Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-13-092.

     Title of Rule and Other Identifying Information: The department is amending and creating new sections in chapter 388-106 WAC, Long-term care services.

     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) 664-6094), on February 23, 2010, at 10:00 a.m.

     Date of Intended Adoption: Not earlier then February 24, 2010.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on February 23, 2010.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by February 9, 2010, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending and adopting new rules in chapter 388-106 WAC as follows:

•	Updating how the individual budget amount is calculated after the New Freedom participant is assigned a classification as a result of an assessment performed in CARE.
•	Updating how unused funds from New Freedom individual budgets will be maintained and/or returned to the department.
•	Clarifying what services are available under the New Freedom waiver.
•	Updating the role of a designated New Freedom representative to not allow payment as a personal care provider.
•	New WAC to address institutionalized participants and their budgets.
•	New WAC to address what services are not allowed under New Freedom.
•	Adding two applicable definitions for clarity.

     Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

     Statute Being Implemented: RCW 74.08.090, 74.09.520.

     Rule is not necessitated by federal law, federal or state court decision.

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

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Karen Fitzharris, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2446.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The preparation of a small business economic impact statement is not required, as no new costs will be imposed on small businesses or nonprofits.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Karen Fitzharris, Home and Community Services, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2446, fax (360) 407-7582, e-mail Karen.digre-fitzharris@dshs.wa.gov.

December 30, 2009

Don Goldsby, Manager

Rules and Policies Assistance Unit

     (a) Understood: You express ideas clearly;

     (b) Usually understood: You have difficulty finding the right words or finishing thoughts, resulting in delayed responses, or you require some prompting to make self understood;

     (c) Sometimes understood: You have limited ability, but are able to express concrete requests regarding at least basic needs (e.g. food, drink, sleep, toilet);

     (d) Rarely/never understood. At best, understanding is limited to caregiver's interpretation of client specific sounds or body language (e.g. indicated presence of pain or need to toilet.)

     "Activities of daily living (ADL)" means the following:

     (a) Bathing: How you take a full-body bath/shower, sponge bath, and transfer in/out of tub/shower.

     (b) Bed mobility: How you move to and from a lying position, turn side to side, and position your body while in bed, in a recliner, or other type of furniture.

     (c) Body care: How you perform with passive range of motion, applications of dressings and ointments or lotions to the body and pedicure to trim toenails and apply lotion to feet. In adult family homes, contracted assisted living, enhanced adult residential care, and enhanced adult residential care-specialized dementia care facilities, dressing changes using clean technique and topical ointments must be performed by a licensed nurse or through nurse delegation in accordance with chapter 246-840 WAC. Body care excludes:

     (i) Foot care if you are diabetic or have poor circulation; or

     (ii) Changing bandages or dressings when sterile procedures are required.

     (d) Dressing: How you put on, fasten, and take off all items of clothing, including donning/removing prosthesis.

     (e) Eating: How you eat and drink, regardless of skill. Eating includes any method of receiving nutrition, e.g., by mouth, tube or through a vein.

     (f) Locomotion in room and immediate living environment: How you move between locations in your room and immediate living environment. If you are in a wheelchair, locomotion includes how self-sufficient you are once in your wheelchair.

     (g) Locomotion outside of immediate living environment including outdoors: How you move to and return from more distant areas. If you are living in a boarding home or nursing facility (NF), this includes areas set aside for dining, activities, etc. If you are living in your own home or in an adult family home, locomotion outside immediate living environment including outdoors, includes how you move to and return from a patio or porch, backyard, to the mailbox, to see the next-door neighbor, etc.

     (h) Walk in room, hallway and rest of immediate living environment: How you walk between locations in your room and immediate living environment.

     (i) Medication management: Describes the amount of assistance, if any, required to receive medications, over the counter preparations or herbal supplements.

     (j) Toilet use: How you use the toilet room, commode, bedpan, or urinal, transfer on/off toilet, cleanse, change pad, manage ostomy or catheter, and adjust clothes.

     (k) Transfer: How you move between surfaces, i.e., to/from bed, chair, wheelchair, standing position. Transfer does not include how you move to/from the bath, toilet, or vehicle.

     (l) Personal hygiene: How you maintain personal hygiene, including combing hair, brushing teeth, shaving, applying makeup, washing/drying face, hands (including nail care), and perineum (menses care). Personal hygiene does not include hygiene in baths and showers.

     "Aged person" means a person sixty-five years of age or older.

     "Agency provider" means a licensed home care agency or a licensed home health agency having a contract to provide long-term care personal care services to you in your own home.

