WSR 05-19-127

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed September 20, 2005, 4:31 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-14-073.

Title of Rule and Other Identifying Information: Adopting new WAC 388-106-1000 through 388-106-1055, private duty nursing; and repealing WAC 388-71-0900 through 388-71-0965, private duty nursing.

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 October 25, 2005, at 10:00 a.m.

Date of Intended Adoption: Not earlier than October 26, 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. October 25, 2005.

Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by October 21, 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: Rules are necessary to clarify the definitions for nursing services, to define the scope of services to be authorized, and to describe the necessity for documentation to support the required services.

Reasons Supporting Proposal: See above.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

Statute Being Implemented: RCW 74.08.090, 74.09.520, 42 C.F.R. 440.80.

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, Implementation and Enforcement: Doris Barret, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2553.

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

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Tiffany Sevruk, Home and Community Services Division, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2538, fax (360) 407-7582, e-mail sevruta@dshs.wa.gov.

September 15, 2005

Andy Fernando, Manager

Rules and Policies Assistance Unit

3589.3
NEW SECTION
WAC 388-106-1000   What is the intent of WAC 388-106-1000 through WAC 388-106-1055?   The intent of WAC 388-106-1000 through WAC 388-106-1055 is to:

(1) Describe the eligibility requirements under which an adult age eighteen or older may receive Private Duty Nursing (PDN) services through the Department's Aging and Disability Services Administration (ADSA);

(2) Provide assistance to clients and enable families to support clients in their own homes; and

(3) Describe the requirements clients and their families, home health agencies, and privately contracted registered nurses (RNs) and licensed practical nurses (LPNs) must meet in order for services to be authorized for PDN.

[]


NEW SECTION
WAC 388-106-1005   What services may I receive under private duty nursing (PDN)?   PDN is a program that provides skilled nursing care if you have complex medical needs that cannot be met through other services. PDN is an alternative to institutional care and is the program of last resorts. If you are eligible, you may receive at least four continuous hours of skilled nursing care on a daily basis through the Private Duty Nursing (PDN) program.

[]


NEW SECTION
WAC 388-106-1010   Am I eligible for Medicaid-funded private duty nursing services?   In order to be eligible for Medicaid-funded PDN, you must:

(1) Be financially eligible, which means you:

(a) Meet Medicaid requirements under the Categorically Needy program or the Medically Needy Program (MNP).

(b) Use private insurance as first payer, as required by Medicaid rules. Private insurance benefits, which cover hospitalization and in-home services, must be ruled out as the first payment source to PDN.

(2) Be medically eligible, which means an ADSA Department's Community Nurse Consultant (CNC) or DSHS's Division of Disabilities Services' (DDS) Nursing Care Consultant (NCC) must assess you using the CARE assessment and the PDN skilled nursing task log for initial eligibility determination and thereafter every six months, and determine that you:

(a) Require care in a hospital or meet nursing facility level of care, as defined in WAC 388-106-0310; and

(b) Have unmet skilled nursing needs that cannot be met in a less costly program or less restrictive environment; and

(c) Are not able to have your care tasks provided through nurse delegation, WAC 388-101-2400 COPES skilled nursing, WAC 388-515-1505 or self-directed care RCW 74.39.050; and

(d) Have a complex medical need that requires four or more hours of continuous skilled nursing care which can be safely provided outside a hospital or nursing facility; and

(e) Require skilled nursing care that is medically necessary, per WAC 388-500-0005; and

(f) Be able to supervise your care (provider) or have a guardian who is authorized to supervise your care; and

(g) Have family or other appropriate informal support who is responsible for assuming a portion of your care; and

(h) Have your primary care physician document your medical stability and appropriateness for PDN and:

(i) Provide orders for medical services; and

(ii) Document approval of the service provider's PDN plan of care.

(i) Do not have other resources or means for obtaining this service; and

(j) Are dependant upon technology every day, with at least one of the following skilled care needs:

(i) You need mechanical ventilation, and the use of a mechanical device to fill the lungs with oxygenated air and then allow time for passive exhalation; and

(ii) You need complex respiratory support, which means that:

(A) You require two of the following treatment needs at least one time in a four continuous hour period:

(I) Postural drainage and chest percussion; or

(II) Application of respiratory vests; or

(III) Nebulizer treatments with or without medications; or

(IV) Intermittent Positive Pressure Breathing; or

(V) O2 saturation measurement with treatment decisions dependent on the results; and

(B) Your treatment needs be assessed and provided by an RN or LPN; and

(C) Your treatment needs cannot be nurse delegated or self-directed;

(iii) You need tracheostomy care, and care requires sterile suctioning at least one time in a four continuous hour period;

(iv) You need intravenous/parenteral administration of multiple medications, and care is occuring on a continuing or frequent basis such that skilled nursing care is required for a four hour period or more; or

(v) You need intravenous administration of nutritional substances, and care is occuring on a continuing or frequent basis such that skilled nursing care is required for a four hour period or more.

