Date of Adoption: July 21, 2003.

     Purpose: Amending WAC 388-71-0194, 388-71-0415, 388-71-0440, 388-72A-0060. These amendments are intended to:

•	Comply with legislative and budget requirements in the 2003-05 operating budget - ESSB 5404, and in HB 1753;
•	Achieve savings by raising functional eligibility requirements for Medicaid Personal Care (MPC) and by eliminating services for clients needing minimal assistance with one or two activities of daily living. (Persons currently receiving care in community residential settings who do not meet the higher eligibility standard will continue to be served, without the benefit of federal matching funds, but no new applicants with these lower levels of care will be admitted to residential care.);
•	Make the rules consistent with emergency legislation (HB 1753) concerning practices in community-based and in-home care (nurse delegation).

     The CR-101 (WSR 03-14-099) and subsequent notices stated that the department was repealing WAC 388-71-0405. This was incorrect - this rule will remain unchanged.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-71-0194, 388-71-0415, 388-71-0440, and 388-72A-0060.

     Statutory Authority for Adoption: RCW 74.08.090.

     Other Authority: RCW 74.04.050, 74.04.057, 74.04.200, 74.09.520, 74.39.020, and 74.39A.090; ESSB 5404 (chapter 25, Laws of 2003); HB 1753 (chapter 140, Laws of 2003).

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: The legislature, in adopting ESSB 5404 the 2003-05 operating budget, has reduced funding for MPC by $3,664,000. The legislature has directed the department to achieve these reductions by raising functional eligibility requirements for MPC and by eliminating services for clients needing minimal assistance with one or two activities of daily living. (Persons currently receiving care in community residential settings who do not meet the higher eligibility standard will continue to be served, without the benefit of federal matching funds, but no new applicants with these lower levels of care will be admitted to residential care.) These reductions must be adopted by September 1, 2003, under an emergency rule or the department will run out of appropriated MPC funds early in the fiscal year, which could result in many MPC-eligible persons losing home care services entirely;

•	The legislature also adopted HB 1753 as emergency legislation concerning nurse delegation practices in community-based and in-home care.
•	These emergency rules are needed to implement the legislative directives of ESSB 5404 and HB 1753 while the department proceeds with regular adoption of these rules. A notice of intent to adopt permanent rules has been filed as WSR 03-14-099.

     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 0, Amended 4, 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 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, 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 4, Repealed 0.
     Effective Date of Rule: September 1, 2003.

July 21, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (2))) Upon department or designee referral, a registered nurse will consult about or visit a Community Options Program Entry System client, Medically Needy Residential waiver client or a Medicaid personal care client to perform a nursing service which may include the following activities:

     (a) Nursing assessment/reassessment;

     (b) Instruction to care providers and clients;

     (c) Care coordination;

     (d) Evaluation.

     (((3))) (2) The frequency and scope of the nursing service will be based on individual client ((need and will be provided as outlined in a nursing service design developed in coordination with each area agency on aging. Each design will include critical indicators of the need for the nursing service and must be approved by the following divisions as appropriate: aging and adult services administration, developmental disabilities, children's administration and mental health.

     (4))).

     (3) This nursing service will not be provided if activities duplicate services that the client is receiving from some other resource. Coordination and/or referrals to appropriate health care providers will occur as necessary.

     (((5))) (4) The registered nurse providing this service will not perform skilled treatment except in the event of an emergency. A skilled treatment is care that would require authorization, prescription, and supervision by an authorized practitioner prior to its provision by a nurse, for example, medication administration or wound care such as debridement. The need for any skilled medical or nursing treatments will be referred to a health care provider, a home health agency or a ((contracted delegating nurse)) other appropriate resource.

     (((6))) (5) The registered nurse must document the result of the nursing service provided on a department-approved form. The registered nurse provides a copy to the staff who has case management responsibility.

[Statutory Authority: 2001 c 269, RCW 74.09.700, 74.08.090, 74.04.050, 74.09.575 and chapter 74.39 RCW. 03-13-052, § 388-71-0194, filed 6/12/03, effective 7/13/03. Statutory Authority: RCW 74.08.090, 74.09.520, and 74.39A.090. 02-21-098, § 388-71-0194, filed 10/21/02, effective 11/21/02.]

