PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Supplemental Notice to WSR 11-23-155.
Preproposal statement of inquiry was filed as WSR 11-07-085.
Title of Rule and Other Identifying Information: Chapter 388-845 WAC, Division of developmental disabilities (DDD) home and community based services waivers; amending WAC 388-845-0001 Definitions, 388-845-0041 What is DDD's responsibility to provide my services under the DDD HCBS waivers administered by DDD?, 388-845-0120 Will I continue to receive state supplementary payments (SSP) if I am on a waiver?, 388-845-0506 Who is a qualified provider of behavior management and consultation for the children's intensive in-home behavioral supports (CIIBS) waiver?, 388-845-0600 What are community access services?, 388-845-0610 Are there limits to community access services I can receive?, 388-845-1210 Are there limits to the person-to-person service I can receive?, 388-845-1850 Are there limitations to my receipt of specialized nutritional and specialized clothing?, 388-845-2005 Who is a qualified provider of staff/family consultation and training? and 388-845-2170 Are there limitations on my receipt of therapeutic equipment and supplies?; and new sections WAC 388-845-0603 Who is eligible to receive community access services?, 388-845-1030 What are individual technical assistance services?, 388-845-1035 Who are qualified providers of individual technical assistance services?, and 388-845-1040 Are there limits to the individualized technical assistance services I can receive?
Hearing Location(s): Office Building 2, Lookout Room, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on May 22, 2012, at 10:00 a.m.
Date of Intended Adoption: Not earlier than May 22, 2012.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on May 22, 2012.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by May 8, 2012, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These amendments to chapter 388-845 WAC address:
| • | Changes to the employment and day services as directed by the legislature, |
| • | Incorporate changes to CIIBS service language, |
| • | Updated provider types in CIIBS services, and individualized technical assistance (ITA), |
| • | DDD's responsibility for administering the HCBS waiver program. |
Clarifying language is provided regarding receipt of SSP services and implementation of individual services. A new rule is added [to] explain how individual services may be implemented prior to the first of the month.
Rules regarding the CIIBS program are amended to address the requirement to access medicaid services first; to describe provider types for staff and family consultation services and behavior management services; and to update information regarding the department's administrative responsibility within the CIIBS waiver program.
These changes were effective July 1, 2011.
In the 2011-13 operating budget, which was effective on May 16, 2011, the legislature appropriated funds directing DDD to:
"to develop and implement the use of a consistent, statewide outcome-based vendor contract for employment and day services by July 1, 2012. The rates paid to vendors under this contract shall also be made consistent. In its description of activities the agency shall include activity listings and dollars appropriated for: Employment services, day services, child development services and county administration of services to the developmentally disabled. The department shall begin reporting to the office of financial management on these activities beginning in fiscal year 2010." 1
1 Washington state operating budget 2011-13, ESHB [2ESHB] 1087, section 205(c), chapter 50, Laws of 2011 Operating budget;
June 15, 2011.
In order to achieve the legislative expectation of DDD having outcome-based vendor contracts for employment and day services, DDD must first adopt and implement a standardized methodology to promote consistency in determining an individual's community access acuity level.
Once adopted, this acuity level will serve as the foundation for allocating funds to counties to support employment services for clients of DDD.
SSB 6384 directed the department to ensure that persons with developmental disabilities be given the opportunity to transition to a community access program after enrollment in an employment program. This allowed for individuals who are younger than retirement age to access community access services after trying employment services for nine months. Chapter 388-845 WAC is updated to reflect this direction.
Reasons Supporting Proposal: See Purpose statement above.
Statutory Authority for Adoption: RCW 71A.12.030, 71A.12.010.
Statute Being Implemented: RCW 71A.12.030, 71A.12.010.
Name of Proponent: Department of social and health services, governmental.
Name of Agency Personnel Responsible for Drafting: Alan McMullen, 4450 10th Avenue S.E., Olympia, WA 98504, (360) 725-3524; Implementation: Kris Pederson, 4450 10th Avenue S.E., Olympia, WA 98504, (360) 725-3445; and Enforcement: Don Clintsman, 4450 10th Avenue S.E., Olympia, WA 98504, (360) 725-3421.
No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impact was prepared as the amended rules proposed clarify language in the WAC and generally make the rules easier to understand by the consumer, furthermore, there are no costs imposed on small businesses by these proposed rules. Based on RCW 19.85.025, the proposed rule making is exempt from preparing a small business economic impact statement.
