WSR 05-15-149

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Health and Recovery Services Administration)

[ Filed July 19, 2005, 4:23 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-07-114.

Title of Rule and Other Identifying Information: Part 1 of 3, amending WAC 388-551-1000 Hospice program, 388-551-1010 Hospice definitions, 388-551-1200 Client eligibility for hospice care, 388-551-1210 Services included in the hospice daily rate, 388-551-1300 How to become a MMA hospice provider, 388-551-1310 Certifications (election periods) for hospice clients and 388-551-1320 Hospice plan of care; and new section WAC 388-551-1305 Requirements for becoming a department-approved hospice care center (HCC).

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane, behind Goodyear Tire. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on August 23, 2005, at 10:00 a.m.

Date of Intended Adoption: Not sooner than August 24, 2005.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., August 23, 2005.

Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by August 19, 2005, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: DSHS is amending these rules to incorporate language from contracts with hospice care centers (HCCs) into chapter 388-551 WAC, Hospice services; to clarify and update hospice services definitions and rules; and to provide a standard for medically appropriate and fiscally responsible utilization.

Reasons Supporting Proposal: See Purpose above.

Statutory Authority for Adoption: RCW 74.08.090 and 74.09.520.

Statute Being Implemented: RCW 74.08.090, 74.09.520, and 42 C.F.R. 418.

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: Kathy Sayre, P.O. Box 45533, Olympia, WA 98504-5533, (360) 725-1342; Implementation and Enforcement: Pam Colyar, P.O. Box 45506, Olympia, WA 98504-5506, (360) 725-1582.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rule amendment and concludes that it will impose no new costs on small businesses. The preparation of a comprehensive small business economic impact statement is not required.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Pam Colyar, Department of Social and Health Services, Health and Recovery Services Administration, P.O. Box 45506, Olympia, WA 98504-5506, phone (360) 725-1582, fax (360) 586-1471, e-mail colyaps@dshs.wa.gov.

July 15, 2005

Andy Fernando, Manager

Rules and Policies Assistance Unit

3569.2
AMENDATORY SECTION(Amending WSR 99-09-007, filed 4/9/99, effective 5/10/99)

WAC 388-551-1000   Hospice program - General.   (1) The department's hospice program is a twenty-four hour a day program ((coordinated by a hospice interdisciplinary team)) that allows a terminally ill client to choose physical, pastoral/spiritual, and psychosocial comfort care rather than cure. ((The hospice program allows the terminally ill client to choose physical, pastoral/spiritual, and psychosocial comfort rather than cure.)) A hospice interdisciplinary team communicates with the client's nonhospice care providers to ensure the client's needs are met through the hospice plan of care. Hospitalization is used only for acute symptom management.

(2) ((Hospice care is initiated by the choice of)) A client, ((family, or)) a physician, or an authorized representative under RCW 7.70.065 may initiate hospice care. The client's physician must certify ((a)) the client as terminally ill and appropriate for hospice care.

(3) Hospice care ((may be)) is provided in a client's temporary or permanent place of residence.

(4) Hospice care ((is ended by the client or family (revocation), the hospice agency (discharge), or death)) ends when:

(a) The client or an authorized representative under RCW 7.70.065 revokes the hospice care;

(b) The hospice agency discharges the client;

(c) The client's physician determines hospice care is no longer appropriate; or

(d) The client dies.

(5) ((Bereavement care is provided to the family of the client who chooses hospice care. It provides emotional and spiritual comfort associated with the death of a hospice client)) Hospice care includes the provision of emotional and spiritual comfort and bereavement support to the client's family member(s).

(6) Department-approved hospice agencies must meet the general requirements in chapter 388-502 WAC, Administration of medical programs - Providers.

[Statutory Authority: RCW 74.09.520, 74.08.090, 42 C.F.R. 418.22 and 418.24. 99-09-007, 388-551-1000, filed 4/9/99, effective 5/10/99.]


