existing sections and adoption of new sections in chapter 388-825 WAC to provide information regarding restricted ages for services at residential habilitation centers and additional services in the community. Division of developmental disabilities (DDD) is proposing the amendment of twelve sections in chapter 388-825 WAC. They are WAC 388-825-020 Definitions, 388-825-061 What service am I eligible for if I am under the age of three?, 388-825-068 What medicaid state plan services can DDD authorize?, 388-825-069 What services are provided under a home and community based services (HCBS) waiver?, 388-825-0871 Does DDD provide out-of-home residential services that address the special needs of persons with developmental disabilities?, 388-825-088 Where can I find more information about DDD contracted residential services?, 388-825-089 What is a residential habilitation center (RHC)?, 388-825-091 Am I eligible for residential habilitation center (RHC) services?, 388-825-093 Can I receive a short term stay at a residential habilitation center (RHC)?, 388-825-094 Can I request to live in an RHC?, 388-825-096 Will I have to pay for the services DDD authorizes for me?, and 388-825-120 When can I appeal department decisions through an administrative hearing process?

DDD is proposing the adoption of three new sections in chapter 388-825 WAC. They are WAC 388-825-201 What is the purpose of enhanced respite services?, 388-825-206 Who is eligible to receive enhanced respite services?, and 388-825-211 How long am I eligible to receive enhance[d] respite services?

Hearing Location(s): Office Building 2, Lookout Room, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html), on September 4, 2012, at 10:00 a.m

Date of Intended Adoption: Not earlier than September 5, 2012.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on September 4, 2012.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by August 21, 2012, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of these proposed changes is to identify how the department is implementing 2SSB 5459 and further amended state law chapter 71A.20 RCW directing that no person under the age of sixteen years may be admitted to receive services at a residential habilitation center. In addition, that no person under the age of twenty-one years may be admitted to receive services at a residential center, unless there are no service options available in the community to appropriately meet the needs of the individual. Such admission is limited to the provision of short-term respite or crisis stabilization services.

In addition, proposed new sections include how the department will provide a consistent, statewide process for determining what individuals may receive enhanced respite services in the community and how long they may receive those services.

Additional changes will be made to all references of "mental retardation" to "intellectual disability." This change to respectful language was signed by the governor in HB 2490 and is incorporated within RCW 44.04.280 State laws -- Respectful language. President Barack Obama also signed Rosa's Law, which directed that all references in federal law to "mental retardation" be changed to "intellectual disability." Similarly, the law stated that references to "a mentally retarded individual" be changed to "an individual with an intellectual disability."

Reasons Supporting Proposal: See Purpose above.

Statutory Authority for Adoption: RCW 71A.12.030 General authority of secretary -- Rule adoption.

Statute Being Implemented: Chapter 94, Laws of 2010, and chapter 30, Laws of 2011; RCW 44.04.280.

Rule is necessary because of federal law, Public Law 111 - 256 2010; 111th Congress (S. 2781 Rosa's Law).

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Nichole Jensen, P.O. Box 45310, Olympia, WA 98504-5310, (360) 725-3403; and Enforcement: Mark Eliason, P.O. Box 45310, Olympia, WA 98504-5310, (360) 725-3452.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The preparation of a small business impact statement is not required as no new costs will be imposed on small businesses or nonprofits as a result of this rule amendment.

A cost-benefit analysis is not required under RCW 34.05.328. Rules are exempt per RCW 34.05.328 (5)(b)(v), rules the content of which is explicitly and specifically dictated by statute.

July 30, 2012

Katherine I. Vasquez

Rules Coordinator

4368.4
AMENDATORY SECTION(Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)

WAC 388-825-020   Definitions.   "Authorization" means DDD approval of funding for a service as identified in the individual support plan or evidence of payment for a service.

"Client or person" means a person who has a developmental disability as defined in RCW 71A.10.020(3) who also has been determined eligible to receive services by the division under chapter 71A.16 RCW.

"Department" means the department of social and health services of the state of Washington.

"Director" means the director of the division of developmental disabilities.

"Division or DDD" means the division of developmental disabilities within the aging and disability services administration of the department of social and health services.

"Enhanced respite services" means respite care for DDD enrolled children and youth, who meet specific criteria, in a DDD contracted and licensed staffed residential setting.

"Family" means relatives who live in the same home with the eligible client. Relatives include spouse or registered domestic partner; natural, adoptive or step parent; grandparent; child; stepchild; sibling; stepsibling; uncle; aunt; first cousin; niece; or nephew.

