Effective Date of Rule: Immediately upon filing.
Purpose: The department is enacting WAC 388-845-2019 on an emergency basis to make temporary modifications to developmental disabilities administration's (DDA) home and community-based services (HCBS) waivers to control the spread of the COVID-19 virus and to meet immediate health and safety needs. This subsequent emergency filing keeps the rule in place until the permanent [rule] is effective, 31 days after filing.
Citation of Rules Affected by this Order: New WAC 388-845-2019.
Other Authority: 42 U.S.C. 1396n(c).
Reasons for this Finding: Enacting this rule on an emergency basis is necessary to address effects of the COVID-19 pandemic, and it is in the public interest to do so, as following notice and comment requirements in the permanent rule-making process would delay temporary changes aimed to help clients avoid disruptions in service. This emergency filing is necessary to implement temporary changes to the HCBS waivers as approved by the Centers for Medicare and Medicaid Services (CMS) in an Appendix K. Many of the changes approved by CMS in Appendix K are in the process of being added to IFS, Basic Plus, Core, CIIBS, and Community Protection waivers. The CMS approvals should be final in September of 2022, at which point DDA will work on permanently adopting those changes.
This rule addresses the effects of COVID-19 on clients, providers, and DDA staff by temporarily: Suspending limits on respite services; permitting the state to exceed the budget for some DDA waivers; allowing assistive technology to be available on all waivers; permitting waiver services to be provided remotely when needed; expanding settings where some services can be provided to clients who are quarantined or hospitalized; and other changes.
An Appendix K is a standalone appendix that may be utilized by states during emergency situations to request amendment to approved 1915(c) waivers. It includes actions that states can take under the existing Section 1915(c) home and community-based waiver authority in order to respond to an emergency.
Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.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 1, Amended 0, Repealed 0.
Date Adopted: May 23, 2022.
Katherine I. Vasquez
(1) Notwithstanding any contrary requirement under this title, changes under this section to DDA's home and community-based waivers are effective immediately and necessary to respond to managing the COVID-19 outbreak. All changes, except the provision of remote waiver services, require prior approval by the DDA director of the division of field services or designee and will be assessed on a case-by-case basis. An allowance in this section is valid as long as it is approved by the Centers for Medicare and Medicaid Services through the medicaid waiver process.
(2) The following changes to waiver services are temporary, effective immediately, and necessary to respond to managing the COVID-19 outbreak.
(a) All waiver services except goods may be offered remotely by providers when travel to the waiver participant is not possible due to COVID-19 infection or exposure.
(b) Limits to the number of respite hours a client may receive that are generated in the CARE assessment are temporarily suspended. The amount of respite hours a client may receive are determined by DDA.
(c) The basic plus, CIIBS, and individual and family services waiver aggregate budgets may be exceeded for COVID-19-related health and safety needs.
(d) Respite provided out-of-state may be provided in excess of 30 days.
(e) Community guide and community engagement may be provided to more than one client at a time.
(f) Staff and family consultation may be provided to more than one client at a time.
(g) Assistive technology is available on all five waiver programs when a waiver participant requires a technology in order to receive waiver-funded remote supports, to increase, maintain, or improve independence with daily living, to increase safety, or to facilitate social communication. Assistive technology is only available to the participant when access to technologies through other resources is not possible. Assistive technology includes:
(i) The evaluation of the needs of the waiver participant, including a functional evaluation of the participant in the participant's customary environment;
(ii) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices;
(iii) Selecting, designing, fitting, customizing, adapting, applying, retaining, repairing, or replacing assistive technology devices;
(iv) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
(v) Training or technical assistance for the participant and if appropriate, the participant's family;
(vi) Training or technical assistance for professionals, including individuals providing education and rehabilitation services, employers, or other individuals who provide services to, employ, or are otherwise involved in the assistive technology related life functions of individuals with disabilities; and
(vii) Distance-based observation and reporting provided by an assistive technology distance-based observation and reporting specialist.
(h) Assistive technology on the basic plus waiver is included as part of the list of aggregate services.
(i) If transportation is necessary to prevent illness or meet a client's immediate health and safety needs, waiver transportation services may be used to travel to a place where the client will not be receiving waiver services (e.g., transportation to a family member's home).
(3) If a client is displaced from their home because of quarantine or hospitalization, or if a provider is unavailable due to illness or business closure, the following waiver services may be provided in a hotel, shelter, church, other facility-based setting, or the home of a direct-care worker when those supports are not available through the medicaid state plan or another legally liable funding source:
(a) Residential habilitation;
(b) Respite care;
(c) Positive behavior support;
(d) Staff and family consultation;
(e) Behavioral health stabilization- positive behavior support;
(f) Behavioral health stabilization- crisis diversion beds;
(g) Nurse delegation; and
(h) Skilled nursing.
(4) Positive behavior support and staff and family consultation may be provided in an acute care setting such as a hospital or short-term institutional setting if:
(a) DDA determines that no other alternatives are available and a nonintegrated setting is the only setting available to meet the client's health and safety needs;
(b) The waiver service provider is not otherwise funded by another resource; and
(c) The waiver services do not duplicate services already available in that setting.
(5) The following changes to waiver service provider qualifications are temporary, effective immediately, and necessary to respond to managing the COVID-19 outbreak.
(a) Staff and family consultation may include emergency preparedness consultation support from a provider trained in emergency management or a similar field with a current DDA contract.
(b) Respite care may be provided by currently contracted positive behavior support providers.
(6) Specialized medical equipment and supply, specialized equipment and supply, and assistive technology provider types may include the use of a purchase card and community choice guides when supply or cost impacts occur due to COVID-19.
(7) The following changes to level-of-care evaluations and re-evaluations for waiver participants are temporary, effective immediately, and necessary to respond to managing the COVID-19 outbreak.
(a) A client's services may continue and the level-of-care reassessment may be postponed up to one year if due to illness or quarantine:
(i) The client, their representative, or a DDA employee are unable to participate in the reassessment; or
(ii) There is insufficient time for the case manager to complete the annual reassessment paperwork.
(b) On a case-by-case basis, the time limit for approving a client's expired person-centered service plan may be extended if:
(i) The plan currently meets the client's needs; and
(ii) Monthly remote or telephonic monitoring is provided to ensure the plan continues to meet the client's needs.
(c) Telephonic assessments may occur in place of face-to-face assessments on a case-by-case basis. An initial assessment may be conducted telephonically when needed to prevent potential exposure related to COVID-19.
(d) For initial CARE assessments, employees may complete the assessment and person-centered service plan via the telephone or other electronic means and then do a brief in-person visit before moving the assessment to current.
(e) If the previsit questionnaire response indicates it is not safe to do an in-person visit, services can be authorized prior to an in-person visit occurring.
(f) A person-centered service plan, or revisions to a person-centered service plan, may be approved with a retroactive approval date for service needs identified to mitigate harm or risk directly related to COVID-19 impacts. Telephonic (or other information technology medium) assessments may occur when the assessment cannot occur due to impacts of COVID-19.
(8) CIIBS waiver quarterly face-to-face meeting requirement may be provided telephonically when a face-to-face meeting cannot occur due to client or client representative health concerns or staffing availability.