     (1) For COPES in-home clients, adult day care if you meet the eligibility requirements under WAC 388-15-652 or its successor.

     (2) Environmental modifications, if the minor physical adaptations to your home:

     (a) Are necessary to ensure your health, welfare and safety;

     (b) Enable you to function with greater independence in the home;

     (c) Directly benefit you medically or remedially;

     (d) Meet applicable state or local codes;

     (e) Adaptions or improvements to the home, which are of general utility or add to the total square footage of the home are excluded.

     (3) Home delivered meals provides nutritional balanced meals, limited to one meal per day, if:

     (a) You are homebound and live in your own home;

     (b) You are unable to prepare the meal;

     (c) You don't have a caregiver (paid or unpaid) available to prepare this meal; and

     (d) Receiving this meal is more cost-effective than having a paid caregiver.

     (4) Home health aide service tasks in your own home, if the service tasks:

     (a) Include assistance with ambulation, exercise, self-administered medications and hands on personal care;

     (b) Are beyond the amount, duration or scope of Medicaid reimbursed home health services (WAC 388-551-2100) and are in addition to those available services;

     (c) Are health-related. Note: Incidental services such as meal preparation may be performed in conjunction with a health-related task as long as it is not the sole purpose of the aide's visit; and

     (d) Do not replace Medicare home health services.

     (5) Personal emergency response system (PERS), if the service is necessary to enable you to secure help in the event of an emergency and if you:

     (a) Live alone in your own home; or

     (b) Are alone, in your own home, for significant parts of the day and have no regular provider for extended periods of time.

     (6) Skilled nursing in your own home, if the service is:

     (a) Provided by a registered nurse or licensed practical nurse under the supervision of a registered nurse; and

     (b) Beyond the amount, duration or scope of Medicaid-reimbursed home health services as provided under WAC 388-551-2100.

     (7) Specialized durable and nondurable medical equipment and supplies under WAC 388-543-1000, if the items are:

     (a) Medically necessary under WAC 388-500-0005; and

     (b) Necessary for life support; or

     (c) Necessary to increase your ability to perform activities of daily living; or

     (d) Necessary for you to perceive, control, or communicate with the environment in which you live; and

     (e) Directly medically or remedially beneficial to you; and

     (f) In addition to and do not replace any medical equipment and/or supplies otherwise provided under Medicaid and/or Medicare.

     (8) Training needs identified in the comprehensive assessment or in a professional evaluation, if you need to meet a therapeutic goal such as:

     (a) Adjusting to a serious impairment;

     (b) Managing personal care needs; or

     (c) Developing necessary skills to deal with care providers.

     (9) Transportation services if you live in your own home, if the service:

     (a) Provides you access to community services and resources provided in accordance with a therapeutic goal;

     (b) Is not merely diversional in nature;

     (c) Is in addition to and does not replace the Medicaid-brokered transportation or transportation services available in the community.

     (10) For COPES or Medically Needy Residential waiver clients, skilled nursing in a residential setting, if the service is:

     (a) Provided by a registered nurse or licensed practical nurse under the supervision of a registered nurse; and

     (b) Beyond the amount, duration or scope of Medicaid-reimbursed home health services as provided under WAC 388-551-2100; and

     (c) In addition to and does not replace the services required by DSHS contract in residential settings.

     (11) Specialized durable and nondurable medical equipment and supplies under WAC 388-543-1000, if the items are:

     (a) Medically necessary under WAC 388-500-0005; and

     (b) Necessary for life support; or

     (c) Necessary to increase your ability to perform activities of daily living; or

     (d) Necessary for you to perceive, control, or communicate with the environment in which you live; and

     (e) Directly medically or remedially beneficial to you; and

     (f) In addition to and do not replace any medical equipment and/or supplies otherwise provided under Medicaid and/or Medicare; and

     (g) In addition to and do not replace the services required by DSHS contract in residential settings.

     (12) Training needs identified in the comprehensive assessment or in a professional evaluation, if you need to meet a therapeutic goal such as:

     (a) Adjusting to a serious impairment;

     (b) Managing personal care needs; or

     (c) Developing necessary skills to deal with care providers; and

     (d) The service is in addition to and does not replace the services required by DSHS contract in residential settings.