     "Application" means a written request for medical assistance or long-term care services submitted to the department by the applicant, the applicant's authorized representative, or, if the applicant is incompetent or incapacitated, someone acting responsibly for the applicant. The applicant must submit the request on a form prescribed by the department.

     "Assessment details" means a summary of information that the department entered into the CARE assessment describing your needs.

     "Assessment or reassessment" means an inventory and evaluation of abilities and needs based on an in-person interview in your own home or your place of residence, using CARE.

     "Assistance available" means the amount of informal support available if the need is partially met. The department determines the amount of the assistance available using one of four categories:

     (a) Less than one-fourth of the time;

     (b) One-fourth to one-half of the time;

     (c) Over one-half of the time to three-fourths of the time; or

     (d) Over three-fourths but not all of the time.

     "Assistance with body care" means you need assistance with:

     (a) Application of ointment or lotions;

     (b) Trimming of toenails;

     (c) Dry bandage changes; or

     (d) Passive range of motion treatment.

     "Assistance with medication management" means you need assistance managing your medications. You are scored as:

     (a) Independent if you remember to take medications as prescribed and manage your medications without assistance.

     (b) Assistance required if you need assistance from a nonlicensed provider to facilitate your self-administration of a prescribed, over the counter, or herbal medication, as defined in chapter 246-888 WAC. Assistance required includes reminding or coaching you, handing you the medication container, opening the container, using an enabler to assist you in getting the medication into your mouth, alteration of a medication for self-administration, and placing the medication in your hand. This does not include assistance with intravenous or injectable medications. You must be aware that you are taking medications.

     (c) Self-directed medication assistance/administration if you are a person with a functional disability who is capable of and who chooses to self-direct your medication assistance/administration.

     (d) Must be administered if you must have medications placed in your mouth or applied or instilled to your skin or mucus membrane. Administration must either be performed by a licensed professional or delegated by a registered nurse to a qualified caregiver (per chapter 246-840 WAC). Intravenous or injectable medications may never be delegated. Administration may also be performed by a family member or unpaid caregiver if facility licensing regulations allow.

     "Authorization" means an official approval of a departmental action, for example, a determination of client eligibility for service or payment for a client's long-term care services.

     "Blind person" means a person determined blind as described under WAC 388-511-1105 by the division of disability determination services of the medical assistance administration.

     "Categorically needy" means the status of a person who is eligible for medical care under Title XIX of the Social Security Act. See WAC 388-475-0100 and chapter 388-513 WAC.

     "Client" means an applicant for service or a person currently receiving services from the department.

     "Current" means a behavior occurred within seven days of the CARE assessment date, including the day of the assessment. Behaviors that the department designates as current must include information about:

     (a) Whether the behavior is easily altered or not easily altered; and

     (b) The frequency of the behavior.

     "Decision making" means your ability and actual performance in making everyday decisions about tasks or activities of daily living. The department determines whether you are:

     (a) Independent: Decisions about your daily routine are consistent and organized; reflecting your lifestyle, choices, culture, and values.

     (b) Modified independence/difficulty in new situations: You have an organized daily routine, are able to make decisions in familiar situations, but experience some difficulty in decision making when faced with new tasks or situations.

     (c) Moderately impaired/poor decisions; unaware of consequences: Your decisions are poor and you require reminders, cues and supervision in planning, organizing and correcting daily routines. You attempt to make decisions, although poorly.

     (d) Severely impaired/no or few decisions: Decision making is severely impaired; you never/rarely make decisions.

     "Department" means the state department of social and health services, aging and disability services administration or its designee.

     "Designee" means area agency on aging.

     "Difficulty" means how difficult it is or would be for you to perform an instrumental activity of daily living (IADL). This is assessed as:

     (a) No difficulty in performing the activity;

     (b) Some difficulty in performing the activity (e.g., you need some help, are very slow, or fatigue easily); or

     (c) Great difficulty in performing the activity (e.g., little or no involvement in the activity is possible).

     "Disabling condition" means you have a medical condition which prevents you from self performance of personal care tasks without assistance.

     "Estate recovery" means the department's process of recouping the cost of medicaid and long-term care benefit payments from the estate of the deceased client. See chapter 388-527 WAC.

     "Home health agency" means a licensed:

     (a) Agency or organization certified under medicare to provide comprehensive health care on a part-time or intermittent basis to a patient in the patient's place of residence and reimbursed through the use of the client's medical identification card; or

     (b) Home health agency, certified or not certified under medicare, contracted and authorized to provide:

     (i) Private duty nursing; or

     (ii) Skilled nursing services under an approved medicaid waiver program.

     "Income" means income as defined under WAC 388-500-0005.

