WSR 09-22-031

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Health and Recovery Services Administration)

[ Filed October 27, 2009, 8:41 a.m. , effective October 28, 2009 ]


Effective Date of Rule: October 28, 2009.

Purpose: These amendments are necessary to describe the payment methodology the department will use to meet the legislature's intent that the department continue to meet federal payment standards for durable medical equipment (DME) with a lower overall level of appropriation as required under sections 201 and 209 of the operating budget the 2009-2011 final legislative budget.

Citation of Existing Rules Affected by this Order: Amending WAC 388-543-2900.

Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090.

Other Authority: Chapter 564, Laws of 2009 (ESHB 1244).

Under RCW 34.05.350 the agency for good cause finds 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: Emergency rule adoption is required in order for the department to fully meet the legislatively-mandated appropriation reduction for the DME program for fiscal years 2010-2011. This emergency filing is necessary to continue the current emergency rule filed as WSR 09-14-083 on June 30, 2009, while the department completes the permanent rule-making process. The permanent rule has been proposed under WSR 09-20-063 and the public hearing is scheduled for November 10, 2009. The department anticipates adopting the permanent rule in early 2010.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

Date Adopted: October 16, 2009.

Stephanie E. Vaughn

Rules Coordinator

4106.5
AMENDATORY SECTION(Amending WSR 03-19-083, filed 9/12/03, effective 10/13/03)

WAC 388-543-2900   Medical supplies and nondurable medical equipment (MSE) -- Reimbursement methodology.   (1) ((MAA determines rates for each category of medical supplies and non-DME (MSE) using either the)) The department sets, evaluates and annually updates rates for each category of medical supplies and nonDME (MSE) in the medical assistance fee schedule using one or more of the following:

(a) ((Medicare fee schedule; or

(b) Manufacturers' catalogs and commercial data bases for price comparisons)) The medicare fee schedule, for those items that are included in the fee schedule for the medicare program, as established by the federal centers for medicare and medicaid services (CMS).

(b) For those items not included in the medicare fee schedule, the department uses manufacturers' catalogs and commercial data bases to identify brands to comprise the department's pricing cluster. When establishing the fee for products in a pricing cluster, the maximum allowable fee is the lesser of either:

(i) Eighty-five percent of the average manufacturer's list price; or

(ii) One hundred twenty-five percent of the average dealer cost.

(c) Input from stakeholders or other relevant sources that the department determines to be reliable and appropriate.

(2) ((MAA evaluates and updates the maximum allowable fees for MSE as follows)) The department's pricing cluster is made up of all the brands for which the department obtains pricing information. However, the department may limit the number of brands included in the pricing cluster if doing so is in the best interests of its clients as determined by the department. The department considers all of the following when establishing the pricing cluster:

(a) ((MAA sets the maximum allowable fees for new MSE using one of the following:

(i) Medicare's fee schedule; or

(ii) For those items without a medicare fee, commercial data bases to identify brands to make up MAA's pricing cluster. MAA establishes the fee for products in the pricing cluster by using the lesser of either:

(A) Eighty-five percent of the average manufacturer's list price; or

(B) One hundred twenty-five percent of the average dealer cost.

(b) All the brands for which MAA obtains pricing information make up MAA's pricing cluster. However, MAA may limit the number of brands included in the pricing cluster if doing so is in the best interests of its clients. MAA considers all of the following:

(i) A client's medical needs;

(ii) Product quality;

(iii) Cost; and

(iv) Available alternatives)) A client's medical needs;

(b) Product quality;

(c) Cost; and

(d) Available alternatives.

(3) ((MAA's)) The department's nursing facility per diem rate, established per chapter 74.46 RCW and chapter 388-96 WAC, includes any reusable and disposable medical supplies that may be required for a nursing facility client. ((MAA)) The department may reimburse the following medical supplies separately for a client in a nursing facility:

(a) Medical supplies or services that replace all or parts of the function of a permanently impaired or malfunctioning internal body organ. This includes, but is not limited to the following:

(i) Colostomy and other ostomy bags and necessary supplies; and

(ii) Urinary retention catheters, tubes, and bags, excluding irrigation supplies;

(b) Supplies for intermittent catheterization programs, for the following purposes:

(i) Long term treatment of atonic bladder with a large capacity; and

(ii) Short term management for temporary bladder atony; and

(c) Surgical dressings required as a result of a surgical procedure, for up to six weeks after surgery.

(4) ((MAA)) The department considers decubitus care products to be included in the nursing facility per diem rate and does not reimburse for these separately.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.08.090, and Public Law 104-191. 03-19-083, 388-543-2900, filed 9/12/03, effective 10/13/03. Statutory Authority: RCW 74.08.090, 74.09.530. 01-01-078, 388-543-2900, filed 12/13/00, effective 1/13/01.]

Washington State Code Reviser's Office