Date of Adoption: March 23, 2004.

     Purpose: The Division of Developmental Disabilities has received approval from the federal Centers for Medicare and Medicaid Services (CMS) to implement four home and community based service (HCBS) waivers, which replace the current community alternatives program (CAP) waiver.

     These rules will clarify eligibility, service array, utilization, provider qualifications, client appeal rights and access to services.

     Rules affected are: Amending WAC 388-825-120; new WAC 388-825-125 through 388-825-160, 388-825-300 through 388-825-405, chapter 388-845 WAC; and repealing WAC 388-825-170, 388-825-180, 388-825-190, and 388-825-260 through 388-825-284.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-825-170, 388-825-180, 388-825-190, 388-825-260, 388-825-262, 388-825-264, 388-825-266, 388-825-268, 388-825-270, 388-825-272, 388-825-276, 388-825-278, 388-825-280, 388-825-282, and 388-825-294; and amending WAC 388-825-120.

     Statutory Authority for Adoption: RCW 71A.12.030, 71A.12.120.

     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 approval of the HCBS waivers by CMS requires the department to implement new rules by April 1, 2004, to protect the health and welfare of eligible clients by ensuring no interruption in services to current participants in the CAP waiver occurs, and to ensure a continuation of federal matching funds under 42 C.F.R. 441, Subpart G -- Home and Community Based Services -- Waiver Requirements.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 133, Amended 1, Repealed 15; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.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 133, Amended 1, Repealed 15.
     Effective Date of Rule: April 1, 2004.

March 23, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (2) A client, former client, or applicant acting on the applicant's own behalf or through an authorized representative has the right to ((an adjudicative proceeding to contest the following department actions:

     (a))) a fair hearing.

     (3) You have the right to a fair hearing to dispute the following department actions:

     (a) Denial or termination of eligibility set forth in WAC 388-825-030 and 388-825-035;

     (b) ((Development or modification of the individual service plan set forth in WAC 388-825-050;

     (c))) Authorization, denial, reduction, or termination of services or funds paid directly to the client set forth in WAC 388-825-055 or payment of SSP set forth in chapter 388-827 WAC authorized by DDD;

     (((d))) (c) Admission or readmission to, or discharge from, a residential habilitation center;

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

     (e) Refusal to consult with other persons involved in your life during the process of making the decision being disputed;

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

     (g) Denial or termination of the provider of your choice;

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

     (i) A claim the client, former client, or applicant owes an overpayment debt((;

     (f) A decision of the secretary under RCW 71A.10.060 or 71A.10.070;

     (g) A decision to change a client's placement from one category of residential services to a different category of residential services.

     (2) Adjudicative proceedings 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, the provision in this chapter shall govern.

     (3) The applicant's application for an adjudicative proceeding shall be in writing and filed with the DSHS office of appeals within twenty-eight days of receipt of the decision the appellant wishes to contest.

     (4) The department shall not implement the following actions while an adjudicative proceeding is pending:

     (a) Termination of eligibility;

     (b) Reduction or termination of service, except when the action to reduce or terminate the service is based on the availability of funding and/or service; or

     (c) Removal or transfer of a client from a service, except when a condition in subsection (5)(f) of this section is present.

     (5) The department shall implement the following actions while an adjudicative proceeding is pending:

     (a) Denial of eligibility;

     (b) Development or modification of an individual service plan;

     (c) Denial of service;

     (d) Reduction or termination of service when the action to reduce or terminate the service is based on the availability of funding or service;

     (e) After notification of an administrative law judge's (or review judge) ruling that the appellant has caused an unreasonable delay in the proceedings; or

     (f) Removal or transfer of a client from a service when:

     (i) An immediate threat to the client's life or health is present;

     (ii) Service termination or transfer for a specific group of clients in order to meet the intent of and comply with sections 205 and 207, chapter 371, Laws of 2002;

     (iii) The client's service provider is no longer able to provide services due to:

     (A) Termination of the provider's contract;

     (B) Decertification of the provider;

     (C) Nonrenewal of provider's contract;

     (D) Revocation of provider's license; or

     (E) Emergency license suspension.

     (iv) The client, the parent when the client is a minor, or the guardian when the client is an adult, approves the decision.

     (6) When the appellant files an application to contest a decision to return a resident of a state residential school to the community, the procedures specified in RCW 71A.10.050(2) shall govern the proceeding. These procedures include:

     (a) A placement decision shall not be implemented during any period during which an appeal can be taken or while an appeal is pending and undecided unless the:

     (i) Client's or the client's representative gives written consent; or

     (ii) Administrative law judge (or review judge) after notice to the parties rules the appellant has caused an unreasonable delay in the proceedings.

     (b) The burden of proof is on the department; and

     (c) The burden of proof is whether the specific placement proposed by the department is in the best interests of the resident.

