WSR 11-07-084

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed March 22, 2011, 10:45 a.m. ]

Supplemental Notice to WSR 10-24-103.

Preproposal statement of inquiry was filed as WSR 10-14-052.

Title of Rule and Other Identifying Information: New WAC 388-71-06020 through 388-71-06420 home care referral registry.

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 April 26, 2011, at 10:00 a.m.

Date of Intended Adoption: Not earlier than April 27, 2011.

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., April 26, 2011.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by April 6, 2011, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is adopting new WAC 388-71-06020 through 388-71-06420. As a result of the 2009-11 supplemental budget (ESSB 6444), the home care quality authority was eliminated and the home care referral registry (HCRR) program moved to the home and community services division effective July 1, 2010. Rules pertaining to the referral registry must be adopted by DSHS prior to the repeal of the home care quality's rules in TITLE 257 WAC. A CR-103 emergency rule was filed to meet the July 1, 2010, implementation date.

The purpose of this filing is to make an additional adjustment to the WAC in order to bring HCRR processes more closely into alignment with DSHS policy.

Reasons Supporting Proposal: See above.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

Statute Being Implemented: ESSB 6444.

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: Susan Engels, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2554.

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)(v), rules the content of which is explicitly and spefically [specifically] dictated by statute.

March 7, 2011

Katherine I. Vasquez

Rules Coordinator

4217.9Referral registry
NEW SECTION
WAC 388-71-06020   What is the purpose of WAC 388-71-06020 through 388-71-06420?   The purpose of this chapter is to describe the operation of the home care referral registry.

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NEW SECTION
WAC 388-71-06040   What definitions apply to WAC 388-71-06020 through 388-71-06420?   The following definitions apply to WAC 388-71-06020 through 388-71-06420:

"AAA" means the local area agency on aging.

"ALJ" means administrative law judge.

"Consumer/employer" means an adult or child with functional or developmental disabilities who qualifies for and uses personal care or respite care paid for through medicaid or state-only funds.

"Consumer representative" means an individual who is acting on behalf of the consumer/employer.

"Department" or DSHS means the department of social and health services.

"Emergency provider" means an individual provider who is employed as a back-up for a provider who did not show up or who was unable to work due to unexpected circumstances.

"Employer" means the consumer.

"HCRR" means the home care referral registry.

"Home care referral registry operations" or "referral registry operations" means the activities carried out at the local level to recruit and register individual providers or prospective individual providers for the referral registry and assist consumers to utilize the referral registry to find qualified individual providers.

"Individual provider" means a person, regardless of relationship, including a personal aide working for a consumer under self-directed care, who has a contract with the department of social and health services to provide personal care or respite care services to adults or children with functional or developmental disabilities and is reimbursed for those services through medicaid or state-only funding.

"IP" means an individual provider.

"Malfeasance" means any unlawful act committed by the provider, whether in the course of employment or otherwise.

"Mandatory reporter" is an employee of DSHS; law enforcement officer; social worker; professional school personnel; individual provider; an employee of a facility; an operator of a facility; an employee of a social service, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agency; county coroner or medical examiner; Christian science practitioner; or health care provider subject to chapter 18.130 RCW.

"Misfeasance" means performance of a workplace duty in an improper manner; including events which jeopardize the health and safety of persons, unresolved pattern of performance, issues related to truth or dishonesty, including failure to report a criminal conviction.

"OAH" means the office of administrative hearings.

"Prospective individual provider" means someone who is seeking employment with a consumer/employer.

"Provider" means an individual provider.

"Referral registry" is a data base that is designed to assist consumers with finding individual providers and to assist individual providers to find employment.

"Respite provider" means an individual provider who is employed on a prearranged short-term basis to fill in for a routine caregiver.

"Routine provider" means an individual provider who is employed on a regularly scheduled basis.

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NEW SECTION
WAC 388-71-06060   What is the purpose of the referral registry?   To increase consumer/employer choice while providing assistance in finding individual providers and prospective individual providers. In addition, the referral registry:

(1) Takes into account the consumer/employer needs and preferences when identifying potential individual providers;

(2) Provides for reasonable standards of accountability for providers and prospective individual providers listed on the registry;

(3) Is voluntary for individual providers and prospective individual providers and consumers/employers;

(4) Promotes job opportunities for individual providers and prospective individual providers;

(5) Provides access to the data base for consumer/employers who want to query a referral independently; and

(6) Increases a consumer/employer's choice of individual providers and prospective individual providers via an established pool of available individual providers and prospective individual providers on the registry.

