WSR 06-24-065

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed December 4, 2006, 4:00 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-10-089 and 05-13-127.

Title of Rule and Other Identifying Information: WAC 388-105-0050 Supplementation -- General requirements and 388-105-0055 Supplementation -- Unit or bedroom.

Supplementation is an additional payment requested from a Medicaid recipient or a third-party by an adult family home (AFH) contractor or a licensed boarding home contractor with a contract to provide adult residential care (ARC), enhanced adult residential care (EARC), or assisted living (AL) services. The contractor may request an additional payment from the client or a third party, when the services, items, activities, room and board are not covered by the Medicaid daily rate and/or the contractor is not required to provide them under chapters 388-76, 388-78A or 388-110 WAC or in accordance with his or her contract with the department.

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on January 9, 2007, at 10:00 a.m.

Date of Intended Adoption: Not earlier than January 10, 2007.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. on January 9, 2007.

Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by January 5, 2007, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to make it clear when an AFH, AL, ARC or EARC contractor may request an additional payment from a Medicaid client or from a third party on behalf of a Medicaid client.

The anticipated effect is to prevent a Medicaid recipient from paying for services, items, activities, or room and board covered by the Medicaid rate and required to be provided by the contractor. Also, to prevent supplementation of the Medicaid rate, whereby, a contractor requires a payment unrelated to a service, item, activity, or room and board from the Medicaid client in order for the client to reside in the facility.

Reasons Supporting Proposal: To prevent the loss of federal financial participation by complying with 42 C.F.R. 447.15 Acceptance of State payment as payment in full.

Statutory Authority for Adoption: RCW 74.39A.901.

Statute Being Implemented: Chapter 74.39A RCW.

Rule is necessary because of federal law, 42 C.F.R. 447.15.

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting: Patricia Hague, Mailstop 45600, Olympia, Washington, (360) 725-2447; Implementation: Bill Moss, Mailstop 45600, Olympia, Washington, (360) 725-2311; and Enforcement: Joyce Stockwell, Mailstop 45600, Olympia, Washington, (360) 725-2401.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.030 (1)(a), the proposed rules do not impose a cost on businesses in the home and community residential care industry.

Under RCW 19.85.025(3), this chapter does not apply to the adoption of a rule described in RCW 34.05.310(4). RCW 34.05.310 (4)(e) Rules the content of which is explicitly and specifically dictated by statute; and (f) Rules that set or adjust fees or rates pursuant to legislative standards. RCW 74.39A.901 explicitly requires the department to obtain and retain federal financial participation. To do that, the department must comply with 42 C.F.R. 447.15. The rules indicate that the payment rates are payment in full for services provided by the contractors.

A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b)(v) and (vi): (v) Rules the content of which is explicitly and specifically dictated by statute; and (vi) Rules that set or adjust fees or rates pursuant to legislative standards;

RCW 74.39A.901 explicitly requires the department to obtain and retain federal financial participation. To do that the department must comply with 42 C.F.R. 447.15. The rules indicate that the payment rates are payment in full for services provided by the contractors.

November 30, 2006

Andy Fernando, Manager

Rules and Policies Assistance Unit

3631.10
NEW SECTION
WAC 388-105-0050   Supplementation - General Requirements.   (1) Supplementation of the Medicaid daily payment rate is an additional payment requested from a Medicaid recipient or a third-party payer by an Adult Family Home (AFH) contractor or a licensed boarding home contractor with a contract to provide Adult Residential Care (ARC), Enhanced Adult Residential Care (EARC), or Assisted Living (AL) services.

(2) The AFH, ARC, EARC, or AL contractor may not request supplemental payment of a Medicaid recipient's daily rate for services or items that are covered in the daily rate, and the contractor is required to provide:

(a) Under licensing chapters 388-76 or 78A WAC and chapter 388-110 WAC; and/or

(b) In accordance with his or her contract with the department.

(3) Before a contractor may request supplemental payments, the contractor must have a supplemental payment policy that has been given to all applicants for admittance and current residents. In the policy, the contractor must inform the applicant for admittance or current resident that:

(a) The department made Medicaid payment plus any client participation assigned by the department is payment in full for the services, items, activities, and room and board required by the resident's negotiated service plan per chapter 388-78A WAC or the negotiated care plan per chapter 388-76 WAC and its contract with the department; and

(b) Additional payments requested by the contractor are for services, items, activities, and room and board not covered by the Medicaid per diem rate.

(4) For services, items and activities, the supplementation policy must comply with RCW 70.129.030(4).

(5) For units or bedrooms for which the contractor may request supplemental payments, the contractor must include in the supplemental payment policy the:

(a) Units and/or bedrooms for which the contractor may request supplementation;

(b) Action the contractor will take when a private pay resident converts to Medicaid and the resident or a third party is unwilling or unable to pay a supplemental payment in order for the resident to remain in his or her unit or bedroom. When the only units or bedrooms available are those for which the contractor charges a supplemental payment, the contractor's policy may require the Medicaid resident to move from the facility. However, the contractor must give the Medicaid resident thirty days notice before requiring the Medicaid resident to move.

(6) For the Medicaid resident for whom the contractor receives supplemental payments, the contractor must indicate in the resident's record the:

(a) Unit or bedroom for which the contractor is receiving a supplemental payment;

(b) Services, items, or activities for which the contractor is receiving supplemental payments;

(c) Who is making the supplemental payments;

(d) Amount of the supplemental payments; and

(e) Private pay charge for the unit or bedroom for which the contractor is receiving a supplemental payment.

(7) When the contractor receives supplemental payment for a unit or bedroom, the contractor must notify the Medicaid resident's case manager of the supplemental payment.

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NEW SECTION
WAC 388-105-0055   Supplementation - Unit or Bedroom.   When the AFH, ARC, EARC, or AL contractor only has one type of unit or all private bedrooms, the contractor may not request supplementation from the Medicaid applicant/resident or a third party, unless the unit or private bedroom has an amenity that some or all of the other units or private bedrooms lack e.g., a bathroom in private bedroom, a view unit, etc.

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Washington State Code Reviser's Office