WSR 14-01-107 PROPOSED RULES DEPARTMENT OF SOCIAL AND HEALTH SERVICES (Behavioral Health and Service Integration Administration) [Filed December 18, 2013, 10:34 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-16-103.
Title of Rule and Other Identifying Information: New section WAC 388-877A-0138 Outpatient mental health services—Individual treatment services; and amending WAC 388-877A-0138 [388-877A-0100] Outpatient mental health services—General, 388-877A-0100 [388-877A-0110] Outpatient mental health services—Agency staff requirements, 388-877B-0320 Chemical dependency outpatient treatment services—Clinical record content and documentation, 388-877B-0420 Chemical dependency opiate substitution treatment services—Clinical record content and documentation requirements, and 388-877B-0500 Chemical dependency assessment services—General.
Hearing Location(s): Office Building 2, Lookout Room, 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) on January 22, 2014, at 10:00 a.m.
Date of Intended Adoption: Not earlier than January 23, 2014.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on January 22, 2014.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by January 8, 2014, TTY (360) 664-6178 or (360) 664-6094 or by e-mail jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed new section provides program-specific rules for individual treatment services for agencies that provide outpatient mental health services. The amended rules: (1) Update WAC 388-877A-0100 by adding individual treatment services to the outpatient mental health service list and applied behavioral analysis (ABA) services to the recovery support services list. (2) Ensure consistency with other sections in chapters 388-877A and 388-877B WAC pertaining to program-specific agency staff requirements, documentation requirements regarding giving an individual a copy of the rules and responsibilities for treatment participants, and requirements when an individual is transferred to another service provider. (3) Eliminate the reference in WAC 388-877A-0500 to the Alcoholism and Drug Addiction Treatment and Support Act (ADATSA) which will end when the federal Patient Protection and Affordable Care Act (ACA) rules become effective January 1, 2014. (4) Update and clarify department rules for licensed behavioral health agencies and help provide standardization of documentation requirements to program-specific behavioral health services programs. (5) Assure requirements are consistent for all behavioral health agencies and program-specific services.
Reasons Supporting Proposal: The health care authority (HCA) and the department of social and health services (the department) are concurrently adopting rules to meet the requirements of the settlement agreement which requires HCA to provide a coverage benefit to assist children with autism spectrum disorders and DSHS to establish minimum licensing standards in rule in order for community mental health agencies to deliver ABA services.
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: Kathy Sayre, P.O. Box 45330, Olympia, WA 98504-5330, (360) 725-1342; Implementation and Enforcement: Pete Marburger, P.O. Box 45330, Olympia, WA 98504-5330, (360) 725-1513.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
SUMMARY OF PROPOSED RULE: The department, division of behavioral health and recovery (DBHR) is proposing a new section in chapter 388-877A WAC, and proposing to amend sections in chapters 388-877A and 388-877B WAC:
Summary of proposed rule:
INVOLVEMENT OF STAKEHOLDERS AND SMALL BUSINESSES: The department's DBHR recently adopted new chapters 388-877, 388-877A, 388-877B, and 388-877C WAC and subsequently provided stakeholder and provider trainings throughout the state in eight community locations. During some of these training sessions, stakeholders requested that the department add language back into chapter 388-877A WAC regarding individual therapy services (outpatient mental health services). Providers providing individual therapy services informed DBHR that language in rule is needed in order to bill for the services as well as assure reimbursement for providing these services. Individual therapy services were previously defined in rule and the department did not adopt the language into the new rule. The department agreed and is proposing new section WAC 388-877A-0138.
The department filed a CR-101 (preproposal statement of inquiry) under WSR 13-16-103 on August 7, 2013. Copies of the CR-101 were sent to tribal leaders and all stakeholders and providers listed in DBHR's listserv data base.
In November 2013, the department sent a draft of the rule to all interested parties who contacted the department with an interest to participate in reviewing the proposed rule. The department provides a response to each comment received.
