WSR 15-12-073 PROPOSED RULES DEPARTMENT OF SOCIAL AND HEALTH SERVICES (Developmental Disabilities Administration) [Filed May 29, 2015, 12:23 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-05-076.
Title of Rule and Other Identifying Information: The department plans to create within chapter 388-825 WAC one new section, WAC 388-825-0168 How do I complain to DDA about my services or treatment?; update twenty-nine existing sections including WAC 388-825-058, 388-825-072, 388-825-074, 388-825-081, 388-825-084, 388-825-0871, 388-825-089, 388-825-091, 388-825-093, 388-825-094, 388-825-097, 388-825-098, 388-825-100, 388-825-101, 388-825-102, 388-825-103, 388-825-104, 388-825-105, 388-825-120, 388-825-125, 388-825-130, 388-825-135, 388-825-150, 388-825-165, 388-825-201, 388-825-206, 388-825-211, 388-825-300 and 388-825-360; and repeal seven existing sections, including WAC 388-825-061, 388-825-062, 388-825-063, 388-825-066, 388-825-069, 388-825-071, and 388-825-088.
Hearing Location(s): Office Building 2, 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 July 21, 2015, at 10:00 a.m.
Date of Intended Adoption: Not earlier than July 22, 2015.
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 5:00 p.m., July 21, 2015.
Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, by July 7, 2015, TTY (360) 664-6178 or (360) 664-6092 or e-mail Kildaja@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These updates will include housekeeping, processes, policies, eligibility information, and changes to the current verbiage to make it easier to comprehend.
Reasons Supporting Proposal: See Purpose above.
Statutory Authority for Adoption: RCW 71A.12.030, 71A.10.015, 71A.18.020, Title 71A RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Shannon Manion, DDA, P.O. Box 45310, Olympia, 98504-5310, (360) 725-3454.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The rules do not impact small business or nonprofits. They only impact DSHS clients.
A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules are exempt under RCW 34.05.328 (5)(b)(vii) and relate only to client medical or financial eligibility.
May 28, 2015
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)
WAC 388-825-058 What services does ((DDD)) DDA authorize?
((DDD authorizes)) The department authorizes services through programs that are designed to help you remain in the community. DDA may authorize the following services if you meet programmatic eligibility and funding is available:
(1) Medicaid state plan services;
(2) ((Infant toddler early intervention program (ITEIP) services;
(3))) Home and community based services (HCBS) waiver services; ((and
(4))) (3) Roads to community living services; and
(4) State-only funded services.
Participation in all DDA paid services is voluntary. Clients or their legal representatives have the right to decline or terminate services at any time.
AMENDATORY SECTION (Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)
WAC 388-825-072 Where do I find information on ((DDD)) DDA's home and community based services (HCBS) waiver services, eligibility rules and definitions?
Home and community based services (HCBS) waiver eligibility, the scope of services provided by each waiver, the definitions of the services, the limitations of the service, and qualified providers for the service are contained in chapter 388-845 WAC.
AMENDATORY SECTION (Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)
WAC 388-825-074 Am I eligible for state-only funded services?
You are eligible to receive available state-only funded services if you have been approved for funding for that service, and all of the following conditions apply:
(1) You have a current ((DDD)) DDA assessment that identifies the need for the service;
(2) You meet the programmatic and financial eligibility requirements for the specific service or program;
(3) Your need cannot be met through medicaid state plan services;
(4) You are not enrolled in a ((DDD)) DDA home and community based services (HCBS) waiver;
(5) You do not receive SSP as a replacement for the requested service;
(6) The program or service is funded by the legislature.
AMENDATORY SECTION (Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)
WAC 388-825-081 Can I receive state-only funded services that are not available in a ((DDD)) DDA HCBS waiver?
You may be authorized to receive state-only funded services that are ((available)) described in other DSHS rules as defined below:
(1) Adult day care (WAC ((388-106-0800)) 388-825-082);
(2) Attendant care (WAC 388-825-082);
(3) ((Childcare for foster children (chapter 388-826 WAC);
(4))) Chore services (chapter 388-106 WAC);
(((5))) (4) Individual and family assistance by the county (WAC 388-825-082);
(((6) Information and education by the county (WAC 388-825-082);
(7))) (5) Medical and dental services (WAC 388-825-082);
(((8))) (6) Psychological counseling (WAC 388-825-082);
(((9) Reimbursement through the individual and family support program to families for the purchase of approved items or service (chapter 388-832 WAC);
(10))) (7) State supplementary payments (chapter 388-827 WAC); and
(((11))) (8) Transportation reimbursement for an escort (WAC 388-825-082).