AMENDATORY SECTION(Amending WSR 99-09-007, filed 4/9/99, effective 5/10/99)

WAC 388-551-1010   Hospice program - Definitions.   The following definitions and abbreviations and those found in WAC 388-500-0005, Medical definitions ((have the following meanings for)), apply to this subchapter. ((Defined words and phrases are bolded in the text.))

"Authorized representative" means an individual who has been authorized to terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill individual who is mentally or physically incapacitated. See RCW 7.70.065.

"Biologicals" means medicinal preparations including serum, vaccine autotoxins, and biotechnological drugs made from living organisms and their products.

"Brief period" means six days or less within a thirty consecutive-day period.

(("CSO")) "Community services office (CSO) means ((the client's community services office of the department's economic services administration)) an office of the department that administers social and health services at the community level.

"Discharge" means an agency ends hospice care for a client. ((See WAC 388-551-1350 for details.))

"Election period" means the time, ninety or sixty days, that the client is certified as eligible for and chooses to receive hospice care. ((See WAC 388-551-1310 for details.))

"Family" means ((any person(s) important to the client, as defined by the client)) an individual or individuals who are important to, and designated in writing by, the client and need not be relatives, or who are legally authorized to represent the client.

(("HCS" means the client's home and community services office of the aging and adult services administration.

"Hospice interdisciplinary team" means the following health professionals who plan and deliver hospice care to a client as appropriate under the direction of a certified physician: Home health aides monitored by a registered nurse, therapists (physical, occupational, speech-language), registered nurses, physicians, social workers, counselors, volunteers, and others as necessary.)) "Home and community services (HCS) office" means an aging and disability services administration (ADSA) office that manages the state's comprehensive long-term care system which provides in-home, residential, and nursing home services to clients with functional disabilities.

"Home health aide" means an individual registered or certified as a nursing assistant under chapter 18.88A RCW who, under the direction and supervision of a registered nurse, physical therapist, occupational therapist, or speech therapist, assists in the delivery of nursing or therapy related activities, or both, to patients of a hospice agency, or hospice care center.

"Home health aide services" means services provided by home health aides employed by an in-home services agency licensed to provide home health, hospice, or hospice care center services under the supervision of a registered nurse, physical therapist, occupational therapist, or speech therapist. Such care may include ambulation and exercise, medication assistance level 1 and level 2, reporting changes in client's conditions and needs, completing appropriate records, and personal care or homemaker services, and other nonmedical tasks, as defined in this section.

"Hospice agency" means a person or entity administering or providing hospice services directly or through a contract arrangement to individuals in places of temporary or permanent residence under the direction of an interdisciplinary team composed of at least a nurse, social worker, physician, spiritual counselor, and volunteer. (Note: For the purposes of this subchapter, requirements for hospice agencies also apply to hospice care centers.)

"Hospice care center" means a homelike noninstitutional facility where hospice services are provided, and that meets the requirements for operation under RCW 70.127.280 and applicable rules.

"Hospice services" means symptom and pain management provided to a terminally ill individual, and emotional, spiritual, and bereavement support for the individual and individual's family in a place of temporary or permanent residence.

"Interdisciplinary team" means the group of individuals involved in client care providing hospice services or hospice care center services including, at a minimum, a physician, registered nurse, social worker, spiritual counselor, and volunteer.

Legal representative" means an individual who has been authorized under state law to terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill individual who is mentally or physically incapacitated.

"Palliative" means medical treatment designed to reduce pain or increase comfort, rather than cure.

"Plan of care." ((See WAC 388-551-1320 for details)) means a written document based on assessment of client needs that identifies services to meet these needs.

"Related condition(s)" means any health conditions(s) that manifests secondary to or exacerbates symptoms associated with the progression of the condition and/or disease, the treatment being received, or the process of dying. (Examples of related conditions: Medication management of nausea and vomiting secondary to pain medication; skin breakdown prevention/treatment due to peripheral edema.)

"Residence" means ((where the client lives for an extended period of time)) a client's home or place of living.