A cost-benefit analysis is not required under RCW 34.05.328. Rules adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule;
(d) Rules that only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect;
(e) Rules the content of which is explicitly and specifically dictated by statute;
(f) Rules that set or adjust fees or rates pursuant to legislative standards; or
(g) Rules that adopt, amend, or repeal:
(i) A procedure, practice, or requirement relating to agency hearings; or
(ii) A filing or related process requirement for applying to an agency for a license or permit.
April 12, 2012
Katherine I. Vasquez
Rules Coordinator
4327.5"Aggregate services" means a combination of services subject to the dollar limitations in the Basic and Basic Plus waivers.
"CARE" means the comprehensive assessment and reporting evaluation.
"Client or person" means a person who has a developmental disability as defined in RCW 71A.10.020(3) and has been determined eligible to receive services by the division under chapter 71A.16 RCW.
"DDD" means the division of developmental disabilities, a division within the aging and disability services administration of the department of social and health services.
"DDD assessment" refers to the standardized assessment tool as defined in chapter 388-828 WAC, used by DDD to measure the support needs of persons with developmental disabilities.
"Department" means the department of social and health services.
"EPSDT" means early and periodic screening, diagnosis, and treatment, medicaid's child health component providing a mandatory and comprehensive set of benefits and services for children up to age twenty one as defined in WAC 388-534-0100.
"Employment/day program services" means community access, person-to-person, individualized technical assistance, prevocational services or supported employment services subject to the dollar limitations in the Basic and Basic Plus waivers.
"Evidence based treatment" means the use of physical, mental and behavioral health interventions for which systematic, empirical research has provided evidence of statistically significant effectiveness as treatments for specific conditions. Alternate terms with the same meaning are evidence-based practice (EBP) and empirically supported treatment (EST).
"Family" means relatives who live in the same home with the eligible client. Relatives include spouse or registered domestic partner; natural, adoptive or step parent; grandparent; child; stepchild; sibling; stepsibling; uncle; aunt; first cousin; niece; or nephew.
"Family home" means the residence where you and your relatives live.
"Gainful employment" means employment that reflects achievement of or progress towards a living wage.
"HCBS waivers" means home and community based services waivers.
"Home" means present or intended place of residence.
"ICF/MR" means an intermediate care facility for the mentally retarded.
"Individual support plan (ISP)" is a document that authorizes and identifies the DDD paid services to meet a client's assessed needs.
"Integrated settings" mean typical community settings not designed specifically for individuals with disabilities in which the majority of persons employed and participating are individuals without disabilities.
"Legal representative" means a parent of a person who is under eighteen years of age, a person's legal guardian, a person's limited guardian when the subject matter is within the scope of limited guardianship, a person's attorney at law, a person's attorney in fact, or any other person who is authorized by law to act for another person.
"Living wage" means the amount of earned wages needed to enable an individual to meet or exceed his/her living expenses.
"Necessary supplemental accommodation representative" means an individual who receives copies of DDD planned action notices (PANs) and other department correspondence in order to help a client understand the documents and exercise the client's rights. A necessary supplemental accommodation representative is identified by a client of DDD when the client does not have a legal guardian and the client is requesting or receiving DDD services.
"Providers" means an individual or agency who meets the provider qualifications and is contracted with ADSA to provide services to you.
"Respite assessment" means an algorithm within the DDD assessment that determines the number of hours of respite care you may receive per year if you are enrolled in the Basic, Basic Plus, Children's Intensive In-Home Behavioral Support, or Core waiver.
"SSI" means Supplemental Security Income, an assistance program administered by the federal Social Security Administration for blind, disabled and aged individuals.
"SSP" means a state-paid cash assistance program for certain clients of the division of developmental disabilities.
"State funded services" means services that are funded entirely with state dollars.
"You/your" means the client.
[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 § 205 (1)(i), and Title 71A RCW. 10-22-088, § 388-845-0001, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, § 388-845-0001, filed 9/22/08, effective 10/23/08; 07-20-050, § 388-845-0001, filed 9/26/07, effective 10/27/07. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, § 388-845-0001, filed 12/13/05, effective 1/13/06.]