     (7) The administrative law judge shall issue an initial or final order within sixty days of the department's receipt of the application for an adjudicative proceeding. When a party files a petition for administrative review, allowed under WAC 388-02-0215 (4)(w)(x) and/or (y), the review order shall be made within sixty days of the department's receipt of the petition. The decision-rendering time is extended by as many days as the proceeding is continued on motion by, or with the assent of, the appellant)).

[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.]

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     (1) It is an eligibility denial and you are not currently an eligible client.

     (2) There is no longer funding for the service.

     (3) The service no longer exists in rule or statute.

     (4) The administrative law judge or review judge rules that you have caused unreasonable delay in the proceedings.

     (5) You are in imminent jeopardy.

     (6) Your provider is no longer qualified to provide services due to:

     (a) Termination or lack or a contract;

     (b) Decertification;

     (c) Revocation or suspension of a license; or

     (d) Lack of required registration, certification, or licensure.

     (7) The parent of a person under the age of eighteen or the legal guardian approves the department's decision.

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     (1) No action is taken until there is a final decision on the appeal unless you or your legal representative consent or the administrative law judge rules that you have caused an unreasonable delay in the proceedings.

     (2) The burden of proof is on the department.

     (3) The burden of proof is whether the proposed placement is in your best interest.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER

     The following sections of the Washington Administrative Code are repealed:

WAC 388-825-170	Community alternatives program (CAP).
WAC 388-825-180	Eligible persons.
WAC 388-825-190	Community alternatives program (CAP) -- Services.

3381.4INDIVIDUAL PROVIDER AND AGENCY PROVIDER QUALIFICATIONS
NEW SECTION
WAC 388-825-300   What is the purpose of WAC 388-825-300 through 388-825-400?   A client/legal representative may choose a qualified individual, agency, or licensed provider. The intent of WAC 388-825-300 through 388-825-400 is to describe:

     (1) Qualification for individuals and agencies providing DDD services in the client's residence or the provider's residence or other setting; and

     (2) Conditions under which the department will pay for the services of an individual provider or a home care agency provider or other provider.

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     (1) Respite care services;

     (2) Companion home services;

     (3) Personal care services through the Medicaid Personal Care program or DDD HCBS Basic, Basic Plus, or CORE waivers; or

     (4) Alternative living services.

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     (2) Individuals and agencies providing nonwaiver DDD home and community based services (HCBS) in the client's residence or the provider's residence or other setting must meet the requirements in WAC 388-825-300 through 388-825-400.

     (3) Individuals and agencies providing HCBS waiver services must meet the provider qualifications in chapter 388-845 WAC for the specific service.

     (4) Parent providers are excluded from providing services to their own natural, step, or adopted children aged seventeen or younger.

     (5) Agencies/entities providing certified residential services under chapter 388-820 WAC must meet the provider qualifications in those program rules.

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

     (2) Establish 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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     (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.

     (3) Complete and submit to the social worker/case manager/designee the department's criminal conviction background inquiry application, unless the provider is also the parent of the adult DDD client and exempted, per chapter 74.15 RCW.

     (a) Preliminary results may require a thumbprint for identification purposes.

     (b) An FBI fingerprint-based background check is required if the person has lived in the state of Washington less than three years.

     (4) Provide references as requested.

     (5) Sign a service provider contract to provide services to a DDD client.

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     (1) Adequately maintain records of services performed and payments received;

     (2) Read and understand the person's service plan. Translation services may be used if needed;

     (3) Be kind and caring to the DSHS client for whom services are authorized;

     (4) Identify problem situations and take the necessary action;

     (5) Respond to emergencies without direct supervision;

     (6) Understand the way your employer wants you to do things and carry out instructions;

     (7) Work independently;

     (8) Be dependable and responsible;

     (9) Know when and how to contact the client's representative and the client's case manager;

     (10) Participate in any quality assurance reviews required by DSHS;

     (11) If you are working with an adult client of DSHS as an individual alternative living, attendant care or individual supportive living provider, you must also:

     (a) Be knowledgeable about the person's preferences regarding the care provided;

     (b) Know the resources in the community the person prefers to use and enable the person to use them;

     (c) Know who the person's friends are and enable the person to see those friends; and

     (d) Enable the person to keep in touch with his/her family as preferred by the person.

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     (2) If a residential agency certified per chapter 388-820 WAC wishes to provide Medicaid personal care or respite care in the client's home, the agency must have home care agency certification or a home health license.

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     (2) Relatives of specified degree include parents, grandparents, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, first cousin, niece or nephew.

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     (2) If you are an individuals contracted to provide companion homes services, you must:

     (a) Successfully complete DDD specialty training within the first calendar year of beginning service; and

     (b) Complete ten hours of continuing education related to the job responsibilities each subsequent calendar year.

     (3) If you are an MPC provider of children, or a provider of respite care, or alternative living there is no required training but DDD retains the authority to require training of any provider.

