WSR 09-05-097

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed February 18, 2009, 11:04 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-01-141.

     Title of Rule and Other Identifying Information: The department is amending chapter 388-71 WAC, Home and community services and programs and chapter 388-106 WAC, Long-term care services.

     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. A map or directions are available at http://www.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on March 24, 2009, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than March 25, 2009.

     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 DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on March 24, 2009.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by March 10, 2009, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules:

•     In-home personal care services are redefined to assure that clients receive personal care from the most cost-effective service that can meet their needs. Clients who are able to manage and self-direct their personal care as determined by the department's assessment will be eligible to receive services from an individual provider.

•     Clients who are not able to manage and self-direct their personal care as determined by the department's assessment will be eligible to receive services either from an individual provider, if there is an alternative monitoring plan in place, or an agency provider.

     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.

     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: Bea Rector, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2527.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The preparation of a small business economic impact statement is not required, as no new costs will be imposed on small businesses or nonprofits.

     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, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2538, fax (360) 407-7582, e-mail sevruta@dshs.wa.gov.

February 12, 2009

Stephanie E. Schiller

Rules Coordinator

4071.2
AMENDATORY SECTION(Amending WSR 05-11-082, filed 5/17/05, effective 6/17/05)

WAC 388-71-0500   What is the purpose of WAC 388-71-0500 through (([388-71-05952] [388-71-05909])) 388-71-05909?   A client/legal representative may choose an individual provider or a home care agency provider, as defined in WAC 388-106-0010, depending on whether the client is found to be eligible for participant managed personal care services, based on the criteria set forth in WAC 388-106-0042, or agency managed personal care services, based on the criteria set forth in WAC 388-106-0043. The intent of WAC 388-71-0500 through (([388-71-05952] [388-71-05909])) 388-71-05909 is to describe the:

     (1) Qualifications of an individual provider, as defined in WAC 388-106-0010;

     (2) Qualifications of a home care agency provider, as defined in WAC 388-106-0010 and chapter 246-336 WAC;

     (3) Conditions under which the department or the area agency on aging (AAA) will pay for the services of an individual provider or a home care agency provider;

     (4) Training requirements for an individual provider and home care agency provider.

[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-71-0500, filed 5/17/05, effective 6/17/05. Statutory Authority: RCW 74.08.090, 74.09.520, and 74.39A.090. 02-21-098, § 388-71-0500, filed 10/21/02, effective 11/21/02. Statutory Authority: Chapter 74.39A RCW and 2000 c 121. 02-10-117, § 388-71-0500, filed 4/30/02, effective 5/31/02. Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830, 74.39.095. 01-11-019, § 388-71-0500, filed 5/4/01, effective 6/4/01. Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, § 388-71-0500, filed 1/13/00, effective 2/13/00.]


AMENDATORY SECTION(Amending WSR 07-24-026, filed 11/28/07, effective 1/1/08)

WAC 388-71-0540   When will the department((, AAA,)) or ((managed care entity)) department's designee deny payment for services of an individual provider or home care agency provider?   The department((, AAA,)) or ((managed care entity)) the department's designee will deny payment for the services of an individual provider or home care agency provider who:

     (1) Is the client's spouse, per 42 C.F.R. 441.360(g), except in the case of an individual provider for a chore services client. Note: For chore spousal providers, the department pays a rate not to exceed the amount of a one-person standard for a continuing general assistance grant, per WAC 388-478-0030;

     (2) Is the natural/step/adoptive parent of a minor client aged seventeen or younger receiving services under medicaid personal care;

     (3) Is a foster parent providing personal care to a child residing in their licensed foster home;

     (4) Has been convicted of a disqualifying crime, under RCW 43.43.830 and 43.43.842 or of a crime relating to drugs as defined in RCW 43.43.830;

     (5) Has abused, neglected, abandoned, or exploited a minor or vulnerable adult, as defined in chapter 74.34 RCW;

     (6) Has had a license, certification, or a contract for the care of children or vulnerable adults denied, suspended, revoked, or terminated for noncompliance with state and/or federal regulations;

     (7) Does not successfully complete the training requirements within the time limits required in WAC 388-71-05665 through 388-71-05865;

     (8) Is already meeting the client's needs on an informal basis, and the client's assessment or reassessment does not identify any unmet need; and/or

     (9) Is terminated by the client (in the case of an individual provider) or by the home care agency (in the case of an agency provider).

