Preproposal statement of inquiry was filed as WSR 98-11-032.

Title of Rule: Adjusting functional eligibility standards for the Chore, COPES, and MPC programs. WAC 388-15-201 Long-term care functional eligibility, 388-15-209 Chore services--Eligibility, 388-15-222 Chore services--Employed disabled--Incentive income and resource exemption, 388-15-610 COPES--Eligibility, 388-15-830 Medicaid personal care services--Eligibility, 388-15-890 Medicaid personal care services--Program limitations, and 388-15-895 Medicaid personal care services--Termination of services.

Purpose: The 1998 supplemental budget contains sufficient funding for FYI [FY] 1998 to negate recent rule changes to program eligibility for the COPES, Chore, and Medicaid personal care programs which were adjusted to reduce expenditures. As a result, the department will restore the previous functional eligibility requirements for these programs.

Other Identifying Information: The department already filed emergency rules to restore the prior eligibility, but is required to file permanent through regular adoption process.

Statutory Authority for Adoption: RCW 74.09.520, 74.09.530, 74.39A.110, [74.39A.]120, [74.39A.]130, sections 205 (1)(c) and 206(3), chapter 346, Laws of 1998, and RCW 74.39A.030.

Statute Being Implemented: RCW 74.09.520, 74.09.530, 74.39A.110, [74.39A.]120, [74.39A.]130, sections 205 (1)(c) and 206(3), chapter 346, Laws of 1998, and RCW 74.39A.030.

Reasons Supporting Proposal: The legislature provided additional funding in the 1999 supplemental budget sections 205 (1)(c) and 206(3), chapter 346, Laws of 1998, to allow for caseload growth in the Chore, Medicaid personal care and COPES programs. The department finds that these rules are necessary to amend eligibility requirements to preclude 4000 clients from having their Chore, COPES, and MPC services terminated. State legislation.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Kevin Krueger, Chief, Home and Community Programs, HCSD, AASA, Olympia, Washington, (360) 493-2578.

Name of Proponent: Department of Social and Health Services, Aging and Adult Services Administration, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: This rule is the permanent adoption of the emergency rule filed April 14, 1998, to restore eligibility criteria for Chore, COPES and Medicaid personal care which was in effect prior to the February 1998 amendments.

Proposal Changes the Following Existing Rules: Amends existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule reinstates previous rules which had been amended to meet the anticipated budget shortfall which did not occur. The amended rules did not have to be implemented. Those changes would have affected only the clients the Department of Social and Health Services serves. No business impact was effected due to these rule changes.

RCW 34.05.328 applies to this rule adoption. These rules meet the definition of a significant legislative rule but the Department of Social and Health Services is exempt from preparing a cost benefit analysis per RCW. RCW 34.05.328 (5)(b)(vii) exempts the Department of Social and Health Services rules that apply to client medical or financial eligibility.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on August 25, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by August 14, 1998, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 902-8292, by August 25, 1998.

Date of Intended Adoption: September 15, 1998.

July 21, 1998

Edith M. Rice, Chief

Office of Legal Affairs

WAC 388-15-201  Long-term care functional eligibility. In order to receive ((COPES,)) Medicaid personal care or chore services, a client must ((be at risk of institutionalization within the next thirty days and)) be assessed by the department or designee as having an unmet need requiring ((substantial or total)) assistance with one or more of the following critical self-care tasks as defined in WAC 388-15-202(38), and 388-15-203:

(1) Eating;

(2) Toileting;

(3) Ambulation;

(4) Transfer;

(5) Positioning;

(6) Bathing; ((or))

(7) Self-medication;

(8) Dressing;

(9) Personal hygiene; or

(10) Body care.

[Statutory Authority: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120 and [74.39A.]030. 98-04-026, § 388-15-201, filed 1/28/98, effective 2/28/98.]

AMENDATORY SECTION (Amending WSR 98-04-026, filed 1/28/98, effective 2/28/98)

WAC 388-15-209  Chore personal care services--Eligibility. A chore personal care eligible person shall:

(1) Be eighteen years of age and over;

(2) Meet the requirements listed in WAC 388-15-201((.));

(3) Not be eligible for Medicaid personal care or community options program entry system (COPES) services, and the person's needs cannot be met through Medicare home health or another program for which the person is eligible((.));

(4) Meet the following chore personal care service financial eligibility requirements:

(a) Have net household income as described in WAC 388-505-0590 (3) and (4) and WAC 388-511-1130 and 388-511-1140 not exceeding the sum of the cost of the client's chore personal care services and one hundred percent of the federal poverty level adjusted for family size; and

