Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-17-065.

     Title of Rule: Amending WAC 388-71-0202 Long-term care services -- Definitions; and adopting new WAC 388-71-0531 How may hours can my individual provider, agency provider, or personal aide work if I am receiving COPES, Medicaid personal care, or chore services?

     Purpose: The rule will establish and clarify:

•	The maximum number of hours an individual provider or personal aide can be paid for one client that receives COPES, Medicaid personal care, or chore services in their home;
•	The maximum number of hours an individual provider or personal aide can be paid when this individual provider or personal aide is a parent, step-parent, or adoptive parent and lives in the same household as the client;
•	Definition language in WAC 388-71-0202.

     Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

     Statute Being Implemented: RCW 74.09.520, 74.39.005.

     Summary: Rules are developed to comply with the state plan in amount, duration, and scope for in-home programs for adult clients receiving COPES, Medicaid personal care, or chore services, and to comply with labor laws.

     Reasons Supporting Proposal: Same as above.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Sue McDonough, DSHS-ADSA, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2533.

     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 proposed rules will limit the number of hours a provider can be paid for one client who is receiving COPES, Medicaid personal care, or chore services in their home. This complies with labor standards. The rules will limit the number of hours that parents can be paid for providing services to their adult child when the parent(s) live in the same household as the client. Definition changes provide consistency and clarification.

     Proposal Changes the Following Existing Rules: The rule changes the number of hours a provider can work for one client; limits the number of hours parents can be paid for providing services to their adult children when they live in the same household; and clarifies long-term care services definitions.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the rules and concluded that no new costs will be imposed on businesses.

     RCW 34.05.328 applies to this rule adoption. The rules meet the definition of a significant legislative rule. A cost-benefit analysis was completed and is available upon request from Sue McDonough, Home and Community Services Division, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2533, fax (360) 438-8633, e-mail mcdonsc@dshs.wa.gov.

     Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on December 9, 2003, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by December 2, 2003, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

     Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, mail to P.O. Box 45850, Olympia, WA 98504-5850, deliver to 4500 10th Avenue S.E., Lacey, WA, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., December 9, 2003.

     Date of Intended Adoption: Not earlier than December 10, 2003.

October 30, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     "Long-term care services" means the services administered directly or through contract by the aging and adult services administration of the department, including but not limited to nursing facility care and home and community services.

     "Aged person" means a person sixty-five years of age or older.

     "Agency provider" means a licensed home care agency or a licensed home health agency having a contract to provide long-term care personal care services to a client in the client's own home.

     "Application" means a written request for medical assistance or long-term care services submitted to the department by the applicant, the applicant's authorized representative, or, if the applicant is incompetent or incapacitated, someone acting responsibly for the applicant. The applicant shall submit the request on a form prescribed by the department.

     "Assessment" or "reassessment" means an inventory and evaluation of abilities and needs based on an in-person interview in the client's own home or other place of residence.

     "Attendant care" means the chore personal care service provided to a grandfathered client needing full-time care due to the client's need for:

     (1) Assistance with personal care; or

     (2) Protective supervision due to confusion, forgetfulness, or lack of judgment. Protective supervision does not include responsibilities a legal guardian should assume such as management of property and financial affairs.

     "Authorization" means an official approval of a departmental action, for example, a determination of client eligibility for service or payment for a client's long-term care services.

     "Blind person" means a person determined blind as described under WAC 388-511-1105 by the division of disability determination services of the medical assistance administration.

     "Categorically needy" means the financial status of a person as defined under WAC ((388-503-0310)) 388-500-0005.

     "Client" means an applicant for service or a person currently receiving services.

     "Community residence" means:

     (1) The client's "own home" as defined in this section;

     (2) Licensed adult family home under department contract;

     (3) Licensed boarding home under department contract;

     (4) Licensed children's foster home;

     (5) Licensed group care facility, as described in chapter 388-148 WAC; or

     (6) Shared living arrangement as defined in this section.

     "Community spouse" means a person as described under WAC 388-513-1365 (1)(b).

     (("Companionship" means the activity of a person in a client's own home to prevent the client's loneliness or to accompany the client outside the home for other than personal care services.))

     "Contracted program" means services provided by a licensed and contracted home care agency or home health agency.