     In addition, the department, AAA, or managed care entity may deny payment to or terminate the contract of an individual provider as provided under WAC 388-71-0546, 388-71-0551, and 388-71-0556.

     (10) The department or the department's designee will deny payment to a home care agency provider for services provided to a client who is found to be eligible for participant managed personal care services and not agency managed personal care services, based on the criteria set forth in WAC 388-106-0042 and 388-106-0043.

[Statutory Authority: RCW 74.08.090, 74.09.520. 07-24-026, § 388-71-0540, filed 11/28/07, effective 1/1/08. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.010 and 74.39A.020. 06-05-022, § 388-71-0540, filed 2/6/06, effective 3/9/06. Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-71-0540, filed 5/17/05, effective 6/17/05. Statutory Authority: Chapter 74.39A RCW and 2000 c 121. 02-10-117, § 388-71-0540, filed 4/30/02, effective 5/31/02. Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830, 74.39.095. 01-11-019, § 388-71-0540, filed 5/4/01, effective 6/4/01. Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, § 388-71-0540, filed 1/13/00, effective 2/13/00.]


AMENDATORY SECTION(Amending WSR 06-05-022, filed 2/6/06, effective 3/9/06)

WAC 388-71-0546   When can the department((, AAA,)) or ((managed care entity)) the department's designee reject the client's choice of an individual provider?   The department((, AAA,)) or ((managed care entity)) the department's designee may reject a client's request to have a family member or other person serve as his or her individual provider if the case manager has a reasonable, good faith belief that the person will be unable to appropriately meet the client's needs. Examples of circumstances indicating an inability to meet the client's needs could include, without limitation:

     (1) Evidence of alcohol or drug abuse;

     (2) A reported history of domestic violence, no-contact orders, or criminal conduct (whether or not the conduct is disqualifying under RCW 43.43.830 and 43.43.842;

     (3) A report from the client's health care provider or other knowledgeable person that the requested provider lacks the ability or willingness to provide adequate care;

     (4) Other employment or responsibilities that prevent or interfere with the provision of required services;

     (5) Excessive commuting distance that would make it impractical to provide services as they are needed and outlined in the client's service plan.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.010 and 74.39A.020. 06-05-022, § 388-71-0546, filed 2/6/06, effective 3/9/06. Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830, 74.39.095. 01-11-019, § 388-71-0546, filed 5/4/01, effective 6/4/01.]


AMENDATORY SECTION(Amending WSR 08-05-026, filed 2/12/08, effective 3/14/08)

WAC 388-106-0020   Under the MPC, COPES, MNRW, MNIW, and chore programs, what services are not covered?   The following types of services are not covered under MPC, COPES, MNRW, MNIW, and chore:

     (1) Child care.

     (2) Individual providers must not provide:

     (a) Sterile procedures unless the provider is a family member or the client self directs the procedure;

     (b) Administration of medications or other tasks requiring a licensed health professional unless these tasks are provided through nurse delegation, self-directed care, or the provider is a family member.

     (3) Agency providers, including family members who provide care while working as an agency provider, must not provide:

     (a) Sterile procedures;

     (b) Self-directed care;

     (c) Administration of medications or other tasks requiring a licensed health care professional unless these tasks are provided through nurse delegation.

     (4) Services provided over the telephone.

     (5) Services to assist other household members not eligible for services.

     (6) Development of social, behavioral, recreational, communication, or other types of community living skills.

     (7) Nursing care.

     (8) Pet care.

     (9) Assistance with managing finances.

     (10) Respite.

     (11) Yard care.

     (12) Agency managed personal care services, unless you are determined based on a CARE assessment to be eligible for such services based on the criteria set forth in WAC 388-106-0043.

[Statutory Authority: RCW 74.08.090, 74.09.520. 08-05-026, § 388-106-0020, filed 2/12/08, effective 3/14/08; 05-11-082, § 388-106-0020, filed 5/17/05, effective 6/17/05.]