[]


NEW SECTION
WAC 388-106-1020   How do I pay for my PDN services?   You are not required to pay participation for PDN services, but the cost of services is subject to estate recovery, under chapter 388-527 WAC. If you are also receiving other services (e.g. COPES), you may be responsible for paying participation as required under WAC 388-515-1505, WAC 388-515-1540, or WAC 388-515-1550. Your financial worker will inform you about your participation requirements for those services.

[]


NEW SECTION
WAC 388-106-1025   Who can provide my PDN services?   In addition to a family member(s) or an Individual Provider providing self-directed care under RCW 74.39.050 or an Individual Provider or Home Care Agency caregiver providing Nurse Delegation per WAC 388-101-2400:

(1) A home health agency licensed by the Washington State Department of Health can provide your PDN services as long as it also has a PDN contract with DSHS's Aging and Disability Services Administration.

(2) If a home health agency described in subsection (1) is not willing to provide your PDN services, or is not available due to your geographic location, an ADSA private registered nurse (RN) or licensed practical nurse (LPN) who meets the requirements of WAC 388-106-1040 may be able to provide your PDN services.

[]


NEW SECTION
WAC 388-106-1030   Are there limitations or other requirements for PDN?   The limits to PDN services are:

(1) Your PDN services can be authorized for four to sixteen hours per day, except as noted in WAC 388-106-1045(4). This authorization is based on a combination of skilled nursing tasks identified in CARE, the department designated PDN Skilled Nursing Task Log, and detailed information provided to CNC or NCC. The CNC or NCC determines initial eligibility for PDN, up to a maximum of sixteen hours per day. After the initial determination of eligibility is made by the CNC or NCC, the PDN Skilled Nursing Task Log will be initiated and completed by the agency or private nurse(s) for fourteen days and submitted to the CNC or NCC for review. At the end of the fourteen-day review period, a final determination will be made on the number of PDN hours required to meet your care needs. PDN skilled task logs will also be completed for fourteen days prior to the six-month reassessment for review by the CNC or NCC to determine ongoing eligibility and required PDN hours.

(2) Trained family members must provide for any hours above your assessment determination, or you or your family must pay for these additional hours.

(3) In instances where your family is temporarily absent due to vacations, additional PDN hours must be:

(a) Paid for by you or your family; or

(b) Provided by other trained family members. If this is not possible, you may need placement in a long-term care facility during their absence.

(4) You may use respite care if you and your unpaid family caregiver meet the eligibility criteria defined in WAC 388-106-1210.

(5) You may receive additional hours, up to thirty days only when:

(a) Your family is being trained in care and procedures;

(b) You have an acute episode that would otherwise require hospitalization;

(c) Your caregiver is ill or temporarily unable to provide care; or

(d) There is a family emergency.

[]


NEW SECTION
WAC 388-106-1035   What requirements must a home health agency meet in order to provide and get paid for my PDN?   A home health agency must:

(1) Be licensed by the Washington State Department of Health and have a contract to provide Private Duty Nursing Services with Aging and Disability Services Administration;

(2) Operate under physician orders;

(3) Develop and follow a detailed service plan that is reviewed and signed at least every six months by the client's physician;

(4) Initiate and complete the PDN skilled Nursing Task Log for fourteen days and submitted to the CNC or NCC for review for initial eligibility determination and fourteen days prior to the six-month reassessments;

(5) Meet all documentation requirement required by DOH In-home licensing, WAC 246-335-055, WAC 246-335-080, and WAC 246-335-110; and

(6) Submit timely and accurate invoices to the Social Services Payment System (SSPS).

