WSR 03-07-096

PERMANENT RULES

DEPARTMENT OF HEALTH


[ Filed March 19, 2003, 10:31 a.m. ]

Date of Adoption: March 18, 2003.

Purpose: The rules revise the current need methodology for community hospice agencies and place this methodology in rule; develop standards to implement the 2000 legislation establishing separately licensed hospice care centers and requiring a certificate of need for these centers; and set fees for the hospice care centers.

Citation of Existing Rules Affected by this Order: Amending WAC 246-310-990 Certificate of need review fees.

Statutory Authority for Adoption: Chapter 70.127 RCW.

Other Authority: Chapter 70.38 RCW.

Adopted under notice filed as WSR 03-03-097 on January 17, 2003.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 1, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

M. C. Selecky

Secretary

OTS-5675.6


NEW SECTION
WAC 246-310-290   Hospice services -- Standards and need forecasting method.   The following rules apply to any in-home services agency licensed to provide hospice services which has declared an intent to become Medicare certified as a provider of hospice services in a designated service area.

(1) Definitions.

(a) "ADC" means average daily census and is calculated by:

(i) Multiplying projected annual agency admissions by the most recent average length of stay in Washington (based on Center for Medicare and Medicaid Services (CMS) data) to derive the total annual days of care; and

(ii) Dividing this total by three hundred sixty-five (days per year) to determine the ADC.

(b) "Current supply of hospice providers" means:

(i) Services of all providers that are licensed and Medicare certified as a provider of hospice services or that have a valid (unexpired) certificate of need but have not yet obtained a license; and

(ii) Hospice services provided directly by health maintenance organizations who are exempt from the certificate of need program. Health maintenance organization services provided by an existing provider will be counted under (b)(i) of this subsection.

(c) "Current hospice capacity" means:

(i) For hospice agencies that have operated (or been approved to operate) in the planning area for three years or more, the average number of admissions for the last three years of operation; and

(ii) For hospice agencies that have operated (or been approved to operate) in the planning area for less than three years, an ADC of thirty-five and the most recent Washington average length of stay data will be used to calculate assumed annual admissions for the agency as a whole for the first three years.

(d) "Hospice agency" or "in-home services agency licensed to provide hospice services" means a person administering or providing hospice services directly or through a contract arrangement to individuals in places of temporary or permanent residence under the direction of an interdisciplinary team composed of at least a nurse, social worker, physician, spiritual counselor, and a volunteer and, for the purposes of certificate of need, is or has declared an intent to become Medicaid eligible or certified as a provider of services in the Medicare program.

(e) "Hospice services" means symptom and pain management provided to a terminally ill individual, and emotional, spiritual and bereavement support for the individual and family in a place of temporary or permanent residence and may include the provision of home health and home care services for the terminally ill individual.

(f) "Planning area" means each individual county designated by the department as the smallest geographic area for which hospice services are projected. For the purposes of certificate of need, a planning or combination of planning areas may serve as the service area.

(g) "Service area" means, for the purposes of certificate of need, the geographic area for which a hospice agency is approved to provide Medicare certified or Medicaid eligible services and which consist of one or more planning areas.

(2) The department shall review hospice applications using the concurrent review cycle in this section, except when the sole hospice provider in the service area ceases operation. Applications to meet this need may be accepted and reviewed in accordance with the regular review process.

(3) Applications must be submitted and reviewed according to the following schedule and procedures:

(a) Letters of intent must be submitted between the first working day and last working day of September of each year.

(b) Initial applications must be submitted between the first working day and last working day of October of each year.

(c) The department shall screen initial applications for completeness by the last working day of November of each year.

(d) Responses to screening questions must be submitted by the last working day of December of each year.

(e) The public review and comment for applications shall begin on January 16 of each year. If January 16 is not a working day in any year, then the public review and comment period must begin on the first working day after January 16.