SMALL BUSINESS ECONOMIC IMPACT STATEMENT (SBEIS) – DETERMINATION OF NEED: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses and it outlines the information that must be included in an SBEIS. Preparation of an SBEIS is required when a proposed rule has the potential of placing a disproportionate economic impact on small businesses. The statute defines small businesses as those business entities that employ fifty or fewer people and are independently owned and operated.
Preparation of an SBEIS is required when a proposed rule has the potential of placing a disproportionate economic impact on small businesses. The statute outlines information that must be included in an SBEIS.
This rule applies to behavioral health agencies that provide chemical dependency treatment services and/or outpatient mental health treatment services. These businesses fall under the North American Industry Classification System (NAICS) codes:
The department previously determined that there were one hundred twenty-six existing for-profit chemical dependency treatment agencies that meet the criteria for small businesses under RCW 19.85.020. Subsequently, the department decided to consider economic impacts on all for-profit and publicly-funded department-certified chemical dependency treatment agencies. Therefore, the industry analysis includes five hundred eighty certified chemical dependency treatment agencies. The department further determined there are about one hundred eighty business entities that provide mental health treatment services at four hundred twenty specific locations. Of the estimated one thousand services sites providing chemical dependency and mental health treatment services, about one hundred sixty business organizations maintain both a certificate for chemical dependency treatment services and a license for mental health treatment services.
EVALUATION OF PROBABLE COSTS AND PROBABLE BENEFITS: Since WAC 388-877A-0138 is a new section it is considered to "make significant amendments to a policy or regulatory program." Under RCW 34.05.328 (5)(c)(iii), the department has determined the rule to be "significant" as defined by the Washington state legislature.
As required by RCW 34.05.328 (1)(d), the department has analyzed the probable costs and probable benefits of the proposed amendments, taking into account both the qualitative and quantitative costs and benefits. The department's analysis shows the costs and benefits of the proposed rule to those impacted by the rule. Impacted groups include behavioral health agencies owned by nonprofit businesses, for-profit businesses, public nonprofit providers, and tribal programs that provide DBHR-certified chemical dependency services and/or certified outpatient mental health services.
Costs: Under chapter 19.85 RCW, DBHR has considered annual costs to small businesses that are fifty dollars or more per client. The department's analysis revealed that there are no costs or minimal costs for the proposed rule that will affect treatment services provided at approximately one thousand sites that meet the definition of a small business.
Mitigating Costs: Costs are determined to be minor under chapter 19.85 RCW. For the rules of the department, "minor cost" means cost per business that is less than fifty dollars of annual cost per client or other appropriate unit of service.
The department has staff available to answer any questions an agency may have in order to implement this rule.
Benefits: The benefits to the implementation of this rule include individual care, programmatic, administrative, and improved cross-systems collaboration.
(1) The new rule provides an agency that provides outpatient mental health services with program-specific rules for individual treatment services.
(2) The rule updates WAC 388-877A-0100 by adding individual treatment services to the outpatient mental health service list in subsection (2) and ABA services to the recovery support services list in subsection (4).
(3) The amended rule ensures consistency with other sections in chapters 388-877A and 388-877B WAC pertaining to program-specific agency staff requirements, documentation requirements regarding giving an individual a copy of the rules and responsibilities for treatment participants, and requirements when an individual is transferred to another service provider.
(4) The rule eliminates the reference in WAC 388-877A-0500 to ADATSA which will end when the federal ACA rules become effective January 1, 2015. Individuals eligible for ADATSA will be newly eligible under the ACA rules.
(5) The rule updates and clarifies department rules for licensed behavioral health agencies and helps provide standardization of documentation requirements to program-specific behavioral health services programs.
Agencies that elect to become a behavioral health agency under proposed chapter 388-877 WAC must also meet the program-specific certification requirements in chapters 388-877A and 388-877B WAC for the program-specific services they provide. The rule benefits agencies by updating and clarifying requirements and assuring requirements are consistent for all agencies and program-specific services.
CONCLUSION: The department has given careful consideration to the impact of the proposed rule on small businesses. To comply with the Regulatory Fairness Act (chapter 19.85 RCW), the department has analyzed impacts on small businesses. The department has determined the costs to be minor and has determined the probable benefits outweigh the probable costs.
