Effective Date of Rule: June 16, 2012.

     Purpose: The text of the rules as WSR 12-05-075 has not changed. This filing extends the current language as the department is proceeding with filing the permanent rule for WAC 388-106-0075, 388-106-0126 and 388-106-0213. On July 1, 2012, the department anticipates filing an emergency rule regarding the add-on benefit under WAC 388-106-0130.

     This CR-103E supersedes WSR 12-05-075.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-106-0126 and 388-106-0213; and amending WAC 388-106-0075 and 388-106-0130.

     Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

     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; that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal year 2009, 2010, 2011, 2012 or 2013, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

     Reasons for this Finding: The aging and disability services administration (ADSA) previously amended WAC 388-106-0130 by emergency rule to revise the assessment process for allocating personal care hours to children with disabilities as a result of the Washington State Supreme Court ruling in Samantha A. v. DSHS, and to eliminate an add-on benefit for remote shopping and off-site laundry as a result of rulings in both Samantha A. and M.T.E. v. Dreyfus. Those cases required the department to immediately revoke the former children's assessment rule and inform all children who receive personal care services that they could be awarded with full base hours, pending an individualized assessment. This required the department to adopt emergency rules for individualized children's assessments, set forth definitions for the types of informal supports which may result in an adjustment to base hours upon individualized assessments to provide clarity in department notices, and eliminate the add-on benefits for remote shopping and off-site laundry to offset increased personal care expenditures resulting from awarding full base hours to children pending individualized assessments under the new children's assessment rule, which the department projected would exceed its biennial budget. The department is not authorized to exceed its budget, under RCW 74.09.520(3).

     The cost savings eliminating the add-on benefit were originally imposed by emergency rule, the department commenced the permanent rule-making process, and the department issued emergency rules extending the cost-savings pending the permanent rule making, as authorized by RCW 34.05.350 (1)(c) and (2) (WSR 12-04-053, 12-01-118, 12-05-075). At this time, the emergency rule eliminating the add-on benefit needs to be extended, because continued cost savings are still required to ensure that the department does not exceed its budget. The department has projected, however, that the cost-savings imposed by the emergency elimination of the add-on benefit necessary to comply with the orders in Samantha A. and M.T.E., will only be required to be extended through June 30, 2012. Thereafter, the department projects that it will no longer exceed its biennial budget appropriation if an add-on benefit for remote shopping and off-site laundry is restored on July 1, 2012. Accordingly, the emergency rule eliminating the add-on benefit is extended through June 30, 2012, to complete the cost-savings required to comply with Samantha A. and M.T.E., and on July 1, 2012, the department anticipates filing an emergency rule to restore an add-on benefit for remote shopping and off-site laundry and begin permanent rule making for such rule. Extension of the emergency elimination of the add-on benefit is authorized under these circumstances under RCW 34.05.350 (1)(c) (emergency rule making authorized to comply with budget provisions) and RCW 34.05.350(2) (authorizing extension of an emergency rule due to a change of conditions).

     This filing supersedes the CR-103E filed as WSR 12-05-075 on February 16, 2012.

     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 0, 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 2, Repealed 2.

     Date Adopted: June 13, 2012.

Katherine I. Vasquez

Rules Coordinator

     (1) Activities of daily living (ADL) using self performance((,)) support provided, status and assistance available, as defined in WAC 388-106-0010. Also, the department determines your need for "assistance with body care" and "assistance with medication management," as defined in WAC 388-106-0010; and

     (2) Instrumental activities of daily living (IADL) using self performance((,)) difficulty, status and assistance available, as defined in WAC 388-106-0010.

[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0075, filed 5/17/05, effective 6/17/05.]

     (2) The department will ((deduct from the)) adjust base hours to account for informal supports, shared benefit, and age appropriate functioning (as those terms are defined in WAC 388-106-0010), ((or)) and other paid services that meet some of an individual's need for personal care services, including adult day health, as follows:

     (a) The CARE tool determines the adjustment for informal supports ((by determining)), shared benefit, and age appropriate functioning; determines the amount of assistance available ((to meet your needs,)); assigns ((it)) a numeric ((percentage,)) value to those assessed indicators; and ((reduces)) adjusts the base hours assigned to the classification group by the numeric ((percentage)) value. The department has assigned the following numeric values for the amount of assistance available for each ADL and IADL:

