Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-11-101.

     Title of Rule and Other Identifying Information: WAC 182-537-0100 School-based health care services for children in special education -- Purpose, 182-537-0200 School-based health care services for children in special education -- Definitions, 182-537-0350 School-based health care services for children in special education -- Provider Qualifications, 182-537-0400 School-based health care services for children in special education -- Covered services, 182-537-0500 School-based health care services for children in special education -- Noncovered services, 182-537-0600 School-based health care services for children in special education -- School district requirements for billing and payment, 182-537-0700 School-based health care services for children in special education -- School district documentation requirements, and 182-537-0800 School-based health care services for children in special education -- Program monitoring/audits.

     Hearing Location(s): Health Care Authority (HCA), Cherry Street Plaza Building, Sue Crystal Conference Room 106A, 626 8th Avenue, Olympia, WA 98504 (metered public parking is available street side around building. A map is available at http://maa.dshs.wa.gov/pdf/CherryStreetDirectionsNMap.pdf or directions can be obtained by calling (360) 725-1000), on February 5, 2013, at 10:00 a.m.

     Date of Intended Adoption: Not sooner than February 6, 2013.

     Submit Written Comments to: HCA Rules Coordinator, P.O. Box 45504, Olympia, WA 98504-5504, delivery 626 8th Avenue, Olympia, WA 98504, e-mail arc@hca.wa.gov, fax (360) 586-9727, by 5:00 p.m. on February 5, 2013.

     Assistance for Persons with Disabilities: Contact Kelly Richters by January 29, 2013, TTY (800) 848-5429 or (360) 725-1307 or e-mail kelly.richters@hca.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The agency is amending chapter 182-537 WAC to update the school-based services program to be compliant with the current state plan amendment (SPA), expand the requirements for documentation of healthcare-related services, clarify the school districts' monitoring/auditing requirements, clarify the authority to implement the program and scope of covered and noncovered services, and make housekeeping changes throughout.

     Reasons Supporting Proposal: Implementation of these rules is necessary to maintain funding for the program and to comply with federal rules.

     Statutory Authority for Adoption: [RCW 41.05.021].

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

     Name of Proponent: HCA, governmental.

     Name of Agency Personnel Responsible for Drafting: Jason R. P. Crabbe, P.O. Box 45504, Olympia, WA 98504-5504, (360) 725-1346; Implementation and Enforcement: Jim Harvey, P.O. Box 45504, Olympia, WA 98504-5530, (360) 725-1153.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The agency has analyzed the proposed rule amendments and concludes that they do not impose a disproportionate cost impact on small businesses. As a result, the preparation of a small business economic impact statement is not required.

     A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to HCA rules unless requested by the joint administrative rules [review] committee or applied voluntarily.

December 31, 2012

Kevin M. Sullivan

Rules Coordinator

OTS-5196.1

AMENDATORY SECTION(Amending WSR 11-14-075, filed 6/30/11, effective 7/1/11)

WAC 182-537-0100   School-based health care services for children in special education -- Purpose.   (((1) The department of social and health services (DSHS))) The medicaid agency pays school districts for school-based health care services provided to children in special education ((in accordance)) consistent with ((the Individuals with Disabilities Education Act (IDEA))) Section 1905(c) of the Social Security Act. ((The)) Covered services must:

     (((a) Address)) (1) Identify, treat, and manage the education-related disabilities (i.e., mental, emotional, and physical) ((and/or mental disabilities)) of a child in special education;

     (((b))) (2) Be prescribed or recommended by ((a physician)) licensed physicians or other ((qualified)) licensed health care providers within ((his or her)) their scope of practice under state law; ((and

     (c))) (3) Be medically necessary;

     (4) Be diagnostic, evaluative, habilitative, or rehabilitative in nature; and

     (5) Be included in the child's current individualized education program (IEP).

[11-14-075, recodified as § 182-537-0100, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0100, filed 3/4/09, effective 4/4/09. Statutory Authority: RCW 74.08.090. 01-02-076, § 388-537-0100, filed 12/29/00, effective 1/29/01. Statutory Authority: RCW 74.04.050 and 74.08.090. 00-01-088, § 388-537-0100, filed 12/14/99, effective 1/14/00.]

     "Agency" -- See WAC 182-500-0010.

     "Amount, duration, and scope" -- A written statement within the individualized education program (IEP) that addresses sufficiency of services to achieve a particular goal (a treatment plan for how much of a health care related service will be provided, how long a service will be provided, and what the service is).

     "Assessment" -- For purposes of this chapter an assessment is made-up of medically necessary tests given to an individual child by ((qualified professionals)) a licensed professional to evaluate whether a child is determined to be a child with a disability, and in need of special education and related services. Assessments are a part of the evaluation and re-evaluation processes and must accompany the IEP.