(f) The public comment period is limited to ninety days, unless extended according to the provisions of WAC 246-310-120 (2)(d). The first sixty days of the public comment period must be reserved for receiving public comments and conducting a public hearing, if requested. The remaining thirty days must be for the applicant or applicants to provide rebuttal statements to written or oral statements submitted during the first sixty-day period. Also, any interested person that:

(i) Is located or resides within the applicant's health service area;

(ii) Testified or submitted evidence at a public hearing; and

(iii) Requested in writing to be informed of the department's decision, shall also be provided the opportunity to provide rebuttal statements to written or oral statements submitted during the first sixty-day period.

(g) The final review period shall be limited to sixty days, unless extended according to the provisions of WAC 246-310-120 (2)(d).

(4) Any letter of intent or certificate of need application submitted for review in advance of this schedule, or certificate of need application under review as of the effective date of this section, shall be held by the department for review according to the schedule in this section.

(5) When an application initially submitted under the concurrent review cycle is deemed not to be competing, the department may convert the review to a regular review process.

(6) Hospice agencies applying for a certificate of need must demonstrate that they can meet a minimum average daily census (ADC) of thirty-five patients by the third year of operation. An application projecting an ADC of under thirty-five patients may be approved if the applicant:

(a) Commits to maintain Medicare certification;

(b) Commits to serve one or more counties that do not have any Medicare certified providers; and

(c) Can document overall financial feasibility.

(7) Need projection. The following steps will be used to project the need for hospice services.

(a) Step 1. Calculate the following four statewide predicted hospice use rates using CMS and department of health data or other available data sources.

(i) The predicted percentage of cancer patients sixty-five and over who will use hospice services. This percentage is calculated by dividing the average number of hospice admissions over the last three years for patients the age of sixty-five and over with cancer by the average number of past three years statewide total deaths sixty-five and over from cancer.

(ii) The predicted percentage of cancer patients under sixty-five who will use hospice services. This percentage is calculated by dividing the average number of hospice admissions over the last three years for patients under the age of sixty-five with cancer by the current statewide total of deaths under sixty-five with cancer.

(iii) The predicted percentage of noncancer patients sixty-five and over who will use hospice services. This percentage is calculated by dividing the average number of hospice admissions over the last three years for patients age sixty-five and over with diagnoses other than cancer by the current statewide total of deaths over sixty-five with diagnoses other than cancer.

(iv) The predicted percentage of noncancer patients under sixty-five who will use hospice services. This percentage is calculated by dividing the average number of hospice admissions over the last three years for patients under the age of sixty-five with diagnoses other than cancer by the current statewide total of deaths under sixty-five with diagnoses other than cancer.

(b) Step 2. Calculate the average number of total resident deaths over the last three years for each planning area.

(c) Step 3. Multiply each hospice use rate determined in Step 1 by the planning areas average total resident deaths determined in Step 2.

(d) Step 4. Add the four subtotals derived in Step 3 to project the potential volume of hospice services in each planning area.

(e) Step 5. Inflate the potential volume of hospice service by the one-year estimated population growth (using OFM data).

(f) Step 6. Subtract the current hospice capacity in each planning area from the above projected volume of hospice services to determine unmet need.

(g) Determine the number of hospice agencies in the proposed planning area which could support the unmet need with an ADC of thirty-five.

(8) In addition to demonstrating need under subsection (7) of this section, hospice agencies must meet the other certificate of need requirements including WAC 246-310-210 - Determination of need, WAC 246-310-220 - Determination of financial feasibility, WAC 246-310-230 - Criteria for structure and process of care, and WAC 246-310-240 - Determination of cost containment.

(9) If two or more hospice agencies are competing to meet the same forecasted net need, the department shall consider at least the following factors when determining which proposal best meets forecasted need:

(a) Improved service in geographic areas and to special populations;

(b) Most cost efficient and financially feasible service;

(c) Minimum impact on existing programs;

(d) Greatest breadth and depth of hospice services;

(e) Historical provision of services; and

(f) Plans to employ an experienced and credentialed clinical staff with expertise in pain and symptom management.

(10) Failure to operate the hospice agency in accordance with the certificate of need standards may be grounds for revocation or suspension of an agency's certificate of need, or other appropriate action.

[]


NEW SECTION
WAC 246-310-295   Hospice care center -- Standards.   The following rules apply to any in-home services agency licensed to provide hospice services, that is or has declared an intent to become additionally licensed to provide hospice care center services.

