BILL REQ. #:  H-4852.1 

READ FIRST TIME 02/06/04.   

     AN ACT Relating to home and community care services; amending RCW 74.09.520, 74.39A.009, 74.39A.030, 74.39A.090, and 74.39A.095; creating a new section; and repealing RCW 74.39.030.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature recognizes the significant gains made to support seniors and people with disabilities in maintaining their independence and dignity in the most integrated, and least restrictive, setting through the development of a system of home and community care services. The legislature further recognizes that the availability of case management services has allowed seniors and people with disabilities, who may have otherwise been institutionalized, to function in their own home at far less cost to the state and federal government.
     The legislature recognizes the importance of case management as a critical home and community care service and maintains its commitment to this system of services; however, the legislature also affirms that in the event of limited case management resources, case management service expectations should match available resources.
     The legislature also finds that limited case management resources should be targeted to those with the greatest care needs and the least ability to meet those needs.

Sec. 2   RCW 74.09.520 and 2003 c 279 s 1 are each amended to read as follows:
     (1) The term "medical assistance" may include the following care and services: (a) Inpatient hospital services; (b) outpatient hospital services; (c) other laboratory and x-ray services; (d) nursing facility services; (e) physicians' services, which shall include prescribed medication and instruction on birth control devices; (f) medical care, or any other type of remedial care as may be established by the secretary; (g) home health care services; (h) private duty nursing services; (i) dental services; (j) physical and occupational therapy and related services; (k) prescribed drugs, dentures, and prosthetic devices; and eyeglasses prescribed by a physician skilled in diseases of the eye or by an optometrist, whichever the individual may select; (l) personal care services, as provided in this section; (m) hospice services; (n) other diagnostic, screening, preventive, and rehabilitative services; and (o) like services when furnished to a child by a school district in a manner consistent with the requirements of this chapter. For the purposes of this section, the department may not cut off any prescription medications, oxygen supplies, respiratory services, or other life-sustaining medical services or supplies.
     "Medical assistance," notwithstanding any other provision of law, shall not include routine foot care, or dental services delivered by any health care provider, that are not mandated by Title XIX of the social security act unless there is a specific appropriation for these services.
     (2) The department shall amend the state plan for medical assistance under Title XIX of the federal social security act to include personal care services, as defined in 42 C.F.R. 440.170(f), in the categorically needy program.
     (3) The department shall adopt, amend, or rescind such administrative rules as are necessary to ensure that Title XIX personal care services are provided to eligible persons in conformance with federal regulations.
     (a) These administrative rules shall include financial eligibility indexed according to the requirements of the social security act providing for medicaid eligibility.
     (b) The rules shall require clients be assessed as having a medical condition requiring assistance with personal care tasks. Plans of care for clients requiring health-related consultation for assessment and service planning may be reviewed by a nurse.
     (c) The department shall determine by rule which clients have a health-related assessment or service planning need requiring registered nurse consultation or review. This definition may include clients that meet indicators or protocols for review, consultation, or visit.
     (4) The department shall design and implement a means to assess the level of functional disability of persons eligible for personal care services under this section. The personal care services benefit shall be provided to the extent funding is available according to the assessed level of functional disability. Any reductions in services made necessary for funding reasons should be accomplished in a manner that assures that priority for maintaining services is given to persons with the greatest need as determined by the assessment of functional disability.
     (5) Effective July 1, 1989, the department shall offer hospice services in accordance with available funds.
     (6) For Title XIX personal care services administered by aging and ((adult)) disability services administration of the department, the department shall contract with area agencies on aging:
     (a) To provide case management services to individuals receiving Title XIX personal care services in their own home; and
     (b) To reassess and reauthorize Title XIX personal care services or other home and community services as defined in RCW 74.39A.009 in home or in other settings for individuals consistent with the intent of this section:
     (i) Who have been initially authorized by the department to receive Title XIX personal care services or other home and community services as defined in RCW 74.39A.009; and
     (ii) Who, at the time of reassessment and reauthorization, are receiving such services in their own home.
     (7) In the event that an area agency on aging is unwilling to enter into or satisfactorily fulfill a contract ((to provide these services)) or the department elects to contract with a managed care organization for the purpose of reducing acute care costs, the department is authorized to:
     (a) Obtain the services through competitive bid; and
     (b) Provide the services directly until a qualified contractor can be found.