Please contact Kathy Sayre if you have any questions (360) 725-1342, toll free 1-877-301-4557, or by e-mail kathy.sayre@dshs.wa.gov.
A copy of the statement may be obtained by contacting Kathy Sayre, Rules Manager, P.O. Box 45330, Olympia, WA 98504-5330, phone (360) 725-1342, fax (360) 725-2280, e-mail kathy.sayre@dshs.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kathy Sayre, P.O. Box 45330, Olympia, WA 98504-5330, phone (360) 725-1342, fax (360) 725-2280, e-mail kathy.sayre@dshs.wa.gov.
December 11, 2013
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 13-12-053, filed 5/31/13, effective 7/1/13)
WAC 388-877A-0100 Outpatient mental health services—General.
The rules in this section apply to behavioral health agencies that provide outpatient mental health services. The definitions in WAC 388-877-0200 also apply to outpatient mental health services. The department requires all agencies and providers affected by this rule to fully comply with the applicable requirements in chapter 388-877 WAC, chapter 388-877A WAC, chapter 388-877B WAC, and chapter 388-877C WAC no later than September 1, 2013. (1) Outpatient mental health services are intended to improve and/or reduce symptoms, and resolve situational disturbances for individuals in the areas of relational, occupational and/or vocational concerns. (2) Outpatient mental health services include: (a) Individual treatment services (see WAC 388-877A-0138); (b) Brief intervention treatment services (see WAC 388-877A-0140); (((b))) (c) Group therapy services (see WAC 388-877A-0150); (((c))) (d) Family therapy services (see WAC 388-877A-0155); (((d))) (e) Case management services (see WAC 388-877A-0170); (((e))) (f) The optional mental health services described in (3) of this subsection; and (((f))) (g) The recovery support services described in (4) of this subsection. (3) A behavioral health agency certified for outpatient mental health services may choose to provide optional outpatient mental health services. Optional outpatient mental health services require additional program-specific certification by the department's division of behavioral health and recovery and include the following: (a) Psychiatric medication services (see WAC 388-877A-0180); (b) Day support services (see WAC 388-877A-0190); (c) Less restrictive alternative (LRA) support services (see WAC 388-877A-0195); and (d) Services provided in a residential treatment facility (see WAC 388-877A-0197). (4) A behavioral health agency certified for outpatient mental health services may also provide recovery support services. Recovery support services require program-specific certification and include the following: (a) Employment services (see WAC 388-877A-0330); (b) Peer support services (see WAC 388-877A-0340); (c) Wraparound facilitation services (see WAC 388-877A-0350); ((and)) (d) Medication support services (see WAC 388-877A-0360); and (e) Applied behavior analysis (ABA) services (see WAC 388-877A-00370). (5) An agency providing outpatient mental health services to individuals must: (a) Be licensed by the department as a behavioral health agency. (b) Meet the applicable behavioral health agency licensure, certification, administration, personnel, and clinical requirements in chapter 388-877 WAC. (c) Have policies and procedures to support and implement the: (i) General requirements in chapter 388-877 WAC; (ii) Applicable program-specific requirements for each outpatient mental health service provided, and each optional and recovery support service requiring program-specific certification that the agency elects to provide; and (iii) Department of Corrections Access to Confidential Mental Health Information requirements in WAC 388-865-0600 through 388-865-0640. (6) At the verbal or written request of the individual, the agency must, if applicable: (a) Include the individual's family members, significant others, and other relevant treatment providers in the services provided by the agency; and (b) Document the request in the individual's clinical record. (7) If an individual has a crisis plan, the crisis plan must be: (a) Placed in the individual's clinical record; and (b) Made available to the following, subject to state and federal confidentiality rules and laws: (i) Designated mental health professionals; (ii) Crisis team members; and (iii) Voluntary and involuntary inpatient evaluation and treatment facilities. (8) An agency that provides services at an established off-site location(s) must: (a) Maintain a list of each established off-site location where services are provided. (b) Include, for each established off-site location: (i) The name and address of the location the services are provided; (ii) The primary purpose of the off-site location; (iii) The service(s) provided; and (iv) The date off-site services began at that location. (9) An agency providing in-home services or services in a public setting must: (a) Implement and maintain a written protocol of how services will be offered in a manner that promotes individual and staff member safety; and (b) For the purpose of emergency communication, and as required by RCW 71.05.710, provide a wireless telephone, or comparable device, to any mental health professional who makes home visits to individuals. (10) An agency must: (a) Maintain an individual's confidentiality at the off-site location; (b) Securely transport confidential information and individual records between the licensed agency and the off-site location, if applicable; (c) Be certified to provide the type of mental health service offered at each off-site location; and (d) Ensure the mental health services provided at off-site locations meet the requirements of all applicable local, state, and federal rules and laws.
