WSR 12-05-075

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed February 16, 2012, 2:43 p.m. , effective February 16, 2012, 2:43 p.m. ]


Effective Date of Rule: Immediately.

Purpose: The text of the rules has not changed. Instead, this filing is a response to a lawsuit that was filed in Thurston County superior court on February 1, 2012: SEIU Healthcare 775NW v. Robin Arnold-Williams and DSHS. Although the department of social and health services maintains that there is no merit to this lawsuit and there was ample legal authority to file the previous emergency rules (WSR 11-23-082 and 12-04-053) on an emergency basis, as stated in the CR-103E forms filed in conjunction with such rules, this filing is offered to clarify the reasons for the emergency rules.

1. Effective November 16, 2011, the department amended long-term care services rules, including WAC 388-106-0130, to revise the assessment process for allocating personal care hours. This revision was necessitated by the Washington state supreme court's decision in Samantha A. v. Department of Social and Health Services.

2. Effective February 1, 2012, the department amended long-term care services rules, including WAC 388-106-0130, to eliminate add-on personal care hours for off-site laundry service and for clients who live more than forty-five minutes from essential services.

This CR-103E supersedes WSR 12-04-053.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-106-0126 and 388-106-0213; and amending WAC 388-106-0075 and 388-106-0130.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

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; that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal year 2009, 2010, 2011, 2012 or 2013, 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: On February 1, 2012, the Service Employees International Union filed a lawsuit challenging the adoption of changes to WAC 388-106-0010 and 388-106-0130 by emergency rule. SEIU Healthcare 775NW v. Robin Arnold-Williams and DSHS, Thurston County Superior Court, Docket No. 12-2-00195-0. The emergency rule filing process complied with rule-making requirement[s] and the department disagrees with the allegations made in the lawsuit. Nevertheless, this CR-103E is provided to further clarify the basis for the emergency rules.

Clarified Reasons for Changes Originally Made Under WSR 11-23-082. In Samantha A. v. DSHS, the state supreme court ruled that DSHS's personal care rule for children violated medicaid comparability requirements because the reductions were made without consideration of a child's individualized circumstances. This decision was a state law change that required an immediate change to the assessment process under WAC 388-106-0130. The emergency amendments to the rule were authorized by RCW 34.05.350 (1)(a) and (b) for the following reasons: They were necessary to provide for individualized assessments that consider children's developmental stage and informal support, as well as shared benefits between two or more clients and between a client and provider; they were necessary to provide clients with detailed information about their personal care benefits to help them understand the reasons for any adjustments to base hours, which were made during the individualized assessment process. The department is proceeding with the permanent adoption of these rules; the CR-101 was filed as WSR 11-22-074 on November 1, 2011.

Clarified Reasons for Changes Under WSR 12-04-053: The department eliminated the add-on hours for off-site laundry and add-on hours for those clients living more than forty-five minutes from essential services as a result of the department's need to stay within budget appropriations. WAC 388-106-0130 was already being amended by emergency rule under WSR 11-23-082 (as described above). Thus, WSR 12-04-053 replaced and superseded the earlier emergency filing under WSR 11-23-082.

The emergency elimination of add-on hours under this filing was required to meet the legislative appropriation for personal care services and was authorized by RCW 34.05.350 (1)(c). The Samantha A. decision required adjustments in children's base personal care services hours, which resulted in the expenditure of additional funds for children's personal care services. In order to remain within available resources and meet budgetary requirements, the elimination of these add-on hours needed to take effect immediately. Consequently, the amendments had to be adopted as an emergency rule as authorized by RCW 34.05.350.

This filing supersedes the CR-103E filed as WSR 12-04-053 on January 30, 2012.

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 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 0, Repealed 0.

Date Adopted: February 16, 2012.