AMENDATORY SECTION(Amending WSR 06-16-035, filed 7/25/06, effective 8/25/06)

WAC 388-106-0055   What is the purpose of an assessment?   The purpose of an assessment is to:

     (1) Determine eligibility for long-term care programs;

     (2) Identify your strengths, limitations, and preferences;

     (3) Evaluate your living situation and environment;

     (4) Evaluate your physical health, functional and cognitive abilities, including your ability to manage your plan of care based on the criteria set forth in WAC 388-106-0042 and 388-106-0043;

     (5) Determine availability of informal supports and other nondepartment paid resources;

     (6) Determine need for intervention;

     (7) Determine need for case management activities;

     (8) Determine your classification group that will set your payment rate for residential care or number of hours of in-home care;

     (9) Determine need for referrals; and

     (10) Develop a plan of care, as defined in WAC 388-106-0010.

     (11) In the case of New Freedom consumer directed services, the purpose of an assessment is to determine functional eligibility and for the participant to develop the New Freedom spending plan, as defined in WAC 388-106-0010.

     (12) Determine whether you are eligible for participant managed personal care services or agency managed personal care services based on the criteria set forth in WAC 388-106-0042 and 388-106-0043, if you are receiving, or may receive, services in your own home.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-0055, filed 7/25/06, effective 8/25/06. Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0055, filed 5/17/05, effective 6/17/05.]


AMENDATORY SECTION(Amending WSR 08-23-011, filed 11/6/08, effective 12/7/08)

WAC 388-106-0130   How does the department determine the number of hours I may receive for in-home care?   (1) The department assigns a base number of hours to each classification group as described in WAC 388-106-0125.

     (2) The department will deduct from the base hours to account for informal supports, as defined in WAC 388-106-0010, or other paid services that meet some of an individual's need for personal care services, including adult day health, as follows:

     (a) The CARE tool determines the adjustment for informal supports by determining the amount of assistance available to meet your needs, assigns it a numeric percentage, and reduces the base hours assigned to the classification group by the numeric percentage. The department has assigned the following numeric values for the amount of assistance available for each ADL and IADL:

Meds Self Performance Status Assistance Available Value

Percentage
Self administration of medications Rules for all codes apply except independent is not counted Unmet N/A 1
Met N/A 0
Decline N/A 0
Partially met <1/4 time .9
1/4 to 1/2 time .7
1/2 to 3/4 time .5
>3/4 time .3
Unscheduled ADLs Self Performance Status Assistance Available Value

Percentage
Bed mobility, transfer, walk in room, eating, toilet use Rules apply for all codes except: Did not occur/client not able and Did not occur/no provider = 1;

Did not occur/client declined and independent are not counted.

 Unmet N/A 1
Met N/A 0
Decline N/A 0
Partially met <1/4 time .9
1/4 to 1/2 time .7
1/2 to 3/4 time .5
>3/4 time .3
Scheduled ADLs Self Performance Status Assistance Available Value

Percentage
Dressing,

personal hygiene,

bathing

 Rules apply for all codes except: Did not occur/client not able and Did not occur/no provider = 1;

Did not occur/client declined and independent are not counted.

 Unmet N/A 1
Met N/A 0
Decline N/A 0
Partially met <1/4 time .75
1/4 to 1/2 time .55
1/2 to 3/4 time .35
>3/4 time .15
IADLs Self Performance Status Assistance Available Value

Percentage
Meal preparation,

Ordinary housework,

Essential shopping

 Rules for all codes apply except independent is not counted. Unmet N/A 1
Met N/A 0
Decline N/A 0
Partially met <1/4 time .3
1/4 to 1/2 time .2
1/2 to 3/4 time .1
>3/4 time .05
IADLs Self Performance Status Assistance Available Value

Percentage
Travel to medical Rules for all codes apply except independent is not counted. Unmet N/A 1
Met N/A 0
Decline N/A 0
Partially met <1/4 time .9
1/4 to 1/2 time .7
1/2 to 3/4 time .5
>3/4 time .3
Key:

> means greater than

< means less than

     (b) To determine the amount of reduction for informal support, the value percentages are totaled and divided by the number of qualifying ADLs and IADLs needs. The result is value A. Value A is then subtracted from one. This is value B. Value B is divided by three. This is value C. Value A and Value C are summed. This is value D. Value D is multiplied by the "base hours" assigned to your classification group and the result is the number of in-home hours reduced for informal supports.