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NEW SECTION
WAC 388-71-06080   Who is eligible to request a referral from the referral registry?   The following categories of persons are eligible to request a referral from the referral registry:

(1) Consumer/employers who are adults or children with functional or developmental disabilities who qualify for and use or will use personal care or respite care paid for through medicaid or state-only funds.

(2) Persons who are authorized to request a referral on behalf of a consumer including family members, area agency on aging case managers, department social workers and/or a consumer representative.

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NEW SECTION
WAC 388-71-06100   What is the difference between an individual provider and a prospective individual provider?   The difference between an individual provider and a prospective individual provider is

(1) An individual provider is someone who has a current individual provider contract with the department.

(2) A prospective individual provider is someone who is seeking employment with a consumer/employer and who does not have a current individual provider contract with the department.

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NEW SECTION
WAC 388-71-06120   What qualifies an individual provider or prospective individual provider to be listed on the referral registry?   An individual provider or prospective individual provider is qualified to be on the referral registry if he or she:

(1) Prior to January 1, 2012 satisfactorily completes a Washington state patrol background check and has not been convicted of a disqualifying crime or negative action based on the applicable department list of disqualifying crimes and negative actions; and

(2) Has completed an FBI fingerprint based background check if the person has lived in the state of Washington less than three consecutive years immediately before the background check. An individual provider or prospective individual provider who has lived in Washington state less than three consecutive years immediately before the background check may be included on the referral registry for a one hundred twenty-day provisional period as allowed by law or program rules when:

(a) A fingerprint based background check is pending; and

(b) The individual provider or prospective individual provider is not disqualified based on the immediate result of the Washington state patrol background check.

(3) Is not listed on any long-term care abuse and neglect registry used by the department;

(4) Is eighteen years of age or older;

(5) Provides a valid Washington state driver's license or other valid picture identification;

(6) Has a Social Security card or proof of authorization to work in the United States; and

(7) Complies with requirements listed in WAC 388-71-06180 and other applicable requirements in chapter 388-71 WAC.

(8) Effective January 1, 2012, has been screened through the department's fingerprint based background check, as required by RCW 74.39A.055.

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NEW SECTION
WAC 388-71-06130   When will an individual provider or prospective individual provider be denied placement on the referral registry?   When:

(1) A background check reveals that he or she has been convicted of a disqualifying crime or reveals the existence of a negative action listed on an applicable department list of disqualifying crimes and/or negative actions;

(2) He or she is listed on any state abuse or neglect registry;

(3) He or she is subject to a current and valid protective order that was issued in the state of Washington barring or restricting contact with children, vulnerable adults or persons with disabilities;

(4) The department has denied or revoked his or her individual provider contract; or

(5) He or she is ineligible to be paid as an individual provider pursuant to WAC 388-71-0540.

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NEW SECTION
WAC 388-71-06135   When may an individual provider or prospective individual provider be denied placement on the referral registry?   An individual provider or prospective individual provider may be denied placement on the referral registry when:

(1) He or she has failed to disclose pending charges, or criminal convictions, or negative actions on a background authorization form;

(2) The department has a reasonable, good faith belief that he or she is unable to meet the care needs of consumers;

(3) A background check reveals that he or she has committed an offense or pattern of offenses, not listed on the applicable list of disqualifying crimes, that the department determines may put consumers at risk; or

(4) He or she is subject to denial of payment as an individual provider pursuant to WAC 388-71-0543.

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NEW SECTION
WAC 388-71-06140   How does an individual provider or prospective individual provider apply to be placed on the referral registry?   To apply to be placed on the registry an individual provider must:

(1) Contact the local referral registry operations office; and

(2) Request and complete an application packet.

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NEW SECTION
WAC 388-71-06160   Does an individual provider or prospective individual provider have any ongoing responsibilities in order to continue to be listed on the referral registry?   (1) Yes, he or she must:

(a) Verify their information is accurate and up-to-date whenever contact or availability information changes by contacting the local referral registry operations office or updating directly through the website; and

(b) Successfully complete the criminal history background check process as described in WAC 388-71-06130 and 388-71-0513.