(b) Participate in the cost of chore personal care services as described under WAC 388-15-219; and

(c) Have financial resources as described under WAC 388-511-1150 and 388-511-1160 with a value not exceeding ((limits set in WAC 388-513-1310(2)(a)(b) except for clients identified under WAC 388-15-222, and be)):

(i) Ten thousand dollars for a one-person family;

(ii) Fifteen thousand dollars for a two-person family;

(iii) A sum calculated by adding an additional one thousand dollars for each additional family member; and

(d) Be subject to transfer of assets penalties as described in WAC 388-513-1365 for assets transferred on or after November 1, 1995; and

(e) Not be within a period of ineligibility due to assets transferred on or after November 1, 1995 for less than fair market value as described under WAC 388-513-1365.

(5) Be deemed to meet the financial eligibility requirements set forth in subsection (4) if the person is an adult protective service client at risk of placement in a long-term care facility; and the chore personal care services are:

(a) An integral but subordinate part of the adult protective services plan; and

(b) Provided only until the situation necessitating the service has stabilized; and

(c) Limited to a maximum of ninety days during any twelve-month period; and

(d) Provided without regard to the client's income or resources.

(6) Be reassessed at least every eighteen months or more often as deemed necessary, per WAC 388-15-204.

[Statutory Authority: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120 and [74.39A.]030. 98-04-026, § 388-15-209, filed 1/28/98, effective 2/28/98. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.100, 74.39.010, 74.39.030 and 1996 c 302 § 5. 96-20-093, § 388-15-209, filed 10/1/96, effective 11/1/96. Statutory Authority: RCW 74.08.090, 74.09.520 and 1995 1st sp.s. c 18. 95-20-041 (Order 3904), § 388-15-209, filed 9/28/95, effective 10/29/95. Statutory Authority: RCW 74.08.530 and 74.08.545. 93-04-036 (Order 3500), § 388-15-209, filed 1/27/93, effective 2/27/93. Statutory Authority: RCW 74.08.090. 91-08-011 (Order 3152), § 388-15-209, filed 3/26/91, effective 4/26/91; 90-15-029 (Order 3041), § 388-15-209, filed 7/13/90, effective 8/13/90; 89-18-026 (Order 2852), § 388-15-209, filed 8/29/89, effective 9/29/89; 88-17-064 (Order 2674), § 388-15-209, filed 8/17/88; 88-06-088 (Order 2605), § 388-15-209, filed 3/2/88. Statutory Authority: ESHB 1221. 87-22-013 (Order 2550), § 388-15-209, filed 10/26/87. Statutory Authority: RCW 74.08.090. 86-12-040 (Order 2383), § 388-15-209, filed 5/30/86; 84-22-017 (Order 2165), § 388-15-209, filed 10/31/84; 83-21-007 (Order 2028), § 388-15-209, filed 10/6/83; 82-23-056 (Order 1904), § 388-15-209, filed 11/16/82; 81-18-045 (Order 1697), § 388-15-209, filed 8/28/81; 81-06-063 (Order 1618), § 388-15-209, filed 3/4/81.]

AMENDATORY SECTION (Amending WSR 98-04-026, filed 1/28/98, effective 2/28/98)

WAC 388-15-222  Chore personal care services--Employed disabled--Incentive income and resource exemption. (1) The department shall exempt fifty percent of net earned income after work expenses above one hundred percent of the federal poverty level.

(2) The department shall only apply this exemption to:

(a) Clients determined disabled according to WAC 388-511-1105;

(b) The client, not the client's spouse or other household members.

(((3) The department shall allow an employed disabled client to have resources as described under WAC 388-511-1150 and 388-511-1160 with a value not exceeding:

(a) Ten thousand dollars for a one-person family;

(b) Fifteen thousand dollars for a two-person family;

(c) A sum calculated by adding an additional one thousand dollars for each additional family member.))

[Statutory Authority: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120 and [74.39A.]030. 98-04-026, § 388-15-222, filed 1/28/98, effective 2/28/98. Statutory Authority: RCW 74.08.090, 74.09.520 and 1995 1st sp.s. c 18. 95-20-041 (Order 3904), § 388-15-222, filed 9/28/95, effective 10/29/95.]

