EMERGENCY RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Effective Date of Rule: Immediately.
Purpose: The text of the rules filed as WSR 12-02-044 has not changed. This filing is a response to a lawsuit that was filed in Thurston County superior court on February 1, 2012: SEIU Healthcare 775NW v. Robin Arnold-Williams and DSHS, alleging that the emergency rule filing process for WSR 12-02-044 did not comply with rule-making requirements. The department of social and health services disagrees with those allegations. However, this CR-103E is provided to further clarify the basis for the emergency rules.
Effective December 30, 2011, the department amended WAC 388-106-0010 by adding and amending certain definitions related to informal supports. WAC 388-106-0210 was amended to include age guidelines that were needed to implement children's personal care changes that were initially made under WSR 11-23-053. These revisions were necessitated by the Washington state supreme court's decision in Samantha A. v. Department of Social and Health Services and serve the public interest by providing clients a way to better understand their award of personal care service hours.
This CR-103E cancels and supersedes WSR 12-02-044.
Citation of Existing Rules Affected by this Order: Amending WAC 388-106-0010 and 388-106-0210.
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; and 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: On February 1, 2012, the Service Employees International Union filed a lawsuit challenging the adoption of changes to WAC 388-106-0010 and 388-106-0130 by emergency rule. SEIU Healthcare 775NW v. Robin Arnold-Williams and DSHS, Thurston County Superior Court, Docket No. 12-2-00195-0. The emergency rule filing process complied with rule-making requirement[s] and the department disagrees with the allegations made in the lawsuit. Nevertheless, this CR-103E is provided to further clarify the basis for the emergency rules.
Clarified Reasons for Changes Originally Made under WSR 12-02-044: The department revised its assessment process to allocate personal care services for children on a more individualized basis. The emergency rules are necessary in order to comply with state law following Washington state supreme court's decision in Samantha A. v. Department of Social and Health Services and serve the public interest by providing clients a way to better understand their award of personal care service hours that may have been adjusted during the individualized assessment process.
The changes to WAC 388-106-0010 and 388-106-0210 are necessary to comport with emergency amendments initially filed under WSR 11-23-082 on November 16, 2011. These rule changes were filed as soon as possible. Changes to WAC 388-106-0010 could not be included in the November 16, 2011, filing because, for unrelated reasons, it had been recently subject to permanent rule making. New changes to a recently adopted permanent rule cannot be made until the office of the code reviser incorporates the new or amended rule into the TITLE 388 WAC web site, which can take four to eleven weeks after the permanent rule-making order is filed.
This filing supersedes the CR-103E filed as WSR 12-02-044 on December 30, 2011.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 2, 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 0.
Date Adopted: February 16, 2012.
Katherine I. Vasquez
Rules Coordinator
4349.2(a) Understood: You express ideas clearly;
(b) Usually understood: You have difficulty finding the right words or finishing thoughts, resulting in delayed responses, or you require some prompting to make self understood;
(c) Sometimes understood: You have limited ability, but are able to express concrete requests regarding at least basic needs (e.g. food, drink, sleep, toilet);
(d) Rarely/never understood. At best, understanding is limited to caregiver's interpretation of client specific sounds or body language (e.g. indicated presence of pain or need to toilet.)
"Activities of daily living (ADL)" means the following:
(a) Bathing: How you take a full-body bath/shower, sponge bath, and transfer in/out of tub/shower.
(b) Bed mobility: How you move to and from a lying position, turn side to side, and position your body while in bed, in a recliner, or other type of furniture.
(c) Body care: How you perform with passive range of motion, applications of dressings and ointments or lotions to the body and pedicure to trim toenails and apply lotion to feet. In adult family homes, contracted assisted living, enhanced adult residential care, and enhanced adult residential care-specialized dementia care facilities, dressing changes using clean technique and topical ointments must be performed by a licensed nurse or through nurse delegation in accordance with chapter 246-840 WAC. Body care excludes:
(i) Foot care if you are diabetic or have poor circulation; or
(ii) Changing bandages or dressings when sterile procedures are required.
(d) Dressing: How you put on, fasten, and take off all items of clothing, including donning/removing prosthesis.
(e) Eating: How you eat and drink, regardless of skill. Eating includes any method of receiving nutrition, e.g., by mouth, tube or through a vein.
(f) Locomotion in room and immediate living environment: How you move between locations in your room and immediate living environment. If you are in a wheelchair, locomotion includes how self-sufficient you are once in your wheelchair.
