WSR 97-24-081

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Aging and Adult Services Administration)

(Public Assistance)

[Filed December 2, 1997, 4:17 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-20-121.

Title of Rule: WAC 388-15-201 Long-term care functional eligibility, 388-15-209 Chore personal care services--Eligibility, 388-15-222 Chore personal care services--Employed disabled--Incentive income and resource exemption, 388-15-610 COPES--Eligibility, 388-15-830 Medicaid personal care services--Eligibility, 388-15-880 Medicaid personal care services--Payment procedures, 388-15-890 Medicaid personal care services--Program limitations, 388-15-895 Termination of services, 388-15-215 Chore personal care services--Grandfathered clients, and 388-97-235 Medical eligibility for nursing facility care.

Purpose: Adjusts functional eligibility standards or service levels for the Chore, COPES and MPC programs to stay within the legislature's budgetary appropriation.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.035, [74.09.]520, [74.09.]530, 74.39A.110, [74.39A.]120, and [74.39A.]030.

Statute Being Implemented: RCW 74.39A.110, [74.39A.]120, and [74.39A.]030, sections 205 (1)(c) and 206(3), chapter 149, Laws of 1997.

Summary: Changes functional eligibility for MPC, Core [Chore] and COPES programs requiring clients have a substantial or total need in one of seven critical self-care tasks.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Kevin Krueger, Aging and Adult Services Administration, 600 Woodland Square Loop S.E., Lacey, WA 98504, (360) 493-2578.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Once implemented, it is anticipated that COPES, MPC and Chore caseloads will be reduced by fourteen percent.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Amends functional eligibility for the MPC, Chore and COPES programs to stay within the legislature's budgetary appropriation.

Proposal Changes the Following Existing Rules: Repeals WAC 388-15-215 because that part of Chore services is no longer available. Amends functional eligibility or service levels for the Chore, COPES and MPC programs. The change will require that clients have a substantial or total need in one of seven critical self-care tasks.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Changes affect only the clients the Department of Social and Health Services serves.

RCW 34.05.328 does not apply to this rule adoption. 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 January 6, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by December 23, 1997, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to and Identify WAC Numbers: Paige Wall, Acting Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by January 6, 1998.

Date of Intended Adoption: No sooner than January 6, 1998.

December 2, 1997

Merry A. Kogut, Manger

Rules and Policies Assistance Unit

NEW SECTION

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.

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AMENDATORY SECTION (Amending WSR 96-20-093, filed 10/1/96, effective 11/1/96)

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) ((Be assessed under WAC 388-15-203 through 388-15-205 and found at risk of placement in a long-term care facility as evidenced by:

(a) The need for assistance with one or more direct personal care tasks defined under WAC 388-15-202(17); and

(b) The lack of persons willing and able to provide unpaid assistance with the required personal care tasks)) 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((:

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

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

(iii))) limits set in WAC 388-513-1310(2)(a)(b) except for clients identified under WAC 388-15-222, and be 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)) twelve months or more often as deemed necessary, per WAC 388-15-204.

[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 95-20-0412 [95-20-041], filed 9/28/95, effective 10/29/95)

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, 74.09.520 and 1995 1st sp.s. c 18. 95-20-041 (Order 3904), 388-15-222, filed 9/28/95, effective 10/29/95.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

AMENDATORY SECTION (Amending WSR 96-20-093, filed 10/1/96, effective 11/1/96)

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

(1) ((Be an aged, blind, or disabled client, as defined under WAC 388-511-1105 (1)(a), (b), and (c)(i) and (ii))) Meet the requirements in WAC 388-15-201;

(2) Be eighteen years of age or older;

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

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

(5) Is 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;

(6) 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

(7) Require 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

(8)(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) Require substantial or total assistance with one or more of the critical self-care tasks in subsection (6)(a) through (f) of this section; or

(9) Require minimal, substantial or total assistance in three or more of the critical self-care tasks in subsection (6)(a) through (f) of this section; or

(10) 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

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

(12))) Have a feasible written plan of care. The department shall ensure the plan((:

(a) Is sufficient to safeguard the client's health and safety and the plan's costs, including the department's published COPES maintenance allowance; and

(b))) is less than ninety percent of the average state-wide nursing facility rate((; and

(13) Prefer to receive home or community-based waiver services as described in the department's plan of care, as an alternative to department placement in a nursing facility;

(14))); and

(4)(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.

(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;

(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

(17) ((Meet the COPES waiver target group requirements as specified in the department's approved waiver request)) Be reassessed at least every twelve months or more often as deemed necessary, per WAC 388-15-204.

[Statutory Authority: RCW 74.08.090, 74.09.520, 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.]

Reviser's note: The typographical 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.