     "Individual provider" means a person employed by you to provide personal care services in your own home. See WAC 388-71-0500 through 388-71-05909.

     "Disability" is described under WAC 388-511-1105.

     "Informal support" means a person or resource that is available to provide assistance without home and community program funding. The person or resource providing the informal support must be age 18 or older.

     "Institution" means medical facilities, nursing facilities, and institutions for the mentally retarded. It does not include correctional institutions. See medical institutions in WAC 388-500-0005.

     "Instrumental activities of daily living (IADL)" means routine activities performed around the home or in the community and includes the following:

     (a) Meal preparation: How meals are prepared (e.g., planning meals, cooking, assembling ingredients, setting out food, utensils, and cleaning up after meals). NOTE: The department will not authorize this IADL to plan meals or clean up after meals. You must need assistance with actual meal preparation.

     (b) Ordinary housework: How ordinary work around the house is performed (e.g., doing dishes, dusting, making bed, tidying up, laundry).

     (c) Essential shopping: How shopping is completed to meet your health and nutritional needs (e.g., selecting items). Shopping is limited to brief, occasional trips in the local area to shop for food, medical necessities and household items required specifically for your health, maintenance or well-being. This includes shopping with or for you.

     (d) Wood supply: How wood is supplied (e.g., splitting, stacking, or carrying wood) when you use wood as the sole source of fuel for heating and/or cooking.

     (e) Travel to medical services: How you travel by vehicle to a physician's office or clinic in the local area to obtain medical diagnosis or treatment-includes driving vehicle yourself, traveling as a passenger in a car, bus, or taxi.

     (f) Managing finances: How bills are paid, checkbook is balanced, household expenses are managed. The department cannot pay for any assistance with managing finances.

     (g) Telephone use: How telephone calls are made or received (with assistive devices such as large numbers on telephone, amplification as needed).

     "Long-term care services" means the services administered directly or through contract by the aging and disability services administration and identified in WAC 388-106-0015.

     "Medicaid" is defined under WAC 388-500-0005.

     "Medically necessary" is defined under WAC 388-500-0005.

     "Medically needy (MN)" means the status of a person who is eligible for a federally matched medical program under Title XIX of the Social Security Act, who, but for income above the categorically needy level, would be eligible as categorically needy. Effective January 1, 1996, an AFDC-related adult is not eligible for MN.

     "New Freedom consumer directed services (NFCDS)" means a mix of services and supports to meet needs identified in the participant's assessment and identified in a New Freedom spending plan, within the limits of the individual budget, that provide participants with flexibility to plan, select, and direct the purchase of goods and services to meet identified needs. Participants have a meaningful leadership role in:

     (a) The design, delivery and evaluation of services and supports;

     (b) Exercising control of decisions and resources, making their own decisions about health and well being;

     (c) Determining how to meet their own needs;

     (d) Determining how and by whom these needs should be met; and

     (e) Monitoring the quality of services received.

     "New Freedom consumer directed services (NFCDS) participant" means a participant who is an applicant for or currently receiving services under the NFCDS waiver.

     "New Freedom spending plan (NFSP)" means the plan developed by the participant, within the limits of an individual budget, that details the participant's choices to purchase specific NFCDS and provides required federal medicaid documentation.

     "Own home" means your present or intended place of residence:

     (a) In a building that you rent and the rental is not contingent upon the purchase of personal care services as defined in this section;

     (b) In a building that you own;

     (c) In a relative's established residence; or

     (d) In the home of another where rent is not charged and residence is not contingent upon the purchase of personal care services as defined in this section.

     "Past" means the behavior occurred from eight days to five years of the assessment date. For behaviors indicated as past, the department determines whether the behavior is addressed with current interventions or whether no interventions are in place.

     "Personal aide" is defined in RCW 74.39.007.

     "Personal care services" means physical or verbal assistance with activities of daily living (ADL) and instrumental activities of daily living (IADL) due to your functional limitations. Assistance is evaluated with the use of assistive devices.

     "Physician" is defined under WAC 388-500-0005.

     "Plan of care" means assessment details and service summary generated by CARE.

     "Provider or provider of service" means an institution, agency, or person:

     (a) Having a signed department contract to provide long-term care client services; and

     (b) Qualified and eligible to receive department payment.

     "Reasonable cost" means the costs are consistent with the community market standards for comparable services/items.

     "Representative" means a person who has been chosen by the participant/client or law whose primary duty is to act on behalf of the participant/client to direct their service budget to meet their identified health, safety, and welfare needs.

     "Residential facility" means a licensed adult family home under department contract or licensed boarding home under department contract to provide assisted living, adult residential care or enhanced adult residential care.