(g) Locomotion outside of immediate living environment including outdoors: How you move to and return from more distant areas. If you are living in a boarding home or nursing facility (NF), this includes areas set aside for dining, activities, etc. If you are living in your own home or in an adult family home, locomotion outside immediate living environment including outdoors, includes how you move to and return from a patio or porch, backyard, to the mailbox, to see the next-door neighbor, etc.
(h) Walk in room, hallway and rest of immediate living environment: How you walk between locations in your room and immediate living environment.
(i) Medication management: Describes the amount of assistance, if any, required to receive medications, over the counter preparations or herbal supplements.
(j) Toilet use: How you use the toilet room, commode, bedpan, or urinal, transfer on/off toilet, cleanse, change pad, manage ostomy or catheter, and adjust clothes.
(k) Transfer: How you move between surfaces, i.e., to/from bed, chair, wheelchair, standing position. Transfer does not include how you move to/from the bath, toilet, or vehicle.
(l) Personal hygiene: How you maintain personal hygiene, including combing hair, brushing teeth, shaving, applying makeup, washing/drying face, hands (including nail care), and perineum (menses care). Personal hygiene does not include hygiene in baths and showers.
"Age appropriate" means the client is functioning within typical developmental milestones. Proficiency in the identified task is not expected of a child that age and a child that age would require assistance with the task with or without a functional disability.
"Aged person" means a person sixty-five years of age or older.
"Agency provider" means a licensed home care agency or a licensed home health agency having a contract to provide long-term care personal care services to you in your own home.
"Application" means a written request for medical assistance or long-term care services submitted to the department by the applicant, the applicant's authorized representative, or, if the applicant is incompetent or incapacitated, someone acting responsibly for the applicant. The applicant must submit the request on a form prescribed by the department.
"Assessment details" means a summary of information that the department entered into the CARE assessment describing your needs.
"Assessment or reassessment" means an inventory and evaluation of abilities and needs based on an in-person interview in your own home or your place of residence, using CARE.
"Assistance available" means the amount of ((informal
support)) assistance available for a task if ((the need))
status is coded partially met or shared benefit due to
availability of other support. The department determines the
amount of the assistance available using one of four
categories:
(a) Less than one-fourth of the time;
(b) One-fourth to one-half of the time;
(c) Over one-half of the time to three-fourths of the time; or
(d) Over three-fourths but not all of the time.
"Assistance with body care" means you need assistance with:
(a) Application of ointment or lotions;
(b) Trimming of toenails;
(c) Dry bandage changes; or
(d) Passive range of motion treatment.
"Assistance with medication management" means you need assistance managing your medications. You are scored as:
(a) Independent if you remember to take medications as prescribed and manage your medications without assistance.
(b) Assistance required if you need assistance from a nonlicensed provider to facilitate your self-administration of a prescribed, over the counter, or herbal medication, as defined in chapter 246-888 WAC. Assistance required includes reminding or coaching you, handing you the medication container, opening the container, using an enabler to assist you in getting the medication into your mouth, alteration of a medication for self-administration, and placing the medication in your hand. This does not include assistance with intravenous or injectable medications. You must be aware that you are taking medications.
(c) Self-directed medication assistance/administration if you are a person with a functional disability who is capable of and who chooses to self-direct your medication assistance/administration.
(d) Must be administered if you must have medications placed in your mouth or applied or instilled to your skin or mucus membrane. Administration must either be performed by a licensed professional or delegated by a registered nurse to a qualified caregiver (per chapter 246-840 WAC). Intravenous or injectable medications may never be delegated. Administration may also be performed by a family member or unpaid caregiver if facility licensing regulations allow.
"Authorization" means an official approval of a departmental action, for example, a determination of client eligibility for service or payment for a client's long-term care services.
"Blind person" means a person determined blind as described under WAC 388-511-1105 by the division of disability determination services of the medical assistance administration.
"Categorically needy" means the status of a person who is eligible for medical care under Title XIX of the Social Security Act. See WAC 388-475-0100 and chapter 388-513 WAC.
"Child" means an individual less than eighteen years of age.
"Chronic care management" means programs that provide care management and coordination activities for medical assistance clients receiving long-term care services and supports determined to be at risk for high medical costs.
"Health action plan" means an individual plan which identifies health-related problems, interventions and goals.
"Client" means an applicant for service or a person currently receiving services from the department.
"Current" means a behavior occurred within seven days of the CARE assessment date, including the day of the assessment. Behaviors that the department designates as current must include information about:
(a) Whether the behavior is easily altered or not easily altered; and
(b) The frequency of the behavior.
"Decision making" means your ability and actual performance in making everyday decisions about tasks or activities of daily living. The department determines whether you are:
(a) Independent: Decisions about your daily routine are consistent and organized; reflecting your lifestyle, choices, culture, and values.