     "COPES" means community options program entry system.

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

     "Direct personal care services" means verbal or physical assistance with tasks involving direct client care which are directly related to the client's ((handicapping)) disabling condition. Such assistance is limited to allowable help with the tasks of ambulation, bathing, body care, dressing, eating, personal hygiene, positioning, self-medication, toileting, transfer, as defined in "personal care services" below.

     "Disabled" means a person determined disabled as described under WAC 388-511-1105 by the division of disability determination services of the medical assistance administration.

     "Disabling condition" means a condition which prevents a person from self-performance of personal care tasks without assistance.

     "Estate recovery" means the department's activity in recouping funds after the client's death which were expended for long-term care services provided to the client during the client's lifetime per WAC 388-527-2742.

     "Grandfathered client" means a chore personal care services client approved for either:

     (1) Attendant care services provided under the chore personal care program when these services began before April 1, 1988; and

     (2) Family care services provided under the chore personal care program when these services began before December 14, 1987; and

     (3) The client was receiving the same services as of June 30, 1989; and

     (4) Chore personal services when these services began before August 1, 2001.

     "Home health agency" means a licensed:

     (1) Agency or organization certified under Medicare to provide comprehensive health care on a part-time or intermittent basis to a patient in the patient's place of residence and reimbursed through the use of the client's medical identification card; or

     (2) Home health agency, certified or not certified under Medicare, contracted and authorized to provide:

     (a) Private duty nursing; or

     (b) Skilled nursing services under an approved Medicaid waiver program.

     "Household assistance" means assistance with incidental household tasks provided as an integral, but subordinate part of the personal care furnished directly to a client by and through the long-term care programs as described in this chapter. Household assistance is considered an integral part of personal care when such assistance is directly related to the client's medical or mental health condition, is reflected in the client's service plan, and is provided only when a client is assessed as needing personal care assistance with one or more direct personal care tasks. Household assistance tasks include travel to medical services, essential shopping, meal preparation, laundry, housework, and wood supply.

     "Income" means "income" as defined under WAC 388-500-0005.

     "Individual provider" means a person employed by a community options program entry system (COPES) or Medicaid personal care client when the person:

     (1) Meets or exceeds the qualifications as defined under WAC 388-71-0500 through ((388-71-0580)) 388-71-05640;

     (2) Has signed an agreement to provide personal care services to a client; and

     (3) Has been authorized payment for the services provided in accordance with the client's service plan.

     "Individual provider program (IPP)" means a method of chore personal care service delivery where the client employs and supervises the chore personal care service provider.

     "Institution" means an establishment which furnishes food, shelter, medically-related services, and medical care to four or more persons unrelated to the proprietor. "Institution" includes medical facilities, nursing facilities, and institutions for the mentally retarded, but does not include correctional institutions.

     "Institutional eligible client" means a person whose eligibility is determined under WAC 388-513-1315.

     "Institutionalized client" means the same as defined in WAC 388-513-1365(f).

     "Institutional spouse" means a person described under WAC 388-513-1365 (1)(e).

     "Medicaid" means the federal aid Title XIX program under which medical care is provided to:

     (1) Categorically needy as defined under WAC ((388-503-0310)) 388-500-0005; and

     (2) Medically needy as defined under WAC ((388-503-0320)) 388-500-0005.

     "Medical assistance" means the federal aid Title XIX program under which medical care is provided to the categorically needy as defined under WAC ((388-503-0310 and 388-503-1105)) 388-500-0005.

     "Medical institution" means an institution defined under WAC 388-500-0005.

     "Medically necessary" and "medical necessity" mean the same as defined under WAC 388-500-0005.

     "Medically oriented tasks" means direct personal care services and household assistance provided as an integral but subordinate part of the personal care and supervision furnished directly to a client.

     "Mental health professional" means a person defined under WAC 388-865-0150.

     "Own home" means the client's present or intended place of residence:

     (1) In a building the client rents and the rental is not contingent upon the purchase of personal care services as defined in this section; or

     (2) In a building the client owns; or

     (3) In a relative's established residence; or

     (4) In the home of another where rent is not charged and residence is not contingent upon the purchase of personal care services as defined in this section.