Meds	Self ((Performance)) Administration	Status	Assistance Available	Value ((Percentage))
((Self administration of medications)) Medication Management	Rules for all codes apply except independent is not counted	Unmet	N/A	1
		Met	N/A	0
		Decline	N/A	0
		Age appropriate functioning	N/A	0
		Partially met	<1/4 time	.9
			1/4 to 1/2 time	.7
			1/2 to 3/4 time	.5
			>3/4 time	.3
Unscheduled ADLs	Self Performance	Status	Assistance Available	Value ((Percentage))
Bed mobility, transfer, walk in room, eating, toilet use	Rules apply for all codes except: Did not occur/client not able and Did not occur/no provider = 1; Did not occur/client declined and independent are not counted.	Unmet	N/A	1
		Met	N/A	0
		Decline	N/A	0
		Age appropriate functioning	N/A	0
		Partially met	<1/4 time	.9
			1/4 to 1/2 time	.7
			1/2 to 3/4 time	.5
			>3/4 time	.3
Scheduled ADLs	Self Performance	Status	Assistance Available	Value ((Percentage))
Dressing, personal hygiene, bathing	Rules apply for all codes except: Did not occur/client not able and Did not occur/no provider = 1; Did not occur/client declined and independent are not counted.	Unmet	N/A	1
		Met	N/A	0
		Decline	N/A	0
		Age appropriate functioning	N/A	0
		Partially met	<1/4 time	.75
			1/4 to 1/2 time	.55
			1/2 to 3/4 time	.35
			>3/4 time	.15
IADLs	Self Performance	Status	Assistance Available	Value ((Percentage))
Meal preparation, Ordinary housework, Essential shopping	Rules for all codes apply except independent is not counted.	Unmet	N/A	1
		Met	N/A	0
		Decline	N/A	0
		Age appropriate functioning	N/A	0
		Partially met or Shared benefit	<1/4 time	.3
			1/4 to 1/2 time	.2
			1/2 to 3/4 time	.1
			>3/4 time	.05
IADLs	Self Performance	Status	Assistance Available	Value ((Percentage))
Travel to medical	Rules for all codes apply except independent is not counted.	Unmet	N/A	1
		Met	N/A	0
		Decline	N/A	0
		Age appropriate functioning	N/A	0
		Partially met	<1/4 time	.9
			1/4 to 1/2 time	.7
			1/2 to 3/4 time	.5
			>3/4 time	.3
Key: > means greater than < means less than

     (b) To determine the amount ((of reduction)) adjusted for informal support, shared benefit and/or age appropriate functioning, the ((value percentages)) numeric values are totaled and divided by the number of qualifying ADLs and IADLs needs. The result is value A. Value A is then subtracted from one. This is value B. Value B is divided by three. This is value C. Value A and Value C are summed. This is value D. Value D is multiplied by the "base hours" assigned to your classification group and the result is the number of adjusted in-home hours ((reduced for informal supports)).

     (3) ((Also, the department will adjust in-home base hours when:

     (a) There is more than one client receiving ADSA-paid personal care services living in the same household, the status under subsection (2)(a) of this section must be met or partially met for the following IADLs:

     (i) Meal preparation;

     (ii) Housekeeping;

     (iii) Shopping; and

     (iv) Wood supply.

     (b) You are under the age of eighteen, your assessment will be coded according to age guidelines codified in WAC 388-106-0213.

     (4))) Effective February 1, 2012, after ((deductions)) adjustments are made to your base hours, as described in ((subsections (2) and (3))) subsection (2), the department may add on hours ((based on your living environment)) only if you use wood as your sole source of heat:

Condition	Status	Assistance Available	Add On Hours
((Offsite laundry facilities, which means the client does not have facilities in own home and the caregiver is not available to perform any other personal or household tasks while laundry is done.	N/A	N/A	8
Client is >45 minutes from essential services (which means he/she lives more than 45 minutes one-way from a full-service market).	Unmet	N/A	5
	Met	N/A	0
	Partially met	<1/4 time	5
		between 1/4 to 1/2 time	4
		between 1/2 to 3/4 time	2
		>3/4 time	2))
Wood supply used as sole source of heat.	Unmet	N/A	8
	Met	N/A	0
	Declines	N/A	0
	Age appropriate	N/A	0
	Partially met or Shared benefit	<1/4 time	8
		between 1/4 to 1/2 time	6
		between 1/2 to 3/4 time	4
		>3/4 time	2

     (((5))) (4) In the case of New Freedom consumer directed services (NFCDS), the department determines hours as described in WAC 388-106-1445.

     (((6))) (5) The result of actions under subsections (2), (3), and (4) is the maximum number of hours that can be used to develop your plan of care. The department must take into account cost effectiveness, client health and safety, and program limits in determining how hours can be used to ((meet)) address your identified needs. In the case of New Freedom consumer directed services (NFCDS), a New Freedom spending plan (NFSP) is developed in place of a plan of care.

     (((7))) (6) You and your case manager will work to determine what services you choose to receive if you are eligible. The hours may be used to authorize:

     (a) Personal care services from a home care agency provider and/or an individual provider.

     (b) Home delivered meals (i.e. a half hour from the available hours for each meal authorized).

     (c) Adult day care (i.e. a half hour from the available hours for each hour of day care authorized).

     (d) A home health aide if you are eligible per WAC 388-106-0300 or 388-106-0500.

     (e) A private duty nurse (PDN) if you are eligible per WAC 388-71-0910 and 388-71-0915 or WAC 388-551-3000 (i.e. one hour from the available hours for each hour of PDN authorized).

     (f) The purchase of New Freedom consumer directed services (NFCDS).

     (7) If you are a child applying for personal care services:

     (a) The department will complete a CARE assessment and use the developmental milestones table below when assessing your ability to perform personal care tasks.

