WSR 15-22-029

EMERGENCY RULES

[Filed October 27, 2015, 11:00 a.m., effective October 27, 2015]

Effective Date of Rule: October 27, 2015.

Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: This emergency rule must remain in effect for Washington state to receive enhanced medicaid match (federal funds) from Centers for Medicaid and Medicare Services (CMS) per 42 C.F.R. 441.510.

Purpose: WAC 246-980-140, home care aide (HCA), amending rules to add skills acquisition training to HCAs' scope of practice to align with DSHS's rules so that enhanced medicaid match rate (federal funds) will continue to be received by the state. This emergency rule will supersede the previous emergency rule filed on June 29, 2015, as WSR 15-14-088 set to expire on October 28, 2015. Permanent rules will be adopted by the department.

Citation of Existing Rules Affected by this Order: Amending WAC 246-980-140.

Statutory Authority for Adoption: Chapter 18.88B RCW.

Other Authority: 42 C.F.R. 441.510, ESHB 2746 (2014), SSB 6387 (2014) DSHS state work plan.

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.

Reasons for this Finding: Under RCW 34.05.350, an agency must find good cause for implementing an emergency rule or amendment. The statutory criteria this rule amendment meets is found under RCW 34.05.350 (1)(b) that states, "That state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of rule." This emergency rule meets the criteria per the following:

This emergency rule is in response to a federal deadline for state receipt of federal funds from CMS for Washington state to receive an enhanced medicaid match rate of fifty-six percent beginning July 1, 2015, for state implementation of its community first choice options (CFCO) program. This emergency rule is the second emergency rule and will supersede the first emergency rule that was filed on June 29, 2015, as WSR 15-14-088, which is set to expire on October 28, 2015. This second emergency rule adopts the same amending language as the first emergency rule without material change.

Federal deadline for state receipt of federal funds - the CFCO program is a medicaid Title XIX entitlement program that is a part of the Affordable Care Act. The federal program provides person-centered services within in-home and community-based settings. Services provided - including the skills acquisition services - must be provided in a manner that is prescribed by 42 C.F.R. 441.510 for states choosing to participate in this federal program. The CFCO program allows the state to receive a higher federal medicaid match rate of fifty-six percent versus fifty percent, and based on state legislation passed in 2014 requiring DSHS to participate in the CFCO program, DSHS submitted a formal state plan to CMS outlining all federal objectives that were to be met starting July 1, 2015. DSHS' state plan under Title XIX of the Social Security Act for the CFCO services went into effect July 1, 2015, at which time the medicaid match enhancement rate to Washington state began. The second emergency rule will allow a continuance of this enhanced medicaid match to be received by the state until permanent rules are adopted. The department of health (DOH) and DSHS are working towards permanent rule making.

DOH and DSHS jointly administer the home care aide program under chapters 18.88B and 74.39A RCW. DOH must amend WAC 246-980-140 to allow home care aides to provide skills acquisition training to elderly and vulnerable clients to align with DSHS rule amendments to meet the federal objectives in Washington's formal state plan. For Washington state to qualify for the enhanced federal match, both DOH and DSHS rules needed to be amended by July 1, 2015.

State laws for state receipt of federal funds requiring immediate adoption of rule – in addition, SSB 6387 (chapter 139, Laws of 2014) requires DSHS to increase the number of people served on the CFCO medicaid program by replacing the individual and family services program through an expansion of client caseload beginning June 30, 2015. To implement SSB 6387, DSHS needed to administer the federal CFCO program, which expands HCAs' scope of practice to include skills acquisition training. Amending the DOH home care aide rules supports DSHS' efforts to implement SSB 6387 and the CFCO program.

In addition, ESHB 2746 (chapter 166, Laws of 2014) directed DSHS to refinance its medicaid personal care services for individuals with developmental disabilities and individuals with long-term care needs through the CFCO program by August 30, 2015. DSHS also cites this bill as authorizing their agency to implement the CFCO program, which began July 1, 2015.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, 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 1, Repealed 0.

Date Adopted: October 27, 2015.

John Wiesman, DrPH, MPH

Secretary