"Revoke" ((and)) or "revocation" ((mean a client or family member's)) means the choice to stop receiving hospice care. ((See WAC 388-551-1220 for details.))

"Terminally ill" means the client has a life expectancy of six months or less, assuming the client's disease process runs its natural course.

"Twenty-four-hour day" means a day beginning and ending at midnight.

[Statutory Authority: RCW 74.09.520, 74.08.090, 42 C.F.R. 418.22 and 418.24. 99-09-007, 388-551-1010, filed 4/9/99, effective 5/10/99.]


AMENDATORY SECTION(Amending WSR 99-09-007, filed 4/9/99, effective 5/10/99)

WAC 388-551-1200   Client eligibility for hospice care.   (1) A client who elects to receive hospice care must be eligible for one of the following ((Medicaid)) medical assistance programs ((to receive hospice care)), subject to the restrictions and limitations in this chapter and other WAC:

(a) Categorically needy program (CNP);

(b) ((General assistance - disability determination pending (GAX);

(c))) Limited casualty program - medically needy program (LCP-MNP); ((or

(d))) (c) Children's health (V);

(d) State children's health insurance program (SCHIP);

(e) CNP - Alien emergency medical;

(f) LCP-MNP - Alien emergency medical; or

(g) General assistance-expedited disability (GAX).

(2) ((An eligible Medicaid client who voluntarily chooses hospice care must be certified by a physician as terminally ill before MAA pays for hospice care)) A hospice agency is responsible to verify a client's eligibility with the client or the client's home and community services (HCS) office or community services office (CSO).

(3) ((Clients enrolled in one of MAA's healthy options managed care plans receive all hospice services directly through their plan. The managed care plan must arrange or provide all hospice services for a managed care client)) A client enrolled in one of the department's managed care plans must receive all hospice services, including facility room and board, directly through that plan. The client's managed care plan is responsible for arranging and providing all hospice services for a client enrolled in a managed care plan.

(4) ((Hospice clients attain institutional status as described in WAC 388-513-1320 when they elect and are certified for hospice care. See WAC 388-513-1380 for the client's financial participation requirements)) A client who is also eligible for Medicare part A is not eligible for hospice care through the department's hospice program. The department does pay hospice nursing facility room and board for these clients if the client is admitted to a nursing facility or hospice care center (HCC) and is not receiving general inpatient care or inpatient respite care. See also WAC 388-551-1530.

(5) A client who meets the requirements in this section is eligible to receive hospice care through the department's hospice program when all of the following is met:

(a) The client's physician certifies the client has a life expectancy of six months or less.

(b) The client elects to receive hospice care and agrees to the conditions of the "election statement" as described in WAC 388-551-1310.

(c) The hospice agency serving the client:

(i) Notifies the department's hospice program within five working days of the admission of all clients, including:

(A) Medicaid-only clients;

(B) Medicaid-Medicare dual eligible clients;

(C) Medicaid clients with third party insurance; and

(D) Medicaid-Medicare dual eligible clients with third party insurance.

(ii) Meets the hospice agency requirements in WAC 388-551-1300 and 388-551-1305.

(d) If the client is a Medicaid-only client (i.e., not a medicaid-Medicare dual eligible client) and has a diagnosis other than cancer, the client's initial assessment has been reviewed and approved by the department (see WAC 388-551-1320).

(e) The hospice agency provides additional information for a diagnosis when the department requests and determines, on a case-by-case basis, the information that is needed for further review.

[Statutory Authority: RCW 74.09.520, 74.08.090, 42 C.F.R. 418.22 and 418.24. 99-09-007, 388-551-1200, filed 4/9/99, effective 5/10/99.]


AMENDATORY SECTION(Amending WSR 99-09-007, filed 4/9/99, effective 5/10/99)

WAC 388-551-1210   Covered services ((included in)), including core services and supplies reimbursed through the hospice daily rate.   (1) ((In the client's individual plan of care, the hospice interdisciplinary team identifies the specific Hospice services and supplies to be provided to the client)) The department reimburses a hospice agency for providing covered services, including core services and supplies described in this section, through the department's hospice daily rate, subject to the conditions and limitations described in this section and other WAC.