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     (1) If you wish to "quit" or terminate your employment, you must give at least two weeks written notice to your employer, their representative (if applicable) and the DDD case manager.

     (2) You will be expected to continue working until the termination date unless otherwise determined by DSHS.

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     (1) Understand the client's service plan that is signed by the client or legal representative and social worker/case manager, 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 388-71-0202 and 388-71-0203;

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

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

     (11) Comply with all applicable laws, regulations and contract requirements.

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     (1) Is the client's spouse, per 42 C.F.R. 441.360(g), except in the case of an individual provider for a Chore services client. Note: For Chore spousal providers, the department pays a rate not to exceed the amount of a one-person standard for a continuing general assistance grant, per WAC 388-478-0030;

     (2) Is the natural/step/adoptive parent of a minor client aged seventeen or younger receiving services under this chapter;

     (3) Has been convicted of a disqualifying crime, under RCW 43.43.830 and 43.43.842 or of a crime relating to drugs as defined in RCW 43.43.830;

     (4) Has abused, neglected, abandoned, or exploited a minor or vulnerable adult, as defined in chapter 74.34 RCW;

     (5) 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;

     (6) Does not successfully complete the training requirements within the time limits required in WAC 388-71-05665 through 388-71-05909;

     (7) Is already meeting the client's needs on an informal basis, and the client's assessment or reassessment does not identify any unmet need; and/or

     (8) Is terminated by the client (in the case of an individual provider) or by the home care agency (in the case of an agency provider).

     (9) In addition, the department may deny payment to or terminate the contract of an individual provider as provided under WAC 388-71-0546, 388-71-0551, and 388-71-0556.

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     (1) Evidence of alcohol or drug abuse;

     (2) A reported history of domestic violence, no-contact orders, or criminal conduct (whether or not the conduct is disqualifying under RCW 43.43.830 and 43.43.842;

     (3) A report from the client's health care provider or other knowledgeable person that the requested provider lacks the ability or willingness to provide adequate care;

     (4) Other employment or responsibilities that prevent or interfere with the provision of required services;

     (5) Excessive commuting distance that would make it impractical to provide services as they are needed and outlined in the client's service plan.

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     (1) Domestic violence or abuse, neglect, abandonment, or exploitation of a minor or vulnerable adult;

     (2) Using or being under the influence of alcohol or illegal drugs during working hours;

     (3) Other behavior directed toward the client or other persons involved in the client's life that places the client at risk of harm;

     (4) A report from the client's health care provider that the client's health is negatively affected by inadequate care;

     (5) A complaint from the client or client's representative that the client is not receiving adequate care;

     (6) The absence of essential interventions identified in the service plan, such as medications or medical supplies; and/or

     (7) Failure to respond appropriately to emergencies.

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     (1) A fair hearing to appeal the decision, per chapter 388-02 WAC and WAC 388-825-120; and

     (2) Receive services from another currently contracted individual provider or home care agency provider, or other options the client is eligible for, if a contract is summarily suspended.

     (3) The hearing rights afforded under this section are those of the client, not the individual provider.

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     The following sections of the Washington Administrative Code are repealed:

WAC 388-825-260	What are qualifications for individual service providers?
WAC 388-825-262	What services do individuals provide for persons with developmental disabilities?
WAC 388-825-264	If I want to provide services to persons with developmental disabilities, what do I do?
WAC 388-825-266	If I want to provide respite care in my home, what is required?
WAC 388-825-268	What is required for agencies wanting to provide care in the home of a person with developmental disabilities?
WAC 388-825-270	Are there exceptions to the licensing requirement?
WAC 388-825-272	What are the minimum requirements to become an individual provider?
WAC 388-825-276	What are required skills and abilities for this job?
WAC 388-825-278	Are there any educational requirements for individual providers?
WAC 388-825-280	What are the requirements for an individual supportive living service (also known as a companion home) contract?
WAC 388-825-282	What is "abandonment of a vulnerable adult"?
WAC 388-825-284	Are providers expected to report abuse?

3373.4

     (2) Certain federal regulations are "waived" enabling the provision of services in the home and community to individuals who would otherwise require services.

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     (1) Basic waiver,

     (2) Basic Plus waiver,

     (3) Core waiver,

     (4) Community protection waiver.

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     (1) Your current services will continue as authorized in your current CAP waiver plan.

     (2) At the time of your next waiver plan of care after March 31, 2004, the rules and limits of your new waiver will apply.

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     (1) You have been determined eligible for DDD services per RCW 71A.10.020.

     (2) You have been determined to meet ICF/MR level of care per WAC 388-845-0070 (How am I determined to need ICF/MR level of care?).

     (3) You meet disability criteria established in the Social Security Act.

     (4) You meet financial eligibility requirements as defined in WAC 388-515-1510.

     (5) You choose to receive services in the community rather than in an ICF/MR facility.

     (6) You have a need for waiver services as identified in your plan of care.

