Effective Date of Rule: Immediately.

     Purpose: On May 3, 2007, the supreme court issued its decision invalidating the department's shared living rule outlined in WAC 388-106-0130. The majority concluded that the shared living rule violated the federal medicaid comparability provision requiring individualized assessment of every person requesting services. On October 8, 2007, Governor Gregoire approved additional funding to allow implementation that also was in compliance with the SEIU 775 collective bargaining agreement. WAC 388-106-0130 is being amended in order to comply with the supreme court decision pertaining to shared living.

     Citation of Existing Rules Affected by this Order: Amending WAC 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 state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: The supreme court concluded that the shared living rule, outlined in WAC 388-106-0130, violated the federal medicaid comparability provision requiring individualized assessment of every person requesting services. The department filed a preproposal statement of inquiry as WSR 07-14-033 on June 26, 2007.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.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: October 23, 2007.

Stephanie E. Schiller

Rules Coordinator

     (2) The department will deduct from the base hours to account for your informal supports, as defined in WAC 388-106-0010, as follows:

     (a) The CARE tool determines the adjustment for informal supports by determining the amount of assistance available to meet your needs, assigns it a numeric percentage, and reduces the base hours assigned to the classification group by the numeric percentage. The department has assigned the following numeric values for the amount of assistance available for each ADL and IADL:

Meds	Self Performance	Status	Assistance Available	Value Percentage
Self administration of medications	Rules for all codes apply except independent is not counted	Unmet	N/A	1
		Met	N/A	0
		Decline	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
		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
		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
		Partially met	<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
		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 *Results in 5% deduction for each IADL from the base hours. Remaining hours may be used for completion of household and personal care tasks.

     (b) To determine the amount of reduction for informal support, the value percentages are totaled and ((is)) 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 ((base)) the number of in-home ((care)) hours reduced for informal supports.

     (3) Also, the department will adjust in-home base hours ((for the following shared living circumstances)) when:

     (a) ((If)) 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) If you ((and your paid provider live in the same household, the status under subsection (2)(a) of this section must be met for the following IADLs:

     (i) Meal preparation,

     (ii) Housekeeping,

     (iii) Shopping, and

     (iv) Wood supply.

     (c) When there is more than one client living in the same household and your paid provider lives in your household, the status under subsection (2)(a) of this section must be met for the following IADLs:

     (i) Meal preparation,

     (ii) Housekeeping,

     (iii) Shopping, and

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

     (4) When you are not affected by (3) above, the department will score the status for meal preparation as unmet when you adhere to at least one of the following special diets:

     (a) ADA (diabetes);

     (b) Autism diet;

     (c) Calorie reduction;

     (d) Low sodium;

     (e) Mechanically altered;

     (f) Planned weight change program;

     (g) Renal diet; or

     (h) Needs to receive nutrition through tube feeding or receives greater than twenty-five percent of calories through tube or parenteral feeding.

     (5) When you are not affected by (3) above, the department will score the status for housework as unmet when you are incontinent of bladder or bowel, documented as:

     (a) Incontinent all or most of the time;

     (b) Freguently incontinent; or

     (c) Occasionally incontinent.

     (6) After deductions are made to your base hours, as described in subsections (2) and (3), the department may add on hours based on your living environment:

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.	Unmet	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
	Partially met	<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))) (7) In the case of New Freedom consumer directed services (NFCDS), the department determines hours as described in WAC ((388-106-1450)) 388-106-1445.

     (((6))) (8) The result of actions under subsections (2), (3), ((and)) (4), (5) and (6) 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 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))) (9) 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).

[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.

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