Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-24-028.

     Title of Rule and Other Identifying Information: WAC 388-106-1000 through 388-106-1055, private duty nursing.

     Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on September 22, 2010, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than September 23, 2010.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m., September 22, 2010.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by September 10, 2010, 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: The department is amending rules to change the frequency of the comprehensive assessment reporting evaluation (CARE) assessment and skilled nursing task log.

     Other policy changes that arise during this rule making may be incorporated. Other WAC chapters may also need to be updated as a result of this rule making.

     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: Doris Barret, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2553.

     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 as a result of this rule amendment.

     A cost-benefit analysis is not required under RCW 34.05.328. Rules are exempt per RCW 34.05.328 (5)(b)(vii), relating only to client medical or financial eligibility.

August 2, 2010

Katherine I. Vasquez

Rules Coordinator

     (1) You must be eighteen years of age or older and financially eligible, which means you:

     (a) Meet medicaid requirements under the categorically needy program or the medically needy program (((MNP).)); and

     (b) Use private insurance as first payer, as required by medicaid rules. Private insurance benefits, which cover hospitalization and in-home services, must be ruled out as the first payment source to PDN.

     (2) ((Be medically eligible, which means an ADSA department's community nurse consultant (CNC) or ADSA's division of disabilities services' (DDS) nursing care consultant (NCC) must assess you using the CARE assessment and the PDN skilled nursing task log for initial eligibility determination and thereafter every six months, and determine that you:)) You must be medically eligible, which means:

     (a) The department has received the skilled nursing task log or ADSA-approved equivalent completed by a nurse licensed under chapter 18.79 RCW.

     (b) You have been assessed by an ADSA community nurse consultant (CNC) or nursing care consultant (NCC) and determined medically eligible for PDN.

     (3) The department must assess you using the CARE assessment tool, as provided in chapter 388-106 WAC to determine that you:

     (a) Require care in a hospital or meet nursing facility level of care, as defined in WAC 388-106-0310; and

     (b) Have unmet skilled nursing needs that cannot be met in a less costly program or less restrictive environment; and

     (c) Are not able to have your care tasks provided through nurse delegation, WAC 246-840-910 through 246-840-970; ((through)) COPES skilled nursing, WAC 388-515-1505; DDD waiver skilled nursing, WAC 388-845-0215 or ((through)) self-directed care RCW 74.39.050; and

     (d) Have a complex medical need that requires four or more hours every day of continuous skilled nursing care ((which)) that can be safely provided outside a hospital or nursing facility; and

     (e) Require skilled nursing care that is medically necessary, per WAC 388-500-0005; and

     (f) ((Be)) Are able to supervise your care (((provider))) or have a guardian who is authorized and able to supervise your care; and

     (g) Have a family member or other appropriate informal support who is responsible for assuming a portion of your care; and

     (h) ((Have)) Are medically stable and appropriate for PDN services, as reflected by your primary care ((physician or ARNP document your medical stability and appropriateness for PDN and)) provider's:

     (i) ((Provide)) Orders for medical services; and

     (ii) Documentation of approval ((of)) for the service provider's PDN ((plan of)) care plan.

     (i) Do not have any other resources or means ((for obtaining this)) to obtain PDN services; and

     (j) Are ((dependant)) dependent upon technology every day((,)) with at least one of the following skilled care needs:

     (i) ((You need)) Mechanical ventilation((, and the use of a mechanical device to fill the lungs with oxygenated air and then allow time for passive exhalation)) which takes over active breathing due to your inability to breathe on your own due to injury or illness. A tracheal tube is in place and is hooked up to a ventilator that pumps air into the lungs; or

     (ii) ((You need)) Complex respiratory support, which means that you require two of the following treatment needs:

     (A) ((You require two of the following treatment needs:

     (I))) Postural drainage and chest percussion; ((or))

     (((II))) (B) Application of respiratory vests; ((or))

     (((III))) (C) Nebulizer treatments with or without medications; ((or))

     (((IV))) (D) Intermittent positive pressure breathing; ((or))

     (((V))) (E) O2 saturation measurement with treatment decisions dependent on the results; ((and)) or

     (F) Tracheal suctioning.

     (((B) Your treatment needs must be assessed and provided by an RN or LPN; and

     (C) Your treatment needs cannot be nurse delegated or self-directed;

     (iii) You need tracheostomy care, and tracheal suctioning;

     (iv) You need)) (iii) Intravenous/parenteral administration of multiple medications, and care is occurring on a continuing or frequent basis; or

     (((v) You need)) (iv) Intravenous administration of nutritional substances, and care is occurring on a continuing or frequent basis.

[Statutory Authority: RCW 74.08.090, 74.09.520 and 42 C.F.R. 440.80. 05-24-091, § 388-106-1010, filed 12/6/05, effective 1/6/06.]

