Original Notice.

     Preproposal statement of inquiry was filed as WSR 04-06-055.

     Title of Rule and Other Identifying Information: Amending WAC 388-97-125 Nursing homes -- Physician services, this proposed amendment is based upon federal clarification by the federal agency, Centers for Medicare and Medicaid Services (CMS). CMS has outlined their clarification through a memo to all state survey agencies.

     Hearing Location(s): Blake Office Park East (behind Goodyear Courtesy Tire), Rose Room, 4500 10th Avenue S.E., Lacey, WA, on November 9, 2004, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than November 10, 2004.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., November 9, 2004.

     Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by November 5, 2004, TTY (360) 664-6178 or (360) 664-6097.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of amending this rule is to be consistent with recent federal clarification and state law requirement concerning physician visits and delegation of tasks in skilled nursing facilities and nursing facilities.

     Reasons Supporting Proposal: To comply with federal regulations and state statutes.

     Statutory Authority for Adoption: RCW 18.51.070 and 74.42.620.

     Statute Being Implemented: RCW 74.42.200, 42 C.F.R. 483.40.

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

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

     Name of Agency Personnel Responsible for Drafting: Lisa Yanagida, 640 Woodland Square Loop, (360) 725-2589; Implementation and Enforcement: Joyce Stockwell, 640 Woodland Square Loop, (360) 725-2404.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. It is unlikely that any licensed nursing homes regulated under chapters 18.51 and 74.42 RCW have fewer than fifty employees. In the event that there is such a nursing home, ADSA residential care services has analyzed its proposed rule and has concluded that they do not impose an increase in existing costs, an imposition of a new cost, or a decrease in benefit. This proposal for amendment is based upon federal clarification by the federal agency, Centers for Medicare and Medicaid Services (CMS) and existing state law requirements.

     A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b)(iii) the proposed changes in WAC 388-97-125 are exempt from a cost benefit analysis since the rule is adopting federal and state statutes or regulations without material change.

September 28, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (2) Except as specified in RCW 74.42.200, a physician must personally approve in writing a recommendation that an individual be admitted to a nursing home.

     (((2))) (3) The nursing home must ensure that:

     (a) Except as specified in RCW 74.42.200, the medical care of each resident is supervised by a physician;

     (b) Another physician supervises the medical care of residents when their attending physician is unavailable; and

     (c) Physician services are provided twenty-four hours per day, in case of emergency.

     (((3))) (4) The physician must:

     (a) ((Review the resident's total program of care, including medications and treatments, at each federally required visit;

     (b))) Write, sign and date progress notes at each visit; ((and

     (c)))

     (b) Sign and date all orders((.

     (4))); and

     (c) In Medicare and Medicare/Medicaid certified facilities, review the resident's total program of care, including medications and treatments, at each federally required visit.

     (5) Except as specified in subsections (((5) and)) (6), (7), and (9) of this section, a physician may delegate tasks to a physician's assistant or advanced registered nurse practitioner who is:

     (a) Licensed by the state;

     (b) Acting within the scope of practice as defined by state law; and

     (c) Under the supervision of the physician.

     (((5))) (6) The physician may not delegate a task when the delegation is prohibited under state law or by the facility's own policies.

     (((6) In the Medicare-certified portion of the facility))

     (7) If the resident's primary payor source is Medicare, the physician may:

     (a) Alternate federally required physician visits between personal visits by:

     (i) The physician; and

     (ii) An advanced registered nurse practitioner or physician's assistant; and

     (b) Not delegate responsibility for the initial required physician visit. This initial visit must occur within the first thirty days of admission to the facility.

     (((7) In))

     (8) If the resident's payor source is Medicaid((-certified nursing facilities)), the physician may delegate any federally required physician task, including tasks which the regulations specify must be performed personally by the physician, to a physician's assistant or advanced registered nurse practitioner who is not an employee of the facility but who is working in collaboration with a physician.

     (((8))) (9) If the resident's payor source is not Medicare or Medicaid:

     (a) In the Medicare only certified facility or in the Medicare certified area of a Medicare/Medicaid facility, the physician may alternate federally required physician visits between personal visits by the physician and an advanced registered nurse practitioner or physician's assistant. The physician may not delegate responsibility for the initial required physician visit.

     (b) In the Medicaid only certified facility or in the Medicaid certified area of a Medicare/Medicaid facility, the physician may delegate any federally required physician task, including tasks which the regulations specify must be performed personally by the physician, to a physician's assistant or advanced registered nurse practitioner who is not an employee of the facility but who is working in collaboration with a physician.

     (10) The following table describes the physician visit requirements related to Medicare or Medicaid certified area and payor type.

	Beds in Medicare only certified area	Beds in Medicare/Medicaid certified area	Beds in Medicaid only certified area
Payor source: Medicare	Initial by physician; Physician may delegate alternate visits	Initial by physician; Physician may delegate alternate visits	N/A
Payor source: Medicaid	N/A	Delegate all tasks Nonemployee	Delegate all tasks Nonemployee
Payor source: Others: such as insurance, private pay, Veteran Affairs	Initial by physician; Physician may delegate alternate visits	Initial by physician; Physician may delegate alternate visits	Delegate all tasks Nonemployee

     (11) The attending physician, or the physician-designated advanced registered nurse practitioner or physician's assistant must:

     (a) Participate in the interdisciplinary plan of care process as described in WAC 388-97-090;

     (b) Provide to the resident, or where applicable the resident's surrogate decision maker, information so that the resident can make an informed consent to care or refusal of care (see WAC 388-97-060); and

     (c) Order resident self-medication when appropriate.

     (((9))) (12) The nursing home must obtain from the physician the following medical information before or at the time of the resident's admission:

     (a) A summary or summaries of the resident's current health status, including history and physical findings reflecting a review of systems;

     (b) Orders, as necessary for medications, treatments, diagnostic studies, specialized rehabilitative services, diet, and any restrictions related to physical mobility; and

     (c) Plans for continuing care and discharge.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-125, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-125, filed 9/15/94, effective 10/16/94.]

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