Effective Date of Rule: Thirty-one days after filing.

     Purpose: HRSA has added language to new WAC 388-501-0070 stating that a client has the right to request a fair hearing when denied a noncovered service by the department. The language was added to address a commenter's concern about the removal of a sentence in WAC 388-543-1300(3) that related to a client's right to request a fair hearing in the event the client's request for a noncovered service is denied. No changes were made to WAC 388-543-1300. These rules were originally proposed under WSR 06-19-098 and 06-19-100.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-543-1300.

     Statutory Authority for Adoption: RCW 74.04.050, 74.08.090, 74.09.530, and 74.09.700.

      Adopted under notice filed as WSR 06-23-124 on November 21, 2006.

     Changes Other than Editing from Proposed to Adopted Version: The entire wording in subsection (7) of WAC 388-501-0070 has been struck: If a client's eligibility for medical assistance is newly established and the client had been receiving a service prior to becoming eligible that is not covered by the department, and the client requests a hearing, the department will not pay for the service pending the outcome of the hearing.

     A final cost-benefit analysis is available by contacting Kevin Sullivan, P.O. Box 45504, Olympia, WA 98504-5504, phone (360) 725-1344, fax (360) 586-9727, e-mail sullikm@dshs.wa.gov.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 1, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 1, Repealed 0.

     Date Adopted: January 29, 2007.

Robin Arnold-Williams

Secretary

     (2) This section does not apply to services provided under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program as described in chapter 388-534 WAC.

     (3) The department does not pay for any ancillary service(s) provided in association with a noncovered service.

     (4) The following list of noncovered services is not intended to be exhaustive. Noncovered services include, but are not limited to:

     (a) Any service specifically excluded by federal or state law;

     (b) Acupuncture, Christian Science practice, faith healing, herbal therapy, homeopathy, massage, massage therapy, naturopathy, and sanipractice;

     (c) Chiropractic care for adults;

     (d) Cosmetic, reconstructive, or plastic surgery, and any related services and supplies, not specifically allowed under WAC 388-531-0100(4).

     (e) Ear or other body piercing;

     (f) Face lifts or other facial cosmetic enhancements;

     (g) Gender reassignment surgery and any surgery related to transsexualism, gender identity disorders, and body dysmorphism, and related services, supplies, or procedures, including construction of internal or external genitalia, breast augmentation, or mammoplasty;

     (h) Hair transplants, epilation (hair removal), and electrolysis;

     (i) Fertility, infertility or sexual dysfunction testing, care, drugs, and treatment including but not limited to:

     (i) Artificial insemination;

     (ii) Donor ovum, sperm, or surrogate womb;

     (iii) In vitro fertilization;

     (iv) Penile implants;

     (v) Reversal of sterilization; and

     (vi) Sex therapy.

     (j) Marital counseling;

     (k) Motion analysis, athletic training evaluation, work hardening condition, high altitude simulation test, and health and behavior assessment;

     (l) Nonmedical equipment;

     (m) Penile implants;

     (n) Prosthetic testicles;

     (o) Psychiatric sleep therapy;

     (p) Subcutaneous injection filling;

     (q) Tattoo removal;

     (r) Transport of Involuntary Treatment ACT (ITA) clients to or from out-of-state treatment facilities, including those in bordering cities; and

     (s) Vehicle purchase - new or used vehicle.

     (5) For a specific listing of noncovered services in the following service categories, refer to the accompanying WAC citation:

     (a) Ambulance transportation as described in WAC 388-546-0250;

     (b) Dental services (for clients twenty-one years of age and younger) as described in Chapter 388-535 WAC;

     (c) Dental services (for clients twenty-one years of age and older) as described in Chapter 388-535 WAC;

     (d) Durable medical equipment as described in WAC 388-543-1300;

     (e) Hearing care services as described in WAC 388-544-1400;

     (f) Home health services as described in WAC 388-551-2130;

     (g) Hospital services as described in WAC 388-550-1600;

     (h) Physician-related services as described in WAC 388-531-0150;

     (i) Prescription drugs as described in WAC 388-530-1150; and

     (j) Vision care services as described in WAC 388-544-0475.

     (6) A client has a right to request an administrative hearing when a service is denied as noncovered. When the department denies all or part of a request for a noncovered service(s) or equipment, the department sends the client and the provider written notice, within ten business days of the date the decision is made, that includes:

     (a) A statement of the action the department intends to take;

     (b) Reference to the specific WAC provision upon which the denial is based;

     (c) Sufficient detail to enable the recipient to:

     (i) Learn why the department's action was taken; and

     (ii) Prepare a response to the department's decision to classify the requested service as noncovered.

