WSR 07-12-022

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed May 29, 2007, 8:29 a.m. , effective June 1, 2007 ]


Effective Date of Rule: June 1, 2007.

Purpose: The division of developmental disabilities (DDD) has had ongoing discussions with the federal Center for Medicare and Medicaid Services (CMS) and has received approval from CMS to amend its waivers under Section 1915 of the Social Security Act. These amendments also respond to the proposed order and settlement agreement under Boyle v. Arnold-Williams and incorporate the provisions of the letter of agreement between the state of Washington (office of financial management) and the Service Employees International Union (SEIU). Finally these rules are necessary to implement the recommendations in a June 2003 performance audit by the joint legislative audit and review committee. These rules have been filed under the proposed rule making CR-102 filed as WSR 07-11-130 on May 22, 2007.

Citation of Existing Rules Affected by this Order:

Washington Administrative Code Effect of Rule
388-845-0001 - Definitions
"DDD assessment" (new) Defines DDD assessment.
"Family" (new) Defines family.
"Individual support plan (ISP)" (new) Defines ISP.
"Legal representative" (new) Defines legal representative.
"Necessary supplemental accommodation representative" (new) Defines necessary supplemental accommodation representative.
"Plan of care (POC)" (amended) Specifies that the POC remains in effect until the DDD assessment is administered and the ISP is developed.
"Providers" (amended) Clarifies that providers must meet all provider qualifications and are contracted with ADSA.
"Respite assessment" (amended) Defines the respite assessment as an algorithm.
388-845-0015 (amended) Eliminates reference to CAP waiver and changes tense to reflect current situation.
388-845-0025 (deleted) Deletes section as conversion from CAP waiver is complete.
388-845-0030 (amended) Corrects cross references and adds the ISP as an alternative to the POC.
388-845-0031 (new) Clarifies that one cannot be enrolled in more than one HCBS waiver at the same time.
388-845-0035 (amended) Clarifies that enrollment in a new or different HCBS waiver is not guaranteed.
388-845-0040 (amended) Clarifies that DDD may limit capacity.
388-845-0041 (amended) Adds the ISP as an alternative to the POC.
388-845-0045 (amended) Clarifies that individuals may be enrolled from the statewide data base when there is capacity and funding for new waiver participants and revises "health and safety" to "health and welfare."
388-845-0050 (amended) Adds reference to requests for enrollment in a different waiver.
399-845-0052 (new) Defines the process for requests to be enrolled in a different waiver and DDD's notice requirement in accordance with the Boyle lawsuit.
388-845-0055 (amended) Clarifies language concerning ongoing eligibility once one is enrolled in a waiver and changes the reference from the CARE assessment to the DDD assessment.
388-845-0060 (amended) Clarifies when enrollment in a waiver can be terminated, adds a monthly monitoring plan as an alternative to receiving a waiver service as an eligibility condition, and adds the ISP as an alternative to the POC.
388-845-0070 (amended) Specifies that DDD uses the DDD assessment as specified in chapter 388-828 WAC to determine if the client needs ICF/MR level of care.
388-845-0075 through 388-845-0096 (deleted) Deletes theses sections as the information is contained in chapter 388-828 WAC.
388-845-0100 (amended) Defines the criteria for assignment to the most cost-effective DDD waiver and eliminates the criteria use for conversion from the expired CAP waiver.
388-845-0105 (amended) Adds the ISP as an alternative to the POC.
388-845-0110 (amended) Adds the ISP as an alternative to the POC.
388-845-0111 (new) Defines the limitations regarding who can provide waiver services.
388-845-0200 (amended) Revises the source of the definition of waiver services available from the service plan to the POC or ISP.
388-845-0205 (amended) Defines the yearly limits as those determined by the DDD assessment and clarifies that emergency services are available only for aggregate services and/or employment/day program services.
388-845-0210 (amended) Defines the yearly limits as those determined by the DDD assessment and clarifies that emergency services are available only for aggregate services and/or employment/day program services.
388-845-0215 (amended) Adds the ISP as an alternative to the POC and defines the yearly limits as those determined by the DDD assessment.
388-845-0220 (amended) Adds the ISP as an alternative to the POC.
388-845-0510 (amended) Clarifies that approval is required from the DDD regional administrator or designee.
388-845-0800 (amended) Clarifies that emergency services are available only for aggregate services and/or employment/day program services.
388-845-0820 (amended) Clarifies that approval is required from the DDD regional administrator or designee, adds the ISP as an alternative to the POC, and clarifies that emergency services are available only for aggregate services and/or employment/day program services.
388-845-0900 (amended) Adds the ISP as an alternative to the POC.
388-845-0910 (amended) Clarifies that approval is required from the DDD regional administrator or designee.
388-845-1300 (amended) Revises the wording and clarifies the reference for personal care services.
388-845-1310 (amended) Deletes reference to the obsolete children's comprehensive assessment and clarifies that the maximum number of hours of personal care is determined by the CARE assessment within the DDD service level assessment.
388-845-1505(5) (amended) Clarifies the types of providers for children and corrects WAC cross reference.
388-845-1515 (amended) Adds limitations to alternate living services within the CORE waiver and requires the initial authorization of residential habilitation services to have prior approval by the DDD regional administrator or designee.
388-845-1605 (amended) Clarifies that the client is the one eligible for respite care and limits respite to parents who provided care prior to June 2007.
388-845-1606 (deleted) Deletes reference to exceptions to the requirements before July 2006.
388-845-1610 (amended) Eliminates state operated living alternative (SOLA) and other certified supported living situations as settings where respite may be provided, and allows the respite provider to take the client into the community.
