Purpose: The department is adopting new WAC 388-106-1000 through 388-106-1055, private duty nursing, to clarify client eligibility, changes in provider contracting requirements, and the provision of private duty nursing services. The client eligibility requirements are now standardized for all adults aged eighteen or older who receive services through ADSA. This rule-making action repeals WAC 388-71-0900 through 388-71-0965.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-71-0900, 388-71-0905, 388-71-0910, 388-71-0915, 388-71-0920, 388-71-0925, 388-71-0930, 388-71-0935, 388-71-0940, 388-71-0945, 388-71-0950, 388-71-0955, 388-71-0960, and 388-71-0965.

     Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

     Other Authority: 42 C.F.R. 440.80.

      Adopted under notice filed as WSR 05-19-127 on September 20, 2005.

     Changes Other than Editing from Proposed to Adopted Version: WAC 388-106-1010: In subsection (2)(d) clarified that the need for the nursing care task must be every day; in subsection (2)(h), added ability of ARNP, as well as primary physician, to document client's need for PDN. This language (primary physician/ARNP) was added throughout the WAC; in subsection (2)(j)(i), after "exhalation," change the "and" to "or"; and in subsection (2)(j)(ii)(A), the phrase "at least one time in a four continuous hour period" was removed from this section and subsections (2)(j)(iii), (iv), and (v). The client's daily requirement for four continuous hours remains in effect for PDN eligibility.

     WAC 388-106-1025: WAC reference was changed to the nurse delegation program, WAC 246-840-910 to 246-840-970.

     WAC 388-106-1030(1): After "department designated PDN skilled nursing task log," added "or equivalent which has been approved by ADSA prior to use." This phrase was added after every reference to the skilled nursing task log throughout.

     A final cost-benefit analysis is available by contacting Tiffany Sevruk, Home and Community Services, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2538, fax (360) 407-7582, e-mail sevruta@dshs.wa.gov. The preliminary cost-benefit analysis is unchanged and will be final.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.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 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 11, Amended 0, Repealed 14.

     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 11, Amended 0, Repealed 14.

     Date Adopted: November 29, 2005.

Andy Fernando, Manager

Rules and Policies Assistance Unit

     (1) Describe the eligibility requirements under which an adult age eighteen or older may receive Private Duty Nursing (PDN) services through the Department's Aging and Disability Services Administration (ADSA);

     (2) Provide assistance to clients and enable families to support clients in their own homes; and

     (3) Describe the requirements clients and their families, home health agencies, and privately contracted registered nurses (RNs) and licensed practical nurses (LPNs) must meet in order for services to be authorized for PDN.

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     (1) Be financially eligible, which means you:

     (a) Meet Medicaid requirements under the Categorically Needy program or the Medically Needy Program (MNP).

     (b) Use private insurance as first payer, as required by Medicaid rules. Private insurance benefits, which cover hospitalization and in-home services, must be ruled out as the first payment source to PDN.

     (2) Be medically eligible, which means an ADSA Department's Community Nurse Consultant (CNC) or ADSA's Division of Disabilities Services' (DDS) Nursing Care Consultant (NCC) must assess you using the CARE assessment and the PDN skilled nursing task log for initial eligibility determination and thereafter every six months, and determine that you:

     (a) Require care in a hospital or meet nursing facility level of care, as defined in WAC 388-106-0310; and

     (b) Have unmet skilled nursing needs that cannot be met in a less costly program or less restrictive environment; and

     (c) Are not able to have your care tasks provided through nurse delegation, WAC 246-840-910 through WAC 246-840-970; through COPES skilled nursing, WAC 388-515-1505; or through self-directed care RCW 74.39.050; and

     (d) Have a complex medical need that requires four or more hours every day of continuous skilled nursing care which can be safely provided outside a hospital or nursing facility; and

     (e) Require skilled nursing care that is medically necessary, per WAC 388-500-0005; and

     (f) Be able to supervise your care (provider) or have a guardian who is authorized to supervise your care; and

     (g) Have family or other appropriate informal support who is responsible for assuming a portion of your care; and

     (h) Have your primary care physician or ARNP document your medical stability and appropriateness for PDN and:

     (i) Provide orders for medical services; and

     (ii) Document approval of the service provider's PDN plan of care.

