Effective Date of Rule: January 1, 2006.

     Purpose: WAC 388-105-0035 is being amended to limit the payment of a capital add-on rate to licensed boarding homes with assisted living (AL) contracts that make units that meet specified structural requirements available to Medicaid clients.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-105-0035.

     Statutory Authority for Adoption: RCW 74.39A.030.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: The department has paid a capital add-on rate to licensed boarding homes with AL contracts when a boarding home meets new construction requirements under WAC 388-110-140. In October 2004, the department revised WAC 388-110-140 and "grandfathered" licensed boarding homes that did not meet new construction requirements as meeting new requirements. In two previous emergency adoptions, the department codified its decision to discontinue referencing WAC 388-110-140 because it believed that the "grandfathering" would include for consideration of a capital add-on rate too many AL facilities that have less ideal construction.

     Upon further review, the department has discovered only minor construction variances between the newly constructed facilities and those "grandfathered" as meeting new construction standards. Thus, the department is amending its more strict standards construction standards by returning to its reference of WAC 388-110-140 (2)(a) and (3). Unless the department adopts an emergency rule to change WAC 388-105-0035, then the January 1, 2006, capital add-on rates exclude AL facilities that are comparable to newly constructed AL facilities. This would limit access of Medicaid clients to the better AL facilities. Limiting access would be contrary to the public interest in ensuring the health, safety and general welfare of the public that depends on Medicaid to pay for their care in AL facilities. This rule replaces the previous emergency rule filed as WSR 05-22-043. A preproposal notice has been filed as WSR 05-13-127 and the department plans to file the proposed rule making for permanent adoption in January of 2006.

     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 0, Amended 1, Repealed 0.

     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 0, Amended 1, Repealed 0.

     Date Adopted: December 15, 2005.

Andy Fernando, Manager

Rules and Policies Assistance Unit

     (a) Meets)) have a Medicaid occupancy percentage that equals or exceeds the applicable biyearly Medicaid minimum occupancy percentage set in accordance with subsection (3) of this section and meet the construction requirements ((of WAC 388-110-140; and))

     (((b) Has a Medicaid occupancy percentage that equals or exceeds the applicable biyearly Medicaid minimum occupancy percentage set in accordance with subsection (3) of this section.)) in subsection (4) of this section.

     (2) The department will determine an ((ALF's)) AL contractor's Medicaid occupancy percentage by dividing its Medicaid resident days by the product of all its licensed boarding home beds irrespective of use times calendar days for the six-month period beginning one year prior to the percentage effective date.

     (3)(a) To set the biyearly Medicaid minimum occupancy percentage, the department will:

     (i) Determine the estimated total budgeted funds for capital add-on rates for the six-month period;

     (ii) Rank from highest to lowest the individual ((ALF)) AL contractor occupancy percentages determined in accordance with subsection (2) of this section;

     (iii) Assign, beginning with the highest ((ALF)) AL contractor's Medicaid occupancy percentage, the estimated expenditure needed to pay the capital add-on rate to each facility for the six-month period;

     (iv) Identify the ((ALF)) AL contractor's Medicaid occupancy percentage at which the estimated total budgeted funds determined under subsection (3)(a)(i) of this section would be expended; and

     (v) Set that Medicaid occupancy percentage as the biyearly Medicaid minimum occupancy percentage.

     (b) The biyearly Medicaid minimum occupancy percentage will be set every January 1 and July 1.

     (4) To receive a capital add-on rate, the AL contractor that meets the Medicaid minimum occupancy percentage established in accordance with subsection (2) and (3) of this section must:

     (a) Attest in writing that it has units that meet the following requirements and that it places Medicaid residents in such units, except the contractor need only place the Medicaid resident in a room with a roll-in shower when the resident's service plan and assessment details require the Medicaid resident to have a roll-in shower:

     (i) A private apartment-like unit of two hundred and twenty square feet that may include counters, closets and built-ins, but must exclude the bathroom;

     (ii) A separate private bathroom that includes a sink, toilet, and a shower or bathtub. The licensed boarding home must have a minimum of one wheelchair accessible bathroom with a roll-in shower of at least forty-eight inches by thirty inches for every two residents whose care is partially or fully funded by Medicaid;

     (iii) A lockable entry door;

     (iv) A kitchen area equipped with a refrigerator, microwave oven or stove top; a counter surface of a minimum of thirty inches wide by twenty-four inches in depth, a maximum height of thirty-four inches, and a knee space beneath at least twenty-seven inches in height; a storage space for utensils and supplies; and

     (v) A living area wired for telephone and television service when available in the geographic location; or

     (b) When the Al contractor does not have units that meet the requirements of subsection (4)(a) of this section, then the AL contractor may receive a capital add-on rate when its AL facility meets the definition of "new boarding home" in WAC 388-110-140 (2)(a) or its AL facility is "grandfathered" under WAC 388-110-140(3).

[Statutory Authority: 2002 c 371. 02-22-058, § 388-105-0035, filed 10/31/02, effective 12/1/02.]