(b) Modified independence/difficulty in new situations: You have an organized daily routine, are able to make decisions in familiar situations, but experience some difficulty in decision making when faced with new tasks or situations.
(c) Moderately impaired/poor decisions; unaware of consequences: Your decisions are poor and you require reminders, cues and supervision in planning, organizing and correcting daily routines. You attempt to make decisions, although poorly.
(d) Severely impaired/no or few decisions: Decision making is severely impaired; you never/rarely make decisions.
"Department" means the state department of social and health services, aging and disability services administration or its designee.
"Designee" means area agency on aging.
"Developmental milestones" means a set of functional skills that most children achieve during a certain age range.
"Difficulty" means how difficult it is or would be for you to perform an instrumental activity of daily living (IADL). This is assessed as:
(a) No difficulty in performing the activity;
(b) Some difficulty in performing the activity (e.g., you need some help, are very slow, or fatigue easily); or
(c) Great difficulty in performing the activity (e.g., little or no involvement in the activity is possible).
"Disabling condition" means you have a medical condition which prevents you from self performance of personal care tasks without assistance.
"Estate recovery" means the department's process of recouping the cost of medicaid and long-term care benefit payments from the estate of the deceased client. See chapter 388-527 WAC.
"Home health agency" means a licensed:
(a) Agency or organization certified under medicare to provide comprehensive health care on a part-time or intermittent basis to a patient in the patient's place of residence and reimbursed through the use of the client's medical identification card; or
(b) Home health agency, certified or not certified under medicare, contracted and authorized to provide:
(i) Private duty nursing; or
(ii) Skilled nursing services under an approved medicaid waiver program.
"Income" means income as defined under WAC 388-500-0005.
"Individual provider" means a person employed by you to provide personal care services in your own home. See WAC 388-71-0500 through 388-71-05909.
"Disability" is described under WAC 388-511-1105.
"Informal support" means a person or resource that is available to provide assistance without home and community program funding. The person or resource providing the informal support must be age 18 or older. Examples of informal supports include but are not limited to: family members, friends, neighbors, school, childcare, after school activities, adult day health, church or community programs.
"Institution" means medical facilities, nursing facilities, and institutions for the mentally retarded. It does not include correctional institutions. See medical institutions in WAC 388-500-0005.
"Instrumental activities of daily living (IADL)" means routine activities performed around the home or in the community and includes the following:
(a) Meal preparation: How meals are prepared (e.g., planning meals, cooking, assembling ingredients, setting out food, utensils, and cleaning up after meals). NOTE: The department will not authorize this IADL to plan meals or clean up after meals. You must need assistance with actual meal preparation.
(b) Ordinary housework: How ordinary work around the house is performed (e.g., doing dishes, dusting, making bed, tidying up, laundry).
(c) Essential shopping: How shopping is completed to meet your health and nutritional needs (e.g., selecting items). Shopping is limited to brief, occasional trips in the local area to shop for food, medical necessities and household items required specifically for your health, maintenance or well-being. This includes shopping with or for you.
(d) Wood supply: How wood is supplied (e.g., splitting, stacking, or carrying wood) when you use wood as the sole source of fuel for heating and/or cooking.
(e) Travel to medical services: How you travel by vehicle to a physician's office or clinic in the local area to obtain medical diagnosis or treatment-includes driving vehicle yourself, traveling as a passenger in a car, bus, or taxi.
(f) Managing finances: How bills are paid, checkbook is balanced, household expenses are managed. The department cannot pay for any assistance with managing finances.
(g) Telephone use: How telephone calls are made or received (with assistive devices such as large numbers on telephone, amplification as needed).
"Long-term care services" means the services administered directly or through contract by the aging and disability services administration and identified in WAC 388-106-0015.
"Medicaid" is defined under WAC 388-500-0005.
"Medically necessary" is defined under WAC 388-500-0005.
"Medically needy (MN)" means the status of a person who is eligible for a federally matched medical program under Title XIX of the Social Security Act, who, but for income above the categorically needy level, would be eligible as categorically needy. Effective January 1, 1996, an AFDC-related adult is not eligible for MN.
"New Freedom consumer directed services (NFCDS)" means a mix of services and supports to meet needs identified in your assessment and identified in a New Freedom spending plan, within the limits of the individual budget, that provide you with flexibility to plan, select, and direct the purchase of goods and services to meet identified needs. Participants have a meaningful leadership role in:
(a) The design, delivery and evaluation of services and supports;
(b) Exercising control of decisions and resources, making their own decisions about health and well being;
(c) Determining how to meet their own needs;
(d) Determining how and by whom these needs should be met; and
(e) Monitoring the quality of services received.