(1) DDD ((must address)) will provide an annual
comprehensive assessment to evaluate your ((assessed)) health
and welfare ((needs in)) need. Your individual support plan,
as specified in WAC 388-845-3055, will document:
(a) Your identified health and welfare needs; and
(b) Your HCBS waiver services and nonwaiver services authorized to meet your assessed need.
(2) You have access to DDD paid services that are provided within the scope of your waiver, subject to the limitations in WAC 388-845-0110 and 388-845-0115.
(3) DDD will provide waiver services you need and qualify for within your waiver.
(4) DDD will not deny or limit ((your)) the number of
waiver services ((based on a lack of funding)) you are
eligible based on a lack of funding.
[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 § 205 (1)(i), and Title 71A RCW. 10-22-088, § 388-845-0041, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 07-20-050, § 388-845-0041, filed 9/26/07, effective 10/27/07. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, § 388-845-0041, filed 12/13/05, effective 1/13/06.]
[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 § 205 (1)(i), and Title 71A RCW. 10-22-088, § 388-845-0120, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, § 388-845-0120, filed 12/13/05, effective 1/13/06.]
(a) Master's or PhD level behavior specialist, licensed or certified/registered to provide behavioral assessment, intervention, and training;
(b) Behavior technician, licensed or certified/registered
to provide behavioral intervention and training, following the
lead of the behavior specialist((;
(c) Certified music therapist; and/or
(d) Certified recreation therapist)).
(2) Providers of behavior management and consultation per WAC 388-845-0505 may be utilized to provide counseling and/or therapy services to augment the work of the CIIBS intensive service provider types.
[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 § 205 (1)(i), and Title 71A RCW. 10-22-088, § 388-845-0506, filed 11/1/10, effective 12/2/10.]
(1) ((If you are age sixty-two or older, these services
are available to assist you to participate in activities,
events and organizations in the community in ways similar to
others of retirement age)) Building and strengthening
relationships with others in the local community who are not
paid to be with the person.
(2) ((These services are available in the Basic, Basic
Plus, and CORE waivers)) Learning, practicing and applying
skills that promote greater independence and inclusion in
their community.
[Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, § 388-845-0600, filed 9/22/08, effective 10/23/08. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, § 388-845-0600, filed 12/13/05, effective 1/13/06.]
(1) You are age sixty-two or older; or
(2) You are twenty-one or older and you have participated in a DDD employment program for nine months; or
(3) You and/or your legal representative request that DDD grant an exception, per chapter 71A.12 RCW, to the requirement that you participate in an employment program for nine months prior to transitioning to a community access service because:
(a) You have a medical condition that prevents you from participating in an employment program; or
(b) You have been available for employment planning activities and an employment provider has been unable to provide services within ninety days of your request for employment services.
[]
(1) ((You must be age sixty-two or older.
(2))) You cannot ((be authorized to)) receive community
access services if you ((receive)) are receiving prevocational
((services)) or supported employment services.
(3) The ((dollar limitations for employment/day program
services in your Basic or Basic Plus waiver limit the amount
of service you may receive)) amount of community access
services you may receive cannot exceed the employment/day
program yearly limit that is established in your HCBS waiver.
[Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, § 388-845-0610, filed 9/22/08, effective 10/23/08. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, § 388-845-0610, filed 12/13/05, effective 1/13/06.]
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-845-1030
What are individual technical
assistance services?
Individualized technical assistance
service is assessment and consultation to the employment
provider and/or client to identify and address existing
barriers to employment. This is in addition to supports
received through supported employment services or
pre-vocational services for individuals who have not yet
achieved their employment goal.
[]
[]
(2) These services are available on the Basic, Basic Plus, Core and Community Protection Waivers.
(3) Individual must be receiving supported employment or pre-vocational services.
(4) The dollar limitations for employment/day program services in your Basic or Basic Plus waiver limit the amount of supported employment service you may receive.
[]
(2) The dollar limitations for employment/day program services in your Basic or Basic Plus waiver limit the amount of service you may receive.
(3) These services will be provided in an integrated environment.
(4) Your service hours are determined by the level of assistance you need to reach your employment outcomes and might not equal the number of hours you spend on the job or in job related activities.
(5) Person to person services will only be available through June 30, 2012.
[Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 08-20-033, § 388-845-1210, filed 9/22/08, effective 10/23/08. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, § 388-845-1210, filed 12/13/05, effective 1/13/06.]