"((ICF/MR)) ICF/ID" means a facility certified as an intermediate care facility for ((the mentally retarded)) intellectually disabled by Title XIX to provide diagnosis, treatment and rehabilitation services to the ((mentally retarded)) individuals with intellectual disabilities or ((persons)) individuals with related conditions.

"((ICF/MR)) ICF/ID eligible" for admission to an ((ICF/MR)) ICF/ID means a person is determined by DDD as needing active treatment as defined in C.F.R. 483.440. Active treatment requires:

(1) Twenty-four hour supervision; and

(2) Continuous training and physical assistance in order to function on a daily basis due to deficits in the following areas: Toilet training, personal hygiene, dental hygiene, self-feeding, bathing, dressing, grooming, and communication.

"Individual support plan (ISP)" is a document that authorizes and identifies the DDD paid services to meet a client's assessed needs.

"Medicaid personal care" is the provision of medically necessary personal care tasks as defined in chapter 388-106 WAC.

"Residential habilitation center" or "RHC" means a state-operated facility certified to provide ((ICF/MR)) ICF/ID and/or nursing facility level of care for persons with developmental disabilities.

"Residential programs" means provision of support for persons in community living situations. Residential programs include DDD certified community residential services and support, both facility-based such as licensed group homes, and nonfacility based, such as supported living and state-operated living alternatives (SOLA). Other residential programs include alternative living (as described in chapter 388-829A WAC, companion homes (as described in chapter 388-829C WAC), adult family homes, adult residential care services, children's foster homes, group care and staffed residential homes.

"Respite care" means short-term intermittent care for DDD clients in order to provide relief for persons who normally ((providing)) provide that care ((for the individuals)).

"Secretary" means the secretary of the department of social and health services or the secretary's designee.

"State supplementary payment (SSP)" is the state paid cash assistance program for certain DDD eligible SSI clients.

[Statutory Authority: RCW 71A.12.030 and 71A.12.040. 10-02-101, 388-825-020, filed 1/6/10, effective 2/6/10. Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-020, filed 5/19/08, effective 6/19/08. Statutory Authority: RCW 71A.12.030, 71A.10.020 and 2002 c 371. 04-02-014, 388-825-020, 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, 388-825-020, filed 7/25/02, effective 8/25/02. Statutory Authority: RCW 71A.12.030 and 71A.12.040. 99-23-021, amended and recodified as 388-825-020, filed 11/9/99, effective 12/10/99. Statutory Authority: RCW 71A.12.030. 99-04-071, 275-27-020, filed 2/1/99, effective 3/4/99. Statutory Authority: RCW 74.12A.030 and 71A.16.030. 98-20-044, 275-27-020, filed 9/30/98, effective 10/7/98. Statutory Authority: RCW 71A.14.030 and 71A.16.020. 92-09-115 (Order 3373), 275-27-020, filed 4/21/92, effective 5/22/92. Statutory Authority: RCW 71A.16.020. 91-17-005 (Order 3230), 275-27-020, filed 8/9/91, effective 9/9/91. Statutory Authority: RCW 71.20.070. 89-06-049 (Order 2767), 275-27-020, filed 2/28/89; 84-15-058 (Order 2124), 275-27-020, filed 7/18/84. Statutory Authority: RCW 72.01.090, 72.33.040, 72.33.125 and 72.33.165. 78-04-033 (Order 1280), 275-27-020, filed 3/16/78; Order 1143, 275-27-020, filed 8/11/76.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-061   What service am I eligible for if I am under the age of three?   (1) Children under age three ((are)) may be eligible for the infant toddler early intervention program (ITEIP) under the Individuals with Disabilities Education Act, (IDEA), Part C, and Washington's federally approved plan. Infant toddler early intervention program (ITEIP) is a statewide, multi-agency program, administered by and located with the department of early learning, to coordinate a system of early intervention services for children, birth to three, and their families under the Individuals with Disabilities Education Act (IDEA), Part C/ITEIP state rules and regulations.

(2) Infants and toddlers eligible for DDD may receive DDD state-only funded child development services if funding is available.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-061, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 10-04-002, filed 1/21/10, effective 2/21/10)

WAC 388-825-068   What medicaid state plan services can DDD authorize?   DDD may authorize the following medicaid state plan services:

(1) Medicaid personal care, per chapter 388-106 WAC;

(2) Private duty nursing for adults age eighteen and older; per chapter 388-106 WAC;

(3) Private duty nursing for children under the age of eighteen, per WAC ((388-551-3000)) 182-551-3000;

(4) Adult day health for adults, per chapter 388-106 WAC; and

(5) ((ICF/MR)) ICF/ID services, per chapters 388-835 and 388-837 WAC.

