WSR 23-10-058
PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Aging and Long-Term Support Administration)
[Filed May 1, 2023, 12:13 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 21-09-071.
Title of Rule and Other Identifying Information: The department of social and health services (DSHS) is adding a new section in chapter 388-106 WAC describing long-term services and supports (LTSS) presumptive eligibility (PE) and functional eligibility criteria for clients who are discharging from acute care hospitals or diverting from community psychiatric facilities into an in-home setting with home and community-based (HCB) services.
The health care authority will also be filing rules amending chapters 182-513 and 182-515 WAC to define financial eligibility for LTSS PE.
Hearing Location(s): On June 6, 2023, at 10:00 a.m., at Office Building 2, DSHS Headquarters, 1115 Washington Street [S.E.], Olympia, WA 98504. Public parking at 11th and Jefferson. A map is available at https://www.dshs.wa.gov/office-of-the-secretary/driving-directions-office-bldg-2; or virtually. Due to the COVID-19 pandemic, hearings are held virtually. See the DSHS website https://www.dshs.wa.gov/office-of-the-secretary/filings-and-rules for the most current information.
Date of Intended Adoption: Not earlier than June 7, 2023.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, email DSHSRPAURulescoordinator@dshs.wa.gov, fax 360-664-6185, by June 6, 2023, at 5:00 p.m.
Assistance for Persons with Disabilities: Contact DSHS rules consultant, phone 360-664-6036, fax 360-664-6185, TTY 711 relay service, email shelley.tencza@dshs.wa.gov, by May 22, 2023, at 5:00 p.m.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: DSHS is adding a new section in chapter 388-106 WAC describing LTSS PE and functional eligibility criteria for clients who are discharging from acute care hospitals or diverting from community psychiatric facilities into an in-home setting with HCB services. LTSS PE is included in the 1115 Waiver amendment currently under review by the Centers for Medicare and Medicaid Services.
Reasons Supporting Proposal: See purpose above.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: None.
Name of Proponent: DSHS, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Debbie Johnson, P.O. Box 45600, Olympia, WA 98504-5600, 360-725-2531.
A school district fiscal impact statement is not required under RCW
28A.305.135.
A cost-benefit analysis is not required under RCW
34.05.328. Rules are exempt per RCW
34.05.328 (5)(b)(vii) Rules of DSHS relating only to client medical or financial eligibility and rules concerning liability for care of dependents.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Explanation of exemptions: 19.85.025(4) because the proposed amendments do not impact small businesses and impose no new or disproportionate costs on small businesses, so a small business economic impact statement is not required. These rules impact determination of care for DSHS clients.
Scope of exemption for rule proposal:
Is fully exempt.
April 27, 2023
Katherine I. Vasquez
Rules Coordinator
SHS-4950.2
LONG-TERM SERVICES AND SUPPORTS (LTSS) PRESUMPTIVE ELIGIBILITY (PE)
NEW SECTION
WAC 388-106-1800What definitions apply to LTSS PE?
"Acute care hospital" as defined in chapter 182-550 WAC, may offer inpatient services, outpatient services, continuous nursing services, pharmacy services, food services, and necessary ancillary services. These hospitals may offer specialized patient care services including alcoholism and chemical dependency units or services.
"Care plan" means the document generated using the presumptive eligibility assessment screening tool in CARE that identifies the long-term services and supports you are eligible to receive during the presumptive eligibility period.
"Community psychiatric hospital" means a specialized psychiatric hospital or psychiatric unit within a community hospital that is certified to provide involuntary evaluation and treatment services.
"Diversion" means you have discharged from a local community psychiatric facility onto HCS LTSS and have a 90- or 180-day commitment order for further involuntary treatment; or you are detained through the Involuntary Treatment Act and are stabilized and discharged onto LTSS prior to the need to petition for a 90- or 180- day commitment order.
"LTSS" means Long-term Services and Supports as defined in WAC 182-513-1100.
"MPC" means Medicaid Personal Care which is defined as personal care services in WAC 388-106-0010.
"NFLOC" means nursing facility level of care as defined in WAC 388-106-0355.
"PE screening" means the functional and financial assessment completed using the presumptive eligibility screening tool within CARE to determine presumptive eligibility for LTSS NFLOC PE services or LTSS MPC PE services.
"Presumptive eligibility" means a determination made using a screening process completed by the department to gather preliminary information to determine if you meet the eligibility criteria described in WAC 388-106-1805 and 388-106-1815 of this section to receive services while the final eligibility determination is being completed. This is also known as PE.
NEW SECTION
WAC 388-106-1805Am I eligible for LTSS NFLOC PE services?
You are eligible to receive LTSS NFLOC PE services if you meet the following criteria based upon the attested information in your PE screening:
(1) Meet functional eligibility requirements as defined in WAC 388-106-0355 (1)(a), (b), (c), or (d); and
(2) Meet financial eligibility requirements as defined in WAC 182-513-1315; and
(3) Will be discharging from an acute care hospital or diverting from a community psychiatric hospital; or
(4) Have discharged or diverted from an acute care hospital or community psychiatric hospital in the last 30 days; and
(5) Live in your own home as defined in WAC 388-106-0010; and
(6) Are not receiving any other medicaid funded long-term services and supports.
NEW SECTION
WAC 388-106-1810What services may I receive under LTSS NFLOC PE?
