WSR 99-23-078

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Adult Services Administration)

[ Filed November 16, 1999, 9:54 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-18-042.

Title of Rule: WAC 388-71-500 through 388-71-560 individual providers and home care agency providers.

Purpose: The proposed rules repeal and amend sections of WAC 388-15-196 through 388-15-19680 and 388-15-198, and move them to WAC 388-71-500 through 388-71-580. They incorporate provisions of ESHB 1546, the Home Care Stabilization Act, and ESHB 1880, Self-directed care, relating to individual provider qualifications. They describe individual provider and home care agency provider qualifications, when the department/AAA may contract with and authorized payment to an individual provider, and when they may deny or terminate a contract, and when they may deny payment to a home care agency provider.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.520, 74.39A.090, 43.20A.050, 43.20A.710, 74.39.050, 43.43.830, 43.43.842.

Statute Being Implemented: Chapter 74.39A RCW, RCW 74.39A.090, 74.39A.050, 43.20A.710, 74.39.050, 74.39A.095.

Summary: The rule describes provider qualifications and AAA/HCS responsibilities for: (1) Approving or denying contracts to individual providers; (2) terminating payment to individual providers and home care agency providers; (3) terminating contracts to individual providers; (4) summary suspension of individual providers; and (5) appeal rights. Incorporates requirements and responsibilities of individual providers who provide health-related tasks for clients choosing to self-direct their care.

Reasons Supporting Proposal: Changes are made to comply with the governor's executive order, and rules established to comply with new and amended statutes, chapter 74.39A RCW, RCW 74.39A.050, 74.39A.090, 74.30A.095, and 43.20A.710.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Sue McDonough, Program Manager, 600 Woodland Square Loop, Lacey, WA, (360) 407-0331.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: The rules incorporate portions of ESHB 1546 and ESHB 1880, pertaining to provider qualifications and requirements, and define contract qualifications and conditions for payment for individual providers of in-home care. It describes appeal rights. It describes conditions for payment for home care agency providers. The effect of this rule is to provide clear information to consumers, individual providers, home care agency providers, and stakeholders about when individual providers can and cannot be contracted/paid/terminated, and when home care agency providers can and cannot be paid. The anticipated effects are to improve the quality of personal care provided to elderly and disabled adults who live in home and community settings, which are provided by individual providers and home care agency providers.

The purpose is to comply with the governor's executive order regarding regulatory improvement.

Proposal Changes the Following Existing Rules: WAC 388-15-196 through 388-15-19680 and 388-15-198 is being amended to implement new statutory changes, repealed, and moved to WAC 388-71-500 through 388-71-580. The rule is being divided into easy-to-use sections using clear rule writing techniques. These rule-making amendments comply with the criteria under the Governor's Executive Order 97-02.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules do not have an economic impact on small businesses. Individual providers are independent contractors of DSHS.

RCW 34.05.328 applies to this rule adoption. These rules do meet the definition of significant "legislative rule" but are exempt under RCW 34.05.328 (5)(b)(v).

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on December 21, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by December 7, 1999, phone (360) 664-6094, TTY (360) 664-6178, e-mail wallpg@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by December 21, 1999.

Date of Intended Adoption: January 7, 2000.

November 10, 1999

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

2681.4
NEW SECTION
WAC 388-71-500
What is the purpose of WAC 388-71-500 through 388-71-580?

An adult client/legal guardian may choose an individual provider or a home care agency provider. The intent of WAC 388-71-500 through 388-71-580 is to describe the:

(1) Qualifications of an individual provider, as defined in WAC 388-15-202 (25) and (26);

(2) Qualifications of a home care agency provider, as defined in WAC 388-15-202(2) and chapter 246-336 WAC;

(3) Conditions under which the department/area agency on aging (AAA) will pay an individual provider; and

(4) Conditions under which the department/AAA may deny a contract to an individual provider or terminate payment to an individual provider or a home care agency provider.

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NEW SECTION
WAC 388-71-505
How does an adult client hire an individual provider?

The adult client, or legal guardian, as defined in chapter 11.88 RCW:

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

(2) Establishes 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 388-71-510
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; or

(c) Authorization to work in the United States;

(3) Complete and submit to the social worker/case manager/designee the department's criminal conviction background inquiry application. Preliminary results may require a thumb print or an interstate background check; and

(4) Sign a home and community-based service provider contract/agreement to provide services to a COPES or Medicaid personal care client, or other department contract or agreement.