(a) ((Services may be authorized as a waiver service only
after you have accessed what is available to you under
medicaid including EPSDT per WAC 388-534-0100, and any private
health insurance plan;
(b) Services must be evidence based)) Specialized nutrition may be authorized as a waiver service by obtaining an initial denial of funding or information showing that the service is not covered by medicaid or private insurance;
(b) Services must be safe, effective, and individualized;
(c) Services must be ordered by a physician licensed to practice in the state of Washington;
(d) Specialized diets must be periodically monitored by a certified dietitian;
(e) Specialized nutrition products will not constitute a full nutritional regime unless an enteral diet is the primary source of nutrition;
(f) Department coverage of specialized nutrition products is limited to costs that are over and above inherent family food costs;
(g) DDD reserves the right to require a second opinion by a department selected provider; and
(h) Prior approval by regional administrator or designee is required.
(2) The following limitations apply to your receipt of specialized clothing:
(a) ((Services may be authorized as a waiver service only
after you have accessed what is available to you under
medicaid, EPSDT per WAC 388-534-0100, and any private health
insurance plan;)) Specialized clothing may be authorized as a
waiver service by obtaining an initial denial of funding or
information showing that the service is not covered by
medicaid or private insurance.
(b) ((Specialized clothing must be recommended by an
appropriate health professional, such as an OT, behavior
therapist, or podiatrist;)) The department requires your
treating professional's written recommendation regarding your
need for the service. This recommendation must take into
account that the treating professional has recently examined
you, reviewed your medical records, and conducted a functional
evaluation.
(c) ((DDD reserves the right to require a second opinion
by a department-selected provider; and)) The department may
require a second opinion from a department selected provider
that meets the same criteria as subsection (b) of this
section.
(d) Prior approval by regional administrator or designee is required.
[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 § 205 (1)(i), and Title 71A RCW. 10-22-088, § 388-845-1850, filed 11/1/10, effective 12/2/10.]
(1) Audiologist;
(2) Licensed practical nurse;
(3) Marriage and family therapist;
(4) Mental health counselor;
(5) Occupational therapist;
(6) Physical therapist;
(7) Registered nurse;
(8) Sex offender treatment provider;
(9) Speech/language pathologist;
(10) Social worker;
(11) Psychologist;
(12) Certified American sign language instructor;
(13) Nutritionist;
(14) Counselors registered or certified in accordance with the requirements of chapter 18.19 RCW;
(15) Certified dietician;
(16) Recreation therapist registered in Washington and
certified by the National Council for Therapeutic Recreation;
((or))
(17) Providers listed in WAC 388-845-0506 and contracted with DDD to provide CIIBS intensive services;
(18) Certified music therapist (for CIIBS only); or
(19) Psychiatrist.
[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 § 205 (1)(i), and Title 71A RCW. 10-22-088, § 388-845-2005, filed 11/1/10, effective 12/2/10. Statutory Authority: RCW 71A.12.030, 71A.12.120 and Title 71A RCW. 07-20-050, § 388-845-2005, filed 9/26/07, effective 10/27/07. Statutory Authority: RCW 71A.12.030, 71A.12.12 [71A.12.120] and chapter 71A.12 RCW. 06-01-024, § 388-845-2005, filed 12/13/05, effective 1/13/06.]
(1) Therapeutic equipment and supplies may be authorized
as a waiver service ((only after you have accessed what is
available to you under medicaid including EPSDT per WAC 388-534-0100, and any private health insurance plan. The
department will require evidence that you have accessed your
full benefits through medicaid, EPSDT, and private insurance
before authorizing this waiver service)) by obtaining an
initial denial of funding or information showing that the
service is not covered by medicaid or private insurance.
(2) The department does not pay for experimental equipment and supplies.
(3) The department requires your treating professional's written recommendation regarding your need for the service. This recommendation must take into account that the treating professional has recently examined you, reviewed your medical records, and conducted a functional evaluation.
(4) The department may require a written second opinion from a department selected professional that meets the same criteria in subsection (3) of this section.
[Statutory Authority: RCW 71A.12.030, 71A.12.120, 2009 c 194, and 2008 c 329 § 205 (1)(i), and Title 71A RCW. 10-22-088, § 388-845-2170, filed 11/1/10, effective 12/2/10.]