EMERGENCY RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Effective Date of Rule: April 29, 2011.
Purpose: The department is adding new WAC 388-71-06020 through 388-71-06420. As a result of the 2009-2011 supplemental operating budget (ESSB 6444), the home care quality authority is no longer funded, and the home care referral registry program has moved to the aging and disability services administration's home and community services division effective July 1, 2010.
This filing continues emergency rules filed December 30, 2010, as WSR 11-02-043.
Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.
Other Authority: Washington state 2009-2011 supplemental operating budget (ESSB 6444), Governor's Executive Order 10-04.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; 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: These amendments are necessary to address the state's revenue shortfall as outlined in the 2009-2011 supplemental operating budget (ESSB 6444). The home care quality authority is no longer funded, and the home care referral registry moved to the home and community services division effective July 1, 2010. This CR-103E continues emergency rules filed December 30, 2010, as WSR 11-02-043 while the department completes the process for permanent adoption. The CR-102 hearing is scheduled for April 26, 2011.
Number of Sections Adopted in Order to Comply with Federal Statute: New 23, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.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 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 23, Amended 0, Repealed 0.
Date Adopted: April 25, 2011.
Katherine I. Vasquez
Rules Coordinator
4217.9Referral registry
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"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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(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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(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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(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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(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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(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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(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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(1) Contact the local referral registry operations office; and
(2) Request and complete an application packet.
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(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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(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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(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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(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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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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(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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