[Statutory Authority: RCW 71A.12.030, 71A.12.040, 71A.14.030, 2009 c 564, section 205 (1)(j), and section 1915(i) of the Social Security Act. 10-04-002, 388-825-068, filed 1/21/10, effective 2/21/10. Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-068, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-069   What services are provided under a home and community based services (HCBS) waiver?   (1) Home and community based services (HCBS) waivers provide specific services approved by the federal centers for medicare and medicaid services (CMS) under section 1915(c) of the Social Security Act as an alternative to placement in an intermediate care facility for ((the mentally retarded (ICF/MR))) individuals with intellectual disabilities (ICF/ID).

(2) Certain federal regulations governing ((ICF/MRs)) ICF/IDs are "waived" enabling the provision of services in the home and community to persons who would otherwise require the services provided in an ((ICF/MR)) ICF/ID as defined in chapters 388-835 and 388-837 WAC.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-069, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-0871   Does DDD provide out-of-home residential services that address the special needs of persons with developmental disabilities?   DDD provides the following out-of-home residential services that address the special needs of adults and children with developmental disabilities:

(1) Contracted and DDD-certified community based residential services for adults;

(2) Contracted community based services for children; and

(3) Residential habilitation centers (RHC) for a person ((of any age)) who requires ((ICF/MR)) ICF/ID or nursing facility care.

(a) On a short-term basis for those ages sixteen through twenty; or

(b) On a short or long-term basis if age twenty-one or older.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-0871, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-088   Where can I find more information about DDD contracted residential services?   The information about DDD contracted residential services is in the following rules:

(1) Certified community residential services and supports are contained in chapter 388-101 WAC and include information regarding:

(a) Group homes (GH);

(b) Group training home;

(c) Supported living (SL); and

(d) State operated living alternative (SOLA).

(2) Alternative living services are contained in chapter 388-829A WAC;

(3) Companion home services are contained in chapter 388-829C WAC;

(4) Voluntary placement program services for children are contained in chapter 388-826 WAC and include information regarding:

(a) Foster homes;

(b) Group homes;

(c) ((Group training homes;

(d))) Child placing agencies; and

(((e))) (d) Staffed residential homes.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-088, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)

WAC 388-825-089   What is a residential habilitation center (RHC)?   A residential habilitation center or RHC is a state-operated facility certified to provide ((ICF/MR)) ICF/ID services (see chapter 388-837 WAC) and/or nursing facility services (chapter 388-97 WAC) for persons who are eligible clients of DDD. RHCs include:

(1) Rainier School in Buckley, Washington;

(2) ((Francis Hadden Morgan Center in Bremerton, Washington;

(3))) Fircrest School in Shoreline, Washington;

(((4))) (3) Yakima Valley School in Selah, Washington; and

(((5))) (4) Lakeland Village in Medical Lake, Washington.

[Statutory Authority: RCW 71A.12.030 and 71A.12.040. 10-02-101, 388-825-089, filed 1/6/10, effective 2/6/10. Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-089, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-091   Am I eligible for residential habilitation center (RHC) services?   You are eligible to receive residential habilitation center (RHC) services if:

(1) You are currently DDD eligible;

(2) You choose to receive services in the RHC;

(3) You need the level of care provided at the RHC; ((and))

(4) DDD has determined that you can be supported safely in an RHC environment and will not pose a danger to other residents of the RHC; and

(5) You are sixteen years old or older.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-091, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-093   Can I receive a short term stay at a residential habilitation center (RHC)?   If there is capacity at a residential habilitation center (RHC), the vacancies may be available for short term stays.

(1) Short term stays are limited by available vacancies;

(2) Short term stays must be included in your individual support plan; ((and))

(3) Short term stays in excess of thirty days in a calendar year require approval by the director of the division of developmental disabilities; and

(4) You are sixteen years old or older.

(a) If you are sixteen through twenty years of age your stay will only be for short-term respite or crisis stabilization purposes.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-093, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-094   Can I request to live in an RHC?   You may request admission to an RHC at any time. RHC admissions are not considered permanent.

(1) Your case/resource manager will update your DDD assessment and gather other information.

(2) Admission to an RHC requires approval by the director of the division of developmental disabilities or designee.

(3) You must be twenty-one years old or older.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-094, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)

WAC 388-825-096   Will I have to pay for the services DDD authorizes for me?   (1) If you live in your own home, you do not pay toward the cost of your services except chore services. You must pay toward the cost of chore services as described in WAC 388-106-0625.