     (d) The specific factual basis for the intended action;

     (e) The following information:

     (i) The client's administrative hearing rights;

     (ii) Instructions on how to request the hearing;

     (iii) Acknowledgement that a client may be represented at the hearing by legal counsel or other representative;

     (iv) Upon the client's request, the name and address of the nearest legal services office;

     (v) Instructions on how to request an exception to rule (ETR); and

     (vi) Information regarding department-covered services, if any, as an alternative to the requested noncovered service.

     (7) A client can request an ETR as described in WAC 388-501-0160.

[]

     (2) ((MAA)) The department pays only for prosthetics or orthotics that are listed as such by the Centers for Medicare and Medicaid Services (CMS), formerly known as HCFA, that meet the definition of prosthetic and orthotic as defined in WAC 388-543-1000 and are prescribed per WAC 388-543-1100 and 388-543-1200.

     (3) ((MAA)) The department considers all requests for covered DME, related supplies and services, medical supplies, prosthetics, orthotics, and related services ((and noncovered equipment, related supplies and services, supplies and devices,)) under the provisions of WAC 388-501-0165. ((When MAA considers that a request does not meet the requirement for medical necessity, the definition(s) of covered item(s), or is not covered, the client may appeal that decision under the provisions of WAC 388-501-0165.))

     (4) ((MAA)) The department evaluates a request for any DME item listed as noncovered in this chapter under the provisions of WAC 388-501-0160.

     (5) The department specifically excludes services and equipment in this chapter from fee-for-service (FFS) scope of coverage when the services and equipment do not meet the definition for a covered item, or the services are not typically medically necessary. This exclusion does not apply if the services and equipment are:

     (a) Included as part of a managed care plan service package;

     (b) Included in a waivered program;

     (c) Part of one of the Medicare programs for qualified Medicare beneficiaries; or

     (d) Requested for a child who is eligible for services under the EPSDT program. ((MAA)) The department reviews these requests according to the provisions of chapter 388-534 WAC.

     (((5))) (6) Excluded services and equipment include, but are not limited to:

     (a) Services, procedures, treatment, devices, drugs, or the application of associated services that the ((department of the)) Food and Drug Administration (FDA) and/or the Centers for Medicare and Medicaid Services (CMS)((, formerly known as the Health Care Financing Administration (HCFA))) consider investigative or experimental on the date the services are provided;

     (b) Any service specifically excluded by statute;

     (c) A client's utility bills, even if the operation or maintenance of medical equipment purchased or rented by ((MAA)) the department for the client contributes to an increased utility bill (refer to the aging and ((adult)) disability services administration's (((AASA))) (ADSA) COPES program for potential coverage);

     (d) Hairpieces or wigs;

     (e) Material or services covered under manufacturers' warranties;

     (f) Shoe lifts less than one inch, arch supports for flat feet, and nonorthopedic shoes;

     (g) Outpatient office visit supplies, such as tongue depressors and surgical gloves;

     (h) Prosthetic devices dispensed solely for cosmetic reasons (refer to WAC 388-531-0150 (1)(d));

     (i) Home improvements and structural modifications, including but not limited to the following:

     (i) Automatic door openers for the house or garage;

     (ii) Saunas;    

     (iii) Security systems, burglar alarms, call buttons, lights, light dimmers, motion detectors, and similar devices;

     (iv) Swimming pools;

     (v) Whirlpool systems, such as jacuzzies, hot tubs, or spas; or

     (vi) Electrical rewiring for any reason;

     (vii) Elevator systems and elevators; and

     (viii) Lifts or ramps for the home; or

     (ix) Installation of bathtubs or shower stalls.