     (3) Also, the department will adjust in-home base hours when:

     (a) There is more than one client receiving ADSA-paid personal care services living in the same household, the status under subsection (2)(a) of this section must be met or partially met for the following IADLs:

     (i) Meal preparation;

     (ii) Housekeeping;

     (iii) Shopping; and

     (iv) Wood supply.

     (b) You are under the age of eighteen, your assessment will be coded according to age guidelines codified in WAC 388-106-0213.

     (4) In addition to any determination of unmet need in (2)(a) when you are not affected by (3) above, the department will score the status for meal preparation as unmet when you adhere to at least one of the following special diets:

     (a) ADA (diabetes);

     (b) Autism diet;

     (c) Calorie reduction;

     (d) Low sodium;

     (e) Mechanically altered;

     (f) Planned weight change program;

     (g) Renal diet; or

     (h) Needs to receive nutrition through tube feeding or receives greater than twenty-five percent of calories through tube or parenteral feeding.

     (5) In addition to any determination of unmet need in (2)(a) when you are not affected by (3) above, the department will score the status for housework as unmet when you are incontinent of bladder or bowel, documented as:

     (a) Incontinent all or most of the time;

     (b) Frequently incontinent; or

     (c) Occasionally incontinent.

     (6) After deductions are made to your base hours, as described in subsections (2) and (3), the department may add on hours based on your living environment:


Condition Status Assistance Available Add On Hours
Offsite laundry facilities, which means the client does not have facilities in own home and the caregiver is not available to perform any other personal or household tasks while laundry is done. N/A N/A

 8
Client is >45 minutes from essential services (which means he/she lives more than 45 minutes one-way from a full-service market). Unmet N/A 5
Met N/A 0
Partially met <1/4 time 5
between 1/4 to 1/2 time 4
between 1/2 to 3/4 time 2
>3/4 time 2
Wood supply used as sole source of heat. Unmet N/A 8
Met N/A 0
Declines N/A 0
Partially met <1/4 time 8
between 1/4 to 1/2 time 6
between 1/2 to 3/4 time 4
>3/4 time 2

     (7) In the case of New Freedom consumer directed services (NFCDS), the department determines hours as described in WAC 388-106-1445.

     (8) The result of actions under subsections (2), (3), (4), (5) and (6) is the maximum number of hours that can be used to develop your plan of care. The department must take into account cost effectiveness, client health and safety, and program limits in determining how hours can be used to meet your identified needs. In the case of New Freedom consumer directed services (NFCDS), a New Freedom spending plan (NFSP) is developed in place of a plan of care.

     (9) You and your case manager will work to determine what services you choose to receive if you are eligible. The hours may be used to authorize:

     (a) Personal care services from a home care agency provider ((and/or)), if you are determined to be eligible to receive agency managed personal care services based on the criteria set forth in WAC 388-106-0043 or an individual provider, if you are determined to be eligible to receive participant managed personal care services based on the criteria set forth in WAC 388-106-0042.

     (b) Home delivered meals (i.e. a half hour from the available hours for each meal authorized).

     (c) Adult day care (i.e. a half hour from the available hours for each hour of day care authorized).

     (d) A home health aide if you are eligible per WAC 388-106-0300 or 388-106-0500.

     (e) A private duty nurse (PDN) if you are eligible per WAC 388-71-0910 and 388-71-0915 or WAC 388-551-3000 (i.e. one hour from the available hours for each hour of PDN authorized).

     (f) The purchase of New Freedom consumer directed services (NFCDS).

[Statutory Authority: RCW 74.08.090, 74.09.520. 08-23-011, § 388-106-0130, filed 11/6/08, effective 12/7/08; 08-03-111, § 388-106-0130, filed 1/22/08, effective 2/22/08. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-0130, filed 7/25/06, effective 8/25/06. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.010 and 74.39A.020. 06-05-022, § 388-106-0130, filed 2/6/06, effective 3/9/06. Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0130, filed 5/17/05, effective 6/17/05.]


