WSR 12-16-095

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed August 1, 2012, 7:00 a.m. , effective September 1, 2012 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: SSB 6384 directed the department to ensure that persons with developmental disabilities be given the opportunity to transition to a community access program after enrollment in an employment program. Therefore, the department is amending sections in chapter 388-845 WAC as necessary. In addition, these clarify current definitions in rule to promote consistent expectations for reporting and tracking of employment and community access services and rules regarding the CIIBS program are amended to address the requirement to access medicaid services first.

Citation of Existing Rules Affected by this Order: Amending WAC 388-845-0001, 388-845-0041, 388-845-0120, 388-845-0506, 388-845-0600, 388-845-0610, 388-845-1210, 388-845-1850, 388-845-2005, and 388-845-2170.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

Other Authority: SSB 6384.

Adopted under notice filed as WSR 11-23-155 on November 22, 2011, and WSR 12-09-072 on May 22 [April 17], 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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 4, Amended 10, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 4, Amended 10, Repealed 0.

Date Adopted: July 30, 2012.

Katherine I. Vasquez

Rules Coordinator

4327.7
AMENDATORY SECTION(Amending WSR 10-22-088, filed 11/1/10, effective 12/2/10)

WAC 388-845-0001   Definitions.   "ADSA" means the aging and disability services administration, an administration within the department of social and health services.

"Aggregate services" means a combination of services subject to the dollar limitations in the Basic and Basic Plus waivers.

"CARE" means the comprehensive assessment and reporting evaluation.

"Client or person" means a person who has a developmental disability as defined in RCW 71A.10.020(3) and has been determined eligible to receive services by the division under chapter 71A.16 RCW.

"DDD" means the division of developmental disabilities, a division within the aging and disability services administration of the department of social and health services.

"DDD assessment" refers to the standardized assessment tool as defined in chapter 388-828 WAC, used by DDD to measure the support needs of persons with developmental disabilities.

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

"EPSDT" means early and periodic screening, diagnosis, and treatment, medicaid's child health component providing a mandatory and comprehensive set of benefits and services for children up to age twenty one as defined in WAC 388-534-0100.

"Employment/day program services" means community access, person-to-person, individualized technical assistance, prevocational services or supported employment services subject to the dollar limitations in the Basic and Basic Plus waivers.

"Evidence based treatment" means the use of physical, mental and behavioral health interventions for which systematic, empirical research has provided evidence of statistically significant effectiveness as treatments for specific conditions. Alternate terms with the same meaning are evidence-based practice (EBP) and empirically supported treatment (EST).

"Family" means relatives who live in the same home with the eligible client. Relatives include spouse or registered domestic partner; natural, adoptive or step parent; grandparent; child; stepchild; sibling; stepsibling; uncle; aunt; first cousin; niece; or nephew.

"Family home" means the residence where you and your relatives live.

"Gainful employment" means employment that reflects achievement of or progress towards a living wage.

"HCBS waivers" means home and community based services waivers.

"Home" means present or intended place of residence.

"ICF/MR" means an intermediate care facility for the mentally retarded.

"Individual support plan (ISP)" is a document that authorizes and identifies the DDD paid services to meet a client's assessed needs.

"Integrated settings" mean typical community settings not designed specifically for individuals with disabilities in which the majority of persons employed and participating are individuals without disabilities.

"Legal representative" means a parent of a person who is under eighteen years of age, a person's legal guardian, a person's limited guardian when the subject matter is within the scope of limited guardianship, a person's attorney at law, a person's attorney in fact, or any other person who is authorized by law to act for another person.

"Living wage" means the amount of earned wages needed to enable an individual to meet or exceed his/her living expenses.

"Necessary supplemental accommodation representative" means an individual who receives copies of DDD planned action notices (PANs) and other department correspondence in order to help a client understand the documents and exercise the client's rights. A necessary supplemental accommodation representative is identified by a client of DDD when the client does not have a legal guardian and the client is requesting or receiving DDD services.

"Providers" means an individual or agency who meets the provider qualifications and is contracted with ADSA to provide services to you.

"Respite assessment" means an algorithm within the DDD assessment that determines the number of hours of respite care you may receive per year if you are enrolled in the Basic, Basic Plus, Children's Intensive In-Home Behavioral Support, or Core waiver.