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NEW SECTION
WAC 388-71-515
What are the responsibilities of an individual provider or home care agency provider when employed to provide care to an adult client?

An individual provider or home care agency provider must:

(1) Understand the client's service plan, which is written in clear language 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 388-15-202(38) and 388-15-203;

(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/AAA immediately when unable to staff/serve the client; and

(9) Notify the department/AAA 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) In addition to the above requirements, the individual provider and home care agency provider must:

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

(b) Maintain certain employment standards, which include:

(i) Maintaining a drug/alcohol-free work place;

(ii) Absence of criminal activity; and

(iii) Skills, knowledge, ability, and willingness to provide services.

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NEW SECTION
WAC 388-71-520
Are there educational requirements for an individual provider or a home care agency provider of an adult client?

There are educational requirements for an individual provider or a home care agency employee. They must:

(1) Possess a certificate of successfully completing department-designated fundamentals of caregiving training within one hundred and twenty days after beginning employment;

(2) Complete a minimum of ten hours of continuing education credits each calendar year following the year in which the fundamentals of caregiving training is taken. One hour of completed instruction equals one hour of credit on topics that pertain to services provided in an in-home setting including, but not limited to:

(a) Client's rights;

(b) Personal care (such as transfers or skin care);

(c) Mental illness;

(d) Dementia;

(e) Depression;

(f) Medication assistance;

(g) Communication skills;

(h) Alternatives to restraints;

(i) Activities for clients; and

(3) Provide the department/AAA with proof of completion of continuing education credits.

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NEW SECTION
WAC 388-71-525
Are there any exemptions from the training requirements?

In lieu of the fundamentals of caregiving training, an individual provider or home care agency provider can:

(1) Pass the department's challenge test for the required class. This test can be taken only once;

(2) Complete the department designated modified fundamentals of caregiving training and be a:

(a) Registered or licensed practical nurse;

(b) Physical or occupational therapist;

(c) Certified nursing assistant; or

(d) Medicare-certified home health aide; or

(3) Complete the division of developmental disabilities' (DDD) staff training required by chapter 275-26 WAC and continue to work for a DDD-contracted agency.

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NEW SECTION
WAC 388-71-530
Are there special rules about training for parents who are the individual providers of division of developmental disabilities (DDD) adult children?

Natural, step, or adoptive parents of adult DDD children:

(1) Must possess a certificate of successfully completing a six-hour DDD-approved training or a specially designed department-approved training within one hundred eighty days after beginning employment;

(2) Are exempt from continuing education requirements; and

(3) Are exempt from the fundamentals of caregiving training if they provide care only for their own adult DDD child.

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NEW SECTION
WAC 388-71-535
Are there special rules about training for parents who are the individual providers of non-DDD adult children?

Natural, step, or adoptive parents of adult non-DDD children must:

(1) Possess a certificate of successfully completing the modified fundamentals of caregiving training within one hundred eighty days after beginning employment and have documentation that they have completed individualized or other specific instruction on the care of their adult child; or

(2) Pass the department's challenge test; or

(3) Possess a certificate of successfully completing the fundamentals of caregiving.

(4) Are exempt from continuing education requirements described in WAC 388-71-520(2) if they provide care only for their adult child.

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NEW SECTION
WAC 388-71-540
Will the department/AAA pay anyone the adult client chooses to be an individual provider or home care agency provider?

The department/AAA cannot contract or pay an individual provider who:

(1) Is the client's spouse, per 42 C.F.R 441.360(g), unless the client is on the chore personal care program;

(2) Has been convicted of a disqualifying crime, as listed in RCW 43.43.830 and 43.43.842;

(3) Is prohibited, as per RCW 74.39A.050(8);

(4) 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;

(5) Is the adult client's legal guardian, unless the client is a DDD client;

(6) Is the adult client's representative as given in Durable Power of Attorney (DPOA), as defined in chapter 11.94 RCW, and the DPOA has been executed, unless the client is a DDD client; and/or

(7) Is the parent of a child seventeen years of age or younger, per 42 C.F.R. 4480.A and D.

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NEW SECTION
WAC 388-71-545
Under what conditions will the department/AAA deny payment to or terminate the contract of an individual provider, or deny payment to a home care agency provider?