     (1) A home health agency licensed by the Washington state department of health ((can provide your PDN services as long as it also has a PDN contract with DSHS's aging and disability services administration.)) chapter 246-335 WAC that has a contract with the medicaid agency to provide PDN services; or

     (2) ((If a home health agency described in subsection (1) is not willing to provide your PDN services, or is not available due to your geographic location, an ADSA private registered nurse (RN) or licensed practical nurse (LPN) who meets the requirements of WAC 388-106-1040 may be able to provide your PDN services)) A Washington state licensed RN, or LPN under the direction of an RN who has a contract with the medicaid agency to provide PDN services and meets the requirements set forth in WAC 388-106-1040.

[Statutory Authority: RCW 74.08.090, 74.09.520 and 42 C.F.R. 440.80. 05-24-091, § 388-106-1025, filed 12/6/05, effective 1/6/06.]

     (1) ((Your)) You may be authorized to receive PDN services ((can be authorized)) for between four to sixteen hours per day, except as noted in WAC 388-106-1045(4). ((This authorization is based on a combination of skilled nursing tasks identified in CARE, the department designated PDN skilled nursing task log or equivalent which has been approved by ADSA prior to use, and detailed information provided to CNC or NCC. The CNC or NCC determines initial eligibility for PDN, up to a maximum of sixteen hours per day. After the initial determination of eligibility is made by the CNC or NCC, the PDN skilled nursing task log or its approved equivalent will be initiated and completed by the agency or private nurse(s) for fourteen days and submitted to the CNC or NCC for review. At the end of the fourteen-day review period, a final determination will be made on the number of PDN hours required to meet your care needs. PDN skilled task logs or their approved equivalent will also be completed for fourteen days prior to the six-month reassessment for review by the CNC or NCC to determine ongoing eligibility and required PDN hours.))

     (2) PDN hours will be deducted from the personal care hours generated by CARE to account for services that meet your need for personal care services (i.e., one hour from the available hours for each hour of PDN authorized). WAC 388-106-0130 (9)(e).

     (3) Trained family members must provide for any hours above your assessment determination, or you or your family must pay for these additional hours.

     (((3))) (4) In instances where your family is temporarily absent due to vacations, additional PDN hours must be:

     (a) Paid for by you or your family; or

     (b) Provided by other trained family members. If this is not possible, you may ((need)) require placement in a long-term care facility during their absence.

     (((4))) (5) You may use respite care if you and your unpaid family caregiver meet the eligibility criteria defined in WAC 388-106-1210 (for LTC clients) or WAC 388-832-0145 (for DDD individual and family services clients) or WAC 388-845-1605 (for DDD waiver clients).

     (((5) You may receive additional hours, up to thirty days only)) (6) There may be a onetime approval for additional hours for a period not to exceed thirty days when:

     (a) Your family is being trained in care and procedures;

     (b) You have an acute episode that would otherwise require hospitalization;

     (c) Your caregiver is ill or temporarily unable to provide care; or

     (d) There is a family emergency.

[Statutory Authority: RCW 74.08.090, 74.09.520 and 42 C.F.R. 440.80. 05-24-091, § 388-106-1030, filed 12/6/05, effective 1/6/06.]

     (1) Be licensed by the Washington state department of health pursuant to chapter 246-335 WAC and have a contract with the medicaid agency to provide ((private duty nursing)) PDN services ((with aging and disability services administration));

     (2) Operate under ((physician)) primary care provider orders;

     (3) Develop and follow a detailed service plan that is reviewed and signed at least every six months by the client's ((physician)) primary care provider and submitted to CNC or NCC for review;

     (4) Initiate and complete the PDN skilled nursing task log or an approved equivalent for ((fourteen)) seven days and ((submitted)) submit it to the CNC or NCC for review for an initial eligibility determination and ((fourteen days prior to the six-month reassessments)) for ongoing eligibility every six months thereafter;

     (5) Meet all documentation ((requirement)) required by DOH ((In-home)) for in-home licensing, WAC 246-335-055, 246-335-080, and 246-335-110; and

     (6) Submit timely and accurate invoices ((to the social services payment system (SSPS))) for payments.

[Statutory Authority: RCW 74.08.090, 74.09.520 and 42 C.F.R. 440.80. 05-24-091, § 388-106-1035, filed 12/6/05, effective 1/6/06.]