     "Personal care aide" means a person meeting the department's qualification and training requirements and providing direct personal care services to a client. The personal care aide may be an employee of a contracted agency provider or may be an individual provider employed by the client.

     "Personal care services" means both physical assistance and/or prompting and supervising the performance of direct personal care tasks and household tasks, as listed in (1) through (17) of this subsection. Such services may be provided for clients who are functionally unable to perform all or part of such tasks or who are incapable of performing the tasks without specific instructions. Personal care services do not include assistance with tasks that are age appropriate for children under age eighteen or performed by a licensed health professional.

     (1) "Ambulation" means assisting the client to move around. Ambulation includes supervising the client when walking alone or with the help of a mechanical device such as a walker if guided, assisting with difficult parts of walking such as climbing stairs, supervising the client if client is able to propel a wheelchair if guided, pushing of the wheelchair, and providing constant or standby physical assistance to the client if totally unable to walk alone or with a mechanical device.

     (2) "Bathing" means assisting a client to wash. Bathing includes supervising the client able to bathe when guided, assisting the client with difficult tasks such as getting in or out of the tub or washing back, and completely bathing the client if totally unable to wash self.

     (3) "Body care" means assisting the client with exercises, skin care including the application of nonprescribed ointments or lotions, changing dry bandages or dressings when professional judgment is not required and pedicure to trim toenails and apply lotion to feet. In adult family homes or in licensed boarding homes contracting with DSHS to provide assisted living services, dressing changes using clean technique and topical ointments must be delegated by a registered nurse in accordance with chapter 246-840 WAC. "Body care" excludes:

     (a) Foot care for clients who are diabetic or have poor circulation; or

     (b) Changing bandages or dressings when sterile procedures are required.

     (4) "Dressing" means assistance with dressing and undressing. Dressing includes supervising and guiding client when client is dressing and undressing, assisting with difficult tasks such as tying shoes and buttoning, and completely dressing or undressing client when unable to participate in dressing or undressing self.

     (5) "Eating" means assistance with eating. Eating includes supervising client when able to feed self if guided, assisting with difficult tasks such as cutting food or buttering bread, and feeding the client when unable to feed self.

     (6) "Essential shopping" means assistance with shopping to meet the client's health care or nutritional needs. Limited to brief, occasional trips in the local area to shop for food, medical necessities, and household items required specifically for the health, maintenance, and well-being of the client. Essential shopping includes assisting when the client can participate in shopping and doing the shopping when the client is unable to participate.

     (7) "Housework" means performing or helping the client perform those periodic tasks required to maintain the client in a safe and healthy environment. Activities performed include such things as cleaning the kitchen and bathroom, sweeping, vacuuming, mopping, cleaning the oven, and defrosting the freezer, shoveling snow. Washing inside windows and walls is allowed, but is limited to twice a year. Assistance with housework is limited to those areas of the home which are actually used by the client. This task is not a maid service and does not include yard care.

     (8) "Laundry" means washing, drying, ironing, and mending clothes and linens used by the client or helping the client perform these tasks.

     (9) "Meal preparation" means assistance with preparing meals. Meal preparation includes planning meals including special diets, assisting clients able to participate in meal preparation, preparing meals for clients unable to participate, and cleaning up after meals. This task may not be authorized to just plan meals or clean up after meals. The client must need assistance with actual meal preparation.

     (10) "Personal hygiene" means assistance with care of hair, teeth, dentures, shaving, filing of nails, and other basic personal hygiene and grooming needs. Personal hygiene includes supervising the client when performing the tasks, assisting the client to care for the client's own appearance, and performing grooming tasks for the client when the client is unable to care for own appearance.

     (11) "Positioning" means assisting the client to assume a desired position, assistance in turning and positioning to prevent secondary disabilities, such as contractures and balance deficits or exercises to maintain the highest level of functioning which has already been attained and/or to prevent the decline in physical functional level. (Range of motion ordered as part of a physical therapy treatment is not included.)

     (12) "Self-medication" means assisting the client to self-administer medications prescribed by attending physician. Self-medication includes reminding the client of when it is time to take prescribed medication, handing the medication container to the client, and opening a container.

     (13) "Supervision" means being available to:

     (a) Help the client with personal care tasks that cannot be scheduled, such as toileting, ambulation, transfer, positioning, some medication assistance; and

     (b) Provide protective supervision to a client who cannot be left alone because of impaired judgment.