"SSI" means Supplemental Security Income, an assistance program administered by the federal Social Security Administration for blind, disabled and aged individuals.

"SSP" means a state-paid cash assistance program for certain clients of the division of developmental disabilities.

"State funded services" means services that are funded entirely with state dollars.

"You/your" means the client.

[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 205 (1)(i), and Title 71A RCW. 10-22-088, 388-845-0001, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, 388-845-0001, filed 9/22/08, effective 10/23/08; 07-20-050, 388-845-0001, filed 9/26/07, effective 10/27/07. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, 388-845-0001, filed 12/13/05, effective 1/13/06.]


AMENDATORY SECTION(Amending WSR 10-22-088, filed 11/1/10, effective 12/2/10)

WAC 388-845-0041   What is DDD's responsibility to provide my services under the DDD HCBS waivers administered by DDD?   If you are enrolled in an HCBS waiver administered by DDD((, DDD must meet your assessed needs for health and welfare.))

(1) DDD ((must address)) will provide an annual comprehensive assessment to evaluate your ((assessed)) health and welfare ((needs in)) need. Your individual support plan, as specified in WAC 388-845-3055, will document:

(a) Your identified health and welfare needs; and

(b) Your HCBS waiver services and nonwaiver services authorized to meet your assessed need.

(2) You have access to DDD paid services that are provided within the scope of your waiver, subject to the limitations in WAC 388-845-0110 and 388-845-0115.

(3) DDD will provide waiver services you need and qualify for within your waiver.

(4) DDD will not deny or limit ((your)), based on lack of funding, the number of waiver services ((based on a lack of funding)) for which you are eligible.

[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 205 (1)(i), and Title 71A RCW. 10-22-088, 388-845-0041, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 07-20-050, 388-845-0041, filed 9/26/07, effective 10/27/07. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, 388-845-0041, filed 12/13/05, effective 1/13/06.]


AMENDATORY SECTION(Amending WSR 10-22-088, filed 11/1/10, effective 12/2/10)

WAC 388-845-0120   Will I continue to receive state supplementary payments (SSP) if I am on the waiver?   Your participation in one of the DDD HCBS waivers ((does not)) may affect your continued receipt of state supplemental payment from DDD. To continue to receive SSP, you must meet DDD/SSP programmatic eligibility requirements as identified in WAC 388-827-0115.

[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 205 (1)(i), and Title 71A RCW. 10-22-088, 388-845-0120, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, 388-845-0120, filed 12/13/05, effective 1/13/06.]


AMENDATORY SECTION(Amending WSR 10-22-088, filed 11/1/10, effective 12/2/10)

WAC 388-845-0506   Who is a qualified provider of behavior management and consultation for the children's intensive in-home behavioral supports (CIIBS) waiver?   (1) Under the CIIBS waiver, providers of behavior management and consultation must be contracted with DDD to provide CIIBS intensive services as one of the following ((four)) two provider types:

(a) Master's or PhD level behavior specialist, licensed or certified/registered to provide behavioral assessment, intervention, and training;

(b) Behavior technician, licensed or certified/registered to provide behavioral intervention and training, following the lead of the behavior specialist((;

(c) Certified music therapist; and/or

(d) Certified recreation therapist)).

(2) Providers of behavior management and consultation per WAC 388-845-0505 may be utilized to provide counseling and/or therapy services to augment the work of the CIIBS intensive service provider types.

[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 205 (1)(i), and Title 71A RCW. 10-22-088, 388-845-0506, filed 11/1/10, effective 12/2/10.]


AMENDATORY SECTION(Amending WSR 08-20-033, filed 9/22/08, effective 10/23/08)

WAC 388-845-0600   What are community access services?   Community access ((services are provided in the community to enhance or maintain your community integration, physical or mental skills.)) is an individualized service that provides clients with opportunities to engage in community based activities that support socialization, education, recreation and personal development for the purpose of:

(1) ((If you are age sixty-two or older, these services are available to assist you to participate in activities, events and organizations in the community in ways similar to others of retirement age)) Building and strengthening relationships with others in the local community who are not paid to be with the person.