     (b) Your status will be coded as age appropriate when your self performance is at a level expected for persons in your assessed age range, as indicated by the developmental milestones table, unless the circumstances in subpart (c) apply.

     (c) The department may code status as other than age appropriate for an ADL or IADL, despite your self performance falling within the expected developmental milestones for your age, if the department determines during your assessment that your level of functioning is not primarily due to your age.

Developmental Milestones for Activities of Daily Living (ADLS)
ADL	Self-Performance	Assessed Age Range
Medication Management	Independent Self-Directed Assistance Required Must Be Administered	Birth through the 17th year
Locomotion in Room	Independent Supervision Limited Extensive	Birth through the 3rd year
	Total	Birth through the 1st year
Locomotion Outside Room	Independent Supervision	Birth through the 5th year
	Limited Extensive	Birth through the 3rd year
	Total	Birth through the 1st year
Walk in Room	Independent Supervision Limited Extensive	Birth through the 3rd year
	Total	Birth through the 1st year
Bed Mobility	Independent Supervision Limited Extensive	Birth through the 2nd year
	Total	Birth through the 1st year
Transfers	Independent Supervision Limited Extensive Total	Birth through the 2nd year
Toilet Use	Independent Supervision Limited Extensive	Birth through the 7th year
	Total	Birth through the 3rd year
Eating	Independent Supervision Limited Extensive Total	Birth through the 2nd year
Bathing	Independent Supervision	Birth through the 11th year
	Physical help/Transfer only Physical help/part of bathing	Birth through the 7th year
	Total	Birth through the 4th year
Dressing	Independent Supervision	Birth through the 11th year
	Limited Extensive	Birth through the 7th year
	Total	Birth through the 4th year
Personal Hygiene	Independent Supervision	Birth through the 11th year
	Limited or extensive	Birth through the 7th year
	Total	Birth through the 4th year

Developmental Milestones for Instrumental Activities of Daily Living
IADL	Self Performance	Assessed Age
Telephone Transportation Essential Shopping Wood Supply Housework Finances Meal Preparation	Independent Supervision Limited Extensive Total	Birth through the 17th year

Additional Developmental Milestones coding
CARE panel	Selection	Assessed Age
Speech/Hearing: Comprehension	By others client is=Age Appropriate	Birth through the 2nd year
Psych Social: MMSE	Can MMSE be administereed?=No	Birth through the 17th year
Psych Social: Memory/Short Term	Recent memory=Age appropriate	Birth through the 11th year
Psych Social: Memory/Long Term	Long Term memory=Age appropriate	Birth through the 11th year
Psych Social: Depression	Interview=unable to obtain	Birth through the 11th year
Psych Social: Decision Making	Rate how client makes decision=Age appropriate	Birth through the 11th year
Bladder/Bowel:	Bladder/Bowel Control: Continent Usually Continent Occasionally Incontinent Frequently Incontinent	Birth through the 11th year
Bladder/Bowel:	Bladder/Bowel Control: Incontinent all or most of the time	Birth through the 5th year
Bladder/Bowel:	Appliance and programs=Potty Training	Birth through the 3rd year

     (8) If you are a child applying for personal care services and your self performance is not age appropriate as determined under subsection (7), the department will assess for any informal supports or shared benefit available to assist you with each ADL and IADL.

     (a) When you are living with your legally responsible parent(s), the department will take into account their legal obligation to care for you when determining the availability of informal supports. Legally responsible parents include natural parents, step-parents, and adoptive parents. Legally responsible parents generally do not include other relative caregivers or foster parents. A legally responsible parent will not be considered unavailable to meet your needs due to other obligations such as work or additional children because such obligations do not decrease the parent's legal responsibility to care for you regardless of your disabilities.

     (b) Informal supports for school-age children include supports actually available through a school district, regardless of whether you take advantage of those available supports.

     (c) The department will presume that you have informal supports available to assist you with your ADLs and IADLs over three-fourths but not all of the time. The department will code your informal support as greater or less than the presumed amount if your assessment shows that your need for assistance with personal care tasks is fully met by informal supports or shared benefit, or if you provide specific information during your assessment to indicate why you do not have support available three-fourths or more of the time to assist you with a particular ADL or IADL.

[Statutory Authority: RCW 74.08.090, 74.09.520, and 2010 c 37. 11-11-024, § 388-106-0130, filed 5/10/11, effective 6/10/11. Statutory Authority: RCW 74.08.090, 74.09.520. 08-23-011, § 388-106-0130, filed 11/6/08, effective 12/7/08; 08-03-111, § 388-106-0130, filed 1/22/08, effective 2/22/08. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-0130, 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, § 388-106-0130, filed 2/6/06, effective 3/9/06. Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0130, filed 5/17/05, effective 6/17/05.]

     Reviser's note: The spelling 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.
REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 388-106-0126

If I am under age twenty-one, how does CARE use criteria to place me in a classification group for in-home care?

WAC 388-106-0213

How are my needs assessed if I am a child applying for MPC services?

© Washington State Code Reviser's Office