WSR 11-24-048




[ Filed December 2, 2011, 5:01 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-17-131; and proposal is exempt under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: WAC 388-96-910 Safety net assessment, for a safety net assessment imposed on nonexempted nursing facilities in Washington state.

Hearing Location(s): Office Building 2, Lookout Room, 4th Floor, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at or by calling (360) 664-6094), on January 10, 2012, at 10:00 a.m.

Date of Intended Adoption: January 11, 2012.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail, fax (360) 664-6185, by 5:00 p.m., January 10, 2012.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by December 27, 2011, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Chapter 7, Laws of 2011 1st sp. sess. imposes a safety net assessment on nonexempt nursing facilities in Washington state. The department is adding WAC 388-96-910 to provide additional direction for implementation of this new regulation.

Statutory Authority for Adoption: RCW 74.39.030(3).

Statute Being Implemented: RCW 74.39.030(3).

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

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting: Ed Southon, 4500 10th Avenue S.E., Lacey, (360) 725-2469; Implementation and Enforcement: Ken Callaghan, 4500 10th Avenue S.E., Lacey, (360) 725-2499.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Pursuant to RCW 19.85.025(3) [a small business economic impact statement] is not required because this rule imposes fees according to legislative standards and content is dictated by session law.

A cost-benefit analysis is not required under RCW 34.05.328. Proposal is exempt under RCW 34.05.310(4).

December 1, 2011

Katherine I. Vasquez

Rules Coordinator

WAC 388-96-910   Safety net assessment.   (1) Chapter 7, Laws of 2011 1st sp. sess. (the Act) imposes a safety net assessment (SNA) on nonexempt nursing facilities in Washington. Each year, under section 16 of the Act, the department of social and health services (the department) may adjust the amount(s) of the SNA to be paid for the next state fiscal year (SFY), beginning July 1. If necessary, the department may further adjust the amount(s) of the SNA at other times during the SFY. Although subject to change as necessary and as permitted under the Act, the expectation is that each year the SNA will be imposed at two different levels: a higher level for most nonexempt facilities, and a significantly lower level for facilities that have either a high medicaid census on the prior year's cost report or a high number of licensed beds. For SFY 2012, those thresholds were thirty-two thousand medicaid resident days, and two hundred and three licensed beds. Those thresholds may change, as necessary and permitted under the Act. Beginning July 1, 2012 the department will submit any adjustments to the SNA amount(s), along with the data supporting the adjustments, to the Washington health care association and the aging services of Washington for review and comment at least sixty calendar days prior to implementation of the adjusted assessment amounts. These submissions may be made electronically. If necessary to comply with the sixty-day notice requirement and still make the adjustment effective as of July 1, or another effective date, these notices may be made on a provisional, or potential, basis or bases.

(2) The status of each nursing facility under the Act will be determined based on the facility's characteristics as of July 1 of each SFY, but using the information on resident days from the prior calendar year's cost report. For example, a facility's status for the SNA for SFY 2014 (beginning July 1, 2013) would be based on the resident day information from the 2012 cost report. The status of facilities will not be altered thereafter during the SFY. Facilities that become licensed throughout the SFY will be subject to the SNA as of the date of their licensing. The office of rates management (ORM) of the aging and disability services administration (ADSA) of the department will inform each nursing facility of its status under the Act. A facility wishing to contest its status under the Act as determined by ORM may seek review of the determination under WAC 388-96-904.

(3) An add-on to each nonexempt facility's medicaid daily rate will be paid to reimburse the facility for the SNA it owes in relation to residents whose care is funded by medicaid.

(4) The SNA is assessed and payable on a monthly basis. The SNA must be reported on a form supplied by ORM. The SNA owed for each month, and the reporting form for that month, must be mailed to the department and postmarked no later than the twentieth day of the following month. Payments of the SNA are subject to an interest penalty of one percent per month for any payment which is delinquent for any portion of a month. This interest penalty is in addition to any civil fine or other enforcement action that the department may seek as authorized by section 20 of the Act. In addition to the remedies specifically listed in section 20 of the Act, the department may also offset such delinquent SNA payments and related penalties and/or fines against the facility's medical assistance reimbursement payments.

(5) The department has applied for, and received a waiver related to the SNA from the federal centers for medicare and medicaid services (CMS). After issuance, such a waiver is subject to ongoing review for continued compliance. In the ongoing review process, it may be necessary for the department to modify the levels of the SNA, the standard(s) for designating facilities that pay the SNA at each level, and/or the categories of fully exempt facilities described in Sec. 17 of the Act. In that case, each facility may: be obligated to pay the SNA or pay a different amount of the SNA; be reimbursed for SNA amounts previously paid; or be obligated to repay any SNA add-on it has received, all retroactive to the effective date of the modification contained in the waiver as approved by CMS.


Washington State Code Reviser's Office