The department/AAA will deny payment and terminate the individual provider's contract, or deny payment to a home care agency provider when either provider:

(1) Does not successfully complete the training requirements within the time limits described in WAC 388-71-520 and 388-71-525;

(2) Does not meet the conditions of the contract;

(3) Has been terminated by the department for cause;

(4) Has abused, neglected, abandoned, or financially exploited a minor or vulnerable adult;

(5) Demonstrates an unwillingness or inability to provide quality care and services as outlined on the service plan, following monitoring by the social worker/case manager/nurse, which is jeopardizing the health, safety, and well-being of the client;

(6) Is terminated by the client/employer; and/or

(7) Has not met the conditions described in WAC 388-71-510 through WAC 388-71-540.

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NEW SECTION
WAC 388-71-550
Are there other conditions under which the department/AAA may deny or terminate a contract to an individual provider, including relatives?

The department/AAA may deny or terminate a contract to an individual provider when the individual provider:

(1) Has other employment which prevents the provision of authorized services, as outlined on the client's service plan;

(2) Is unable to appropriately meet the client's care needs, per RCW 74.39A.090;

(3) Is already providing the personal care tasks the client requires per the comprehensive assessment and service plan on an informal basis, and the assessment or reassessment does not identify any unmet need;

(4) Has stress and strain in providing care which interferes with meeting the client's needs. The caregiver strain index may be used as a tool in this determination;

(5) Lives too far from the client, which prevents the provision of services as they are needed and outlined on the client's service plan;

(6) Places the health, safety, and well-being of the client at risk;

(7) Is reported by the client's health care providers and others with direct knowledge as unable to meet the client's needs; and/or

(8) Has not met the conditions described in WAC 388-71-515 and WAC 388-71-515.

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NEW SECTION
WAC 388-71-555
When can the department/AAA summarily suspend an individual provider's contract?

The department/AAA may summarily suspend an individual provider when it has a reasonable, good faith belief that the health, safety, and well-being of the client is in imminent jeopardy, as evidenced by, but not limited to:

(1) The absence of essential interventions for the client which will cause immediate harm, such as essential medications or other medical supplies;

(2) Evidence of alcohol/drug abuse by the individual provider during hours of employment;

(3) Failure to respond to emergencies;

(4) Abuse, neglect, abandonment, and/or financial exploitation;

(5) Other behavior directed toward the client and other persons involved in the client's life which places the client at harm;

(6) A report(s) from health care providers seeing the client that the health of the client is seriously affected by poor care; and/or

(7) Conditions or a combination of conditions found in WAC 388-71-515, 388-71-520, 388-71-525, 388-71-540, 388-71-545, and 388-71-550 that imminently affect the health, safety and well-being of the client.

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NEW SECTION
WAC 388-71-560
What are the adult client's rights if the department denies, terminates, or summarily suspends an individual provider's contract?

If the department denies, terminates, or summarily suspends the individual provider's contract, the client has the right to:

(1) A fair hearing to appeal the decision, per chapter 388-08 WAC, and

(2) Receive services from another currently contracted individual provider or home care agency provider, if a contract is summarily suspended.

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NEW SECTION
WAC 388-71-580
Self-directed care -- Who must direct self-directed care?

Self-directed care must be directed by the 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 388-15-196 Individual providers and home care agency providers.
WAC 388-15-19600 How do I apply to be an individual provider of an adult client?
WAC 388-15-19610 What requirements must an adult client's individual provider or a home care agency provider meet?
WAC 388-15-19620 How do I get paid as an individual provider?
WAC 388-15-19630 Under what conditions will the department deny payment to an individual provider or a home care agency provider?
WAC 388-15-19640 Does the individual provider or the home care agency provider have responsibilities in addition to the service plan?
WAC 388-15-19650 What are the educational requirements for an individual provider or a home care agency provider?
WAC 388-15-19660 Do all individual providers or home care agency providers have to take the fundamentals of caregiving training?
WAC 388-15-19670 Are there special rules about training for parents who are the individual providers of division of developmental disabilities (DDD) adult children?
WAC 388-15-19680 Are there special rules about training for parents who are the individual providers of non-DDD adult children?
WAC 388-15-198 Home and community services--Client and provider responsibilities.

Washington State Code Reviser's Office