Katherine I. Vasquez

Rules Coordinator

4341.5
AMENDATORY SECTION(Amending WSR 05-11-082, filed 5/17/05, effective 6/17/05)

WAC 388-106-0075   How is my need for personal care services assessed in CARE?   ((To assess your need for personal care services,)) The department gathers information from you, your caregivers, family members((,)) and other sources to assess your abilities to perform personal care tasks. The department will also consider developmental milestones for children as defined in WAC 388-106-0130 when individually assessing your abilities and needs for assistance. The department will assess your ability to perform:

(1) Activities of daily living (ADL) using self performance((,)) support provided, status and assistance available, as defined in WAC 388-106-0010. Also, the department determines your need for "assistance with body care" and "assistance with medication management," as defined in WAC 388-106-0010; and

(2) Instrumental activities of daily living (IADL) using self performance((,)) difficulty, status and assistance available, as defined in WAC 388-106-0010.

[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, 388-106-0075, filed 5/17/05, effective 6/17/05.]


AMENDATORY SECTION(Amending WSR 11-11-024, filed 5/10/11, effective 6/10/11)

WAC 388-106-0130   How does the department determine the number of hours I may receive for in-home care?   (1) The department assigns a base number of hours to each classification group as described in WAC 388-106-0125.

(2) The department will ((deduct from the)) adjust base hours to account for informal supports, shared benefit, and age appropriate functioning (as those terms are defined in WAC 388-106-0010), ((or)) and other paid services that meet some of an individual's need for personal care services, including adult day health, as follows:

(a) The CARE tool determines the adjustment for informal supports ((by determining)), shared benefit, and age appropriate functioning; determines the amount of assistance available ((to meet your needs,)); assigns ((it)) a numeric ((percentage,)) value to those assessed indicators; and ((reduces)) adjusts the base hours assigned to the classification group by the numeric ((percentage)) value. The department has assigned the following numeric values for the amount of assistance available for each ADL and IADL:

Meds Self ((Performance)) Administration Status Assistance Available Value

((Percentage))

((Self administration of medications)) Medication Management Rules for all codes apply except independent is not counted Unmet N/A 1
Met N/A 0
Decline N/A 0
Age appropriate functioning N/A 0
Partially met <1/4 time .9
1/4 to 1/2 time .7
1/2 to 3/4 time .5
>3/4 time .3
Unscheduled ADLs Self Performance Status Assistance Available Value

((Percentage))

Bed mobility, transfer, walk in room, eating, toilet use Rules apply for all codes except: Did not occur/client not able and Did not occur/no provider = 1;

Did not occur/client declined and independent are not counted.

Unmet N/A 1
Met N/A 0
Decline N/A 0
Age appropriate functioning N/A 0
Partially met <1/4 time .9
1/4 to 1/2 time .7
1/2 to 3/4 time .5
>3/4 time .3
Scheduled ADLs Self Performance Status Assistance Available Value

((Percentage))

Dressing,

personal hygiene,

bathing

Rules apply for all codes except: Did not occur/client not able and Did not occur/no provider = 1;

Did not occur/client declined and independent are not counted.

Unmet N/A 1
Met N/A 0
Decline N/A 0
Age appropriate functioning N/A 0
Partially met <1/4 time .75
1/4 to 1/2 time .55
1/2 to 3/4 time .35
>3/4 time .15
IADLs Self Performance Status Assistance Available Value

((Percentage))

Meal preparation,

Ordinary housework,

Essential shopping

Rules for all codes apply except independent is not counted. Unmet N/A 1
Met N/A 0
Decline N/A 0
Age appropriate functioning N/A 0
Partially met or Shared benefit <1/4 time .3
1/4 to 1/2 time .2
1/2 to 3/4 time .1
>3/4 time .05
IADLs Self Performance Status Assistance Available Value

((Percentage))

Travel to medical Rules for all codes apply except independent is not counted. Unmet N/A 1
Met N/A 0
Decline N/A 0
Age appropriate functioning N/A 0
Partially met <1/4 time .9
1/4 to 1/2 time .7
1/2 to 3/4 time .5
>3/4 time .3
Key:

> means greater than

< means less than


(b) To determine the amount ((of reduction)) adjusted for informal support, shared benefit and/or age appropriate functioning, the ((value percentages)) numeric values are totaled and divided by the number of qualifying ADLs and IADLs needs. The result is value A. Value A is then subtracted from one. This is value B. Value B is divided by three. This is value C. Value A and Value C are summed. This is value D. Value D is multiplied by the "base hours" assigned to your classification group and the result is the number of adjusted in-home hours ((reduced for informal supports)).