(1) Definitions.

(a) "Applicant" means an in-home services agency licensed to provide hospice services under chapter 246-335 WAC.

(b) "Hospice care center" means a homelike, noninstitutional facility where hospice services are provided, and that meet the requirements for operation under RCW 70.127.280 and chapter 246-335 WAC.

(2) The department shall review hospice care center applications using the concurrent review cycle in this section.

(3) Applications must be submitted and reviewed according to the following schedule and procedures.

(a) Letters of intent must be submitted between the first working day and last working day of October of each year.

(b) Initial applications must be submitted between the first working day and last working day of November of each year.

(c) The department shall screen initial applications for completeness by the last working day of December of each year.

(d) Responses to screening questions must be submitted by the last working day of January of each year.

(e) The public review and comment for applications begins on February 16 of each year. If February 16 is not a working day in any year, then the public review and comment period must begin on the first working day after February 16.

(f) The public comment period is limited to ninety days, unless extended under WAC 246-310-120 (2)(d). The first sixty days of the public comment period must be reserved for receiving public comments and conducting a public hearing, if requested. The remaining thirty days must be for the applicant or applicants to provide rebuttal statements to written or oral statements submitted during the first sixty-day period. Any interested person that:

(i) Is located or resides within the applying hospice agency's health service area;

(ii) Testified or submitted evidence at a public hearing; and

(iii) Requested in writing to be informed of the department's decision, shall also be provided the opportunity to provide rebuttal statements to written or oral statements submitted during the first sixty-day period.

(g) The final review period is limited to sixty days, unless extended under WAC 246-310-120 (2)(d).

(4) Any letter of intent or certificate of need application submitted for review in advance of this schedule, or certificate of need application under review as of the effective date of this section, shall be held by the department for review according to the schedule in this section.

(5) If an application initially submitted under the concurrent review cycle is deemed not to be competing, the department may convert the review to a regular review process.

(6) An applicant must provide the following documentation to demonstrate that the applicant's existing patient base is sufficient to support the creation of the hospice care center.

(a) Step 1. Determine the average total days of care provided in the applicant's preceding three years of operation. If the applicant has been in operation for less than three years, assume an ADC of thirty-five to calculate potential days of care;

(b) Step 2. Multiply the above average days of care by the applicant's annual percentage of patients requiring care in settings other than their private home to estimate the number of potential patient days. If the applicant has been in operation for less than three years, multiply the potential days of care by the statewide percentage of hospice patients requiring care in settings other than their private home;

(c) Step 3. Divide the estimated number of patient days by three hundred sixty-five (days per year) to estimate the average daily census for the applicant;

(d) Step 4. Assume a minimum occupancy of sixty-five percent to determine the number of beds the applicant could request in their application.

(7) If applying for more beds than provided for in subsection (6) of this section, the applicant must provide documentation, methodology and assumptions that support the applicant's ability to sustain the additional beds.

(8) The following occupancy requirements apply to all applicants:

(a) The average occupancy rate of the beds in the center must be projected to be at least fifty percent for the first three years following completion of the project;

(b) A minimum occupancy rate of sixty-five percent should be maintained after the first three years of operation; and

(c) If applying to add beds to an existing hospice care center the applicant must document that the average occupancy of the beds in the hospice care center was at least eighty percent for the nine months immediately preceding the submittal of the proposal.

(9) The applicant must document that they can maintain the minimum occupancy rate and still meet the following requirements:

(a) No more than forty-nine percent of the hospice agency's patient care days, in the aggregate on a biennial basis, can be provided in the hospice care center, under RCW 70.127.280; and

(b) The maximum number of beds in a hospice care center is twenty, under chapter 70.127 RCW.

(10) Failure to operate the hospice care center in accordance with the application relied upon by the department in making its decision may be grounds for revocation or suspension of a center's certificate of need, or other appropriate action.

[]

OTS-6020.4


AMENDATORY SECTION(Amending WSR 02-14-051, filed 6/27/02, effective 7/28/02)

WAC 246-310-990   Certificate of need review fees.   (1) An application for a certificate of need under chapter 246-310 WAC ((shall)) must include payment of a fee consisting of the following:

(a) A review fee based on the facility/project type;

(b) ((When)) If more than one facility/project type applies to an application, the review fee for each type of facility/project must be included.