Sec. 3   RCW 74.39A.009 and 1997 c 392 s 103 are each amended to read as follows:
     ((Unless the context clearly requires otherwise,)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Adult family home" means a home licensed under chapter 70.128 RCW.
     (2) "Adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.020.
     (3) "Assisted living services" means services provided by a boarding home that has a contract with the department under RCW 74.39A.010 and the resident is housed in a private apartment-like unit.
     (4) "Boarding home" means a facility licensed under chapter 18.20 RCW.
     (5) "Cost-effective care" means care provided in a setting of an individual's choice that is ((necessary to promote the most)) appropriate ((level of physical, mental, and psychosocial well-being consistent with client choice, in an environment that is appropriate to the care and safety needs of the individual, and such care cannot be provided at a lower cost in any other setting. But this in no way precludes an individual from choosing a different residential setting to achieve his or her desired quality of life)) to the health and safety needs of the individual and that is consistent with efficiency, economy, and quality of care.
     (6) "Department" means the department of social and health services.
     (7) "Enhanced adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.010.
     (8) "Functionally disabled person" is synonymous with chronic functionally disabled and means a person who because of a recognized chronic physical or mental condition or disease, including chemical dependency, is impaired to the extent of being dependent upon others for direct care, support, supervision, or monitoring to perform activities of daily living. "Activities of daily living", in this context, means self-care abilities related to personal care such as bathing, eating, using the toilet, dressing, and transfer. Instrumental activities of daily living may also be used to assess a person's functional abilities as they are related to the mental capacity to perform activities in the home and the community such as cooking, shopping, house cleaning, doing laundry, working, and managing personal finances.
     (9) "Home and community services" means ((adult family homes, in-home services, and other services administered or provided by contract by the department directly or through contract with area agencies on aging or similar services provided by facilities and agencies licensed by the department)) care and services provided in the home, in licensed residential facilities such as adult family homes and boarding homes, or in other community settings, and that are administered or provided by the department directly or through contract with area agencies on aging, residential facilities, or other community agencies or organizations.
     (10) "Long-term care" is synonymous with chronic care and means care and supports delivered indefinitely, intermittently, or over a sustained time to persons of any age disabled by chronic mental or physical illness, disease, chemical dependency, or a medical condition that is permanent, not reversible or curable, or is long-lasting and severely limits their mental or physical capacity for self-care. ((The use of this definition)) "Long-term care" is a generic term that does not describe any medicaid-funded or state-funded programs or services and is not intended to expand the scope of services, care, or assistance ((by any individuals, groups, residential care settings, or professions unless otherwise expressed by law)) provided to any individuals or groups or by any care providers or professions.
     (11) "Nursing home" means a facility licensed under chapter 18.51 RCW.
     (12) "Secretary" means the secretary of social and health services.
     (13) "Tribally licensed boarding home" means a boarding home licensed by a federally recognized Indian tribe which home provides services similar to boarding homes licensed under chapter 18.20 RCW.

Sec. 4   RCW 74.39A.030 and 2002 c 3 s 10 are each amended to read as follows:
     (1) To the extent of available funding, the department shall expand cost-effective options for home and community services for consumers for whom the state participates in the cost of their care.
     (2) In expanding home and community services, the department shall: (a) Take full advantage of federal funding available under Title XVIII and Title XIX of the federal social security act, including home health, adult day care, waiver options, and state plan services; and (b) be authorized to use funds available under its community options program entry system waiver granted under section 1915(c) of the federal social security act to expand the availability of in-home, adult residential care, adult family homes, enhanced adult residential care, ((and)) assisted living services, and other home and community services. By June 30, 1997, the department shall undertake to reduce the nursing home medicaid census by at least one thousand six hundred by assisting individuals who would otherwise require nursing facility services to obtain services of their choice, including assisted living services, enhanced adult residential care, and other home and community services. If a resident, or his or her legal representative, objects to a discharge decision initiated by the department, the resident shall not be discharged if the resident has been assessed and determined to require nursing facility services. In contracting with nursing homes and boarding homes for enhanced adult residential care placements, the department shall not require, by contract or through other means, structural modifications to existing building construction.
     (3)(a) The department shall by rule establish payment rates for home and community services that support the provision of cost-effective care. In the event of any conflict between any such rule and a collective bargaining agreement entered into under RCW 74.39A.270 and 74.39A.300, the collective bargaining agreement prevails.
     (b) The department may authorize an enhanced adult residential care rate for nursing homes that temporarily or permanently convert their bed use for the purpose of providing enhanced adult residential care under chapter 70.38 RCW, when the department determines that payment of an enhanced rate is cost-effective and necessary to foster expansion of contracted enhanced adult residential care services. As an incentive for nursing homes to permanently convert a portion of its nursing home bed capacity for the purpose of providing enhanced adult residential care, the department may authorize a supplemental add-on to the enhanced adult residential care rate.
     (c) The department may authorize a supplemental assisted living services rate for up to four years for facilities that convert from nursing home use and do not retain rights to the converted nursing home beds under chapter 70.38 RCW, if the department determines that payment of a supplemental rate is cost-effective and necessary to foster expansion of contracted assisted living services.