[]


NEW SECTION
WAC 388-106-1040   What requirements must a private duty RN, or LPN under the supervision of an RN, meet in order to provide and get paid for my PDN services?   In order to be paid by the department, a private RN under the supervision of a physician, or LPN under the supervision of an RN, must:

(1) Have a license in good standing, per RCW 18.79.030 (1)(3);

(2) Complete a PDN contract with ADSA;

(3) Provide services according to the plan of care under the supervision/direction of a physician;

(4) Complete a background inquiry application. This will require fingerprinting if the RN or LPN has lived in the state of Washington less than three years;

(5) Have no conviction for a disqualifying crime, as stated in RCW 43.43.830 and 43.43.842 and WAC 388-71-0500 through WAC 388-71-05640 series;

(6) Have no stipulated finding of fact and conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry with a finding of abuse, neglect, abandonment or exploitation of a minor or vulnerable adult;

(7) Meet provider requirements under WAC 388-71-0510, WAC 388-71-0515, WAC 388-71-0540, WAC 388-71-0551, and WAC 388-71-0556;

(8) Complete time sheets monthly;

(9) Complete documentation regarding all PDN services provided per the plan of care as required in WAC 388-502-0020 and WAC 246-840-700;

(10) The PDN skilled Nursing Task Log must be initiated and completed by the licensed nurse for fourteen days and submitted to the CNC or NCC for review for initial eligibility determination and fourteen days prior to the six-month reassessment determination. The licensed nurse is responsible to submit these logs to the NCC or CNC when they are completed; and

(11) Submit timely and accurate invoices to SSPS.

[]


NEW SECTION
WAC 388-106-1045   Can I receive PDN services in a licensed adult family home (AFH)?   You may be eligible to receive PDN services if you are residing in an Adult Family Home (AFH) if the AFH provider (owner and operator) meets the following requirements:

(1) Possesses current Washington State Registered Nurse license in good standing;

(2) Signs a contract amendment with ADSA in which the provider agrees to ensure provision of twenty-four-hour personal care and nursing care services. Nursing care service will be provided in accordance with chapter 18.79 RCW;

(3) Provides your PDN service through an RN, or LPN under the supervision of an RN. PND services are based on the CARE assessment, the department designated PDN skilled task log, and other documentation which determines eligibility and the number of PDN hours to be authorized;

(4) Provides the PDN services to you. Your service plan may be authorized for four to eight hours per day and cannot exceed a maximum of eight PDN care hours per day based on the CARE assessment, the department designated PDN skilled task log, and other documentation;

(5) Have a nursing service plan prescribed by your primary physician. The physician is responsible for:

(a) Overseeing your plan of care, which must be updated at least every six months;

(b) Monitoring client's medical stability; and

(6) Document the services provided per the plan of care and the department designated PDN Skilled Task Log at initial eligibility determination and fourteen days prior to the six-month re-assessment determination and other documentation; and

(7) Keep records in accordance with AFH licensing and contract requirements.

[]

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.
NEW SECTION
WAC 388-106-1050   May I receive other long-term care services in addition to PDN?   (1) In addition to PDN services, you may be eligible to receive care through Community Options Program Entry System (COPES), Medically Needy Residential Waiver (MNRW), Medically-Needy In-home Waiver (MNIW), or Medicaid Personal Care (MPC), for unmet personal needs not performed by your family/informal support system.

(2) If you receive personal care services in addition to PDN services, you cannot receive your personal care and household tasks from an individual provider, personal aide, or home care agency provider at the same time that your PDN provider is providing your care. The agency or privately contracted nurse is responsible for providing personal care and/or household tasks that occur during the time that they are providing your PDN services, unless you have an information support that is providing or assisting you at the same time.

[]


NEW SECTION
WAC 388-106-1055   Can I choose to self-direct my care if I receive PDN services?   You may choose to self-direct part of your health-related tasks to an individual provider, as outlined in RCW 74.39.050. You may also still receive PDN services, if you meet the PDN eligibility requirements.

[]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-71-0900 What is the intent of WAC 388-71-0900 through 388-71-0960?
WAC 388-71-0905 What is private duty nursing (PDN) for adults?
WAC 388-71-0910 Am I financially eligible for Medicaid-funded private duty nursing services?
WAC 388-71-0915 Am I medically eligible to receive private duty nursing services?
WAC 388-71-0920 How is my eligibility determined?
WAC 388-71-0925 Am I required to pay participation toward PDN services?
WAC 388-71-0930 Are PDN costs subject to estate recovery?
WAC 388-71-0935 Who can provide my PDN services?
WAC 388-71-0940 Are there limitations or other requirements for PDN?
WAC 388-71-0945 What requirements must a home health agency meet in order to provide and get paid for my PDN?
WAC 388-71-0950 What requirements must a private RN or LPN meet in order to provide and get paid for my PDN services?
WAC 388-71-0955 Can I receive PDN in a licensed adult family home (AFH)?
WAC 388-71-0960 Can I receive services in addition to PDN?
WAC 388-71-0965 Can I choose to self-direct my care if I receive PDN?

Washington State Code Reviser's Office