Facility/Project Type Review Fee
Ambulatory Surgical Centers/Facilities $12,964
Amendments to Issued Certificates of Need $8,171
Emergency Review $5,259
Exemption Requests
Continuing Care Retirement Communities (CCRCs)/Health Maintenance Organization (HMOs) $5,259
Bed Banking/Conversions $856
Determinations of Nonreviewability $1,222
Hospice Care Center $1,101
Nursing Home Replacement/Renovation Authorizations $1,101
Nursing Home Capital Threshold under RCW 70.38.105 (4)(e) (Excluding Replacement/Renovation Authorizations) $1,101
Rural Hospital/Rural Health Care Facility $1,101
Extensions
Bed Banking $489
Certificate of Need/Replacement Renovation Authorization Validity Period $489
Home Health Agency $15,654
Hospice Agency $13,942
Hospice Care Centers $8,171
Hospital (Excluding Transitional Care Units-TCUs, Ambulatory Surgical Center/Facilities, Home Health, Hospice, and Kidney Disease Treatment Centers) $25,684
Kidney Disease Treatment Centers $15,900
Nursing Homes (Including CCRCs and TCUs) $29,354

(2) The fee for amending a pending certificate of need application ((shall be)) is determined as follows:

(a) ((When)) If an amendment to a pending certificate of need application results in the addition of one or more facility/project types, the review fee for each additional facility/project type must accompany the amendment application;

(b) ((When)) If an amendment to a pending certificate of need application results in the removal of one or more facility/project types, the department shall refund to the applicant the difference between the review fee previously paid and the review fee applicable to the new facility/project type; or

(c) ((When)) If an amendment to a pending certificate of need application results in any other change as identified in WAC 246-310-100, a fee of one thousand three hundred nine dollars must accompany the amendment application.

(3) ((When)) If a certificate of need application is returned by the department ((in accordance with the provisions of)) under WAC 246-310-090 (2)(b) or (e), the department shall refund seventy-five percent of the review fees paid.

(4) ((When)) If an applicant submits a written request to withdraw a certificate of need application before the beginning of review, the department shall refund seventy-five percent of the review fees paid by the applicant.

(5) ((When)) If an applicant submits a written request to withdraw a certificate of need application after the beginning of review, but before the beginning of the ex parte period, the department shall refund one-half of all review fees paid.

(6) ((When)) If an applicant submits a written request to withdraw a certificate of need application after the beginning of the ex parte period the department shall not refund any of the review fees paid.

(7) Review fees for exemptions and extensions ((shall be)) are nonrefundable.

[Statutory Authority: RCW 70.38.105 and 2002 c 371. 02-14-051, 246-310-990, filed 6/27/02, effective 7/28/02. Statutory Authority: RCW 70.38.105(5) and 43.70.110. 01-15-094, 246-310-990, filed 7/18/01, effective 8/18/01. Statutory Authority: RCW 70.38.105(5). 99-23-089, 246-310-990, filed 11/16/99, effective 12/17/99. Statutory Authority: Chapter 70.38 RCW. 96-24-052, 246-310-990, filed 11/27/96, effective 12/28/96. Statutory Authority: RCW 70.38.135, 43.70.250 and 70.38.919. 92-02-018 (Order 224), 246-310-990, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as 246-310-990, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.38 RCW. 90-15-001 (Order 070), 440-44-030, filed 7/6/90, effective 8/6/90. Statutory Authority: RCW 43.20A.055. 89-21-042 (Order 2), 440-44-030, filed 10/13/89, effective 11/13/89; 87-16-084 (Order 2519), 440-44-030, filed 8/5/87; 87-12-049 (Order 2494), 440-44-030, filed 6/1/87; 84-13-006 (Order 2109), 440-44-030, filed 6/7/84; 83-21-015 (Order 2037), 440-44-030, filed 10/6/83. Statutory Authority: 1982 c 201. 82-13-011 (Order 1825), 440-44-030, filed 6/4/82.]

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