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     (1) First priority will be given to current waiver eligible persons assessed to require a different waiver because their needs have changed.

     (2) After the needs of current waiver recipients are met, DDD may consider any of the following priority populations:

     (a) Priority populations as identified and funded by the legislature.

     (b) Persons DDD has determined to be in immediate risk of ICF/MR admission due to unmet health and safety needs.

     (c) Persons identified as a risk to the safety of the community.

     (d) Persons currently receiving services through state-only funds.

     (3) For the basic waiver only, DDD may consider persons who need the waiver services available in the basic waiver to maintain them in their family's home.

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     (1) Your request for waiver enrollment will be documented by DDD in a statewide database if DDD determines that you:

     (a) Meet the criteria for a priority populations in WAC 388-845-0045, and

     (b) Have ICF/MR level of care needs per WAC 388-845-0070 through 388-845-0090.

     (2) When there is capacity available to enroll additional people in a waiver, WAC 388-845-0045 describes how DDD will determine who will be added.

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     (1) DDD completes a reassessment at least every twelve months to determine if you continue to meet all of the eligibility requirements in WAC 388-845-0030.

     (2) Your reassessments must be done in-person and may be completed more often if your functional, financial, or other significant circumstances change.

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     (1) You no longer meet one of the requirements listed in WAC 388-845-0030;

     (2) You no longer need or use waiver services;

     (3) You are in the community protection waiver and choose not to be served by a certified residential community protection provider-intensive supported living services (CP-ISLS);

     (4) You choose to disenroll from the waiver;

     (5) You reside out of state;

     (6) You cannot be located or do not make yourself available for the annual waiver reassessment of eligibility;

     (7) You refuse to participate with DDD in:

     (a) Service planning,

     (b) Required quality assurance and program monitoring activities, or

     (c) Accepting services agreed to in your plan of care as necessary to meet your health and safety needs.

     (8) You are residing in hospital, jail, prison, nursing facility, ICF/MR, or other institution and remain in residence at least one full calendar month, and are still in residence:

     (a) At the time your annual waiver reassessment is due; or

     (b) On March 31st, the end of the waiver fiscal year, whichever date occurs first.

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     (1) DDD cannot guarantee continuation of your current services, including Medicaid eligibility.

     (2) Your eligibility for nonwaiver DDD services is based upon availability of funding and program eligibility for a particular service.

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     (2) If you are age six through twelve, you need major or moderate support in seven of nine of the following tasks.

     (3) The form indicates certain tasks that require major support and which require moderate or major support.

     (a) Major support for:

     (i) Dressing and grooming self,

     (ii) Toileting self.

     (b) Major or moderate support for:

     (i) Eating,

     (ii) Mobility,

     (iii) Communication,

     (iv) Making choices and taking responsibility,

     (v) Exploring one's environment,

     (vi) Supports needed to meet therapy and health needs

     (vii) Family/caregiver support required to maintain the child at home.

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     (2) This additional information may include occupational therapy (OT), physical therapy (PT), psychological, nursing, social work, speech and hearing, or other professional evaluations that reflect current needs.

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     (1) If you are on the CAP waiver as of March 2004, your initial assignment to the Basic, Basic Plus, CORE, or community protection waiver is based on:

     (a) Services you received from DDD in October 2002 through September 2003; and

     (b) Services you were authorized to receive in October, November and December 2003.

     (2) If you are new to a waiver since April 1, 2004, assignment is based on your assessment and service plan.

     (3) Additional criteria apply to the assignment to the community protection waiver.

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     (1) You have been identified by DDD as a person who meets one or more of the following:

     (a) You have been convicted of or charged with a crime of sexual violence as defined in chapter 71.09 RCW;

     (b) You have been convicted of or charged with acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization, or persons of casual acquaintance with whom no substantial personal relationship exists;

     (c) You have been convicted of or charged with a sexually violent offense and/or predatory act, and may constitute a future danger as determined by a qualified professional;

     (d) You have not been convicted and/or charged, but you have a history of stalking, sexually violent, predatory and/or opportunistic behavior which demonstrates a likelihood to commit a sexually violent and/or predatory act based on current behaviors that may escalate to violence, as determined by a qualified professional;

     (e) You have committed one or more violent crimes.

     (2) You receive or agree to receive residential services from certified residential community protection provider-intensive supported living services (CP-ISLS); and

     (3) You comply with the specialized supports and restrictions in your:

     (a) Plan of care (POC);

     (b) Individual instruction and support plan (IISP); and/or

     (c) Treatment plan provided by DDD approved certified individuals and agencies.

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     (1) A service must be offered in your waiver and authorized in your plan of care.

     (2) Waiver services are limited to services required to prevent ICF/MR placement.

     (3) The cost of your waiver services cannot exceed the average daily cost of an ICF/MR.

     (4) Waiver services cannot replace or duplicate other available paid and unpaid supports and services, including payments authorized to you by DDD to purchase a service

directly.