     (i) Do not have other resources or means for obtaining this service; and

     (j) Are dependant upon technology every day, with at least one of the following skilled care needs:

     (i) You need mechanical ventilation, and the use of a mechanical device to fill the lungs with oxygenated air and then allow time for passive exhalation; or

     (ii) You need complex respiratory support, which means that:

     (A) You require two of the following treatment needs:

     (I) Postural drainage and chest percussion; or

     (II) Application of respiratory vests; or

     (III) Nebulizer treatments with or without medications; or

     (IV) Intermittent Positive Pressure Breathing; or

     (V) O2 saturation measurement with treatment decisions dependent on the results; and

     (B) Your treatment needs must be assessed and provided by an RN or LPN; and

     (C) Your treatment needs cannot be nurse delegated or self-directed;

     (iii) You need tracheostomy care, and tracheal suctioning;

     (iv) You need intravenous/parenteral administration of multiple medications, and care is occuring on a continuing or frequent basis; or

     (v) You need intravenous administration of nutritional substances, and care is occuring on a continuing or frequent basis.

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     Reviser's note: The spelling errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-106-1020   How do I pay for my PDN services?   You are not required to pay participation for PDN services, but the cost of services is subject to estate recovery, under chapter 388-527 WAC. If you are also receiving other services (e.g. COPES), you may be responsible for paying participation as required under WAC 388-515-1505, WAC 388-515-1540, or WAC 388-515-1550. Your financial worker will inform you about your participation requirements for those services.

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     (1) A home health agency licensed by the Washington State Department of Health can provide your PDN services as long as it also has a PDN contract with DSHS's Aging and Disability Services Administration.

     (2) If a home health agency described in subsection (1) is not willing to provide your PDN services, or is not available due to your geographic location, an ADSA private registered nurse (RN) or licensed practical nurse (LPN) who meets the requirements of WAC 388-106-1040 may be able to provide your PDN services.

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     (1) Your PDN services can be authorized for four to sixteen hours per day, except as noted in WAC 388-106-1045(4). This authorization is based on a combination of skilled nursing tasks identified in CARE, the department designated PDN Skilled Nursing Task Log or equivalent which has been approved by ADSA prior to use, and detailed information provided to CNC or NCC. The CNC or NCC determines initial eligibility for PDN, up to a maximum of sixteen hours per day. After the initial determination of eligibility is made by the CNC or NCC, the PDN Skilled Nursing Task Log or its approved equivalent will be initiated and completed by the agency or private nurse(s) for fourteen days and submitted to the CNC or NCC for review. At the end of the fourteen-day review period, a final determination will be made on the number of PDN hours required to meet your care needs. PDN skilled task logs or their approved equivalent will also be completed for fourteen days prior to the six-month reassessment for review by the CNC or NCC to determine ongoing eligibility and required PDN hours.

     (2) Trained family members must provide for any hours above your assessment determination, or you or your family must pay for these additional hours.

     (3) In instances where your family is temporarily absent due to vacations, additional PDN hours must be:

     (a) Paid for by you or your family; or

     (b) Provided by other trained family members. If this is not possible, you may need placement in a long-term care facility during their absence.

     (4) You may use respite care if you and your unpaid family caregiver meet the eligibility criteria defined in WAC 388-106-1210.

     (5) You may receive additional hours, up to thirty days only when:

     (a) Your family is being trained in care and procedures;

     (b) You have an acute episode that would otherwise require hospitalization;

     (c) Your caregiver is ill or temporarily unable to provide care; or

     (d) There is a family emergency.

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     (1) Be licensed by the Washington State Department of Health and have a contract to provide Private Duty Nursing Services with Aging and Disability Services Administration;

     (2) Operate under physician orders;

     (3) Develop and follow a detailed service plan that is reviewed and signed at least every six months by the client's physician;

     (4) Initiate and complete the PDN skilled Nursing Task Log or approved equivalent for fourteen days and submitted to the CNC or NCC for review for initial eligibility determination and fourteen days prior to the six-month reassessments;

     (5) Meet all documentation requirement required by DOH In-home licensing, WAC 246-335-055, WAC 246-335-080, and WAC 246-335-110; and

     (6) Submit timely and accurate invoices to the Social Services Payment System (SSPS).