AMENDATORY SECTION (Amending WSR 13-12-053, filed 5/31/13, effective 7/1/13)
WAC 388-877A-0110 Outpatient mental health services—Agency staff requirements.
In addition to meeting the agency administration and personnel requirements in WAC 388-877-0400 through 388-877-0530, an agency providing outpatient mental health services must ensure: (1) ((All)) Each outpatient mental health ((services are)) service is provided by((, or under the supervision of, a mental health professional;)) qualified staff members who meet the following for their scope of practice and services provided: (a) Professional standards, including documented coursework, continuing education and/or training; (b) Clinical supervision requirements; and (c) Licensure and/or credentialing requirements. (2) Each staff member working directly with an individual receiving mental health services receives: (a) Clinical supervision from a mental health professional who has received fifteen hours of training in clinical supervision approved by department of health; and (b) Annual violence prevention training on the safety and violence prevention topics described in RCW 49.19.030. (3) Staff access to consultation with a psychiatrist or a physician who has at least one year's experience in the direct treatment of individuals who have a mental or emotional disorder.
NEW SECTION
WAC 388-877A-0138 Outpatient mental health services—Individual treatment services.
Individual treatment services are services designed to assist an individual in attaining the goals identified in the individual service plan. The treatment services are conducted with the individual and any natural supports as identified by the individual. An agency providing individual treatment services must ensure treatment is provided by a: (1) Mental health professional who has documented coursework, continuing education, and/or training that specifically address individual therapy theories and techniques; (2) Clinician who is licensed by department of health to practice independently; or (3) Licensure candidate under the supervision of an approved supervisor, as defined in chapter 246-809 WAC, for their respective license.
AMENDATORY SECTION (Amending WSR 13-12-053, filed 5/31/13, effective 7/1/13)
WAC 388-877B-0320 Chemical dependency outpatient treatment services—Clinical record content and documentation.
In addition to the general clinical record content requirements in WAC 388-877-0640, an agency providing chemical dependency outpatient treatment services must maintain an individual's clinical record. (1) The clinical record must contain: (a) Documentation the individual was informed of federal confidentiality requirements and received a copy of the individual notice required under 42 C.F.R. Part 2. (b) Documentation that the individual received a copy of the rules and responsibilities for treatment participants, including the potential use of interventions or sanctions. (c) Documentation that the initial individual service plan was completed before treatment services are received. (((c))) (d) Documentation of progress notes in a timely manner and before any subsequent scheduled appointments of the same type of service session or group type occur or documentation as to why this did not occur. Progress notes must include the date, time, duration, participant names, and a brief summary of the session and the name of the staff member who provided it. (((d))) (e) When an individual is transferring to another service provider, documentation that copies of documents pertinent to the individual's course of treatment were forwarded to the new service provider to include: (i) The individual's demographic information; and (ii) The diagnostic assessment statement and other assessment information to include: (A) Documentation of the HIV/AIDS intervention. (B) Tuberculosis (TB) screen or test result. (C) A record of the individual's detoxification and treatment history. (D) The reason for the individual's transfer. (E) Court mandated, department of correction supervision status or the agency's recommended follow-up treatment. (F) A discharge summary and continuing care plan. (f) Justification for the change in the level of care when transferring an individual from one certified treatment service to another within the same agency, at the same location. (((e))) (g) Documentation that staff members met with each individual at the time of discharge, unless the individual left without notice, to: (i) Determine the appropriate recommendation for care and finalize a continuing care plan. (ii) Assist the individual in making contact with necessary agencies or services. (iii) Provide and document the individual was provided with a copy of the plan. (((f))) (h) Documentation that a discharge summary was completed within seven days of the individual's discharge, including the date of discharge, a summary of the individual's progress towards each individual service plan goal, legal