WSR 00-18-073


[ Filed September 1, 2000, 1:43 p.m. ]

September 1, 2000

Daniel R. Humphrey

President, Washington Center

for Comprehensive Rehabilitation

2821 South Walden

Seattle, WA 98144

Re: RCW 34.05.330(3) appeal of the June 30, 2000 denial by the Department of Social and Health Services ("DSHS") of that certain petition ("Petition") to amend WAC 388-97-005, originally filed on April 29, 2000, regarding the definition of "reasonable accommodation"

Dear Mr. Humphrey:

Thank you for your letter dated July 24, 2000 and received by my office on July 27, 2000, appealing DSHS's decision to deny the Petition.

Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal of the Petition and the relevant statutes and regulations, and have affirmed DSHS's decision.

It is my policy to intervene in matters presented to me under RCW 34.05.330(3) only when I believe the agency whose decision is at issue has abused its discretion or acted arbitrarily or capriciously. It is also my policy not to second-guess the thoughtful and deliberate decisions of a state agency, so long as those decisions are well founded and proper under the law.

DSHS had a proper basis for its decision to deny the Petition because the proposed amendment is outside of the scope of WAC Chapter 388-97 and the authority granted to DSHS under RCW Chapter 18.51. Those chapters contain requirements for the provision of resident rights, care and related services; the physical environment of the licensed nursing home; and obtaining and maintaining a nursing home license. They do not address the nursing facility payment system. That system is largely statutory, and may be changed as you requested in the Petition only by amending RCW Chapter 74.46 and regulations promulgated under that chapter.

You stated in your letter that you believe the standard of care and the necessary funding must be linked. That makes good sense, and the current payment system provides such a link between care standards and funding. As of October 1, 1998, each facility receives a daily rate for Medicaid residents based on its costs and the care needs of its residents. The rate structure includes a component for therapy care. On July 1, 2001, a new rate will go into effect based on 1999 costs adjusted for inflation.

DSHS is required by statute to contract for an evaluation of the impacts of this linked payment system on access to nursing home care, the wage and benefit levels of nursing home employees, and the quality of care and quality of life for nursing home residents. The study is due on December 1, 2001, and we look forward to its conclusions.

Your letter also describes the importance of rehabilitation services to younger people who have experienced a major trauma, and who can most benefit from therapy. I agree that such services are very important and, in the 1999 session, the legislature authorized additional payments of $66.50 per day for these types of residents. DSHS implemented the program on January 1, 2000, and a report to the legislature on the effectiveness of the program is due on December 12, 2002.

While some argue that the enhanced funding is still inadequate, DSHS has implemented all of the statutory provisions for rehabilitation services authorized by the legislature. It will be necessary for the legislature to act for funding to be increased again.

Thank you for your extensive efforts and profound commitment to the care of Washington citizens with disabling injuries.


Gary Locke


cc: Dennis W. Cooper, Code Reviser
Tim Martin, Co-Chief Clerk, House of Representatives
Cindy Zehnder, Co-Chief Clerk, House of Representatives
Tony Cook, Secretary of Senate
Dennis Braddock, Secretary of DSHS
Patricia Lashway, Director, Residential Care Services

Washington State Code Reviser's Office