     (13) Transportation services if you live in a residential setting, if the service:

     (a) Provides you access to community services and resources provided in accordance with a therapeutic goal;

     (b) Is not merely diversional in nature;

     (c) Is in addition to and does not replace the Medicaid-brokered transportation or transportation services available in the community; and

     (d) Does not replace the services required by DSHS contract in residential settings.

     Note: Clients who reside in enhanced residential care, assisted living or adult family homes are not eligible for waiver funded adult day care.

     (14) Nurse delegation services if:

     (a) You are living in your own home;

     (b) You are eligible for COPES; and

     (c) You are receiving personal care from a registered or certified nursing assistant who has completed Nurse Delegation Core Training;

     (d) Your medical condition is considered stable and predictable by the delegating nurse; and

     (e) Services are provided in compliance with WAC 246-840-901 through 246-840-970.

[Statutory Authority: 2001 c 269, RCW 74.09.700, 74.08.090, 74.04.050, 74.09.575 and chapter 74.39 RCW. 03-13-052, § 388-71-0415, filed 6/12/03, effective 7/13/03. Statutory Authority: RCW 74.08.090, 74.39.020. 00-04-056, § 388-71-0415, filed 1/28/00, effective 2/28/00.]

     (1) Have unmet need for substantial assistance with at least one ((unmet)) direct personal care task listed in WAC 388-71-0202; or have unmet needs for minimal assistance with three direct personal care tasks; and

     (2) Be certified as Title 19 categorically needy, as defined in WAC 388-500-0005.

     (3) Be assessed by department staff or designee using a department approved comprehensive assessment and have a determination of unmet needs for HCP services.

[Statutory Authority: RCW 74.08.090, 74.09.520, and 74.39A.090. 02-23-063, § 388-71-0440, filed 11/18/02, effective 12/19/02. Statutory Authority: RCW 74.09.520. 00-04-056, § 388-71-0440, filed 1/28/00, effective 2/28/00.]

     (1) Are certified as Title XIX categorically needy, as defined in WAC 388-500-0005.

     (2) Have an unmet or partially met need or the activity did not occur (because you were unable or no provider was available) in at least ((one)) three or more of the following, as defined in WAC 388-72A-0040:

     (a) Help/oversight one or two times during the last seven days plus setup in eating;

     (b) Supervision in toileting;

     (c) Supervision in bathing;

     (d) Supervision in dressing;

     (e) Supervision plus setup in transfer;

     (f) Supervision plus setup in bed mobility;

     (g) Supervision plus set up help in one of the following three tasks:

     (i) Walk in room, hallway and rest of immediate living environment;

     (ii) Locomotion in room and immediate living environment;

     (iii) Locomotion outside of immediate living environment including outdoors.

     (h) Assistance required in medication management;

     (i) Supervision in personal hygiene;

     (j) Assistance with body care, which means you need:

     (i) Application of ointment or lotions;

     (ii) Your toenails trimmed;

     (iii) Dry bandage changes; or

     (iv) Passive range of motion treatment.

     (3) You have an unmet or partially met need or the activity did not occur (because you were unable or no provider was available) with at least one or more of the following, as defined in WAC 388-72A-0040:

     (a) Extensive assistance plus one person physical assistance in toileting;

     (b) Extensive assistance plus one person physical assistance in one of the following three tasks:

     (i) Walk in room, hallway and rest of immediate living environment;

     (ii) Locomotion in room and immediate living environment;

     (iii) Locomotion outside of immediate living environment including outdoors.

     (c) Extensive assistance plus one person physical assistance in transfer;

     (d) Limited assistance plus one person physical assistance in bed mobility and need turning/repositioning;

     (e) Physical help limited to transfer plus one person physical assist in bathing;

     (f) Supervision plus one person physical assist in eating; or

     (g) Daily assistance required in medication management; or

     (h) Assistance with body care, which means you need:

     (i) Application of ointment or lotions;

     (ii) Your toenails trimmed;

     (iii) Dry bandage changes; or

     (iv) Passive range of motion treatment.

     (i) Extensive assistance plus one person physical assistance in dressing.

     (j) Extensive assistance plus one person physical assistance in personal hygiene.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.090. 03-05-097, § 388-72A-0060, filed 2/19/03, effective 3/22/03.]

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