     (5) Waiver funding cannot be authorized for treatments determined by DSHS/medical assistance to be experimental.

     (6) The Basic and Basic Plus waivers have yearly limits on some services and combinations of services.

     (7) Your choice of qualified providers and services is limited to the most cost effective option that meets your assessed needs.

     (8) Services out-of-state are limited to respite care and personal care during vacations.

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     (2) You are not eligible for Medicaid personal care.

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	SERVICES	YEARLY LIMIT
CORE WAIVER	Behavior management and consultation Community guide Environmental accessibility adaptations Specialized medical equipment/supplies Occupational therapy Specialized psychiatric services Physical therapy Respite care Skilled nursing Speech, hearing and language services Staff/family consultation and training Transportation	Limited to the average cost of an ICF/MR for any combination of services
	Residential habilitation
	Person-to-person Supported employment Community access Prevocational services
	Personal care	Limited by CARE assessment

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	SERVICES	YEARLY LIMIT
COMMUNITY PROTECTION WAIVER	Behavior management and consultation Environmental accessibility adaptations Specialized medical equipment/supplies Occupational therapy Specialized psychiatric services Physical therapy Skilled nursing Speech, hearing and language services Staff/family consultation and training Transportation	Limited to the average cost of an ICF/MR for any combination of services
	Residential habilitation
	Person-to-person Supported employment Prevocational services

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     (1) AFH services are defined and limited per chapter 388-72A and 388-71 WAC governing Medicaid personal care and the comprehensive assessment and reporting evaluation (CARE) or the legacy comprehensive assessment.

     (2) Rates are determined by and limited to department published rates for the level of care generated by CARE or the legacy comprehensive assessment.

     (3) AFH reimbursement cannot be supplemented by other department funding.

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     (1) An ARC is a licensed boarding home for seven or more unrelated adults.

     (2) Services include, but are not limited to, individual and group activities; assistance with arranging transportation; assistance with obtaining and maintaining functional aids and equipment; housework; laundry; self-administration of medications and treatments; therapeutic diets; cuing and providing physical assistance with bathing, eating, dressing, locomotion and toileting; stand-by one person assistance for transferring.

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     (1) Be a licensed boarding home;

     (2) Be contracted with ADSA to provide ARC services; and

     (3) Have completed the required and approved DDD specialty training.

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     Reviser's note: The above new section was filed by the agency as WAC 388-854-0405. This section is placed among sections forming new chapter 388-845 WAC, and therefore should be numbered WAC 388-845-0405. Pursuant to the requirements of RCW 34.08.040, the section is published in the same form as filed by the agency.
NEW SECTION
WAC 388-845-0410   Are there limits to the ARC services I can receive?   ARC services are limited by the following:

     (1) ARC services are defined and limited by boarding home licensure and rules and chapter 388-72A and 388-71 WAC governing Medicaid personal care and the comprehensive assessment and reporting evaluation (CARE) or the legacy comprehensive assessment.

     (2) Rates are determined and limited to department published rates for the level of care generated by CARE or the legacy comprehensive assessment.

     (3) ARC reimbursement cannot be supplemented by other department funding.

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     (1) The development and implementation of programs designed to support waiver participants to behave in ways that enhance their inclusion in the community.

     (2) Strategies for effectively relating to caregivers and other people in the waiver participant's life.

     (3) Direct interventions with the person to decrease aggressive, destructive, and sexually inappropriate or other behaviors that compromise their ability to remain in the community (i.e., training, specialized cognitive counseling).

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     (1) Marriage and family therapist (chapter 246-809 WAC);

     (2) Mental health counselor (chapter 246-809; 246-810 WAC);

     (3) Psychologist (chapter 246-924 WAC);

     (4) Registered counselor (chapter 246-810 WAC);

     (5) Sex offender treatment provider (chapter 246-930 WAC);

     (6) Social worker (chapter 246-809 WAC).

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     (1) DDD and the treating professional will determine the need and amount of service you will receive.

     (2) The limits in your Basic and Basic Plus waiver limit the amount of service.

     (3) DDD reserves the right to require a second opinion from a department-selected provider.

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     (1) If you are age sixty-two or younger, the goal of community access is to help you progress towards employment.

     (2) If you are age sixty-three or older, this service is available to meet your retirement needs.

     (3) This service is available to adults in the Basic, Basic Plus, and CORE waiver.

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     (1) You must be age twenty-one and graduated from high school or age twenty-two or older.

     (2) You cannot be authorized to receive community access services if you receive pre-vocational services or supported employment services.

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     (1) You involuntary lose your present residence for any reason either temporary or permanent;

     (2) You lose your present caregiver for any reason, including death;

     (3) There are changes in your caregiver's mental or physical status resulting in the caregiver's inability to perform effectively for the individual;

     (4) There are significant changes in your emotional or physical condition that requires a temporary increase in the amount of a waiver service.

