Effective Date of Rule: Immediately.

     Purpose: The department is amending rules in chapters 388-71 and 388-106 WAC in accordance with chapter 571, Laws of 2009, (SHB 2361). The law prohibits the department from paying a home care agency licensed under chapter 70.127 RCW for medicaid funded in-home personal care or respite services if the care is provided to a client by a family member. The department may authorize exceptions based on the client's health and safety. These rules will not affect the amount, duration, or scope of the personal care or respite services benefit to which the client may be entitled.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-71-0515, 388-71-0540, and 388-106-1303.

     Statutory Authority for Adoption: RCW 74.08.090, 74.09.520, chapter 571, Laws of 2009 (SHB 2361).

     Other Authority: Washington state 2009-11 budget section 206(17) (ESHB 1244).

     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; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal years 2009, 2010, or 2011, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

     Reasons for this Finding: SHB 2361 and the Washington state 2009-11 budget prohibit the department from paying a home care agency for medicaid funded in-home personal care or respite services if the care is provided to a client by a family member. On July 1, 2009, the department received a temporary restraining order (TRO) from the United States district court in Tacoma requiring the department to postpone implementation of SHB 2361. The TRO was in effect through August 12, 2009, and the department suspended activities. The TRO is now terminated.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 3, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.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 0, Amended 0, 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 0, Amended 3, Repealed 0.

     Date Adopted: August 25, 2009.

Stephanie E. Vaughn

Rules Coordinator

     (1) Understand the client's plan of care that is signed by the client or legal representative and social worker/case manager, and translated or interpreted, as necessary, for the client and the provider;

     (2) Provide the services as outlined on the client's plan of care, as defined in WAC 388-106-0010;

     (3) Accommodate client's individual preferences and differences in providing care;

     (4) Contact the client's representative and case manager when there are changes which affect the personal care and other tasks listed on the plan of care;

     (5) Observe the client for change(s) in health, take appropriate action, and respond to emergencies;

     (6) Notify the case manager immediately when the client enters a hospital, or moves to another setting;

     (7) Notify the case manager immediately if the client dies;

     (8) Notify the department or AAA immediately when unable to staff/serve the client; and

     (9) Notify the department/AAA when the individual provider or home care agency will no longer provide services. Notification to the client/legal guardian must:

     (a) Give at least two weeks' notice, and

     (b) Be in writing.

     (10) Complete and keep accurate time sheets that are accessible to the social worker/case manager; and

     (11) Comply with all applicable laws and regulations.

     (12) A home care agency must not bill the department for in-home medicaid funded personal care or DDD respite services when the agency employee providing care is a family member of the client served, unless approved to do so through an exception to rule under WAC 388-440-0001. For purposes of this section, family member means related by blood, marriage, adoption, or registered domestic partnership.

[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-71-0515, filed 5/17/05, effective 6/17/05. Statutory Authority: RCW 74.08.090, 74.09.520, and 74.39A.090. 02-21-098, § 388-71-0515, filed 10/21/02, effective 11/21/02. 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, § 388-71-0515, 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, § 388-71-0515, filed 1/13/00, effective 2/13/00.]

     The department, AAA, or ((managed care entity)) department 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)) department designee 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.

[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.]

     (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 provider;

     (9) Inform the department and your home care agency if an employee assigned by the home care agency is related to you by blood, marriage, adoption, or registered domestic partnership.

     (10) Keep provider background checks private;

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

     (((11))) (12) 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.]

© Washington State Code Reviser's Office