     "Self performance for ADLs" means what you actually did in the last seven days before the assessment, not what you might be capable of doing. Coding is based on the level of performance that occurred three or more times in the seven-day period and does not include support provided as defined in WAC 388-106-0010. Your self performance level is scored as:

     (a) Independent if you received no help or oversight, or if you needed help or oversight only once or twice;

     (b) Supervision if you received oversight (monitoring or standby), encouragement, or cueing three or more times;

     (c) Limited assistance if you were highly involved in the activity and given physical help in guided maneuvering of limbs or other nonweight bearing assistance on three or more occasions. For bathing, limited assistance means physical help is limited to transfer only;

     (d) Extensive assistance if you performed part of the activity, but on three or more occasions, you needed weight bearing support or you received full performance of the activity during part, but not all, of the activity. For bathing, extensive assistance means you needed physical help with part of the activity (other than transfer);

     (e) Total dependence if you received full caregiver performance of the activity and all subtasks during the entire seven-day period from others. Total dependence means complete nonparticipation by you in all aspects of the ADL; or

     (f) Activity did not occur if you or others did not perform an ADL over the last seven days before your assessment. The activity may not have occurred because:

     (i) You were not able (e.g., walking, if paralyzed);

     (ii) No provider was available to assist; or

     (iii) You declined assistance with the task.

     "Self performance for IADLs" means what you actually did in the last thirty days before the assessment, not what you might be capable of doing. Coding is based on the level of performance that occurred three or more times in the thirty-day period. Your self performance is scored as:

     (a) Independent if you received no help, set-up help, or supervision;

     (b) Set-up help/arrangements only if on some occasions you did your own set-up/arrangement and at other times you received help from another person;

     (c) Limited assistance if on some occasions you did not need any assistance but at other times in the last thirty days you required some assistance;

     (d) Extensive assistance if you were involved in performing the activity, but required cueing/supervision or partial assistance at all times;

     (e) Total dependence if you needed the activity fully performed by others; or

     (f) Activity did not occur if you or others did not perform the activity in the last thirty days before the assessment.

     "Service summary" is CARE information which includes: Contacts (e.g. emergency contact), services the client is eligible for, number of hours or residential rates, personal care needs, the list of formal and informal providers and what tasks they will provide, a provider schedule, referral needs/information, and dates and agreement to the services.

     "SSI-related" is defined under WAC 388-475-0050.

     "Status" means the amount of informal support available. The department determines whether the ADL or IADL is:

     (a) Met, which means the ADL or IADL will be fully provided by an informal support;

     (b) Unmet, which means an informal support will not be available to provide assistance with the identified ADL or IADL;

     (c) Partially met, which means an informal support will be available to provide some assistance, but not all, with the identified ADL or IADL; or

     (d) Client declines, which means you do not want assistance with the task.

     "Supplemental Security Income (SSI)" means the federal program as described under WAC 388-500-0005.

     "Support provided" means the highest level of support provided (to you) by others in the last seven days before the assessment, even if that level of support occurred only once.

     (a) No set-up or physical help provided by others;

     (b) Set-up help only provided, which is the type of help characterized by providing you with articles, devices, or preparation necessary for greater self performance of the activity. (For example, set-up help includes but is not limited to giving or holding out an item or cutting food);

     (c) One-person physical assist provided;

     (d) Two- or more person physical assist provided; or

     (e) Activity did not occur during entire seven-day period.

     "You/your" means the client.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-0010, filed 7/25/06, effective 8/25/06. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.010 and 74.39A.020. 06-05-022, § 388-106-0010, filed 2/6/06, effective 3/9/06. Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0010, filed 5/17/05, effective 6/17/05.]

     (3) You may use your individual budget to purchase services ((that address an identified need in the CARE assessment.)), supports, and/or items that fall into the following service categories ((are)):

     (((1))) (a) Personal assistance services, defined as supports involving the labor of another person to ((help)) assist participants to carry out activities they are unable to perform independently ((as identified in the CARE assessment)). Services may be provided in the participant's home or in the community and may include:

     (((a))) (i) Direct personal care services defined as activities of daily living, as defined in WAC 388-106-0010;

     (((b))) (ii) Delegated ((health related)) nursing tasks, per WAC ((388-71-05805 through)) 246-841-405 and 388-71-05830. Providers of direct personal care services may be ((asked to do nurse delegated tasks under supervision of a nurse)) delegated by a registered nurse to provide nurse delegated tasks according to RCW 18.79.260 and WAC 246-840-910 through 246-840-970;

     (((c))) (iii) Homemaking, or assistance with instrumental activities of daily living (essential shopping, housework and meal preparation);

     (((d))) (iv) Other tasks or assistance with activities that support independent functioning, and are necessary due to functional disability;

     (((e))) (v) Personal assistance with transportation.