(2) ((These services are available in the Basic, Basic Plus, and CORE waivers)) Learning, practicing and applying skills that promote greater independence and inclusion in their community.

[Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, 388-845-0600, filed 9/22/08, effective 10/23/08. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, 388-845-0600, filed 12/13/05, effective 1/13/06.]


NEW SECTION
WAC 388-845-0603   Who is eligible to receive community access services?   You are eligible to receive community access services when you are enrolled in the Basic, Basic Plus or Core waivers and you meet one of the following conditions below:

(1) You are age sixty-two or older; or

(2) You are twenty-one or older and you have participated in a DDD employment program for nine months; or

(3) You and/or your legal representative request that DDD grant an exception, per chapter 71A.12 RCW, to the requirement that you participate in an employment program for nine months prior to transitioning to a community access service because:

(a) You have a medical condition that requires hospitalization or ongoing care by a medical professional and that affects your ability to participate in daily activities to the degree that employment would:

(i) Result in a significant decline in your ability to function; or

(ii) Seriously endanger your health.

(b) You have been available for employment planning activities and an employment provider has not provided services within ninety days of your request for employment services.

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AMENDATORY SECTION(Amending WSR 08-20-033, filed 9/22/08, effective 10/23/08)

WAC 388-845-0610   Are there limits to community access services I can receive?   The following limits apply to your receipt of community access services:

(1) ((You must be age sixty-two or older.

(2))) You cannot ((be authorized to)) receive community access services if you ((receive)) are receiving prevocational ((services)) or supported employment services.

(3) The ((dollar limitations for employment/day program services in your Basic or Basic Plus waiver limit the amount of service you may receive)) amount of community access services you may receive cannot exceed the employment/day program yearly limit that is established in your HCBS waiver.

[Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, 388-845-0610, filed 9/22/08, effective 10/23/08. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, 388-845-0610, filed 12/13/05, effective 1/13/06.]

Reviser's note: The typographical 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.
NEW SECTION
WAC 388-845-1030   What are individual technical assistance services?   Individualized technical assistance service is assessment and consultation to the employment provider and/or client to identify and address existing barriers to employment. This is in addition to supports received through supported employment services or pre-vocational services for individuals who have not yet achieved their employment goal.

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NEW SECTION
WAC 388-845-1035   Who are qualified providers of individualized technical assistance services?   Providers of individualized technical assistance service must be a county or an individual or agency contracted with a county or DDD.

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NEW SECTION
WAC 388-845-1040   Are there limits to the individualized technical assistance services I can receive?   (1) Individualized technical assistance service cannot exceed six months in an individual's plan year.

(2) These services are available on the Basic, Basic Plus, Core and Community Protection Waivers.

(3) Individual must be receiving supported employment or pre-vocational services.

(4) The dollar limitations for employment/day program services in your Basic or Basic Plus waiver limit the amount of supported employment service you may receive.

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AMENDATORY SECTION(Amending WSR 08-20-033, filed 9/22/08, effective 10/23/08)

WAC 388-845-1210   Are there limits to the person-to-person service I can receive?   (1) You must be age twenty and graduating from high school prior to your July or August twenty-first birthday, age twenty-one and graduated from high school or age twenty-two or older to receive person-to-person services.

(2) The dollar limitations for employment/day program services in your Basic or Basic Plus waiver limit the amount of service you may receive.

(3) These services will be provided in an integrated environment.

(4) Your service hours are determined by the level of assistance you need to reach your employment outcomes and might not equal the number of hours you spend on the job or in job related activities.

(5) Person to person services will only be available through June 30, 2012.

[Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, 388-845-1210, filed 9/22/08, effective 10/23/08. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, 388-845-1210, filed 12/13/05, effective 1/13/06.]