AMENDATORY SECTION (Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)
WAC 388-825-084 What are the limitations of state-only funded services or programs?
In addition to any limitations for state-only funded services or programs that are contained in the program specific rules, the following limitations apply to state-only funded services and programs.
(1) All state-only funded services are limited by available funding.
(2) The following programs are closed to ((new admissions)) clients not currently receiving the service:
(a) Adult day care; ((and))
(b) Attendant care((.)); and
(((3))) (c) Chore services ((are limited to persons who were receiving the service in 1998 and who have continued to receive this service monthly)).
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-0871 ((Does DDD provide)) What out-of-home residential services ((that address the special needs of persons with developmental disabilities)) does DDA provide?
((DDD)) DDA provides the following out-of-home residential services that address the special needs of adults and children with developmental disabilities:
(1) Contracted and ((DDD)) DDA-certified community based residential services for adults;
(2) Contracted community based services for children; and
(3) Residential habilitation centers (RHC) for a person who requires ICF/ID or nursing facility care.
(a) On a short-term basis for those ages sixteen through twenty; or
(b) On a short or long-term basis if age twenty-one or older.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-089 What is a residential habilitation center (RHC)?
A residential habilitation center ((or)) (RHC) is a state-operated facility certified to provide ICF/ID services (see chapter 388-837 WAC) and/or nursing facility services (chapter 388-97 WAC) for persons who are eligible ((clients of DDD)) as specified in WAC 388-825-091. RHCs include:
(1) Rainier School in Buckley, Washington;
(2) Fircrest School in Shoreline, Washington;
(3) Yakima Valley School in Selah, Washington; and
(4) Lakeland Village in Medical Lake, Washington.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-091 Am I eligible for residential habilitation center (RHC) services?
((You)) (1) If you are twenty-one years of age or over, you are eligible to receive residential habilitation center (RHC) services if:
(((1))) (a) You ((are currently DDD eligible)) have been determined to meet DDA eligibility criteria;
(((2))) (b) You choose to receive services in the RHC;
(((3))) (c) You need the level of care provided at the RHC; and
(((4))) (d) ((DDD)) DDA has determined that you can be supported safely in an RHC environment and will not pose a danger to other residents of the RHC; ((and)) or
(((5) You)) (2) If you are sixteen through twenty years ((old or older)) of age, and meet (1)(a) through (1)(d) above you may not be admitted to receive services at a residential habilitation center unless there are no service options available in the community to appropriately meet your needs. Such admission is limited to the provision of short-term respite or crisis stabilization services.
(3) If you are under age sixteen you are not eligible to receive services at a residential habilitation center.
(4) Admission to a nursing facility at a RHC also requires completion of pre-admission screening and resident review (PASRR) requirements as described in chapter 388-97 WAC.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-093 Can I receive a short term stay at a residential habilitation center (RHC)?
If there is capacity at a residential habilitation center (RHC), the vacancies may be available for short term stays.
(1) Short term stays are limited by available vacancies;
(2) Short term stays must be included in your individual support plan;
(3) Short term stays in excess of thirty days in a calendar year require approval by the ((director of the division)) assistant secretary of the developmental disabilities administration or designee; and
(4) You are sixteen years ((old)) of age or older.
(((a))) If you are sixteen through twenty years of age your stay will only be for short-term respite or crisis stabilization purposes.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-094 ((Can I request)) What is the process to receive services in an RHC?
You may request to receive services in an RHC at any time. RHC admissions are not considered permanent.
(1) Your case/resource manager will update your ((DDD)) DDA assessment and gather other information.
(2) ((Admission)) Long term admission to an RHC requires approval by the ((director)) assistant secretary of the ((division of)) developmental disabilities administration or designee.
(3) You must be twenty-one years old or older to be admitted as a long-term resident.
AMENDATORY SECTION (Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)
WAC 388-825-097 Are any of my expenses deducted from the income available to pay for my care in a licensed facility?
After you pay for your room and board costs, some expenses may be deducted from the income available to pay for the cost of your care.
(1) If you have SSI related eligibility the cost of your payee or guardianship service may be deducted as described in chapter 388-79 WAC and WAC ((388-475-0800(5))) 182-512-0800(5).
(2) If you are enrolled in a ((DDD)) DDA HCBS waiver refer to WAC ((388-515-1510)) 182-512-1510 for rules used to determine allowable deductions.
(3) If you are not enrolled in a ((DDD)) DDA HCBS waiver refer to WAC 388-106-0225 for rules used to determine allowable deductions.