388-845-1615 (amended) Corrects cross-references.
388-845-1620 (amended) Clarifies that the DDD assessment determines how much respite may be received for the Basic, Basic Plus and CORE waivers, clarifies that prior approval is required from the DDD regional administrator or designee, requires prior approval to pay for more than eight hours in a twenty-four hour period in any setting other than the client's home or place of residence, allows the respite provider to take the client into the community, and specifies that DDD cannot pay for fees associated with the respite care.
388-845-1660 (amended) Specifies that prior approval is required from the DDD regional administrator or designee.
388-845-1710 (amended) Specifies that prior approval is required from the DDD regional administrator or designee for all skilled nursing services, and changes the agency responsible for determining the need for service and the right to require a second opinion from the department to DDD.
388-845-1800 (amended) Defines specialized medical equipment and supplies, clarifies that these services cannot be available through Medicaid or the state plan, adds a cross reference to WAC 388-543-1000, and clarifies that these services are available in all four DDD HCBS waivers.
388-845-1810 (amended) Specifies that prior approval is required from the DDD regional administrator or designee, and changes the agency responsible for determining the need for the right to require a second opinion from the department to DDD.
388-845-1910 (amended) Specifies that prior approval is required from the DDD regional administrator or designee for all specialized psychiatric services.
388-845-2000 (amended) Adds the ISP as an alternative to the POC.
388-845-2005 (amended) Adds recreational therapists as a qualified provider of staff/family consultation and training.
388-845-2010 (amended) Specifies that prior approval is required from the DDD regional administrator or designee.
388-845-2200 (amended) Adds the ISP as an alternative to the POC, and clarifies that transportation services are available only if the cost and responsibility for transportation is not already included in the provider's contract and payment.
388-845-2210 (amended) Specifies that prior approval is required from the DDD regional administrator or designee.
388-845-3000 (amended) Specifies that service needs are determined through the DDD assessment, only identified health and welfare needs will be authorized for payment, the amount of respite care for the Basic, Basic Plus and CORE waivers is determined by the DDD assessment, and adds the ISP as an alternative to the POC.
388-845-3005 through 388-845-3050 (deleted) Deletes these sections as they are contained in the DDD assessment and service planning process as defined in chapter 388-828 WAC.
388-845-3055 (amended) Specifies that the ISP replaces the POC; clarifies that the POC remains in effect until the ISP is developed; specifies that the ISP must include identified health and welfare needs, and both paid and unpaid services approved to meet these identified health and welfare needs; and specifies that a signature or verbal consent by the client or legal representative is required on an initial, reassessment or review of the ISP.
388-845-3056 (new) Specifies what actions DDD will take if an individual needs additional help in understanding the ISP.
388-845-3060 (amended) Adds the ISP as an alternative to the POC, and specifies that a signature or verbal consent is required on an initial, reassessment or review of the ISP.
388-845-3061 (new) Specifies that a change in the plan of care or ISP can be made immediately upon a verbal request prior to receiving a signature.
388-845-3062 (new) Specifies who must sign or give verbal consent to the ISP and adds a reference to WAC 388-845-3056 if an individual needs assistance to understand the ISP.
388-845-3065 (amended) Specifies that the plan of care remains in effect until it is replaced by the ISP and that the ISP is effective through the last day of the twelfth month following the effective date or until a new ISP is completed.
388-845-3070 (amended) Changes plan of care to ISP; specifies that on an initial plan, DDD will be unable to provide waiver services if a signature or verbal consent is not obtained, will not assume consent, and will follow the steps described in WAC 388-845-3056; specifies that for a reassessment or review, if a client is able to understand the ISP, and if a signature or verbal consent is not obtained, DDD will continue existing services through the end of the advance notice period and at the end of the advance notice period, DDD will assume consent and implement the new ISP without a signature or verbal consent; specifies that for a reassessment or review, if a client is not able to understand the ISP, and if a signature or verbal consent is not obtained, DDD will continue existing services in accordance with WAC 388-845-3056; and includes an additional cross-reference for appeal rights.
388-845-3075 (amended) Adds the ISP as an alternative to the POC.
388-845-3095 (amended) Clarifies the client's responsibility in paying toward the cost of waiver services.
388-845-4000 (amended) Clarifies additional appeal rights under the waiver.
388-845-4005 (amended) Clarifies appeal rights to include the provisions contained in the Boyle lawsuit.

Statutory Authority for Adoption: RCW 71A.12.30 [71A.12.030].

Other Authority: Title 71A RCW.

Under RCW 34.05.350 the agency for good cause finds 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: These amendments are necessary to comply with the proposed order and settlement listed above and to allow the state of Washington to continue to claim federal matching funds under Title XIX of the Social Security Act. These rules are also necessary to implement the recommendations in a June 2003 performance audit by the joint legislative audit and review committee and to support chapter 388-828 WAC, which will become permanent on June 1, 2007.

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 6, Amended 51, Repealed 16.

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 6, Amended 51, Repealed 16.

Date Adopted: May 15, 2007.

Stephanie E. Schiller

Rules Coordinator

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 07-14 issue of the Register.

Washington State Code Reviser's Office