AMENDATORY SECTION(Amending WSR 10-22-088, filed 11/1/10, effective 12/2/10)

WAC 388-845-1850   Are there limitations to my receipt of specialized nutrition and specialized clothing?   (1) The following limitations apply to your receipt of specialized nutrition services:

(a) ((Services may be authorized as a waiver service only after you have accessed what is available to you under medicaid including EPSDT per WAC 388-534-0100, and any private health insurance plan;

(b) Services must be evidence based)) Specialized nutrition may be authorized as a waiver service if the service is not covered by medicaid or private insurance. You must assist the department in determining whether third party payments are available;

(b) Services must be safe, effective, and individualized;

(c) Services must be ordered by a physician licensed to practice in the state of Washington;

(d) Specialized diets must be periodically monitored by a certified dietitian;

(e) Specialized nutrition products will not constitute a full nutritional regime unless an enteral diet is the primary source of nutrition;

(f) Department coverage of specialized nutrition products is limited to costs that are over and above inherent family food costs;

(g) DDD reserves the right to require a second opinion by a department selected provider; and

(h) Prior approval by regional administrator or designee is required.

(2) The following limitations apply to your receipt of specialized clothing:

(a) ((Services may be authorized as a waiver service only after you have accessed what is available to you under medicaid, EPSDT per WAC 388-534-0100, and any private health insurance plan;)) Specialized clothing may be authorized as a waiver service if the service is not covered by medicaid or private insurance. You must assist the department in determining whether third party payments are available.

(b) ((Specialized clothing must be recommended by an appropriate health professional, such as an OT, behavior therapist, or podiatrist;)) The department requires written documentation from an appropriate health professional regarding your need for the service. This recommendation must take into account that the health professional has recently examined you, reviewed your medical records, and conducted an assessment.

(c) ((DDD reserves the right to require a second opinion by a department-selected provider; and)) The department may require a second opinion from a department selected provider that meets the same criteria as subsection (b) of this section.

(d) Prior approval by regional administrator or designee is required.

[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 205 (1)(i), and Title 71A RCW. 10-22-088, 388-845-1850, filed 11/1/10, effective 12/2/10.]


AMENDATORY SECTION(Amending WSR 10-22-088, filed 11/1/10, effective 12/2/10)

WAC 388-845-2005   Who is a qualified provider of staff/family consultation and training?   To provide staff/family consultation and training, a provider must be one of the following licensed, registered or certified professionals and be contracted with DDD:

(1) Audiologist;

(2) Licensed practical nurse;

(3) Marriage and family therapist;

(4) Mental health counselor;

(5) Occupational therapist;

(6) Physical therapist;

(7) Registered nurse;

(8) Sex offender treatment provider;

(9) Speech/language pathologist;

(10) Social worker;

(11) Psychologist;

(12) Certified American sign language instructor;

(13) Nutritionist;

(14) Counselors registered or certified in accordance with the requirements of chapter 18.19 RCW;

(15) Certified dietician;

(16) Recreation therapist registered in Washington and certified by the National Council for Therapeutic Recreation; ((or))

(17) Providers listed in WAC 388-845-0506 and contracted with DDD to provide CIIBS intensive services;

(18) Certified music therapist (for CIIBS only); or

(19) Psychiatrist.

[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 205 (1)(i), and Title 71A RCW. 10-22-088, 388-845-2005, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 07-20-050, 388-845-2005, filed 9/26/07, effective 10/27/07. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, 388-845-2005, filed 12/13/05, effective 1/13/06.]


AMENDATORY SECTION(Amending WSR 10-22-088, filed 11/1/10, effective 12/2/10)

WAC 388-845-2170   Are there limitations on my receipt of therapeutic equipment and supplies?   The following limitations apply to your receipt of therapeutic equipment and supplies under the CIIBS waiver:

(1) Therapeutic equipment and supplies may be authorized as a waiver service ((only after you have accessed what is available to you under medicaid including EPSDT per WAC 388-534-0100, and any private health insurance plan. The department will require evidence that you have accessed your full benefits through medicaid, EPSDT, and private insurance before authorizing this waiver service)) if the service is not covered by medicaid or private insurance. You must assist the department in determining whether third party payments are available.

(2) The department does not pay for experimental equipment and supplies.

(3) The department requires your treating professional's written recommendation regarding your need for the service. This recommendation must take into account that the treating professional has recently examined you, reviewed your medical records, and conducted a functional evaluation.

(4) The department may require a written second opinion from a department selected professional that meets the same criteria in subsection (3) of this section.

[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 205 (1)(i), and Title 71A RCW. 10-22-088, 388-845-2170, filed 11/1/10, effective 12/2/10.]