AMENDATORY SECTION (Amending WSR 08-11-072, filed 5/19/08, effective 6/19/08)
WAC 388-825-098 Does ((DDD)) DDA provide guardianship services?
DDA does not provide or pay for the cost of guardianship services. If it appears that you require a guardian to make legal, medical, and/or services decisions and to exercise your appeal rights to department decisions, and there is no other individual able and willing to seek guardianship on your behalf, the ((division's)) administration's field services may request that an assistant attorney general initiate and/or assist in guardianship proceedings. ((The state does not pay the cost of guardianship fees.))
AMENDATORY SECTION (Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)
WAC 388-825-100 How will I be notified of decisions made by ((DDD)) DDA?
(1) Whenever possible, ((DDD)) DDA will notify ((all parties affected by)) you or your legal representative by phone or in person of the decision ((by phone or in person.)) and;
(2) If you are under the age of eighteen, written notifications will be mailed to:
(a) Your parent; or
(b) Your ((guardian or other)) legal representative.
(3) If you are age eighteen or older, written notifications will be mailed to you and:
(a) Your ((guardian or other)) legal representative; or
(b) A person identified by you to receive ((these)) notices ((in addition to yourself)) if you do not have a ((guardian or)) legal representative. Unless the person identified by you is a relative of yours, he or she cannot be an employee of ((DDD)) DDA, a contractor with ((DDD)) DDA or an employee of a contractor with ((DDD)) DDA.
AMENDATORY SECTION (Amending WSR 08-16-122, filed 8/5/08, effective 9/5/08)
WAC 388-825-101 Why does ((DDD need to)) DDA send my notices and correspondence to someone else?
((DDD)) DDA sends your notices and correspondence to someone else to assist you to understand the information and your appeal rights to department decisions.
AMENDATORY SECTION (Amending WSR 08-16-122, filed 8/5/08, effective 9/5/08)
WAC 388-825-102 What if I do not want my ((DDD)) DDA notices and correspondence sent to anyone else?
(1) If you are age eighteen or older and do not have a legal guardian, you may request in writing that your ((DDD)) DDA notices and correspondence be given only to you.
(2) ((DDD)) DDA will review your request and comply with your request unless it determines ((there to be a)) that you are at risk of ((your)) losing legal rights.
(3) You have the right to appeal a denial of this request.
AMENDATORY SECTION (Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)
WAC 388-825-103 When will I receive written notice of decisions made by ((DDD)) DDA?
You will receive written notice from ((DDD of)) DDA when the following decisions are made:
(1) The denial or termination of eligibility for services under WAC 388-825-057;
(2) Denial or termination of the provider of your choice for any reason listed in WAC 388-825-375 through 388-825-390;
(3) The authorization, denial, reduction, or termination of services or the payment of SSP set forth in chapter 388-827 WAC that are authorized by ((DDD)) DDA;
(4) The admission or readmission to, or discharge from a residential habilitation center set forth in WAC 388-825-155; or
(5) Disenrollment from a ((DDD)) DDA home and community based services waiver under WAC 388-845-0060, including a disenrollment from a waiver and enrollment in a different waiver.
AMENDATORY SECTION (Amending WSR 04-15-093, filed 7/16/04, effective 8/16/04)
WAC 388-825-104 What information will the notice include?
The notice from ((DDD)) DDA will include:
(1) The decision;
(2) The reason and authority for the decision;
(3) The effective date of the action;
(4) Appeal rights to the decision; and
(5) The name and phone number of a department person you can contact for further information.
AMENDATORY SECTION (Amending WSR 06-10-055, filed 5/1/06, effective 6/1/06)
WAC 388-825-105 Am I given any advance notice of termination, ((or)) reduction, or eligibility ((or)) for services?
(1) ((DDD)) DDA will provide you at least ten-days advance notice, as described in WAC 388-458-0040 (1), (2) and (3), of any action to terminate your eligibility, or terminate or reduce your services.
(2) ((DDD)) DDA will provide you at least thirty-days advance notice prior to transferring you from a residential habilitation center to the community under RCW 71A.20.080.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-120 When can I appeal department decisions through an administrative hearing process?
(1) Administrative hearings are governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 71A.10.050, the rules in this chapter and by chapters 388-02 and 182-526 WAC. If any provision in this chapter conflicts with chapters 388-02 or 182-526 WAC or WAC 388-440-0001(3), the provision in this chapter shall prevail.
(2) A client, former client, or applicant acting on the applicant's own behalf or through an authorized representative has the right to an administrative hearing.