Sec. 5   RCW 74.39A.090 and 1999 c 175 s 2 are each amended to read as follows:
     (1) The legislature intends that any staff reassigned by the department as a result of shifting of the reauthorization responsibilities by contract outlined in this section shall be dedicated for discharge planning and assisting with discharge planning and information on existing discharge planning cases. Discharge planning, as directed in this section, is intended for residents and patients identified for discharge to long-term care pursuant to RCW 70.41.320, 74.39A.040, and 74.42.058. The purpose of discharge planning is to protect residents and patients from the financial incentives inherent in keeping residents or patients in a more expensive higher level of care and shall focus on care options that are in the best interest of the patient or resident.
     (2) The department shall contract with area agencies on aging:
     (a) To provide case management services to consumers receiving home and community services in their own home; and
     (b) To reassess and reauthorize home and community services in home or in other settings for consumers consistent with the intent of this section:
     (i) Who have been initially authorized by the department to receive home and community services; and
     (ii) Who, at the time of reassessment and reauthorization, are receiving home and community services in their own home.
     (3) In the event that an area agency on aging is unwilling to enter into or satisfactorily fulfill a contract ((to provide these services)) or the department elects to contract with a managed care organization for the purpose of reducing acute care costs, the department is authorized to:
     (a) Obtain the services through competitive bid; and
     (b) Provide the services directly until a qualified contractor can be found.
     (4) The department shall include, in its oversight and monitoring of area agency on aging performance, assessment of case management roles undertaken by area agencies on aging in this section. The scope of oversight and monitoring ((must be expanded to)) includes, but is not limited to, assessing the degree and quality of the case management performed by area agency on aging staff for elderly and disabled persons in the community.
     (5) Area agencies on aging shall assess the quality of the in-home care services provided to consumers who are receiving services under the medicaid personal care, community options programs entry system or chore services program through an individual provider or home care agency. Quality indicators may include, but are not limited to, home care consumers satisfaction surveys, how quickly home care consumers are linked with home care workers, and whether the plan of care under RCW 74.39A.095 has been honored by the agency or the individual provider.
     (6) The department shall develop model language for the plan of care established in RCW 74.39A.095. The plan of care shall be in clear language, and written at a reading level that will ensure the ability of consumers to understand the rights and responsibilities expressed in the plan of care.