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     (1) Have a license in good standing, per RCW 18.79.030 (1)(3);

     (2) Complete a PDN contract with ADSA;

     (3) Provide services according to the plan of care under the supervision/direction of a physician;

     (4) Complete a background inquiry application. This will require fingerprinting if the RN or LPN has lived in the state of Washington less than three years;

     (5) Have no conviction for a disqualifying crime, as stated in RCW 43.43.830 and 43.43.842 and WAC 388-71-0500 through WAC 388-71-05640 series;

     (6) Have no stipulated finding of fact and conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry with a finding of abuse, neglect, abandonment or exploitation of a minor or vulnerable adult;

     (7) Meet provider requirements under WAC 388-71-0510, WAC 388-71-0515, WAC 388-71-0540, WAC 388-71-0551, and WAC 388-71-0556;

     (8) Complete time sheets monthly;

     (9) Complete documentation regarding all PDN services provided per the plan of care as required in WAC 388-502-0020 and WAC 246-840-700;

     (10) The PDN skilled Nursing Task Log or its approved equivalent must be initiated and completed by the licensed nurse for fourteen days and submitted to the CNC or NCC for review for initial eligibility determination and fourteen days prior to the six-month reassessment determination. The licensed nurse is responsible to submit these logs to the NCC or CNC when they are completed; and

     (11) Submit timely and accurate invoices to SSPS.

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     (1) Possesses current Washington State Registered Nurse license in good standing;

     (2) Signs a contract amendment with ADSA in which the provider agrees to ensure provision of twenty-four-hour personal care and nursing care services. Nursing care service will be provided in accordance with chapter 18.79 RCW;

     (3) Provides your PDN service through an RN, or LPN under the supervision of an RN. PDN services are based on the CARE assessment, the department designated PDN skilled task log or its approved equivalent, and other documentation which determines eligibility and the number of PDN hours to be authorized;

     (4) Provides the PDN services to you. Your service plan may be authorized for four to eight hours per day and cannot exceed a maximum of eight PDN care hours per day based on the CARE assessment, the department designated PDN skilled task log or its approved equivalent, and other documentation;

     (5) Have a nursing service plan prescribed by your primary physician or ARNP. The physician/ARNP is responsible for:

     (a) Overseeing your plan of care, which must be updated at least every six months;

     (b) Monitoring client's medical stability; and

     (6) Document the services provided per the plan of care and the department designated PDN Skilled Task Log or its approved equivalent at initial eligibility determination and fourteen days prior to the six-month re-assessment determination and other documentation; and

     (7) Keep records in accordance with AFH licensing and contract requirements.

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     (2) If you receive personal care services in addition to PDN services, you cannot receive your personal care and household tasks from an individual provider, personal aide, or home care agency provider at the same time that your PDN provider is providing your care. The agency or privately contracted nurse is responsible for providing personal care and/or household tasks that occur during the time that they are providing your PDN services, unless you have an informal support that is providing or assisting you at the same time.

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     The following sections of the Washington Administrative Code are repealed:

WAC 388-71-0900	What is the intent of WAC 388-71-0900 through 388-71-0960?
WAC 388-71-0905	What is private duty nursing (PDN) for adults?
WAC 388-71-0910	Am I financially eligible for Medicaid-funded private duty nursing services?
WAC 388-71-0915	Am I medically eligible to receive private duty nursing services?
WAC 388-71-0920	How is my eligibility determined?
WAC 388-71-0925	Am I required to pay participation toward PDN services?
WAC 388-71-0930	Are PDN costs subject to estate recovery?
WAC 388-71-0935	Who can provide my PDN services?
WAC 388-71-0940	Are there limitations or other requirements for PDN?
WAC 388-71-0945	What requirements must a home health agency meet in order to provide and get paid for my PDN?
WAC 388-71-0950	What requirements must a private RN or LPN meet in order to provide and get paid for my PDN services?
WAC 388-71-0955	Can I receive PDN in a licensed adult family home (AFH)?
WAC 388-71-0960	Can I receive services in addition to PDN?
WAC 388-71-0965	Can I choose to self-direct my care if I receive PDN?