(2) ((The services must be all of the following)) To qualify for reimbursement, covered services, including core services and supplies in the hospice daily rate, must be:

(a) ((Medically necessary for palliative care)) Related to the client's hospice diagnosis;

(b) ((Related to the client's terminal illness)) Identified by the client's hospice interdisciplinary team;

(c) ((Prescribed by the client's attending physician, alternate physician, or hospice medical director)) Written in the client's plan of care (POC); and

(d) ((Supplied or arranged for by the hospice provider; and

(e) Included in the client's plan of care)) Made available to the client by the hospice agency on a twenty-four hour basis.

(3) ((The following intermittent services and supplies, paid by MAA's hospice daily rate, must be available from and offered by the hospice provider for the client as determined by the client's hospice interdisciplinary team:

(a) Medical equipment and supplies that are medically necessary for palliative care;

(b) Drugs and biologicals used primarily for the relief of pain and management of symptoms;

(c) Home health aide services furnished by qualified aides of the hospice agency. A registered nurse must complete a home-site supervisory visit every two weeks to assess aide services provided;

(d) Physical therapy, occupational therapy, and speech-language therapy to manage symptoms or enable the client to safely perform ADLs (activities of daily living) and basic functional skills;

(e) Physician services related to administration of the plan of care;

(f) Nursing care provided through the hospice agency by either:

(i) A registered nurse; or

(ii) A licensed practical nurse under the supervision of a registered nurse;

(g) Medical social services provided through the hospice agency by a social worker under the direction of a physician;

(h) Counseling services provided through the hospice agency to the client and his or her family members or caregivers;

(i) Medical transportation services; and

(j) Short-term, inpatient care, provided in a Medicare-certified hospice inpatient unit, hospital, or nursing facility)) The hospice daily rate includes the following core services that must be either provided by hospice agency staff, or contracted through a hospice agency, if necessary, to supplement hospice staff in order to meet the needs of a client during a period of peak patient loads or under extraordinary circumstances:

(a) Physician services related to the administration of POC.

(b) Nursing care provided by:

(i) A registered nurse (RN); or

(ii) A licensed practical nurse (LPN) under the supervision of an RN.

(c) Medical social services provided by a social worker under the direction of a physician.

(d) Counseling services provided to a client and the client's family members or caregivers.

(4) Covered services and supplies may be provided by a service organization or an individual provider when contracted through a hospice agency. To be reimbursed the hospice daily rate, a hospice agency must:

(a) Assure all contracted staff meets the regulatory qualification requirements;

(b) Have a written agreement with the service organization or individual providing the services and supplies; and

(c) Maintain professional, financial, and administrative responsibility.

(5) The following covered services and supplies are included in the appropriate hospice daily rate as described in WAC 388-551-1510(6), subject to the conditions and limitations described in this section and other WAC:

(a) Skilled nursing care;

(b) Drugs, biologicals, and over-the-counter medications used for the relief of pain and symptom control of a client's terminal illness and related conditions;

(c) Communication with nonhospice providers about care not related to the client's terminal illness to ensure the client's plan of care needs are met and not compromised;

(d) Medical equipment and supplies that are medically necessary for the palliation and management of a client's terminal illness and related conditions;

(e) Home health aide, homemaker, and/or personal care services that are ordered by a client's physician and documented in the POC. (Home health aide services are provided through the hospice agency to meet a client's extensive needs due to the client's terminal illness. These services must be provided by a qualified home health aide and are an extension of skilled nursing or therapy services. See 42 CFR 484.36);

(f) Physical therapy, occupational therapy, and speech-language therapy to manage symptoms or enable a client to safely perform ADLs (activities of daily living) and basic functional skills;

(g) Medical transportation services;

(h) A brief period of inpatient care, for general or respite care provided in a Medicare-certified hospice care center, hospital, or nursing facility; and

(i) Other services or supplies that are documented as necessary for the palliation and management of a client's terminal illness and related conditions;

(6) A hospice agency is responsible to determine if a nursing facility has requested authorization for medical supplies or medical equipment, including wheelchairs, for a client who becomes eligible for the hospice program. The department does not pay separately for medical equipment or supplies that were previously authorized by the department and delivered on or after the date the department enrolls the client in the hospice program.