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     (1) Prior authorization is required based on a reassessment of your plan of care to determine the need for emergency services;

     (2) Payment authorizations are reviewed every thirty days and cannot exceed six thousand dollars per twelve months based on the effective date of your current plan of care (POC);

     (3) Emergency services are limited to the scope of services in your waiver;

     (4) Emergency Assistance may be used for interim services until:

     (a) The emergency situation has been resolved; or

     (b) You are transferred to alternative supports that meet your assessed needs; or

     (c) You are transferred to an alternate waiver that provides the service you need.

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     (a) Ensure the health, welfare and safety of the individual; or

     (b) Enable the individual who would otherwise require institutionalization to function with greater independence in the home.

     (2) Environmental accessibility adaptations may include the installation of ramps and grab bars, widening of doorways, modification of bathroom facilities, or installing specialized electrical and/or plumbing systems necessary to accommodate the medical equipment and supplies that are necessary for the welfare of the individual.

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     (1) Prior approval by DDD is required.

     (2) Environmental accessibility adaptations or improvements to the home are excluded if they are of general utility without direct medical or remedial benefit to the individual, such as carpeting, roof repair, central air conditioning, etc.

     (3) Environmental accessibility adaptations cannot add to the total square footage of the home.

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     (2) The department does not pay for treatment determined by DSHS to be experimental;

     (3) The department and the treating professional determine the need for and amount of service you can receive:

     (a) The department reserves the right to require a second opinion from a department-selected provider.

     (b) The department will require evidence that you have accessed your full benefits through Medicaid and private insurance before authorizing this waiver service.

     (4) The Basic and Basic Plus waivers limit the amount of service you can receive.

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     (1) Behavior management and consultation,

     (2) Skilled nursing services,

     (3) Specialized psychiatric services,

     (4) Mental health crisis respite for the purpose of crisis stabilization.

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     (2) All individual providers and homecare agency providers must meet provider qualifications for in-home caregivers in WAC 388-71-0500 through 388-71-0580.

     (3) Providers of adults must comply with the training requirements in these rules governing Medicaid personal care providers in WAC 388-71-05910 through 388-71-05952.

     (4) Natural, step, or adoptive parents can be the personal care provider of their adult child age eighteen or older.

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     (2) The maximum hours of personal care you may receive are determined by the approved department assessment for Medicaid personal care services.

     (a) Provider rates are limited to the department established hourly rates for in-home Medicaid personal care.

     (b) Homecare agencies must be licensed through the department of health and contracted with DDD.

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     (1) You must be age twenty-one and graduated from high school or age twenty-two or older.

     (2) You are not expected to be competitively employed within one year (excluding supported employment programs).

     (3) You cannot be authorized to receive prevocational services if you receive community access services or supported employment services.

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     (2) Services may provide instruction and support addressing one or more of the following outcomes:

     (a) Health and safety;

     (b) Personal power and choice;

     (c) Competence and self-reliance;

     (d) Positive recognition by self and others;

     (e) Positive relationships; and

     (f) Integration into the physical and social life of the community.

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     (1) Individuals contracted with DDD to provide residential support as a "companion home" provider;

     (2) Individuals contracted with DDD to provide training as an "alternative living provider";

     (3) Agencies contracted with DDD and certified per chapter 388-820 WAC; State-operated living alternatives (SOLA);

     (4) Licensed and contracted group care homes, foster homes, child placing agencies, staffed residential homes (licensed and contracted adult residential rehabilitation center per WAC 246-325-0012.

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     (1) Are certified under chapter 388-820 WAC as a residential community protection provider-intensive supported living services (CP-ISLS); and

     (2) Meet the additional standards in DDD Policy 15.04 (Standards for community protection intensive supported living services).

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     (2) None of the following can be paid for under the CORE or community protection waiver:

     (a) Room and board;

     (b) The cost of building maintenance, upkeep, improvement, modifications or adaptations required to assure the health and safety of residents, or to meet the requirements of the applicable life safety code;

     (c) Activities or supervision already being paid for by another source;

     (d) Services provided in your parent's home unless you are receiving alternative living services for a maximum of six months to transition you from your parent's home into your own home.

     (3) The following persons cannot be paid providers for your service:

     (a) Your spouse;

     (b) Your natural, step, or adoptive parents if you are a child age seventeen or younger;

     (c) Your natural, step, or adoptive parent unless your parent is certified as a residential agency per chapter 388-820 WAC or is employed by a certified or licensed agency qualified to provide residential habilitation services.

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     (1) You are a child under age eighteen living in a private home;

     (2) You live in a licensed children's foster home;

     (3) You are age eighteen or older and live with a contracted companion home provider;

     (4) You are age eighteen or older and live in a private home with your full-time caregiver:

     (a) This includes paid and unpaid caregivers,

     (b) The home cannot be a licensed adult family home.