(3) ((Also, the department will adjust in-home base hours when:

(a) There is more than one client receiving ADSA-paid personal care services living in the same household, the status under subsection (2)(a) of this section must be met or partially met for the following IADLs:

(i) Meal preparation;

(ii) Housekeeping;

(iii) Shopping; and

(iv) Wood supply.

(b) You are under the age of eighteen, your assessment will be coded according to age guidelines codified in WAC 388-106-0213.

(4))) Effective February 1, 2012, after ((deductions)) adjustments are made to your base hours, as described in ((subsections (2) and (3))) subsection (2), the department may add on hours ((based on your living environment)) only if you use wood as your sole source of heat:


Condition Status Assistance Available Add On Hours
((Offsite laundry facilities, which means the client does not have facilities in own home and the caregiver is not available to perform any other personal or household tasks while laundry is done. N/A N/A

8
Client is >45 minutes from essential services (which means he/she lives more than 45 minutes one-way from a full-service market). Unmet N/A 5
Met N/A 0
Partially met <1/4 time 5
between 1/4 to 1/2 time 4
between 1/2 to 3/4 time 2
>3/4 time 2))
Wood supply used as sole source of heat. Unmet N/A 8
Met N/A 0
Declines N/A 0
Age appropriate N/A 0
Partially met or Shared benefit <1/4 time 8
between 1/4 to 1/2 time 6
between 1/2 to 3/4 time 4
>3/4 time 2

(((5))) (4) In the case of New Freedom consumer directed services (NFCDS), the department determines hours as described in WAC 388-106-1445.

(((6))) (5) The result of actions under subsections (2), (3), and (4) is the maximum number of hours that can be used to develop your plan of care. The department must take into account cost effectiveness, client health and safety, and program limits in determining how hours can be used to ((meet)) address your identified needs. In the case of New Freedom consumer directed services (NFCDS), a New Freedom spending plan (NFSP) is developed in place of a plan of care.

(((7))) (6) You and your case manager will work to determine what services you choose to receive if you are eligible. The hours may be used to authorize:

(a) Personal care services from a home care agency provider and/or an individual provider.

(b) Home delivered meals (i.e. a half hour from the available hours for each meal authorized).

(c) Adult day care (i.e. a half hour from the available hours for each hour of day care authorized).

(d) A home health aide if you are eligible per WAC 388-106-0300 or 388-106-0500.

(e) A private duty nurse (PDN) if you are eligible per WAC 388-71-0910 and 388-71-0915 or WAC 388-551-3000 (i.e. one hour from the available hours for each hour of PDN authorized).

(f) The purchase of New Freedom consumer directed services (NFCDS).

(7) If you are a child applying for personal care services:

(a) The department will complete a CARE assessment and use the developmental milestones table below when assessing your ability to perform personal care tasks.

(b) Your status will be coded as age appropriate when your self performance is at a level expected for persons in your assessed age range, as indicated by the developmental milestones table, unless the circumstances in subpart (c) apply.

(c) The department may code status as other than age appropriate for an ADL or IADL, despite your self performance falling within the expected developmental milestones for your age, if the department determines during your assessment that your level of functioning is not primarily due to your age.


Developmental Milestones for Activities of Daily Living (ADLS)
ADL Self-Performance Assessed Age Range
Medication Management Independent

Self-Directed

Assistance Required

Must Be Administered

Birth through the 17th year
Locomotion in Room Independent

Supervision

Limited

Extensive

Birth through the 3rd year
Total Birth through the 1st year
Locomotion Outside Room Independent

Supervision

Birth through the 5th year
Limited

Extensive

Birth through the 3rd year
Total Birth through the 1st year
Walk in Room Independent

Supervision

Limited

Extensive

Birth through the 3rd year
Total Birth through the 1st year
Bed Mobility Independent