AMENDATORY SECTION (Amending WSR 98-04-026, filed 1/28/98, effective 2/28/98)

WAC 388-15-610  COPES--Eligibility. A COPES-eligible person shall:

(1) Be assessed by the department or designee as meeting the requirements in ((WAC 388-15-201)) 42 CFR 441.302(c) (as published in the Code of Federal Regulations and in effect in April, 1998); and

(2) Be an aged, blind, or disabled client, as defined under WAC 388-511-1105 (1)(a), (b), and (c)(i) and (ii);

(3) Be eighteen years of age or older;

(((3))) (4) Be assessed as defined under WAC 388-15-202 through 388-15-205; and

(5) Have medical problems or cognitive impairment and be unable to maintain or coordinate the treatment plan; and

(6) Be likely to need the level of care provided in a nursing facility as defined under WAC 388-97-005(20) within the next thirty days, but for the provision of COPES payments for home or community-based waiver services as defined under WAC 388-15-620;

(7) Require services that must be provided by or under the supervision of a registered nurse or a licensed practical nurse on a daily basis; or

(8) Have an unmet need requiring substantial or total assistance with two or more of the following critical self-care tasks as defined under WAC 388-15-202(38) and 388-15-203(3):

(a) Eating;

(b) Toileting;

(c) Ambulation;

(d) Transfer;

(e) Positioning;

(f) Bathing;

(g) Self-medication; or

(9)(a) Have cognitive supervision needs due to one or more of the following:

(i) Disorientation;

(ii) Memory impairment;

(iii) Impaired judgment; or

(iv) Wandering; and

(b) Have an unmet need requiring substantial or total assistance with one or more of the critical self-care tasks in subsection (7)(a) through (g) of this section; or

(10) Have an unmet need requiring minimal, substantial or total assistance in three or more of the critical self-care tasks in subsection (7)(a) through (g) of this section; or

(11) Currently reside in a nursing facility, as defined under WAC 388-97-005(20), and be unable to return to and remain in the community without assistance with one or more of the services provided by the COPES program as defined under WAC 388-15-620; or

(12) Meet the definition of a person functionally or clinically eligible for nursing facility care as defined under WAC 388-97-235;

(13) Have a feasible written plan of care. The department shall ensure the plan is less than ninety percent of the average state-wide nursing facility rate; and

(((4))) (14)(a) Not be financially eligible for Medicaid personal care services; or

(b) Be financially eligible for Medicaid personal care services; however, the department determines the Medicaid personal care services are not sufficient in amount, duration, or scope to meet the person's needs.

(((5))) (15) Have gross monthly income not exceeding three hundred percent of the Supplemental Security Income (SSI) program, Title XVI federal grant excluding the supplementary state money payment (SSP) as described under WAC 388-500-0005;

(((6))) (16) Have resources at or below the Medicaid standard as defined under WAC 388-513-1315 (1)(b) and (c) and 388-513-1350; and

(((7))) (17) Be reassessed at least every twelve months or more often as deemed necessary, per WAC 388-15-204.

[Statutory Authority: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120 and [74.39A.]030. 98-04-026, § 388-15-610, filed 1/28/98, effective 2/28/98. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.100, 74.39.010, 74.39.030 and 1996 c 302 § 5. 96-20-093, § 388-15-610, filed 10/1/96, effective 11/1/96. Statutory Authority: RCW 74.08.090, 74.09.520 and 1995 1st sp.s. c 18. 95-20-041 (Order 3904), § 388-15-610, filed 9/28/95, effective 10/29/95. Statutory Authority: RCW 74.04.057 and 74.08.090. 93-13-135 (Order 3577), § 388-15-610, filed 6/23/93, effective 7/24/93. Statutory Authority: RCW 74.09.500. 92-20-013 (Order 3460), § 388-15-610, filed 9/24/92, effective 10/25/92. Statutory Authority: RCW 74.08.090. 90-15-019 (Order 3039), § 388-15-610, filed 7/12/90, effective 8/12/90. Statutory Authority: 1987 1st ex.s. c 7. 87-23-054 (Order 2558), § 388-15-610, filed 11/18/87. Statutory Authority: RCW 74.08.090. 86-11-024 (Order 2377), § 388-15-610, filed 5/14/86. Statutory Authority: RCW 74.08.044. 84-12-038 (Order 2101), § 388-15-610, filed 5/30/84. Statutory Authority: RCW 74.08.090. 83-08-024 (Order 1954), § 388-15-610, filed 3/30/83.]

AMENDATORY SECTION (Amending WSR 98-04-026, filed 1/28/98, effective 2/28/98)

WAC 388-15-830  Medicaid personal care services--Eligibility. (1) An eligible Medicaid personal care person shall:

(a) Meet the requirements in WAC 388-15-201; and

(b) Be certified as a Title XIX categorically needy medical assistance client;

(((b) ;)) and

(c) Reside in the client's own residence, in a licensed and contracted adult family home, a licensed boarding home under department contract, a children's foster family home, or a children's group care facility.