(3) You have the right to an administrative hearing to dispute the following department actions:
(a) Authorization, denial, reduction, or termination of services;
(b) Reduction or termination of a service that was initially approved through an exception to rule;
(c) Authorization, denial, or termination of eligibility;
(d) Authorization, denial, reduction, or termination of payment of SSP authorized by ((DDD)) DDA set forth in chapter 388-827 WAC;
(e) Admission or readmission to, or discharge from, a residential habilitation center set forth in WAC 388-825-155;
(f) Refusal to abide by your request that we not ((to)) send notices to any other person;
(g) Refusal to comply with your request to consult only with you;
(h) A decision to move you to a different type of residential service;
(i) Denial or termination of the provider of your choice or the denial of payment for any reason listed in WAC 388-825-375 through ((388-825-390)) 388-825-395;
(j) An unreasonable delay to act on an application for eligibility or service;
(k) A claim the client, former client, or applicant owes an overpayment debt.
(4) If you are not enrolled in a waiver and your request to be enrolled in a waiver is denied, your appeal rights are limited to ((the decision that you are not eligible to have your request documented in a statewide data base because you do not need ICF/ID level of care per WAC 388-845-0070, 388-828-8040 or 388-828-8060)) those identified in WAC 388-845-4005.
(5) If you are enrolled in a waiver and your request to be enrolled in a different waiver is denied, your appeal rights are limited to those identified in WAC 388-845-4005.
AMENDATORY SECTION (Amending WSR 05-17-135, filed 8/19/05, effective 9/19/05)
WAC 388-825-125 How do I request an administrative hearing?
(1) Your notice of the department decision will include instructions on how to file a request for an administrative hearing, where to send ((it)) the request, and the length of time you have to file for a hearing.
(2) Your request may be made orally or in writing.
(3) You may request assistance in requesting an administrative hearing by calling ((DDD)) DDA staff as stated in WAC 388-825-135.
AMENDATORY SECTION (Amending WSR 06-10-055, filed 5/1/06, effective 6/1/06)
WAC 388-825-130 How long do I have to file a request for an administrative hearing?
(1) The following rules apply to all situations except a decision to transfer you from a state residential habilitation center (RHC) to the community under RCW 71A.20.080. The rules for administrative hearings regarding the department's decision to transfer you from an RHC to the community are contained in WAC 388-825-155.
(2) You have to request an administrative hearing within ninety days of receipt of the notification of the decision you are disputing.
(3) You must request an administrative hearing within the ten-day notice period, as described in WAC 388-458-0040 (1), (2) and (3), if you wish to maintain current services during the appeal process per WAC 388-825-145.
(4) The notification sent to you will include the date that the ten-day notice period ends.
AMENDATORY SECTION (Amending WSR 05-17-135, filed 8/19/05, effective 9/19/05)
WAC 388-825-135 What if I need help to request an administrative hearing?
(1) You or someone on your behalf may call the department staff person listed in your notification letter and tell them you want to appeal the decision. The department staff person will notify the office of administrative hearings on your behalf.
(2) An oral request for an administrative hearing is complete if it contains enough information to identify the person making the request, the ((DDD action)) DDA decision, and the ((case involved in the hearing request)) name of the individual affected by the decision.
(3) The effective date of an oral request for an administrative hearing is the date that you or someone on your behalf makes a complete oral request for hearing to any ((DDD)) DDA representative in person or by leaving a message on the automated voice mail system of any ((DDD)) DDA field office.
AMENDATORY SECTION (Amending WSR 07-06-055, filed 3/5/07, effective 4/5/07)
WAC 388-825-150 When can the department proceed to take action during my appeal?
The department will proceed to take action during your appeal if:
(1) It is an eligibility denial and you are not currently an eligible client.
(2) Your ((DDD)) DDA eligibility has expired, per WAC 388-823-0010 and 388-823-1040.
(3) There is no longer funding for the state-only funded service you have been receiving.
(4) Your current services are terminated or transferred in order to ((meet the legislative intent of and)) comply with ((sections 205 and 207, chapter 371, Laws of 2002)) state law.
(5) The state-only funded service no longer exists, the medicaid state plan has been amended, or the HCBS waiver agreement with the federal Centers for Medicare and Medicaid has been amended.
(6) The administrative law judge or review judge rules that you have caused unreasonable delay in the proceedings.
(7) You are in imminent jeopardy.
(8) Your provider is no longer qualified to provide services due to:
(a) A lack of a contract;
(b) Decertification;
(c) Failure to complete training or certification requirements;
(d) Revocation or suspension of a license; or
(((d))) (e) Lack of required registration, certification, or licensure.