You may receive the following services under LTSS NFLOC PE:
(1) Up to a maximum of 103 hours a month of personal care services as defined in WAC 388-106-0010;
(2) Nurse delegation, as defined in WAC 388-106-0270;
(3) Personal Emergency Response System (PERS), as defined in WAC 388-106-0270;
(4) Home delivered meals, as defined in WAC 388-106-0300;
(5) Specialized medical equipment and supplies, as defined in WAC 388-106-0300;
(6) Assistive/Adaptive technology and equipment, as defined in WAC 388-106-0270;
(7) Community transition or sustainability services as defined in WAC 388-106-0270, which are nonrecurring set-up items and services to assist with expenses to move from an acute care hospital or diversion from a psychiatric hospital stay to an in-home setting and may include:
(a) Security deposits that are required to lease an apartment or home;
(b) Activities to assess need, arrange for, and obtain needed resources, including essential household furnishings;
(c) Set-up fees or deposits for utility or services access, including telephone, electricity, heating, water, and garbage;
(d) Services necessary for your health and safety such as pest eradication and one-time cleaning prior to occupancy;
(e) Moving expenses; and
(f) Minor home accessibility modifications necessary for hospital discharge.
(8) Community choice guide: specialty services which provide assistance and support to ensure an individual's successful transition to the community or maintenance of independent living, as defined in WAC 388-106-0300; and
(9) Supportive Housing as defined in WAC 388-106.
NEW SECTION
WAC 388-106-1815Am I eligible for LTSS MPC PE Services?
You are eligible to receive LTSS MPC PE services if you meet the following criteria based upon the attested information in your PE screening:
(1) Meet functional eligibility requirements as defined in WAC 388-106-0210; and
(2) Meet financial eligibility requirements as defined in WAC 182-513-1225; and
(3) Will be discharging from an acute care hospital or diverting from a community psychiatric hospital; or
(4) Have discharged or diverted from an acute care hospital or community psychiatric hospital in the last 90 days; and
(5) Live in your own home as defined in WAC 388-106-0010; and
(6) Are not receiving any other medicaid funded long-term services and supports.
NEW SECTION
WAC 388-106-1820What services may I receive under LTSS MPC PE?
Under LTSS MPC PE you may receive up to 34 hours per month of personal care services as defined in WAC 388-106-0010.
NEW SECTION
WAC 388-106-1825Who can provide long-term care services when I am eligible for LTSS NFLOC or LTSS MPC PE services?
The following types of providers can provide long-term care services:
(1) Individual providers (IPs) as defined in WAC 388-115-0503, who provide services to clients in the client's own home.
(2) Home care agencies that provide services to clients in the client's own home. Home care agencies must be licensed under chapter
70.127 RCW and chapter 246-335 WAC and contracted with the department.
(3) Providers who have contracted with the department to perform other services.
NEW SECTION
WAC 388-106-1830When will the department authorize my LTSS NFLOC or LTSS MPC PE services?
The department will authorize LTSS NFLOC PE or LTSS MPC PE services when you:
(1) Are found both financially and functionally eligible for PE services by completing your PE screening which includes the amount of participation toward the cost of your care that you must pay (if any);
(2) Have given consent for services and approved your care plan; and
(3) Have chosen a DSHS qualified provider(s), per WAC 388-71-0510.
In the event the department implements a wait list under WAC 388-106-1860 for LTSS NFLOC PE or LTSS MPC PE services, the department will not be able to authorize PE services for new applicants.
NEW SECTION
WAC 388-106-1835When do LTSS NFLOC PE or LTSS MPC PE services end?
(1) Your LTSS NFLOC PE or LTSS MPC PE services end with the earlier date of:
(a) The date the decision was made on your application as defined in WAC 388-106-0010;
(b) The date you were confirmed by a CARE assessment to not meet functional eligibility criteria as defined in WAC 388-106-0355 or 388-106-0210; or
(c) The last day of the month following the month in which your presumptive eligibility services were authorized if you did not submit your application.
(2) You may only receive LTSS NFLOC PE or LTSS MPC PE services once within a 24-month period.
NEW SECTION
WAC 388-106-1840Where can I receive LTSS NFLOC PE or LTSS MPC PE services?
You can receive LTSS NFLOC PE or LTSS MPC PE services:
(1) In your own home as defined in WAC 388-106-0010;
(2) While you are out of your home accessing the community or working while:
(a) within the state of Washington; or
(b) in a recognized out-of-state bordering city as defined in WAC 182-501-0175.
NEW SECTION
WAC 388-106-1845What do I pay for if I receive LTSS NFLOC PE or LTSS MPC PE services?
(1) If you receive LTSS MPC PE services you are not required to pay toward the cost of care for those services.
(2) If you receive LTSS NFLOC PE, you may be required to pay toward the cost of your care as outlined in WAC 182-515-1509. You are allowed to keep some of your income for a maintenance allowance.
NEW SECTION
WAC 388-106-1850Do I have a right to an administrative hearing on LTSS NFLOC PE or LTSS MPC PE determinations?
Applicants do not have an administrative hearing right as defined in chapter 388-02 WAC on LTSS NFLOC PE or LTSS MPC PE eligibility determinations.
NEW SECTION
WAC 388-106-1855Can an exception to rule (ETR) be granted for eligibility or service determinations?
ETRs will not be granted for LTSS NFLOC PE or LTSS MPC PE eligibility determinations or service determinations.
NEW SECTION
WAC 388-106-1860Will there be a wait list for LTSS NFLOC PE or LTSS MPC PE?
(1) The department will implement a statewide wait list if program expenditures or enrollment exceeds availability of funding.
(2) If the department implements a wait list for LTSS NFLOC PE or LTSS MPC PE:
(a) We will stop conducting presumptive eligibility assessments and determinations.
(b) If additional funding becomes available, applicants on a wait list for LTSS NFLOC PE or LTSS MPC PE will be considered on a first come first serve basis based upon their request date for LTSS NFLOC PE or LTSS MPC PE.