status, and if applicable, current prescribed medication. (2) In addition to the requirements in (1) of this section, an agency must ensure the following for each individual service plan. The individual service plan must: (a) Be personalized to the individual's unique treatment needs; (b) Include individual needs identified in the diagnostic and periodic reviews, addressing: (i) All substance use needing treatment, including tobacco, if necessary; (ii) The individual's bio-psychosocial problems; (iii) Treatment goals; (iv) Estimated dates or conditions for completion of each treatment goal; and (v) Approaches to resolve the problem. (c) Document approval by a chemical dependency professional (CDP) if the staff member developing the plan is not a CDP. (d) Document that the plan was updated to reflect any changes in the individual's treatment needs, or as requested by the individual, at least once per month for the first three months, and at least quarterly thereafter. (e) Document that the plan has been reviewed with the individual.
AMENDATORY SECTION (Amending WSR 13-12-053, filed 5/31/13, effective 7/1/13)
WAC 388-877B-0420 Chemical dependency opiate substitution treatment services—Clinical record content and documentation requirements.
In addition to the general clinical record content requirements in WAC 388-877-0640, an agency providing chemical dependency opiate substitution treatment services must maintain an individual's clinical record. (1) The clinical record must contain: (a) Documentation the individual was informed of the federal confidentiality requirements and received a copy of the individual notice required under 42 C.F.R. Part 2. (b) Documentation that the agency made a good faith effort to review if the individual is enrolled in any other opiate substitution treatment and take appropriate action. (c) Documentation that the agency: (i) Referred the individual to self-help group(s). (ii) Addressed the individual's vocational, educational, and employment needs; and (iii) Encouraged family participation. (d) Documentation that the individual received a copy of the rules and responsibilities for treatment participants, including the potential use of interventions or sanction. (e) Documentation that the individual service plan was completed before the individual received treatment services. (f) Documentation that the individual service plan was reviewed: (i) Once every month, for the first ninety days in treatment; (ii) Once every three months, for every two years of continued enrollment in treatment; and (iii) Once every six months, after the second year of continued enrollment in treatment. (g) Documentation that individual or group counseling sessions were provided: (i) Once every week, for the first ninety days: (A) For a new individual in treatment; (B) For an individual readmitted more than ninety days since the most recent discharge from opiate substitution treatment. (ii) Once every week, for the first month, for an individual readmitted within ninety days since the most recent discharge from opiate substitution treatment; and (iii) Once every month, for an individual transferring from another opiate substitution treatment program, when the individual had received treatment for at least ninety days. (h) Documentation of progress notes in a timely manner and before any subsequent scheduled appointments of the same type of service session or group type occur, or documentation as to why this did not occur. Progress notes must include the date, time, duration, participant names, and a brief summary of the session and the name of the staff member who provided it. (i) Documentation when an individual refuses to provide a drug testing specimen sample or refuses to initial the log containing the sample number. The refusal is considered a positive drug screen specimen. (j) Documentation of the results and the discussion held with the individual regarding any positive drug screen specimens in the counseling session immediately following the notification of positive results. (k) Justification for the change in the level of care when transferring an individual from one certified treatment service to another within the same agency, at the same location. (l) When an individual is transferring to another service provider, documentation that copies of documents pertinent to the individual's course of treatment were forwarded to the new service provider to include: (i) The individual's demographic information; and (ii) The diagnostic assessment statement and other assessment information to include: (A) Documentation of the HIV/AIDS intervention. (B) Tuberculosis (TB) screen or test result. (C) A record of the individual's detoxification and treatment history. (D) The reason for the individual's transfer. (E) Court mandated, department of correction supervision status or the agency's recommended follow-up treatment. (F) A discharge summary and continuing care