(9) ((The parent of a person)) If you are under the age of eighteen and your parent or ((the)) legal ((guardian)) representative approves the department's decision.
(10) You did not file your request for an administrative hearing within the ten-day notice period, as described in chapter 388-458 WAC.
(11) You or your legal representative:
(a) Tell us in writing that you do not want continued benefits;
(b) Withdraw your administrative hearing request in writing; or
(c) Do not follow through with the administrative hearing process.
AMENDATORY SECTION (Amending WSR 10-02-101, filed 1/6/10, effective 2/6/10)
WAC 388-825-165 Where can I find additional information about the appeal process?
You may find additional information governing the appeal process in chapters 388-02 and 182-526 WAC.
NEW SECTION
WAC 388-825-168 How do I complain to DDA about my services or treatment?
If you have a complaint about any DDA services or treatment other than actions listed in WAC 388-825-120(3), or you do not want to appeal a DDA action through an administrative hearing but you still wish to express your concerns, follow these steps in this order:
(1) First, contact your case resource manager or social worker by phone, in writing, e-mail, or in person and explain your problem.
(2) If you are not happy with the results from speaking with your case resource manager or social worker, you may ask to speak with their supervisor.
(3) If steps in subsections (1) and (2) of this section do not solve your problem, you should submit your complaint in writing to the regional office.
(4) If you do not reach a solution with the regional office, you can request that your complaint be forwarded to the DDA headquarters in Olympia.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-201 What ((is the purpose of)) are enhanced respite services?
Enhanced respite services are services designed to enable ((DDD)) DDA enrolled children and youth, who meet specific criteria, access to short term respite in a ((DDD)) DDA contracted and licensed staffed residential setting.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-206 Who is eligible to receive enhanced respite services?
(1) To be eligible for enhanced respite services, the following conditions must be met at a minimum:
(b) The child is at least eight years of age and under age eighteen;
(c) The child is at high risk of institutionalization and/or out-of-home placement; and
(d) The parents/caregivers have demonstrated they have accessed alternative appropriate and available services to meet the unmet need.
(2) The enhanced respite services committee will also consider the following factors when reviewing requests for services:
(a) The child is experiencing school placement disruption and/or a shortened school day due to his/her behavior;
(b) There is a current family emergency;
(c) The child has had behavioral incident(s), which resulted in injury to self or others that required more than first aid;
(d) The child is awake at night, resulting in the child and/or the caregivers receiving less than five hours of uninterrupted sleep per night;
(e) The child is exhibiting behaviors such as aggression with significant injury, elopement, and challenging repetitive behaviors;
(f) The child's behavior acuity level is high per WAC 388-828-5640, the ICF/ID score is eligible per WAC 388-828-4400, and the caregiver's risk score is medium, high, or immediate per WAC 388-828-5300; and/or
(g) The child has assessed needs that exceed the scope of current services and/or is currently not eligible to receive any paid services.
AMENDATORY SECTION (Amending WSR 12-22-037, filed 11/1/12, effective 12/2/12)
WAC 388-825-211 How long am I eligible to receive enhanced respite services?
((The maximum length of stay the child/youth may access services is)) You may receive enhanced respite services for up to thirty days total in a calendar year.
AMENDATORY SECTION (Amending WSR 05-17-135, filed 8/19/05, effective 9/19/05)
WAC 388-825-300 What is the purpose of WAC 388-825-300 through 388-825-400?
A client/legal representative may choose a qualified individual, agency, or licensed provider. The intent of WAC 388-825-300 through 388-825-400 is to describe:
(1) Qualifications for individuals and agencies providing ((DDD)) DDA services in the client's residence or the provider's residence or other setting; and
(2) Conditions under which the department will pay for the services of an individual provider or a home care agency provider or other provider.
AMENDATORY SECTION (Amending WSR 05-17-135, filed 8/19/05, effective 9/19/05)
WAC 388-825-360 How does an individual terminate employment as a provider?
State law makes it a crime to abandon a vulnerable adult. "Abandon" means leaving a person without the means or ability to obtain any of the basic necessities of life.
(1) If an individual wishes to "quit" or terminate employment as a provider, the individual must:
(a) Give at least two weeks' ((written)) notice;
(b) Notify the client or the client's ((to his/her employer, their)) representative (((if applicable) and the DDD)) in writing; and
(c) Notify the client's case manager.
(2) The individual will be expected to continue working until the termination date unless otherwise determined by DSHS.
REPEALER
The following sections of the Washington Administrative Code are repealed:
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