Sec. 6   RCW 74.39A.095 and 2002 c 3 s 11 are each amended to read as follows:
     (1) In carrying out case management responsibilities established under RCW 74.39A.090 for consumers who are receiving services ((under)) from an individual provider through the medicaid personal care program, ((community options programs entry system)) a home or community-based waiver program authorized under chapter 74.39 RCW or this chapter, or the chore services program ((through an individual provider)), each area agency on aging shall ((provide oversight of)) monitor the care being provided to consumers ((receiving services under this section to the extent of available funding)). Case management responsibilities ((incorporate this oversight, and)) include, but are not limited to:
     (a) Verification that any individual provider who has not been referred to a consumer by the authority established under chapter 3, Laws of 2002 has met any training requirements established by the department;
     (b) Verification of a sample of worker time sheets;
     (c) Monitoring the consumer's plan of care to ensure that it adequately meets the needs of the consumer, through activities such as home visits, telephone contacts, and responses to information received by the area agency on aging indicating that a consumer may be experiencing problems relating to his or her home care;
     (d) Reassessment and reauthorization of services;
     (e) Monitoring of individual provider performance. If, in the course of its case management activities, the area agency on aging identifies concerns regarding the care being provided by an individual provider who was referred by the authority, the area agency on aging must notify the authority regarding its concerns; and
     (f) Conducting criminal background checks or verifying that criminal background checks have been conducted for any individual provider who has not been referred to a consumer by the authority.
     (2) The area agency on aging case manager shall work with each consumer to develop a plan of care under this section that identifies and ensures coordination of health and long-term care services that meet the consumer's needs. In developing the plan of care, ((they)) the case manager shall utilize, and modify as needed, any comprehensive community service plan developed by the department as provided in RCW 74.39A.040. The plan of care shall include, at a minimum:
     (a) The name and telephone number of the consumer's area agency on aging case manager, and a statement as to how the case manager can be contacted about any concerns related to the consumer's well-being or the adequacy of care provided;
     (b) The name and telephone numbers of the consumer's primary health care provider, and other health or long-term care providers with whom the consumer has frequent contacts;
     (c) A clear description of the roles and responsibilities of the area agency on aging case manager and the consumer receiving services under this section;
     (d) The duties and tasks to be performed by the area agency on aging case manager and the consumer receiving services under this section;
     (e) The type of in-home services authorized, and the number of hours of services to be provided;
     (f) The terms of compensation of the individual provider;
     (g) A statement that the individual provider has the ability and willingness to carry out his or her responsibilities relative to the plan of care; and
     (h)(i) Except as provided in (h)(ii) of this subsection, a clear statement indicating that a consumer receiving services under this section has the right to waive any of the case management services offered by the area agency on aging under this section, and a clear indication of whether the consumer has, in fact, waived any of these services.
     (ii) The consumer's right to waive case management services does not include the right to waive reassessment or reauthorization of services, or verification that services are being provided in accordance with the plan of care.
     (3) Each area agency on aging shall retain a record of each waiver of services included in a plan of care under this section.
     (4) Each consumer has the right to direct and participate in the development of their plan of care to the maximum practicable extent of their abilities and desires, and to be provided with the time and support necessary to facilitate that participation.
     (5) A copy of the plan of care must be distributed to the consumer's primary care provider, individual provider, and other relevant providers with whom the consumer has frequent contact, as authorized by the consumer.
     (6) The consumer's plan of care shall be an attachment to the contract between the department, or their designee, and the individual provider.
     (7) If the department or area agency on aging case manager finds that an individual provider's inadequate performance or inability to deliver quality care is jeopardizing the health, safety, or well-being of a consumer receiving service under this section, the department or the area agency on aging may take action to terminate the contract between the department and the individual provider. If the department or the area agency on aging has a reasonable, good faith belief that the health, safety, or well-being of a consumer is in imminent jeopardy, the department or area agency on aging may summarily suspend the contract pending a fair hearing. The consumer may request a fair hearing to contest the planned action of the case manager, as provided in chapter 34.05 RCW. When the department or area agency on aging terminates or summarily suspends a contract under this subsection, it must provide oral and written notice of the action taken to the authority. The department may by rule adopt guidelines for implementing this subsection.
     (8) The department or area agency on aging may reject a request by a consumer receiving services under this section to have a family member or other person serve as his or her individual provider if the case manager has a reasonable, good faith belief that the family member or other person will be unable to appropriately meet the care needs of the consumer. The consumer may request a fair hearing to contest the decision of the case manager, as provided in chapter 34.05 RCW. The department may by rule adopt guidelines for implementing this subsection.
     (9) The department, or the area agency on aging as authorized by the department, may in its discretion refuse to authorize services if the department or area agency on aging determines that the consumer's needs cannot safely be met. The consumer may request a fair hearing to contest the decision of the case manager, as provided in chapter 34.05 RCW. The department may by rule adopt guidelines for implementing this subsection (9). Neither the department nor the area agency on aging shall be liable for exercising or failing to exercise discretion to refuse services under this subsection.

NEW SECTION.  Sec. 7   RCW 74.39.030 (Community options program entry system -- Waiver -- Respite services) and 1989 c 427 s 11 are each repealed.