     (j) Nonmedical equipment, supplies, and related services, including but not limited to, the following:

     (i) Back-packs, pouches, bags, baskets, or other carrying containers;

     (ii) Bed boards/conversion kits, and blanket lifters (e.g., for feet);

     (iii) Car seats for children under five, except for positioning car seats that are prior authorized. Refer to WAC 388-543-1700(13) for car seats;

     (iv) Cleaning brushes and supplies, except for ostomy-related cleaners/supplies;

     (v) Diathermy machines used to produce heat by high frequency current, ultrasonic waves, or microwave radiation;

     (vi) Electronic communication equipment, installation services, or service rates, including but not limited to, the following:

     (A) Devices intended for amplifying voices (e.g., microphones);

     (B) Interactive communications computer programs used between patients and healthcare providers (e.g., hospitals, physicians), for self care home monitoring, or emergency response systems and services (refer to ((AASA)) ADSA COPES or outpatient hospital programs for emergency response systems and services);

     (C) Two-way radios; and

     (D) Rental of related equipment or services;

     (vii) Environmental control devices, such as air conditioners, air cleaners/purifiers, dehumidifiers, portable room heaters or fans (including ceiling fans), heating or cooling pads;

     (viii) Ergonomic equipment;

     (ix) Exercise classes or equipment such as exercise mats, bicycles, tricycles, stair steppers, weights, trampolines;

     (x) Generators;

     (xi) Computer software other than speech generating, printers, and computer accessories (such as anti-glare shields, backup memory cards);

     (xii) Computer utility bills, telephone bills, internet service, or technical support for computers or electronic notebooks;

     (xiii) Any communication device that is useful to someone without severe speech impairment (e.g., cellular telephone, walkie-talkie, pager, or electronic notebook);

     (xiv) Racing strollers/wheelchairs and purely recreational equipment;

     (xv) Room fresheners/deodorizers;

     (xvi) Bidet or hygiene systems, paraffin bath units, and shampoo rings;

     (xvii) Timers or electronic devices to turn things on or off, which are not an integral part of the equipment;

     (xviii) Vacuum cleaners, carpet cleaners/deodorizers, and/or pesticides/insecticides; or

     (xix) Wheeled reclining chairs, lounge and/or lift chairs (e.g., geri-chair, posture guard, or lazy boy).

     (k) Personal and comfort items that do not meet the DME definition, including but not limited to the following:

     (i) Bathroom items, such as antiperspirant, astringent, bath gel, conditioner, deodorant, moisturizer, mouthwash, powder, shampoo, shaving cream, shower cap, shower curtains, soap (including antibacterial soap), toothpaste, towels, and weight scales;

     (ii) Bedding items, such as bed pads, blankets, mattress covers/bags, pillows, pillow cases/covers and sheets;

     (iii) Bedside items, such as bed trays, carafes, and over-the-bed tables;

     (iv) Clothing and accessories, such as coats, gloves (including wheelchair gloves), hats, scarves, slippers, and socks;

     (v) Clothing protectors and other protective cloth furniture coverings;

     (vi) Cosmetics, including corrective formulations, hair depilatories, and products for skin bleaching, commercial sun screens, and tanning;

     (vii) Diverter valves for bathtub;

     (viii) Eating/feeding utensils;

     (ix) Emesis basins, enema bags, and diaper wipes;

     (x) Health club memberships;

     (xi) Hot or cold temperature food and drink containers/holders;

     (xii) Hot water bottles and cold/hot packs or pads not otherwise covered by specialized therapy programs;

     (xiii) Impotence devices;

     (xiv) Insect repellants;

     (xv) Massage equipment;

     (xvi) Medication dispensers, such as med-collators and count-a-dose, except as obtained under the compliance packaging program. See chapter 388-530 WAC;

     (xvii) Medicine cabinet and first-aid items, such as adhesive bandages (e.g., Band-Aids, Curads), cotton balls, cotton-tipped swabs, medicine cups, thermometers, and tongue depressors;

     (xviii) Page turners;

     (xix) Radio and television;

     (xx) Telephones, telephone arms, cellular phones, electronic beepers, and other telephone messaging services; and

     (xxi) Toothettes and toothbrushes, waterpics, and peridontal devices whether manual, battery-operated, or electric.

     (l) Certain wheelchair features and options are not considered by ((MAA)) the department to be medically necessary or essential for wheelchair use. This includes, but is not limited to, the following:

     (i) Attendant controls (remote control devices);

     (ii) Canopies, including those for strollers and other equipment;

     (iii) Clothing guards to protect clothing from dirt, mud, or water thrown up by the wheels (similar to mud flaps for cars);

     (iv) Identification devices (such as labels, license plates, name plates);

     (v) Lighting systems;

     (vi) Speed conversion kits; and

     (vii) Tie-down restraints, except where medically necessary for client-owned vehicles.

[Statutory Authority: RCW 74.08.090, 74.09.530. 02-16-054, § 388-543-1300, filed 8/1/02, effective 9/1/02; 01-01-078, § 388-543-1300, filed 12/13/00, effective 1/13/01.]

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