     (1) ((Have a)) Be licensed and in good standing, ((per)) as provided in RCW 18.79.030 (1)(3);

     (2) ((Complete a PDN contract with ADSA;

     (3) Provide services according to the plan of care under the supervision/direction of a physician;

     (4))) Have a contract with the medicaid agency to provide PDN services;

     (3) Complete a background ((inquiry application. This will)) check which requires fingerprinting if the RN or LPN has lived in ((the state of)) Washington state less than three years;

     (((5))) (4) Have no conviction for a disqualifying crime, as ((stated)) provided in RCW 43.43.830 and 43.43.842 and WAC 388-71-0500 through 388-71-05640 series;

     (((6))) (5) Have no ((stipulated)) finding of fact and conclusion of law (stipulated or otherwise), ((an)) agreed order, ((or finding of fact, conclusion of law,)) or final order issued by a disciplining authority, a court of law, or entered into a state registry with a finding of abuse, neglect, abandonment or exploitation of a minor or vulnerable adult;

     (((7))) (6) Provide services according to the care plan under the supervision/direction of the primary care provider;

     (7) Document all PDN services provided by the care plan as required by WAC 388-502-0020 and WAC 246-840-700;

     (8) Meet provider requirements under WAC 388-71-0510, 388-71-0515, 388-71-0540, 388-71-0551, and 388-71-0556;

     (((8))) (9) Complete time sheets on a monthly basis;

     (((9) Complete documentation regarding all PDN services provided per the plan of care as required in WAC 388-502-0020 and 246-840-700;))

     (10) Complete the PDN seven-day look back skilled nursing task log ((or its approved equivalent must be initiated and completed by the licensed nurse for fourteen days and submitted)) and submit it to the CNC or NCC for review for initial eligibility determination, and ((fourteen days prior to the six-month reassessment determination. The licensed nurse is responsible to submit these logs to the NCC or CNC when they are completed)) for ongoing eligibility every six-months; and

     (11) Submit timely and accurate invoices ((to SSPS)) for payment.

[Statutory Authority: RCW 74.08.090, 74.09.520 and 42 C.F.R. 440.80. 05-24-091, § 388-106-1040, filed 12/6/05, effective 1/6/06.]

     (1) Possesses a current Washington state registered nurse license and is in good standing;

     (2) Signs a contract amendment with ADSA ((in)) by which the provider agrees to ensure provision of twenty-four-hour personal care and nursing care services. Nursing care ((service will)) services must be provided in accordance with chapter 18.79 RCW;

     (3) Provides your PDN service through an RN((,)) or an LPN under the supervision of an RN. The level of PDN services ((are)) provided to you is based on the CARE assessment, the department-designated PDN skilled task log or its approved equivalent, and other documentation ((which)) that determines eligibility and the number of PDN hours to be authorized;

     (4) Provides the PDN services to you. Your service plan may ((be authorized for)) authorize you to receive four to eight hours per day and cannot exceed ((a maximum of)) eight PDN care hours per day ((based on the CARE assessment, the department designated PDN skilled task log or its approved equivalent, and other documentation));

     (5) ((Have)) Has a nursing service plan prescribed for you by your primary ((physician or ARNP)) care provider. The ((physician/ARNP is responsible for)) primary care provider must:

     (a) Oversee((ing)) your ((plan of)) care plan, which must be updated at least once every six months; and

     (b) Monitor((ing)) your client's medical stability((; and)).

     (6) Document the services provided ((per the plan of)) in the care ((and the department designated PDN skilled task log or its approved equivalent at initial eligibility determination and fourteen days prior to the six-month reassessment determination and other documentation)) plan, including the submission of the PDN seven-day look back skilled nursing task log by the licensed nursing to the CN or NCC for review for initial eligibility and ongoing eligibility every six months; and

     (7) ((Keep)) Maintain records in ((accordance)) compliance with AFH licensing and contract requirements.

[Statutory Authority: RCW 74.08.090, 74.09.520 and 42 C.F.R. 440.80. 05-24-091, § 388-106-1045, filed 12/6/05, effective 1/6/06.]

     (2) ((If you receive personal care services in addition to PDN services, you cannot receive your personal care and household tasks from an individual provider, personal aide, or home care agency provider at the same time that your PDN provider is providing your care. The agency or privately contracted nurse is responsible for providing personal care and/or household tasks that occur during the time that they are providing your PDN services, unless you have an informal support that is providing or assisting you at the same time)) PDN hours will be deducted from the personal care hours generated by CARE to account for services that meet some of your need for personal care services (i.e., one hour from the available hours for each hour of PDN authorized per WAC 388-106-1030).

     (3) Services may not be duplicated. PDN hours may not be scheduled during the same time that personal care hours are being provided by an individual provider or home care agency provider.

     (4) The PDN provider is responsible for providing assistance with activities of daily living (ADL) and instrumental activities of daily living (IADL) unless there is an informal support that is providing or assisting at the same time.

[Statutory Authority: RCW 74.08.090, 74.09.520 and 42 C.F.R. 440.80. 05-24-091, § 388-106-1050, filed 12/6/05, effective 1/6/06.]

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