Supervision

Limited

Extensive

Birth through the 2nd year
Total Birth through the 1st year
Transfers Independent

Supervision

Limited

Extensive

Total

Birth through the 2nd year
Toilet Use Independent

Supervision

Limited

Extensive

Birth through the 7th year
Total Birth through the 3rd year
Eating Independent

Supervision

Limited

Extensive

Total

Birth through the 2nd year
Bathing Independent

Supervision

Birth through the 11th year
Physical help/Transfer only

Physical help/part of bathing

Birth through the 7th year
Total Birth through the 4th year
Dressing Independent

Supervision

Birth through the 11th year
Limited

Extensive

Birth through the 7th year
Total Birth through the 4th year
Personal Hygiene Independent

Supervision

Birth through the 11th year
Limited or extensive Birth through the 7th year
Total Birth through the 4th year


Developmental Milestones for Instrumental Activities of Daily Living
IADL Self Performance Assessed Age
Telephone

Transportation

Essential

Shopping

Wood Supply

Housework

Finances

Meal Preparation

Independent

Supervision

Limited

Extensive

Total

Birth through the 17th year


Additional Developmental Milestones coding
CARE panel Selection Assessed Age
Speech/Hearing:

Comprehension

By others client is = Age Appropriate Birth through the 2nd year
Psych Social:

MMSE

Can MMSE be administereed? = No Birth through the 17th year
Psych Social:

Memory/Short Term

Recent memory = Age appropriate Birth through the 11th year
Psych Social:

Memory/Long Term

Long Term memory = Age appropriate Birth through the 11th year
Psych Social:

Depression

Interview = unable to obtain Birth through the 11th year
Psych Social:

Decision Making

Rate how client makes decision = Age appropriate Birth through the 11th year
Bladder/Bowel: Bladder/Bowel Control:

Continent

Usually Continent

Occasionally Incontinent

Frequently Incontinent

Birth through the 11th year
Bladder/Bowel: Bladder/Bowel Control:

Incontinent all or most of the time

Birth through the 5th year
Bladder/Bowel: Appliance and programs = Potty Training Birth through the 3rd year

(8) If you are a child applying for personal care services and your self performance is not age appropriate as determined under subsection (7), the department will assess for any informal supports or shared benefit available to assist you with each ADL and IADL.

(a) When you are living with your legally responsible parent(s), the department will take into account their legal obligation to care for you when determining the availability of informal supports. Legally responsible parents include natural parents, step-parents, and adoptive parents. Legally responsible parents generally do not include other relative caregivers or foster parents. A legally responsible parent will not be considered unavailable to meet your needs due to other obligations such as work or additional children because such obligations do not decrease the parent's legal responsibility to care for you regardless of your disabilities.

(b) Informal supports for school-age children include supports actually available through a school district, regardless of whether you take advantage of those available supports.

(c) The department will presume that you have informal supports available to assist you with your ADLs and IADLs over three-fourths but not all of the time. The department will code your informal support as greater or less than the presumed amount if your assessment shows that your need for assistance with personal care tasks is fully met by informal supports or shared benefit, or if you provide specific information during your assessment to indicate why you do not have support available three-fourths or more of the time to assist you with a particular ADL or IADL.

[Statutory Authority: RCW 74.08.090, 74.09.520, and 2010 c 37. 11-11-024, 388-106-0130, filed 5/10/11, effective 6/10/11. Statutory Authority: RCW 74.08.090, 74.09.520. 08-23-011, 388-106-0130, filed 11/6/08, effective 12/7/08; 08-03-111, 388-106-0130, filed 1/22/08, effective 2/22/08. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, 388-106-0130, filed 7/25/06, effective 8/25/06. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.010 and 74.39A.020. 06-05-022, 388-106-0130, filed 2/6/06, effective 3/9/06. Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, 388-106-0130, filed 5/17/05, effective 6/17/05.]

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-106-0126 If I am under age twenty-one, how does CARE use criteria to place me in a classification group for in-home care?
WAC 388-106-0213 How are my needs assessed if I am a child applying for MPC services?

Washington State Code Reviser's Office