     (5) You are age eighteen or older and are authorized respite through mental health crisis diversion.

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     (1) Individual's home or place of residence;

     (2) Relative's home;

     (3) Licensed children's foster home;

     (4) Licensed, contracted and DDD certified group home;

     (5) State operated living alternative (SOLA) and other DDD certified supported living settings;

     (6) Licensed boarding home contracted as an adult residential center;

     (7) Adult residential rehabilitation center;

     (8) Licensed and contracted adult family home;

     (9) Children's licensed group care facility or staffed residential home licensed childcare setting;

     (10) Other community settings such as camp, senior center, or adult day care center.

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     (1) Individuals meeting the provider qualifications under chapter 388-825 WAC;

     (2) Homecare/home health agencies, licensed under chapter 246-335 WAC, Part 1;

     (3) Licensed and contracted group homes, foster homes, child placing agencies, staffed residential homes and foster group care homes;

     (4) Licensed and contracted AFH;

     (5) Licensed and contracted ARC;

     (6) Licensed and contracted adult residential rehabilitation center (WAC 246-325-0012);

     (7) Licensed childcare center chapter 388-151 WAC;

     (8) Licensed child daycare center chapter 388-150 and 388-155 WAC;

     (9) Adult day care centers contracted with DDD;

     (10) Certified provider per chapter 388-820 WAC when respite is provided within the DDD contract for certified residential services;

     (11) Other DDD contracted providers such as community center, senior center, parks and recreation, summer programs, adult day care.

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     (1) Prior approval by DDD is required to exceed fourteen days per month.

     (2) Respite cannot be a replacement for daycare while a parent or guardian is at work.

     (3) Respite is in addition to any personal care hours available to you.

     (4) Respite care cannot be authorized in an unlicensed private home unless it is the client's home or the home of a relative.

     (5) When determining your unmet need for respite care, DDD will first consider the personal care hours available to you.

     (6) If you require respite from a licensed healthcare professional, your needs will be authorized under skilled nursing per WAC 388-845-1700.

     (7) The respite provider cannot be the spouse of the caregiver receiving respite if the spouse and the caregiver reside in the same residence.

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     (2) Services include nurse delegation services provided by a registered nurse, including the initial visit, follow-up instruction, and/or supervisory visits.

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     (1) Prior department approval is required.

     (2) The department and the treating professional determine the need for and amount of service.

     (3) The department reserves the right to require a second opinion by a department-selected provider.

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     (2) Included are devices, controls, appliances, and items necessary for life support; ancillary supplies and equipment necessary to the proper functioning of such items; and durable and nondurable medical equipment not available through Medicaid under the Medicaid state plan.

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     (1) Prior approval by the department is required for each authorization.

     (2) The department reserves the right to require a second opinion by a department-selected provider.

     (3) Items reimbursed with waiver funds shall be in addition to any medical equipment and supplies furnished under the Medicaid state plan.

     (4) Items are excluded if they are not of direct medical and remedial benefit to the individual.

     (5) Medications, prescribed or nonprescribed, and vitamins are excluded.

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     (2) Service may be any of the following:

     (a) Psychiatric evaluation,

     (b) Medication evaluation and monitoring,

     (c) Psychiatric consultation.

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     (1) Advanced registered nurse practitioner (ARNP),

     (2) Physician assistant,

     (3) Psychiatrist.

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service is available in all four HCBS waivers.

     (2) Consultation and training is provided to families, direct staff, or personal care providers to meet the specific needs of the waiver participant as outlined in the individual's plan of care.

     (3) Special needs include:

     (a) Health and medication monitoring,

     (b) Positioning and transfer,

     (c) Basic and advanced instructional techniques,

     (d) Positive behavior support,

     (e) Augmentative communication systems.

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     (1) Audiologist,

     (2) Licensed practical nurse,

     (3) Marriage and family therapist,

     (4) Mental health counselor,

     (5) Occupational therapist,

     (6) Physical therapist,

     (7) Counselor,

     (8) Registered nurse,

     (9) Sex offender treatment provider,

     (10) Speech/language pathologist,

     (11) Social worker,

     (12) Psychologist.

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     (1) Supported employment includes activities needed to sustain paid work by individuals

receiving waiver services, including supervision and training.

     (2) Supported employment is conducted in a variety of settings; particularly work sites in which persons without disabilities are employed.

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     (1) You must be age twenty-one and graduated from high school or age twenty-two or older.

     (2) Payment will be made only for the adaptations, supervision and training you require as a result of your disabilities.

     (3) Payment is excluded for the supervisory activities rendered as a normal part of the business setting.

     (4) You cannot be authorized to receive supported employment services if you receive community access services or prevocational services.

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     (1) Transportation provides the person access to waiver and other community services,

activities and resources, specified by the plan of care.

     (2) Whenever possible, the person will use family, neighbors, friends, or community agencies that can provide this service without charge.