(2) If DDD authorizes you to live in a licensed community residential facility you must pay your room and board costs from your earned and unearned income. You may also be responsible for a portion of the cost of your care.

(a) If you are eligible for and receiving SSI or have SSI related eligibility per WAC 388-475-0100 (2)(a) or (b), you are not required to pay toward the cost of your care if you are living at home or in a community setting.

(b) If you are enrolled in a DDD HCBS waiver you must pay toward the cost of your services as described in WAC 388-515-1510.

(c) If you are not enrolled in a DDD HCBS waiver you must pay toward the cost of your services as described in WAC 388-106-0225.

(3) If you live in a medical institution you must pay toward the cost of your care as described in WAC 388-513-1380. See WAC ((388-500-0005)) 182-500-0005 for the definition of a medical institution.

[Statutory Authority: RCW 71A.10.015, 71A.12.020, 71A.12.030, and Title 71A RCW. 08-11-072, 388-825-096, filed 5/19/08, effective 6/19/08.]


AMENDATORY SECTION(Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)

WAC 388-825-120   When can I appeal department decisions through an administrative hearing process?   (1) Administrative 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 or WAC 388-440-0001(3), 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 administrative hearing.

(3) You have the right to an administrative hearing to dispute the following department actions:

(a) Authorization, denial, reduction, or termination of services;

(b) Reduction or termination of a service that was initially approved through an exception to rule;

(c) Authorization, denial, or termination of eligibility;

(d) Authorization, denial, reduction, or termination of payment of SSP authorized by DDD set forth in chapter 388-827 WAC;

(e) Admission or readmission to, or discharge from, a residential habilitation center set forth in WAC 388-825-155;

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

(g) Refusal to comply with your request to consult only with you;

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

(i) Denial or termination of the provider of your choice or the denial of payment for any reason listed in WAC 388-825-375 through 388-825-390;

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

(k) A claim the client, former client, or applicant owes an overpayment debt.

(4) If you are not enrolled in a waiver and your request to be enrolled in a waiver is denied, your appeal rights are limited to the decision that you are not eligible to have your request documented in a statewide data base because you do not need ((ICF/MR)) ICF/ID level of care per WAC 388-845-0070, 388-828-8040 or 388-828-8060.

[Statutory Authority: RCW 71A.12.030 and 71A.12.040. 10-02-101, 388-825-120, filed 1/6/10, effective 2/6/10. Statutory Authority: RCW 71A.12.030. 06-19-037, 388-825-120, filed 9/13/06, effective 10/14/06. Statutory Authority: RCW 71A.12.030, 71A.12.120. 05-17-135, 388-825-120, filed 8/19/05, effective 9/19/05. 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 388-825-201   What is the purpose of enhanced respite services?   Enhanced respite services are designed to enable DDD enrolled children and youth, who meet specific criteria, access to short term respite in a DDD contracted and licensed staffed residential setting.

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NEW SECTION
WAC 388-825-206   Who is eligible to receive enhanced respite services?   (1) To be eligible for enhanced respite services, the following conditions must be met at a minimum:

(a) The child has been determined eligible for DDD services per RCW 71A.10.020(3);

(b) The child is at least eight years of age and under age eighteen;

(c) The child is at high risk of institutionalization and/or out-of-home placement; and

(d) The parents/caregivers have demonstrated they have accessed alternative appropriate and available services to meet the unmet need.

(2) The enhanced respite services committee will also consider the following factors when reviewing requests for services:

(a) The child is experiencing school placement disruption and/or a shortened school day due to his/her behavior;

(b) There is a current family emergency;

(c) The child has had behavioral incident(s), which resulted in injury to self or others that required more than first aid;

(d) The child is awake at night, resulting in the child and/or the caregivers receiving less than five hours of uninterrupted sleep per night;

(e) The child is exhibiting behaviors such as aggression with significant injury, elopement, and challenging repetitive behaviors;

(f) The child's behavior acuity level is high per WAC 388-828-5640, the ICF/ID score is eligible per WAC 388-828-4400, and the caregiver's risk score is medium, high, or immediate per WAC 388-828-5300; and/or

(g) The child has assessed needs that exceed the scope of current services and/or is currently not eligible to receive any paid services.

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NEW SECTION
WAC 388-825-211   How long am I eligible to receive enhanced respite services?   The maximum length of stay the child/youth may access services is for up to thirty days total in a calendar year.

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Washington State Code Reviser's Office