[Statutory Authority: RCW 74.09.520, 74.08.090, 42 C.F.R. 418.22 and 418.24. 99-09-007, 388-551-1210, filed 4/9/99, effective 5/10/99.]


AMENDATORY SECTION(Amending WSR 99-09-007, filed 4/9/99, effective 5/10/99)

WAC 388-551-1300   ((How to become a MAA)) Requirements for a department-approved hospice ((provider)) agency.   (1) To ((be reimbursed by MAA, a)) become a department-approved hospice agency ((must be:

(a))), the department requires a hospice agency to provide documentation that it is Medicare, Title XVIII certified((; and

(b) Enrolled with MAA as a provider of hospice care)) by the department of health (DOH) as a hospice agency.

(2) ((All services provided through a hospice agency must be performed by qualified personnel as required through Medicare's certification process in effect as of February 1, 1999. For more information on Medicare certifications, contact:


Department of Health

Hospice Certification Program

Mailstop 47852

Olympia, Washington, 98504-7852.))


A department-approved hospice agency must at all times meet the requirements in chapter 388-551 WAC, subchapter I, Hospice services, and the requirements under the Title XVIII Medicare Program.

(3) ((Freestanding hospice agencies licensed as hospitals by the department of health must sign an additional selective contract with MAA to receive payment from MAA)) To ensure quality of care for medical assistance client's, the department's clinical staff may conduct hospice agency site visits.

[Statutory Authority: RCW 74.09.520, 74.08.090, 42 C.F.R. 418.22 and 418.24. 99-09-007, 388-551-1300, filed 4/9/99, effective 5/10/99.]


NEW SECTION
WAC 388-551-1305   Requirements for becoming a department-approved hospice care center (HCC).   (1) To apply to become a department-approved hospice care center, the department requires a hospice agency to:

(a) Be enrolled with the department as a department hospice agency (see WAC 388-551-1300);

(b) Submit a letter of request to:


Hospice Program Manager

Division of Medical Management

Department of Social and Health Services

PO Box 45506

Olympia, WA 98504-5506; and


(c) Include documentation that confirms the agency is Medicare certified by department of health (DOH) as a hospice care center and provides one or more of the following levels of hospice care (levels of care are described in WAC 388-551-1500):

(i) Routine home care;

(ii) Inpatient respite care; and

(iii) General inpatient care.

(2) A department-approved hospice care center must at all times meet the requirements in chapter 388-551 WAC, subchapter I, Hospice services, and the requirements under the Title XVIII Medicare Program.

(3) A hospice agency qualifies as a department-approved hospice care center when:

(a) All the requirements in this section are met; and

(b) The department provides the hospice agency with written notification.

[]


AMENDATORY SECTION(Amending WSR 99-09-007, filed 4/9/99, effective 5/10/99)

WAC 388-551-1310   ((Certifications (election periods) for hospice clients)) Hospice election periods, election statements, and the hospice certification process.   ((A client chooses to receive Hospice care through a series of time-limited periods, called "election periods." An example of this process is WAC 388-551-1315. Hospice providers are responsible for obtaining physician certifications for these election periods.

(1) A client's hospice coverage must be available for two initial ninety-day election periods followed by an unlimited number of succeeding sixty-day election periods.

(2) The hospice provider must document the client's medical prognosis of a specific terminal illness in the client's hospice record. This written certification must be filed in the client's hospice record for each election period. The certification must meet all of the following criteria:

(a) For the initial election period, signatures of the hospice medical director and the client's attending physician; and

(b) For subsequent election periods:

(i) Signature of the hospice medical director; and

(ii) Verbal certifications by the hospice medical director or the client's attending physician must be documented in writing no later than two calendar days after hospice care is initiated or renewed.