(2) Failure to comply with these ongoing responsibilities will result in placing the individual provider or prospective individual provider in an "inactive" status. The provider will not be referred to a consumer/employer when in "inactive" status. An individual provider or prospective individual provider will be taken off inactive status when he or she meets the requirements of subsections (1) and (2).

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NEW SECTION
WAC 388-71-06180   Are there training requirements for being placed on the referral registry?   Yes, an individual provider must complete the "Becoming a Professional IP" unless the person has already worked as an individual provider for more than three months. All other mandatory training requirements for long-term care workers set forth in chapter 388-71 WAC are applicable.

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NEW SECTION
WAC 388-71-06200   When will an individual provider or prospective individual provider be removed from the referral registry?   When he or she:

(1) Fails to meet the qualifications set forth in WAC 388-71-06120 and 388-71-06180;

(2) Has committed misfeasance in the performance of his or her duties as an individual provider;

(3) Has committed malfeasance in the performance of his or her duties as an individual provider;

(4) Requests that his or her name be removed from the referral registry;

(5) Has his or her individual provider contract terminated;

(6) Is subject to being denied placement on the referral registry pursuant to WAC 388-71-06130, exists; or

(7) Fails to meet qualifications set forth in WAC 388-71-0510 and 388-71-0540.

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NEW SECTION
WAC 388-71-06220   What is the procedure for removing an individual provider or prospective individual provider from the referral registry?   The department and/or its designee, will review all incidents of which it becomes aware that may warrant removal from the referral registry and:

(1) For those incidents that fall under the legal jurisdiction of law enforcement, adult protective services (APS) or child protective services (CPS), an immediate referral will be made to the appropriate agency or agencies.

(a) The department may initiate an emergency proceeding to inactivate the individual provider or prospective individual provider on the registry pending the investigation.

(b) If APS, CPS, and/or law enforcement declines to take action in response to the referral, the matter will proceed to internal review pursuant to subsection (2) of this section.

(c) If APS, CPS, and/or law enforcement accepts the matter, then action process per RCW 34.05.479 will be stayed pending APS, CPS, and/or law enforcement action.

(2) For those incidents not forwarded to APS, CPS, or law enforcement, the department will conduct an internal review. After the internal review is completed, a decision will be made whether or not to remove the individual provider or prospective individual provider from the referral registry. If the decision is to remove the individual provider or prospective individual provider from the referral registry, written notification will be served on the individual provider or prospective individual provider.

(3) An individual provider or prospective individual provider has the right to appeal a decision to remove him or her from the referral registry.

(a) The appeal must be received in writing by the office of administrative hearings (OAH) as designated on the written notice within twenty-eight days of the date the written notice was mailed by the department.

(b) OAH will send the parties a notice containing the hearing date, time and place.

(c) Before the hearing is held:

(i) The department may contact you and try to resolve your dispute; and

(ii) You are encouraged to contact the department and try to resolve your dispute.

(d) An administrative law judge (ALJ) from OAH will act as presiding officer for the adjudicative proceeding.

(e) The ALJ will render an initial decision that will include all matters required by RCW 34.05.461(3). If no party seeks review of the ALJ's initial decision within the time limits set forth in chapter 388-02 WAC, the initial decision will become the final order.

(f) The board of appeals will issue a written order announcing its decision to either adopt, modify, or reverse the initial decision. The board of appeals' order will include, or incorporate by reference to the initial order, all matters required by RCW 34.05.461(3). The board of appeals' decision is the final order.

(g) The final order is the final department action and will be provided to all interested parties and to the individual provider or prospective individual provider along with information regarding the right to seek judicial review in superior court when applicable.

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NEW SECTION
WAC 388-71-06240   By what procedures will the department deny an individual provider or prospective individual provider's application to be placed on the referral registry?   Upon receipt of an application to be on the referral registry, the department will utilize the following procedure to determine whether the individual provider or prospective individual provider meets the minimum qualifications, and whether he or she will be able to appropriately meet the care needs of consumers:

(1) An internal review will be conducted and a decision will be made whether to accept or deny the individual provider or prospective individual provider's application to be listed on the referral registry. If the decision is to deny the individual provider or prospective individual provider's application to be listed on the referral registry, written notice will be served on the individual provider or prospective individual provider.