plan. (m) Documentation that a staff member(s) met with the individual at the time of discharge from the agency, unless the individual left without notice, to: (i) Determine the appropriate recommendation for care and finalize a continuing care plan. (ii) Assist the individual in making contact with necessary agencies or services. (iii) Provide and document the individual was provided a copy of the plan. (((m))) (n) Documentation that the discharge summary was completed within seven working days of the individual's discharge from the agency, which includes the date of discharge and a summary of the individual's progress towards each individual service plan goal. (((n))) (o) Documentation of all medical services. See WAC 388-877B-0440 and 388-877B-0450, regarding program physician responsibility and medication management. (2) In addition to the requirements in (1) of this section, an agency must ensure the following for each individual service plan. The individual service plan must: (a) Be personalized to the individual's unique treatment needs; (b) Include individual needs identified in the diagnostic and periodic reviews, addressing: (i) All substance use needing treatment, including tobacco, if necessary; (ii) The individual's bio-psychosocial problems; (iii) The treatment goals; (iv) Estimated dates or conditions for completion of each treatment goal; and (v) Approaches to resolve the problem. (c) Document approval by a chemical dependency professional (CDP) if the staff member developing the plan is not a CDP. (d) Document that the plan has been reviewed with the individual.
AMENDATORY SECTION (Amending WSR 13-12-053, filed 5/31/13, effective 7/1/13)
WAC 388-877B-0500 Chemical dependency assessment services—General.
The rules in WAC 388-877B-0500 through 388-877B-0550 apply to behavioral health agencies that provide chemical dependency assessment services. The definitions in WAC 388-877-0200 also apply to chemical dependency assessment services. The department requires all agencies and providers affected by this rule to fully comply with the applicable requirements in chapter 388-877 WAC, chapter 388-877A WAC, chapter 388-877B WAC, and chapter 388-877C WAC no later than September 1, 2013. (1) Chemical dependency assessment services are provided to an individual to determine the individual's involvement with alcohol and other drugs and determine the appropriate course of care or referral. (2) Chemical dependency assessment services include: (a) Assessment only services; and (b) Driving under the influence (DUI) assessment services. (3) A behavioral health agency certified for assessment only services may choose to provide optional program-specific DUI assessment services (see WAC 388-877B-0550). Optional DUI assessment services require additional program-specific certification by the department's division of behavioral health and recovery. (4) An agency providing assessment services to an individual must: (a) Be licensed by the department as a behavioral health agency; (b) Meet the applicable behavioral health agency licensure, certification, administrative, personnel, and clinical requirements in chapter 388-877 WAC, Behavioral health services administrative requirements; and (c) Have policies and procedures to support and implement the: (i) General requirements in chapter 388-877 WAC; and (ii) Program-specific requirements in WAC 388-877B-0500 through 388-877B-0550. (5) An agency providing assessment services: (a) Must review, evaluate, and document information provided by the individual; (b) May include information from external sources such as family, support individuals, legal entities, courts, and employers; and (c) Is not required to meet the individual service plan requirements in WAC 388-877-0620. (6) An agency must maintain and provide a list of resources, including self-help groups, and referral options that can be used by staff members to refer an individual to appropriate services. (7) When an individual is transferring to another service provider, documentation that copies of documents pertinent to the individual's course of treatment were forwarded to the new service provider to include: (i) The individual's demographic information; and (ii) The diagnostic assessment statement and other assessment information to include: (A) Documentation of the HIV/AIDS intervention. (B) Tuberculosis (TB) screen or test result. (C) A record of the individual's detoxification and treatment history. (D) The reason for the individual's transfer. (E) Court mandated, department of correction supervision status or the agency's recommended follow-up treatment. (F) A discharge summary and continuing care plan. (8) An agency providing ((Alcoholism and Drug Addiction Treatment and Support Act (ADATSA) and))driving under the influence (DUI) assessment services must meet the additional program-specific standards in WAC 388-877B-0550.
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