(3) The provider must file election statements in the client's hospice medical record. This election statement must include:

(a) Name and address of the hospice;

(b) Proof that client was fully informed about hospice care and waiver of other services;

(c) Effective date of the election; and

(d) Signature of the client or their representative.

(4) When a client's hospice coverage ends within an election period, the remainder of that election period is forfeited)) (1) Hospice coverage is available for two ninety-day election periods followed by an unlimited number of sixty-day election periods. A client or a client's authorized representative must sign an election statement to initiate or reinitiate an election period for hospice care.

(2) The election statement must be filed in the client's hospice medical record within two calendar days following the day the hospice care begins and requires all of the following:

(a) Name and address of the hospice agency that will provide the care;

(b) Documentation that the client is fully informed and understands hospice care and waiver of other Medicaid and/or Medicare services;

(c) Effective date of the election; and

(d) Signature of the client or the client's authorized representative.

(3) The following describes the hospice certification process:

(a) At the time a client elects to receive hospice care, the department requires a hospice agency to:

(i) Obtain a signed written certification of the client's terminal illness; or

(ii) Document in the client's medical file that a verbal certification was obtained and follow up a documented verbal certification with a written certification signed by:

(A) The medical director of the hospice agency or a physician staff member of the interdisciplinary team; and

(B) The client's attending physician (if the client has one).

(iii) Place the signed written certification of the client's terminal illness in the client's medical file:

(A) Within sixty days following the day the hospice care begins; and

(B) Before billing the department for the hospice services.

(b) For subsequent election periods, the department requires the hospice agency to:

(i) Obtain a signed written certification statement of the client's terminal illness; or

(ii) Document in the client's medical file that a verbal certification was obtained and follow up a documented verbal certification with a written certification signed by the medical director of the hospice agency or a physician staff member of the hospice agency; and

(iii) Place the written certification of the client's terminal illness in the client's medical file:

(A) Within two calendar days following the beginning of a subsequent election period; and

(B) Before billing the department for the hospice services.

(4) When a client's hospice coverage ends within an election period (e.g., the client revokes hospice care), the remainder of that election period is forfeited. The client may reinstate the hospice benefit at any time by providing an election statement and meeting the certification process requirements.

[Statutory Authority: RCW 74.09.520, 74.08.090, 42 C.F.R. 418.22 and 418.24. 99-09-007, 388-551-1310, filed 4/9/99, effective 5/10/99.]


AMENDATORY SECTION(Amending WSR 99-09-007, filed 4/9/99, effective 5/10/99)

WAC 388-551-1320   Hospice plan of care.   (1) ((The)) A hospice agency must establish ((the client's hospice plan of care)) a written plan of care (POC) for a client that describes the hospice care to be provided. The POC must be in accordance with ((Medicare)) department of health (DOH) requirements ((before hospice services are delivered. Hospice services delivered must be consistent with that plan of care)) as described in WAC 246-335-985, and meet the requirements in this section.

(2) A registered nurse or physician must conduct an initial physical assessment of ((the)) a client and ((must)) develop the ((plan of care)) POC with at least one other member of the hospice interdisciplinary team.

(3) ((The hospice interdisciplinary team)) At least two other hospice interdisciplinary team members must review ((in a case planning conference)) the ((plan of care,)) POC no later than two working days after it is developed.

(4) The ((plan of care)) POC must be reviewed and updated every two weeks by at least three members of the hospice interdisciplinary team((, including)) that includes at least:

(a) A registered nurse;

(b) A social worker; and

(c) One other hospice interdisciplinary team member.

(((5) Also see WAC 246-331-135 for the department of health's plan of care requirements.))

[Statutory Authority: RCW 74.09.520, 74.08.090, 42 C.F.R. 418.22 and 418.24. 99-09-007, 388-551-1320, filed 4/9/99, effective 5/10/99.]

Washington State Code Reviser's Office