(2) ((The department shall determine)) A person's eligibility for Medicaid personal care services begins upon the date of the department's service authorization.

(3) ((Meet the requirements in WAC 388-15-201.

(4))) For an applicant through seventeen years of age or until the applicant transfers out of DCFS foster care or group care, the DCFS or DDD assessor shall only assess the need for personal care services exceeding the level of age appropriate personal care and not already being provided for through the child's natural/unpaid support systems. The assessor shall use a comprehensive assessment form specific to children for children from birth through seventeen years of age or until the age of transfer out of DCFS foster care or group care.

(((5))) (4) The client shall be reassessed at least annually or more often as deemed necessary as defined under WAC 388-15-204.

[Statutory Authority: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120 and [74.39A.]030. 98-04-026, § 388-15-830, filed 1/28/98, effective 2/28/98. Statutory Authority: RCW 74.08.090, 74.09.520 and 1995 1st sp.s. c 18. 95-20-041 (Order 3904), § 388-15-830, filed 9/28/95, effective 10/29/95. Statutory Authority: RCW 74.08.090 and 74.09.520, OBRA '93 and c 21, Laws of 1994 amending RCW 74.09.520, Thurston Co. Superior Court Cause #93-2-1817-4. 94-21-042 (Order 3796), § 388-15-830, filed 10/12/94, effective 11/12/94. Statutory Authority: RCW 74.09.520. 93-10-023 (Order 3538), § 388-15-830, filed 4/28/93, effective 5/29/93. Statutory Authority: RCW 74.08.090. 89-18-029 (Order 2856), § 388-15-830, filed 8/29/89, effective 9/29/89.]

AMENDATORY SECTION (Amending WSR 98-04-026, filed 1/28/98, effective 2/28/98)

WAC 388-15-890  Medicaid personal care services--Program limitations. (1) Because Medicaid services are specific to the eligible client and based on medical necessity, the department shall not authorize Medicaid personal care services for:

(a) Teaching, including teaching clients how to perform personal care tasks or other community living skills;

(b) Personal care services provided over the telephone;

(c) Services provided at a site other than the client's residence, unless authorized by the department in the written service plan;

(d) Developing social, behavioral, recreational, communication, or other types of skills;

(e) Companionship; ((or))

(f) Travel to medical services, essential shopping, meal preparation, housework, laundry, wood supply, or supervision as defined under WAC 388-15-202, unless the client is assessed as needing assistance with one or more direct personal care tasks as described in WAC 388-15-202(17), i.e., personal hygiene, dressing, bathing, eating, toileting, ambulation, transfer, positioning, body care, or self-medication; or

(g) Assisting or supporting other household members not eligible for Medicaid personal care.

(2) The department shall adjust payment for services according to department-established rates which take into account the provision of household tasks done at the same time for all of the household clients by a personal care provider, e.g., essential shopping, meal preparation, laundry, housework, wood supply, travel to medical services and supervision when:

(a) More than one client lives in the same household; or

(b) The client is in a shared living arrangement.

(3) The department shall not authorize the following as Medicaid personal care tasks to clients who live in an adult family home, licensed boarding home, or children's foster/group home:

(a) Meal preparation((,));

(b) Wood supply((,));

(c) Laundry((,));

(d) Housework((,)); or

(e) Supervision, unless the supervision is directly related to an unscheduled task as defined in WAC 388-15-202(51).

(4) Personal care tasks do not include assistance requiring a licensed health professional.

[Statutory Authority: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120 and [74.39A.]030. 98-04-026, § 388-15-890, filed 1/28/98, effective 2/28/98. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.100, 74.39.010, 74.39.030 and 1996 c 302 § 5. 96-20-093, § 388-15-890, filed 10/1/96, effective 11/1/96. Statutory Authority: RCW 74.08.090, 74.09.520 and 1995 1st sp.s. c 18. 95-20-041 (Order 3904), § 388-15-890, filed 9/28/95, effective 10/29/95. Statutory Authority: RCW 74.09.520. 93-10-023 (Order 3538), § 388-15-890, filed 4/28/93, effective 5/29/93.]

AMENDATORY SECTION (Amending WSR 98-04-026, filed 1/28/98, effective 2/28/98)

WAC 388-15-895  Termination of services. Clients who do not meet the functional eligibility requirements in WAC 388-15-201 or WAC 388-15-610, as evidenced by the department's or designee's assessment performed in the last twelve months for clients receiving Medicaid personal care or COPES and in the last eighteen months for clients receiving chore personal care, shall be ineligible for continued service.

[Statutory Authority: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120 and [74.39A.]030. 98-04-026, § 388-15-895, filed 1/28/98, effective 2/28/98.]