"New Freedom consumer directed services (NFCDS) participant" means a participant who is an applicant for or currently receiving services under the NFCDS waiver.
"New Freedom spending plan (NFSP)" means the plan developed by you, as a New Freedom participant, within the limits of an individual budget, that details your choices to purchase specific NFCDS and provides required federal medicaid documentation.
"Own home" means your present or intended place of residence:
(a) In a building that you rent and the rental is not contingent upon the purchase of personal care services as defined in this section;
(b) In a building that you own;
(c) In a relative's established residence; or
(d) In the home of another where rent is not charged and residence is not contingent upon the purchase of personal care services as defined in this section.
"Past" means the behavior occurred from eight days to five years of the assessment date. For behaviors indicated as past, the department determines whether the behavior is addressed with current interventions or whether no interventions are in place.
"Personal aide" is defined in RCW 74.39.007.
"Personal care services" means physical or verbal assistance with activities of daily living (ADL) and instrumental activities of daily living (IADL) due to your functional limitations. Assistance is evaluated with the use of assistive devices.
"Physician" is defined under WAC 388-500-0005.
"Plan of care" means assessment details and service summary generated by CARE.
"Provider or provider of service" means an institution, agency, or person:
(a) Having a signed department contract to provide long-term care client services; and
(b) Qualified and eligible to receive department payment.
"Reasonable cost" means a cost for a service or item that is consistent with the market standards for comparable services or items.
"Representative" means a person who you have chosen, or has been appointed by a court, whose primary duty is to act on your behalf to direct your service budget to meet your identified health, safety, and welfare needs.
"Residential facility" means a licensed adult family home under department contract or licensed boarding home under department contract to provide assisted living, adult residential care or enhanced adult residential care.
"Self performance for ADLs" means what you actually did in the last seven days before the assessment, not what you might be capable of doing. Coding is based on the level of performance that occurred three or more times in the seven-day period and does not include support provided as defined in WAC 388-106-0010. Your self performance level is scored as:
(a) Independent if you received no help or oversight, or if you needed help or oversight only once or twice;
(b) Supervision if you received oversight (monitoring or standby), encouragement, or cueing three or more times;
(c) Limited assistance if you were highly involved in the activity and given physical help in guided maneuvering of limbs or other nonweight bearing assistance on three or more occasions. For bathing, limited assistance means physical help is limited to transfer only;
(d) Extensive assistance if you performed part of the activity, but on three or more occasions, you needed weight bearing support or you received full performance of the activity during part, but not all, of the activity. For bathing, extensive assistance means you needed physical help with part of the activity (other than transfer);
(e) Total dependence if you received full caregiver performance of the activity and all subtasks during the entire seven-day period from others. Total dependence means complete nonparticipation by you in all aspects of the ADL; or
(f) Activity did not occur if you or others did not perform an ADL over the last seven days before your assessment. The activity may not have occurred because:
(i) You were not able (e.g., walking, if paralyzed);
(ii) No provider was available to assist; or
(iii) You declined assistance with the task.
"Self performance for IADLs" means what you actually did in the last thirty days before the assessment, not what you might be capable of doing. Coding is based on the level of performance that occurred three or more times in the thirty-day period. Your self performance is scored as:
(a) Independent if you received no help, set-up help, or supervision;
(b) Set-up help/arrangements only if on some occasions you did your own set-up/arrangement and at other times you received help from another person;
(c) Limited assistance if on some occasions you did not need any assistance but at other times in the last thirty days you required some assistance;
(d) Extensive assistance if you were involved in performing the activity, but required cueing/supervision or partial assistance at all times;
(e) Total dependence if you needed the activity fully performed by others; or
(f) Activity did not occur if you or others did not perform the activity in the last thirty days before the assessment.
"Service summary" is CARE information which includes: Contacts (e.g. emergency contact), services the client is eligible for, number of hours or residential rates, personal care needs, the list of formal and informal providers and what tasks they will provide, a provider schedule, referral needs/information, and dates and agreement to the services.
"Shared benefit" means:
(a) A client and their paid caregiver both share in the benefit of an IADL task being performed; or
(b) Two or more clients in a multi-client household benefit from the same IADL task(s) being performed.
"SSI-related" is defined under WAC 388-475-0050.