     (14) "Toileting" means assistance with bladder or bowel functions. Toileting includes guidance when the client is able to care for own toileting needs, helping client to and from the bathroom, assisting with bedpan routines, using incontinent briefs on client, and lifting client on and off the toilet. Toileting may include performing routine perineal care, colostomy care, or catheter care for the client when client is able to supervise the activities. In adult family homes or in licensed boarding homes contracting with DSHS to provide assisted living services colostomy care and catheterization using clean technique must be delegated by a registered nurse in accordance with chapter 246-840 WAC.

     (15) "Transfer" means assistance with getting in and out of a bed or wheelchair or on and off the toilet or in and out of the bathtub. Transfer includes supervising the client when able to transfer if guided, providing steadying, and helping the client when client assists in own transfer. Lifting the client when client is unable to assist in their own transfer requires specialized training.

     (16) "Travel to medical services" means accompanying or transporting the client to a physician's office or clinic in the local area to obtain medical diagnosis or treatment.

     (17) "Wood supply" means splitting, stacking, or carrying wood for the client when the client uses wood as the sole source of fuel for heating and/or cooking. This task is limited to splitting, stacking, or carrying wood the client has at own home. The department shall not allow payment for a provider to use a chain saw or to fell trees.

     "Physician" means a doctor of medicine, osteopathy, or podiatry, as defined under WAC 388-500-0005.

     "Plan of care" means a "service plan" as described under WAC 388-71-0205.

     "Property owned" means any real and personal property and other assets over which the client has any legal title or interest.

     "Provider" or "provider of service" means an institution, agency, or person:

     (1) Having a signed department agreement to furnish long-term care client services; and

     (2) Qualified and eligible to receive department payment.

     "Relative" means((:

     (1))) for chore personal care service, a client's spouse, father, mother, son, or daughter((;

     (2) For Medicaid personal care service:

     (a) "Legally responsible relative" means a spouse caring for a spouse or a biological, adoptive, or stepparent caring for a minor child.

     (b) "Nonresponsible relative" means a parent caring for an adult child and an adult child caring for a parent)).

     "Service plan" means a plan for long-term care service delivery as described under WAC 388-71-0205.

     (("Shared living arrangement" for purposes of Medicaid personal care means an arrangement where:

     (1) A nonresponsible relative as defined in "relative" above is the personal care provider and resides in the same residence with common facilities, such as living, cooking, and eating areas; or

     (2) A minor child age seventeen or younger lives in the home of a legally responsible relative as defined in "relative" above.))

     "SSI-related" means a person who is aged, blind, or disabled.

     "Supervision" means a person available to a long-term care client as defined under "personal care services."

     "Supplemental Security Income (SSI)" means the federal program as described under WAC 388-500-0005.

     "Title XIX" is the portion of the federal Social Security Act which authorizes federal funding for medical assistance programs, e.g., nursing facility care, COPES, Medically Needy Residential waiver and Medicaid personal care home and community-based services.

     "Transfer of resources" means the same as defined under WAC 388-513-1365 (1)(g).

     "Unscheduled tasks" means ambulation, toileting, transfer, positioning, and unscheduled medication assistance as described in this chapter.

[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, § 388-71-0202, filed 6/12/03, effective 7/13/03. Statutory Authority: RCW 74.08.090, 74.09.520, and 74.39A.090. 02-21-098, § 388-71-0202, filed 10/21/02, effective 11/21/02.]

     (1) If your individual provider is not your parent, step-parent, or adoptive parent living in the same household, you may have a single worker (individual provider or personal aide) work up to one hundred eighty-four hours per month. You may have other qualified providers work any hours in excess of one hundred eighty-four hours per month that you are eligible to receive, but no single provider may work more than one hundred eighty-four hours for you.

     (2) If your individual provider is your parent, step-parent, or adoptive parent who lives in the same household as you, you may have that person work up to ninety-six hours per month. Whether one or both parents are your individual providers, the limit is ninety-six hours. You may have other qualified workers (individual provider, agency worker, or personal aide) work any hours in excess of ninety-six hours per month that you are eligible to receive, but no single provider may work more than one hundred eighty-four hours for you.

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