AMENDATORY SECTION (Amending WSR 95-20-041, filed 9/28/95, effective 10/29/95)

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

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

(b) ((Assessed as defined under WAC 388-15-202 through 388-15-205 and shall be determined to need personal care assistance with one or more direct Medicaid personal care tasks to remain in a community residence due to a handicapping condition as defined under WAC 388-15-202(2). In assessing the client with a handicapping condition, the department may require documentation from a physician or a mental health professional to determine the extent of the person's handicapping conditions)); and

(c) ((Residing)) 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) ((The department shall not authorize chore personal care services or adult family home add-on services to a person qualifying for Medicaid personal care services when the person's service needs are met within the scope of the Medicaid personal care program)) 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) 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, 74.09.520 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 96-20-093, filed 10/1/96, effective 11/1/96)

WAC 388-15-880 Medicaid personal care services--Payment procedures. The department shall:

(1) Pay for Medicaid personal care services provided in accordance with a client's approved plan of care, a sum not to exceed the Medicaid personal care rates as set forth in the most recent schedule of department-established and published rates.

(2) Pay ((contracted congregate)) adult residential care facilities licensed under chapter 18.20 RCW and chapters 246-316 and 212-36 WAC for authorized personal care services.

(3) Pay contracted adult family homes licensed under chapters 70.128 RCW and 388-76 WAC for authorized personal care services.

(4) Pay for personal care services provided to an adult by home care agencies licensed under chapters 70.127 RCW and 248-36 WAC or by home health agencies licensed under chapters 70.126 RCW and 246-327 WAC. The department:

(a) Shall make agency payments directly to the agency or through a factor.

(b) May authorize agency services when the adult client's service plan requires ((eighty-five)) one hundred twelve or fewer hours personal care service per month.

(((c) Shall ensure the contractor pays service providers performing Medicaid personal care services five dollars and fifteen cents or more per hour.))

(5) Pay an individual personal care provider providing personal care when the provider:

(a) Meets or surpasses the department's minimum qualifications of knowledge and experience, skills, and abilities for individual personal care providers as defined under WAC 388-15-196. Family members who provide personal care services must meet the same standards as providers who are unrelated to the client;

(b) Has a department-approved individual personal care provider agreement and service payment authorization;

(c) Has been interviewed, hired, supervised, and retained by a client eligible for Medicaid personal care or the client's representative; and

(d) Has provided the authorized services defined under WAC 388-15-202 in accordance with the client's service plan.

(6) Pay for personal care services when authorized for a child and provided by:

(a) A foster parent or group care facility defined under WAC 388-73-014(8);

(b) An agency which meets the qualifications in subsection (4) of this section and is contracted by the division of children and family services or the division of developmental disabilities for services provided in:

(i) A foster or group home; or

(ii) The child's own home; or

(iii) The home of a child's relative under a relative placement.

(c) An individual provider who meets the qualifications in subsection (5) of this section without regard to the number of hours of service.

(7) Not pay a Medicaid personal care client's spouse nor pay a Medicaid personal care eligible child's parent or step-parent, when the child is seventeen years of age or younger, for providing care to the client.

(8) Not make payment for services provided exceeding the department's authorization.

[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, 388-15-880, 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), 388-15-880, filed 9/28/95, effective 10/29/95. Statutory Authority: RCW 74.09.520. 93-10-023 (Order 3538), 388-15-880, filed 4/28/93, effective 5/29/93. Statutory Authority: RCW 74.08.090. 91-21-026 (Order 3264), 388-15-880, filed 10/8/91, effective 11/8/91; 90-06-038 (Order 2950), 388-15-880, filed 3/1/90, effective 4/1/90; 89-18-029 (Order 2856), 388-15-880, filed 8/29/89, effective 9/29/89.]

AMENDATORY SECTION (Amending WSR 96-20-093, filed 10/1/96, effective 11/1/96)

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 childrens 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, 74.09.520, 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.]

NEW SECTION

WAC 388-15-895 Termination of services. Clients who do not meet the functional eligibility requirements in WAC 388-15-201, 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.

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REPEALER

The following section of the Washington Administrative Code is repealed:

WAC 388-15-215 Chore personal care services--Grandfathered clients.

AMENDATORY SECTION (Amending Order 3782, filed 9/15/94, effective 10/16/94)

WAC 388-97-235 Medical eligibility for nursing facility care. ((A person medically eligible for nursing facility care is one whose functional level requires services that must be provided by or under the supervision of a registered nurse or a licensed practical nurse on a daily basis. Nursing facility care includes therapeutic services directed toward rehabilitation/discharge or toward maintaining the resident's highest practicable level of independence. These services involve more than just supervision, protection, and assistance with personal care)) (1) The initial Medicaid medical eligibility determination for nursing facility residents must be performed by the department or designee prior to admission or when the resident converts to Medicaid. To be eligible for Medicaid nursing facility coverage, the client must be assessed by the department or designee has having 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:

(a) Eating;

(b) Toileting;

(c) Ambulation;

(d) Transfer;

(e) Positioning;

(f) Bathing; or

(g) Self-medication.

(2) For continued eligibility for Medicaid nursing facility care, the nursing facility must assess residents according to the requirements in WAC 388-97-275 and 42 CFR 483.20. To be eligible for continued Medicaid nursing facility coverage, the resident's self-performance in activities of daily living must be assessed as needing extensive assistance or being totally dependent in one or more of the following:

(a) Eating;

(b) Toilet use;

(c) Walking;

(d) Transfer;

(e) Bed mobility; or

(f) Bathing.