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     (1) Transportation to/from medical or medically related appointments are Medicaid transportation services and are to be considered and used first.

     (2) Transportation is offered in addition to medical transportation but shall not replace Medicaid transportation services.

     (3) Reimbursement for provider mileage requires prior approval by DDD and is paid according to contract.

     (4) This service does not cover the purchase or lease of vehicles.

     (5) Reimbursement for provider travel time is not included in this service.

     (6) Reimbursement to the provider is limited to transportation that occurs when you are with the provider.

     (7) You are not eligible for transportation services if the cost and responsibility for transportation is already included in your waiver provider's contract and payment.

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     (1) You receive an initial and annual assessment of your needs using a department-approved form.

     (2) From the assessment, DDD develops your waiver plan of care (POC) with you and/or your legal representative and others who are involved in your life such as your parent or guardian, advocate and service providers.

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needs and the limitations in WAC 388-845-0110.

     (2) Your plan must include:

     (a) The services that you and DDD have agreed are necessary for you to receive in order to address your health and welfare needs;

     (b) Both paid and unpaid services you receive or need;

     (c) How often you will receive each waiver service; how long you will need it; and who will provide it; and

     (d) Your signature on the plan indicating your agreement.

     (3) You may choose any qualified provider for the service, who meets all of the following:

     (a) Is able to meet your needs within the scope of their contract, licensure and certification;

     (b) Is reasonably available;

     (c) Meets provider qualifications in chapter 388-845 and 388-825 WAC for contracting; and

     (d) Agrees to provide the service at department rates.

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     (1) DDD will continue providing services as identified in your prior POC for up to thirty days after completion of your new POC.

     (2) DDD will attempt to contact you or your legal representative by phone or mail.

     (3) After thirty days, if DDD has not heard from you or your legal representative, DDD will assume consent and implement the new POC with or without your signature or the signature of your legal representative.

     (4) You will be provided written notification and appeal rights to this action to implement the new POC.

     (5) Your appeal rights are in WAC 388-825-0120 through 388-825-0165.

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     (a) Add more available natural supports;

     (b) Access available nonwaiver services not included in the Basic or Basic Plus waiver other than natural supports;

     (c) Authorize emergency services up to six thousand dollars per year if your needs meet the definition of emergency services in WAC 388-845-0800.

     (2) If emergency services and other efforts are not sufficient to meet your needs, you will be offered:

     (a) An opportunity to apply for an alternate waiver that has the services you need;

     (b) Priority for placement on that waiver when there is capacity to add people to that waiver;

     (c) Placement in an ICF/MR.

     (3) If none of the options in subsections (1) and (2) above is successful in meeting your health and welfare needs, DDD may terminate your waiver eligibility.

     (4) If you are terminated from a waiver, you will remain eligible for nonwaiver DDD services but access is limited by availability of funding.

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     (2) Currently clients are only required to participate towards the cost of residential services provided in a licensed facility.

     (3) If you live in a licensed facility, you participate from your earned and unearned income per rules in WAC 388-515-1505:

     (a) If you have nonexempt income that exceeds the cost of your Waiver services, you may keep the difference.

     (b) If you are an SSI beneficiary who receives only SSI income, you pay only for board and room and you keep a personal allowance of thirty-eight dollars and eighty-four cents.

     (c) If you are an SSI beneficiary who receives SSI and SSA benefits, you only pay for board and room and you are allowed to keep an additional twenty dollars for a total personal allowance of fifty-eight dollars and eighty-four cents.

     (d) If you are not an SSI beneficiary, you may be required to participate towards the cost of your waiver services in addition to your facility board and room rate.

     (e) If you earn wages and are not an SSI beneficiary, the department exempts the first sixty-five dollars and one-half of the remaining earned gross wages from the amount of income used to calculate participation.

     (f) Guardianship fees, payee fees and medical expenses not covered by Medicaid are deducted from your available income when calculating the amount of your participation.

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     (1) Any denial, reductions, or termination of a service.

     (2) A denial or termination of your choice of a qualified provider.

     (3) Your termination from waiver eligibility.

     (4) Denial of your request to receive ICF/MR services instead of waiver services.

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     Reviser's note: The above new section was filed by the agency as WAC 388-854-4000. This section is placed among sections forming new chapter 388-845 WAC, and therefore should be numbered WAC 388-845-4000. Pursuant to the requirements of RCW 34.08.040, the section is published in the same form as filed by the agency.
NEW SECTION
WAC 388-845-4005   Can I appeal a denial of my request to be enrolled in a waiver?   If you are not on an HCBS waiver, your appeal rights are limited to WAC 388-825-120. You have an appeal right to a denial of services or provider but you do not have an appeal right to a denial to be enrolled in a waiver.

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     (2) If you want to appeal a department action, you must file a written appeal with the office of administrative hearings in Olympia within twenty-eight days from receipt of the department notice of the action you are disputing.

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© Washington State Code Reviser's Office