AMENDATORY SECTION(Amending WSR 05-11-082, filed 5/17/05, effective 6/17/05)

WAC 388-106-0600   What services may I receive under chore?   You may receive personal care services per WAC 388-106-0010 in your own home and, as applicable, assistance with personal care tasks while you are out of the home accessing community resources or working.

[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0600, filed 5/17/05, effective 6/17/05.]


AMENDATORY SECTION(Amending WSR 05-11-082, filed 5/17/05, effective 6/17/05)

WAC 388-106-1300   What rights do I have as a client of the department?   As a client of the department, you have a right to:

     (1) Be treated with dignity, respect and without discrimination;

     (2) Not be abused, neglected, financially exploited, abandoned;

     (3) Have your property treated with respect;

     (4) Not answer questions, turn down services, and not accept case management services you do not want to receive. However, it may not be possible for the department to offer some services if you do not give enough information;

     (5) Be told about all services you can receive and make choices about services you want or don't want;

     (6) Have information about you kept private within the limits of the laws and DSHS regulations;

     (7) Be told in writing of agency decisions and receive a copy of your care plan;

     (8) Make a complaint without fear of harm;

     (9) Not be forced to answer questions or do something you don't want to;

     (10) Talk with your social service worker's supervisor if you and your social service worker do not agree;

     (11) Request a fair hearing;

     (12) Have interpreter services provided to you free of charge if you cannot speak or understand English well;

     (13) Take part in and have your wishes included in planning your care;

     (14) Choose, fire, or change a qualified personal care service provider(s) that provides the type of services for which you are determined to be eligible pursuant to WAC 388-106-0042 or 388-106-0043 ((you want)); and

     (15) Receive results of the background check for any individual provider you choose.

[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-1300, filed 5/17/05, effective 6/17/05.]


AMENDATORY SECTION(Amending WSR 06-05-022, filed 2/6/06, effective 3/9/06)

WAC 388-106-1303   What responsibilities do I have as a client of the department?   As a client of the department, you have a responsibility to:

     (1) Give us enough information to assess your needs;

     (2) Let the social services worker into your home so that your needs can be assessed;

     (3) Follow your care plan;

     (4) Not act in a way that puts anyone in danger;

     (5) Provide a safe work place;

     (6) Tell your social services worker if there is a change in:

     (a) Your medical condition;

     (b) The help you get from family or other agencies;

     (c) Where you live; or

     (d) Your financial situation.

     (7) Tell your social services worker if someone else makes medical or financial decision for you;

     (8) Choose a qualified personal care services provider(s) that provides the type of services for which you are determined to be eligible pursuant to WAC 388-106-0042 or 388-106-0043;

     (9) Keep provider background checks private;

     (10) Tell your social services worker if you are having problems with your provider; and

     (11) Choose your own health care. Tell your social services worker when you do not do what your doctor says.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.010 and 74.39A.020. 06-05-022, § 388-106-1303, filed 2/6/06, effective 3/9/06.]


AMENDATORY SECTION(Amending WSR 06-16-035, filed 7/25/06, effective 8/25/06)

WAC 388-106-1445   How is the amount of the individual budget determined?   The department will calculate the individual budget amount after the NFCDS participant is assigned a classification resulting from completion of the comprehensive assessment reporting and evaluation tool, CARE. The calculation will be based on:

     (((a))) (1) The published hourly rate for individual provider personal care paid by the department multiplied by the number of hours generated by the assessment, multiplied by a factor of .95, plus an amount equal to the average per participant expenditures for nonpersonal care supports purchased in the COPES waiver. The average will be recalculated in July of each year.

     (((b))) (2) If the participant is found to be eligible for agency managed personal care services and selects a home care agency, an adjustment will be made for each hour of personal care identified in the NFSP for an amount equal to the difference between the published individual provider rate and home care agency rate.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-1445, filed 7/25/06, effective 8/25/06.]

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