(2) The individual provider or prospective individual provider has the right to appeal a decision to deny his or her application to be listed on the referral registry.

(a) The appeal must be received in writing by the office of administrative hearings (OAH) as designated on the written notice within twenty-eight days of the date the written notice was mailed by DSHS.

(b) OAH will send the parties a notice containing the hearing date, time and place.

(c) Before the hearing is held:

(i) The department may contact you and try to resolve your dispute; and

(ii) You are encouraged to contact the department and try to resolve your dispute.

(d) An administrative law judge from OAH will act as presiding officer for the adjudicative proceeding.

(e) The ALJ will render an initial decision that will include all matters required by RCW 34.05.461(3). If no party seeks review of the ALJ's initial decision within the time limits set forth in chapter 388-02 WAC, the initial decision will become the final order.

(f) The board of appeals will issue a written order announcing its decision to either adopt, modify, or reverse the initial decision. The board of appeals' order will include, or incorporate by reference to the initial order, all matters required by RCW 34.05.461(3). The board of appeals' decision is the final order.

(g) The final order is the final department action and will be provided to all interested parties and to the individual provider or prospective individual provider along with information regarding the right to seek judicial review in superior court when applicable.

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NEW SECTION
WAC 388-71-06260   Who must be notified if a complaint is received about an individual provider?   If, in the course of carrying out its duties, the department or its designee, identifies concerns regarding the services being provided by an individual provider, including, but not limited to, when it receives a complaint, the department, or its designee, must notify the appropriate area agency on aging case manager or DSHS social worker regarding such concerns.

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NEW SECTION
WAC 388-71-06280   Are referral registry staff considered mandatory reporters?   Any department staff, or subcontracted staff working for the referral registry are considered mandatory reporters.

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NEW SECTION
WAC 388-71-06300   What is reasonable cause for mandatory reporting?   RCW 74.34.035 sets forth reasonable cause for mandatory reporting.

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NEW SECTION
WAC 388-71-06340   How does a consumer/employer apply to use the referral registry services?   In order to use the referral registry, a consumer/employer or consumer representative must complete the registration process. The registration process conducted by the local referral registry operations office must confirm that the consumer/employer is qualified to receive personal care or respite care paid for through medicaid or state-only funds.

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NEW SECTION
WAC 388-71-06360   How does a consumer/employer obtain a list of names from the referral registry?   He or she must complete and submit a request application to the local referral registry operations office. The completed application may indicate the days and times an individual provider is needed, the personal care tasks that need to be performed, and any preferences the consumer/employer may have. Upon completion of the application, a registry coordinator will conduct a query that will generate a list of names that best match the consumer/employer's specific criteria. The list will be given to the consumer/employer via mail, phone, fax, or email, depending on the consumer/employer's preference, within a reasonable time.

Upon successful submission of a request application, a consumer/employer or consumer representative may request a user name and password to access the registry independently to generate a list of names.

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NEW SECTION
WAC 388-71-06380   Who hires an individual provider or prospective individual provider?   It is the consumer/employer or consumer representative's responsibility to interview, screen, hire, supervise, and terminate an individual provider or prospective individual provider.

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NEW SECTION
WAC 388-71-06400   Does a consumer/employer who is eligible to have his or her individual provider paid through medicaid or state-only funds from DSHS need to gain approval from his/her case manager, social worker or nurse?   Yes, they must receive approval from his/her case manager, social worker or nurse. Pursuant to WAC 388-71-0540 through 388-71-0551, the department or the AAA may deny payment to the client's choice of an individual provider or prospective individual provider when:

(1) The individual provider or prospective individual does not meet the requirements to contract with DSHS; or

(2) The case manager has a reasonable, good faith belief that the person will be unable to appropriately meet the consumer/employer needs.

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NEW SECTION
WAC 388-71-06420   How can a consumer/employer use the referral registry to get an individual provider in an emergency or as a critical personal care back-up?   A consumer/employer must complete an application with the local referral registry operations office. Registry applications can be completed by contacting the local referral registry operations office. Although a consumer/employer must complete the application process, he/she is not required to have previously used the registry prior to requesting a back-up referral.

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Washington State Code Reviser's Office