WSR 02-04-011

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Adult Services Administration)

[ Filed January 23, 2002, 3:53 p.m. ]

Date of Adoption: January 22, 2002.

Purpose: To provide authority to recalculate the medians set for the July 1, 2001, rebase. Current WAC precludes recalculating the medians. Recalculating the medians follows the administrative review process used to resolve issues about the cost adjustments the department made for July 1, 2001, rebase. Because the costs used to recalculate the medians have been subject to administrative review under WAC 388-96-904, administrative review of the recalculation will be precluded.

Citation of Existing Rules Affected by this Order: Amending WAC 388-96-713 and 388-96-901.

Statutory Authority for Adoption: RCW 74.46.800.

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: Amending the WAC to allow for median recalculation will result in increased funding to nursing facilities that serve Medicaid eligible residents. The more funding available to nursing facilities increases the probability that the health, safety and general welfare of all nursing facility residents will be maintained or improved. Regular adoption would delay by four months or more the increased Medicaid nursing facility payment rates. Delay threatens the health, safety and general welfare of all nursing facility residents.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 2, Repealed 0.
Effective Date of Rule: Immediately.

January 22, 2002

Bonnie H. Jacques

for Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3036.3
AMENDATORY SECTION(Amending WSR 01-12-037, filed 5/29/01, effective 6/29/01)

WAC 388-96-713   Rate determination.   (1) Each nursing facility's Medicaid payment rate for services provided to medical care recipients will be determined, adjusted and updated prospectively as provided in this chapter and in chapter 74.46 RCW. The department will calculate any limit, lid, and/or median only when it rebases each nursing facility's July 1 Medicaid payment rate in accordance with chapter 74.46 RCW and this chapter, unless for the July 1, 2001 rates, the department determines the review of the 1999 cost report examination adjustments under WAC 388-96-904 results in an increase in the cost base significant enough to require one recalculation of the median cost limits (MCL) and the home office median.

(2) If the contractor participated in the program for less than six months of the prior calendar year, its rates will be determined by procedures set forth in WAC 388-96-710.

(3) Contractors submitting correct and complete cost reports by March 31st, shall be notified of their rates by July 1st, unless circumstances beyond the control of the department interfere.

(4) In setting rates, the department will use the greater of actual days from the cost report period on which the rate is based or days calculated at eighty-five percent occupancy.

[Statutory Authority: RCW 74.46.800. 01-12-037, 388-96-713, filed 5/29/01, effective 6/29/01; 98-20-023, 388-96-713, filed 9/25/98, effective 10/1/98. Statutory Authority: RCW 74.46.800 and 1995 1st sp.s. c 18. 95-19-037 (Order 3896), 388-96-713, filed 9/12/95, effective 10/13/95. Statutory Authority: RCW 74.46.800 and 74.09.120. 93-19-074 (Order 3634), 388-96-713, filed 9/14/93, effective 10/15/93; 90-09-061 (Order 2970), 388-96-713, filed 4/17/90, effective 5/18/90. Statutory Authority: RCW 74.09.120. 83-19-047 (Order 2025), 388-96-713, filed 9/16/83; 81-15-049 (Order 1669), 388-96-713, filed 7/15/81; 80-06-122 (Order 1510), 388-96-713, filed 5/30/80, effective 7/1/80; 78-02-013 (Order 1264), 388-96-713, filed 1/9/78.]


AMENDATORY SECTION(Amending WSR 01-12-037, filed 5/29/01, effective 6/29/01)

WAC 388-96-901   Disputes.   (1) If a contractor wishes to contest the way in which the department applied a statute or department rule to the contractor relating to the nursing facility Medicaid payment system ((was applied to the contractor by the department)), the contractor shall pursue the administrative review process prescribed in WAC 388-96-904.

