Effective Date of Rule: February 26, 2011.

     Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: Under RCW 74.46.380(3) a rule may become effective earlier than thirty-one days after filing when the agency establishes that effective date in the adopting order and finds that the earlier effective date is necessary because of imminent peril to the public health, safety, or welfare. Section 23, chapter 34, Laws of 2010 1st sp. sess. and section 958, chapter 37, Laws of 2010 1st sp. sess., declared the act necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately. The rules of this adopting order are necessary to implement chapters 34 and 37, Laws of 2010 1st sp. sess. and thus, are necessary to avoid imminent peril to the public health, safety, or welfare. The rules have been in effect since July 1, 2010, through emergency adoptions, see WSR 10-14-050 and 10-22-068.

     Purpose: The amendments or adoptions to chapter 388-96 WAC to implement ESSB 6872 include but are not limited to the following: (1) The effect of bed banking on rates; (2) financing allowance component rate allocation minimum facility occupancy of licensed beds, regardless of how many beds are set up or in use at eighty-five percent for essential community providers, ninety percent for small nonessential community providers, and at ninety-two percent for large nonessential community providers; (3) to increase the categories for exceptional care rates; and (4) adopt new rules for pay-for-performance supplemental rates. The department will amend or adopt new rules to implement ESSB 6444, section 206 that include but are not limited to WAC 388-96-766(3) to implement no rate add-ons to nursing facility medicaid payment rates for capital improvements not requiring a certificate of need and a certificate of capital authorization for fiscal year 2011. On September 2, 2009, in WSR 09-17-003, http://lawfilesext.leg.wa.gov/law/wsr/2009/17/09-17-003.htm, the department indicated specific sections of chapter 388-96 WAC that it would amend. Also, the department stated that all sections may be amended to clarify regulations by codifying current policies and practices and editing previous codifications for substance and form.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-96-202, 388-96-740, 388-96-741, 388-96-742 and 388-96-749; and amending WAC 388-96-010, 388-96-108, 388-96-217, 388-96-218, 388-96-366, 388-96-384, 388-96-534, 388-96-535, 388-96-536, 388-96-542, 388-96-559, 388-96-561, 388-96-565, 388-96-585, 388-96-708, 388-96-709, 388-96-747, 388-96-748, 388-96-758, 388-96-759, 388-96-766, 388-96-776, 388-96-781, 388-96-782, 388-96-802, 388-96-803, 388-96-901, and 388-96-904.

     Statutory Authority for Adoption: Chapter 74.46 RCW.

     Other Authority: Chapter 34, Laws of 2010 1st sp. sess. and section 958, chapter 37, Laws of 2010 1st sp. sess.

      Adopted under notice filed as WSR 10-20-171 on October 6, 2010.

     Changes Other than Editing from Proposed to Adopted Version: 1. "Large nonessential community provider" and "small nonessential community providers": Both definitions used, nonessential community provider to define what a nonessential community provider is. Whether large or small, the "nonessential community provider" definition should indicate that it is any facility that does not meet the definition of an "essential community provider.["] The department will make the following change to both large and small definition: "Large nonessential community providers" are not essential community providers and have more than sixty licensed beds... "Small nonessential community providers" are not essential community providers and have sixty or fewer licensed beds...

     2. WAC 388-96-217: The department will change "shall" to the permissive "may."

     3. The department wihdraws [withdraws] the change in WAC 388-96-366(3): The facility shall deposit any resident's personal funds in excess of ((fifty)) one hundred dollars in an interest-bearing resident personal fund account or accounts, separate from any of the facility's operating accounts, and credit all interest earned on an account to the account.

     4. WAC 388-96-559 (1)(A), has a typo - should that be five percent of the historical value.

     The following correction will be made: (A) Excluding computers and televisions, ((fI've)) five percent of the historical value for each noncloth item included in moveable equipment;

     5. WAC 388-96-585 (2)(vv): The department agrees that consultant expense directly related to implementing MDS 3.0 will be allowable. The department will delete WAC 388-96-585 (2)(vv). The department is removing this disallowance. Consulting expenses incurred in implementing MDS 3.0 will be allowable.

     6. WAC 388-96-776 (15)(ii), reads in part (last line of page 49) "number of licensed beds time ninety percent occupancy percent for...." The 2nd percent is redundant and should be removed. The redundant "percent" will be changed to read as "percentage."

     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 25, Amended 28, 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 25, Amended 28, Repealed 0.

     Date Adopted: February 10, 2011.

Katherine I. Vasquez

Rules and Policies Assistance Unit

     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 11-07 issue of the Register.

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