     (((2))) (b) Treatment and health maintenance, defined as treatments or activities that are beyond the scope of the medicaid state plan that are necessary to promote the participant's health and ability to live independently in the community and:

     (((a) Are beyond the scope of the medicaid state plan that are necessary to promote the participant's health and ability to live and participate in the community;

     (b))) (i) Are provided for the purpose of preventing further deterioration, or improving or maintaining the participant's current level of functioning; and

     (((c))) (ii) Are performed or provided by people with specialized skill, registration, certification or licenses as required by state law.

     (((3))) (c) Individual directed goods, services and supports, defined as services, equipment or supplies not otherwise provided through this waiver or through the medicaid state plan((, and address an identified need in the CARE assessment)); and

     (((a))) (i) Will allow the participant to function more independently; or

     (((b))) (ii) Increase safety and welfare; or

     (((c))) (iii) Allow the person to perceive, control, or communicate with their environment.

     (((4))) (d) Environmental or vehicle modifications, defined as((:

     (a))) alterations to a participant's residence or vehicle that((:

     (i))) are necessary to accommodate the participant's disability and promote functional independence, health, safety, and welfare((; and

     (ii) Are not adaptations or improvements, which are of general utility or add to the total square footage.

     (b) Vehicles subject to modification must be owned by the participant or participant's family who reside with the participant; and

     (i) Must be in good working condition, licensed, and insured according to Washington state law; and

     (ii) Modifications demonstrate cost effectiveness when compared to available alternative transportation)).

     (i) Environmental modifications cannot be adaptations or improvements, which are of general utility or add to the total square footage of the home.

     (ii) Vehicles subject to modification must be owned by the participant or participant's family who reside with the participant; must be in good working condition, licensed, and insured according to Washington state law; and demonstrate cost effectiveness when compared to available alternative transportation.

     (((5))) (e) Training and educational supports, ((which are)) defined as supports beyond the scope of medicaid state plan services that are necessary to promote the participant's health and ability to live and participate in the community and maintains, slows decline, or improves functioning and adaptive skills. Examples include:

     (((a))) (i) Training or education on participant health issues, or personal skill development;

     (((b))) (ii) Training/education to paid or unpaid caregivers related to the needs of the participant.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-1400, filed 7/25/06, effective 8/25/06.]

     (1) Services, supports and/or items covered by the state plan, medicare, or other programs or services.

     (2) Any fees incurred by the participant, including co-pays, waiver cost of care (participation), or insurance.

     (3) Home modifications that add any square footage.

     (4) Vacation expenses other than direct personal care.

     (5) Rent/room and board.

     (6) Tobacco or alcohol products, lottery tickets.

     (7) Entertainment items such as television, cable or DVD players.

     (8) Vehicle purchases, maintenance or upgrades that do not include maintenance to modifications related to disability.

     (9) Tickets and related costs to attend sporting or other recreational events.

     (10) Routine household supplies and maintenance, basic food, clothing, and major appliances.

     (11) Pets and their related costs.

[]

     If you are institutionalized for forty-five days or less and you intend to return to New Freedom when discharged, your service budget will be suspended. Upon discharge home, your service budget will be reinstated.

[]

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-1435, filed 7/25/06, effective 8/25/06.]

     (a) The ((published)) hourly ((rate)) wage as determined by the collective bargaining agreement for individual provider personal care paid by the department multiplied by the number of hours generated by the assessment, multiplied by a factor of .95, plus an amount equal to the average per participant expenditures for nonpersonal care supports purchased in the COPES waiver. The average will be recalculated in July of each year.

     (b) If the participant selects a home care agency, an adjustment will be made for each hour of personal care identified in the NFSP for an amount equal to the difference between the published individual provider rate and home care agency rate.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-1445, filed 7/25/06, effective 8/25/06.]

     (2) Unused funds, up to five hundred dollars, may be held in reserve for future purchases not yet identified as "planned purchases" in their NFSP.

     (3) Unused funds will revert back to the department under the following circumstances:

     (a) Funds over five hundred dollars that are not identified for "planned purchases" in the NFSP;

     (b) Disenrollment;

     (c) Loss of New Freedom eligibility;

     (d) Hospitalizations and/or nursing home placements over forty-five days; or

     (e) Reserved funds in excess of three thousand dollars held in reserve for future purchases not approved by the department.

[Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-1455, filed 7/25/06, effective 8/25/06.]

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