"Status" means the amount of informal support available. The department determines whether the ADL or IADL is:
(a) Met, which means the ADL or IADL will be fully provided by an informal support;
(b) Unmet, which means an informal support will not be available to provide assistance with the identified ADL or IADL;
(c) Partially met, which means an informal support will
be available to provide some assistance, but not all, with the
identified ADL or IADL; ((or))
(d) Shared benefit, which means:
(i) A client and their paid caregiver both share in the benefit of an IADL task being performed; or
(ii) Two or more clients in a multi-client household benefit from the same IADL task(s) being performed.
(e) Age appropriate, which means the client is functioning within typical developmental milestones. Other options under status may be chosen if a child is not within typical developmental milestones; or
(f) Client declines, which means you do not want assistance with the task.
"Supplemental Security Income (SSI)" means the federal program as described under WAC 388-500-0005.
"Support provided" means the highest level of support provided (to you) by others in the last seven days before the assessment, even if that level of support occurred only once.
(a) No set-up or physical help provided by others;
(b) Set-up help only provided, which is the type of help characterized by providing you with articles, devices, or preparation necessary for greater self performance of the activity. (For example, set-up help includes but is not limited to giving or holding out an item or cutting food);
(c) One-person physical assist provided;
(d) Two- or more person physical assist provided; or
(e) Activity did not occur during entire seven-day period.
"You/your" means the client.
[Statutory Authority: RCW 74.08.090 and 74.09.520. 11-22-043, § 388-106-0010, filed 10/27/11, effective 11/27/11; 10-08-074, § 388-106-0010, filed 4/6/10, effective 5/7/10. Statutory Authority: RCW 74.08.090, 74.09.520, 74.39A.030. 06-16-035, § 388-106-0010, 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, § 388-106-0010, filed 2/6/06, effective 3/9/06. Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0010, filed 5/17/05, effective 6/17/05.]
4348.3(1) You are certified as noninstitutional categorically needy, as defined in WAC 388-500-0005. Categorically needy medical institutional programs described in chapter 388-513 WAC do not meet this criteria.
(2) You are functionally eligible which means one of the following applies:
(a) You have an unmet or partially met need for assistance with at least three of the following activities of daily living, as defined in WAC 388-106-0010:
| For each Activity of Daily Living, the minimum level of assistance required in: | ||
| Self Performance, Status or Treatment Need is: | Support Provided is: | |
| Eating | N/A | Setup |
| Toileting | Supervision | N/A |
| Bathing | Supervision | N/A |
| Dressing | Supervision | N/A |
| Transfer | Supervision | Setup |
| Bed Mobility | Supervision | Setup |
| Walk in Room OR Locomotion in Room OR Locomotion Outside Immediate Living Environment |
Supervision | Setup |
| Medication Management | Assistance Required | N/A |
| Personal Hygiene | Supervision | N/A |
| Body care which
includes: ▪Application of ointment or lotions; ▪Toenails trimmed; ▪Dry bandage changes; (▪= if you are over eighteen years of age or older) or Passive range of motion treatment (if you are four years of age or older). |
Needs or
Received/Needs Need: coded as "Yes" |
N/A |
| Your need for assistance in any of the activities listed in subsection (a) of this section did not occur because you were unable or no provider was available to assist you will be counted for the purpose of determining your functional eligibility. | ||
(b) You have an unmet or partially met need for assistance or the activity did not occur (because you were unable or no provider was available) with at least one or more of the following:
| For each Activity of Daily Living, the minimum level of assistance required in | ||
| Self Performance, Status or Treatment Need is: | Support Provided is: | |
| Eating | Supervision | One person physical assist |
| Toileting | Extensive Assistance | One person physical assist |
| Bathing | (( |
One person physical assist |
| Dressing | Extensive Assistance | One person physical assist |
| Transfer | Extensive Assistance | One person physical assist |
| Bed Mobility and Turning and repositioning |
Limited
Assistance and Need |
One person physical assist |
| Walk in Room OR Locomotion in Room OR Locomotion Outside Immediate Living Environment |
Extensive Assistance | One person physical assist |
| Medication Management | Assistance Required Daily | N/A |
| Personal Hygiene | Extensive Assistance | One person physical assist |
| Body care which
includes: ▪Application of ointment or lotions; ▪Toenails trimmed; ▪Dry bandage changes; (▪= if you are eighteen years of age or older) or Passive range of motion treatment (if you are four years of age or older). |
Needs or
Received/Needs Need: coded as "Yes" |
N/A |
| Your need for assistance in any of the activities listed in subsection (b) of this section did not occur because you were unable or no provider was available to assist you will be counted for the purpose determining your functional eligibility. | ||
[Statutory Authority: RCW 74.08.090, 74.09.520. 05-11-082, § 388-106-0210, filed 5/17/05, effective 6/17/05.]