(a) Adverse actions taken under the authority of this chapter or chapter 74.46 RCW subject to administrative review under WAC 388-96-904 include but are not limited to:

(i) Determining a nursing facility payment rate;

(ii) Calculating a nursing facility settlement;

(iii) Imposing a civil fine on the nursing facility;

(iv) Suspending payment to a nursing facility; or

(v) Refusing to contract with a nursing facility.

(b) Adverse actions taken under the authority of this chapter or chapter 74.46 RCW not subject to administrative review under WAC 388-96-904 include but are not limited to ((those taken)):

(i) Actions taken under the authority of RCW 74.46.421 and sections of this chapter implementing RCW 74.46.421.

(ii) Case mix accuracy review of minimum data set (MDS) nursing facility resident assessments, which shall be limited to separate administrative review under the provisions of WAC 388-96-905;

(iii) Quarterly rate updates to reflect changes in a facility's resident case mix;

(iv) Exceptional therapy care and exceptional direct care programs codified at WAC 388-96-779 through 388-96-782;

(v) Actions taken under WAC 388-96-218 (2)(c); and

(vi) Recalculation of medians under the authority of WAC 388-96-713.

(2) The administrative review process prescribed in WAC 388-96-904 shall not be used to contest or review unrelated or ancillary department actions, whether review is sought to obtain a ruling on the merits of a claim or to make a record for subsequent judicial review or other purpose. If an issue is raised that is not subject to review under WAC 388-96-904, the presiding officer shall dismiss such issue with prejudice to further review under the provisions of WAC 388-96-904, but without prejudice to other administrative or judicial review as may be provided by law. Unrelated or ancillary actions not eligible for administrative review under WAC 388-96-904 include but are not limited to:

(a) Challenges to the adequacy or validity of the public process followed by department in proposing or making a change to the nursing facility Medicaid payment rate methodology, as required by 42 U.S.C. 1396a (a)(13)(A) and WAC 388-96-718;

(b) Challenges to the nursing facility Medicaid payment system that are based in whole or in part on federal laws, regulations, or policies;

(c) Challenges to a contractor's rate that are based in whole or in part of federal laws, regulations, or policies;

(d) Challenges to the legal validity of a statute or regulation; and

(e) ((Issues relating to case mix accuracy review of minimum data set (MDS) nursing facility resident assessments, which shall be limited to separate administrative review under the provisions of WAC 388-96-905;

(f) Quarterly rate updates to reflect changes in a facility's resident case mix;

(g) Issues relating to any)) Actions of the department affecting a Medicaid beneficiary or provider that were not commenced by the office of rates management, aging and adult services administration, for example, entitlement to or payment for durable medical equipment or other services((;

(h) Issues relating to exceptional therapy care and exceptional direct care programs codified at WAC 388-96-779 through 388-96-782; and

(i) Department actions taken under WAC 388-96-218 (2)(c))).

(3) If a contractor wishes to challenge the legal validity of a statute or regulation relating to the nursing facility Medicaid payment system, or wishes to bring a challenge based in whole or in part on federal law, it must bring such action de novo in a court of proper jurisdiction as may be provided by law.

[Statutory Authority: RCW 74.46.800. 01-12-037, 388-96-901, filed 5/29/01, effective 6/29/01. Statutory Authority: RCW 74.46.800, 74.46.508. 00-12-098, 388-96-901, filed 6/7/00, effective 7/8/00. Statutory Authority: RCW 74.46.780 as amended by 1998 c 322 41. 98-20-023, 388-96-901, filed 9/25/98, effective 10/1/98. Statutory Authority: RCW 74.46.800 and 1995 1st sp.s. c 18. 95-19-037 (Order 3896), 388-96-901, filed 9/12/95, effective 10/13/95. Statutory Authority: RCW 74.46.800 and 74.09.120. 91-12-026 (Order 3185), 388-96-901, filed 5/31/91, effective 7/1/91. Statutory Authority: RCW 74.09.120. 82-21-025 (Order 1892), 388-96-901, filed 10/13/82; Order 1262, 388-96-901, filed 12/30/77.]

Washington State Code Reviser's Office