     "Child with a disability" -- For purposes of this chapter, a child with a disability ((means)) is a child evaluated and determined to need special education and related services because of a disability in one or more of the following eligibility categories:

     • Autism;

     • Deaf/blindness;

     • Developmental delay for children ages three through nine, with an adverse educational impact, the results of which require special education and related direct services;

     • Hearing loss (including deafness);

     • Mental retardation;

     ((• Hearing impairment (including deafness);

     • Speech or language impairment;

     • Serious emotional disturbance (emotional behavioral disability);

     • Orthopedic impairment;

     • Autism;

     • Visual impairment (including blindness);

     • Traumatic brain injury;

     • Other health impairment;

     • Specific learning disability;

     • Deaf/blindness;))

     • Multiple disabilities; ((or))

     • ((A developmental delay for children ages three through nine, with an adverse educational impact, the results of which require special education and related direct services.)) Orthopedic impairment;

     • Other health impairment;

     • Serious emotional disturbance (emotional behavioral disturbance);

     • Specific learning disability;

     • Speech or language impairment;

     • Traumatic brain injury; and

     • Visual impairment (including blindness).

     "Core provider agreement" -- The basic contract the agency holds with providers serving medical assistance clients.

     "Direct health care related services" -- Services provided directly to a child either one-on-one or in a group setting. This does not include specially designed instruction.

     (("Educational staff associate (ESA) certification" -- The ESA certificate is an official document that attests to minimum prerequisites of age, moral character/fitness, education, experience, competence, and preparation program, depending on the certificate types. The ESA certification is required to serve in a Washington public school.))

     "Evaluation" -- Procedures used ((according to WAC 392-172A-03005 through 392-172A-03080)) to determine whether a ((student)) child has a disability, and the nature and extent of the special education and related services are needed. (See WAC 392-172A-03005 through 392-172A-03080.

     "Face-to-face supervision" or "direct supervision" -- Supervision that is conducted on-site, in-view, by an experienced licensed health care professional to assist the supervisee to develop the knowledge and skills to practice effectively, including administering the treatment plan.

     "Fee-for-service" -- ((For the purpose of this section, the general payment method the department uses to reimburse providers for covered medical services provided to medical assistance clients when those services are not covered under the department's managed care plans or state children's health insurance program (SCHIP).

     "Individuals with Disabilities Education Act (IDEA)" -- The IDEA is a United States federal law that governs how states and public agencies provide early intervention, special education, and related services to children with disabilities. It addresses the educational needs of children with disabilities from birth to age of twenty-one.)) See WAC 182-500-0035.

     "Health care related services" -- Developmental, corrective, and other supportive services required to assist an eligible child to benefit from special education. For the purposes of the school-based health care services program, related services include:

     • Audiology;

     • Counseling;

     • Nursing;

     • Occupational therapy;

     • Physical therapy;

     • Psychological assessments; and

     • Speech-language therapy.

     "Individualized education program (IEP)" -- A written statement of an educational program for a ((student)) child eligible for special education. (See WAC 392-172A-03090 through 392-172A-03135.)

     "Medically necessary" -- See WAC 182-500-0070.

     "National provider identifier (NPI)" -- See WAC 182-500-0075.

     "Plan of care" or "treatment plan" -- A written document that outlines the health care related needs of a child in special education. The plan is based on input from the health care professional and written approval from the parent or guardian.

     "Provider" -- See WAC 182-500-0085.

     "Qualified health care provider" -- See WAC ((388-537-0350)) 182-537-0350.

     "Reevaluation" -- Procedures used to determine whether a ((student)) child continues to be in need of special education and related services. (See WAC 392-172A-03015.)

     (("Related services" -- Developmental, corrective, and other supportive services as may be required to assist a child with a disability to benefit from specially designed instruction. For purposes of this program, related services include: physical therapy, occupational therapy, speech-language therapy, audiology services, psychological assessments, counseling, and nursing services.)) "Regular consultation" -- Face-to-face contact between the supervisor and supervisee that occurs no less than once per month.

     "Revised Code of Washington (RCW)" -- Washington state law.

     "School-based health care services program" or "SBS" -- School-based health care services for children in special education that are diagnostic, evaluative, habilitative, rehabilitative in nature, and must be based on medical necessity. The agency pays school districts for school-based health care services delivered to medicaid-enrolled children in special education in accordance with Section 1905(c) of the Social Security Act.

     "Special education" -- Specially designed instructions at no cost to the parent, which meet the unique needs of a child with a disability.

     "Washington Administrative Code (WAC)" -- Codified rules of the state of Washington.

[11-14-075, recodified as § 182-537-0200, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0200, filed 3/4/09, effective 4/4/09.]

     (1) Audiology services must be delivered by((:

     (a) A licensed audiologist; or

     (b) A school-based audiologist who:

     (i) Meets the education and work experience necessary for a state professional license;

     (ii) Holds a valid school audiologist educational staff associate certificate; and

     (iii) Limits their audiology services to the school setting)) a licensed audiologist.

     (2) Counseling services must be delivered by:

     (a) A licensed independent social worker (LiCSW);

     (b) A licensed advanced social worker (LiACSW);

     (c) A licensed mental health counselor (LMHC); or

     (d) ((A school-based social worker or mental health counselor who:

     (i) Meets the education and work experience necessary for a state professional license;

     (ii) Holds a valid school social worker or school counselor educational staff associate certificate; and

     (iii) Limits their counseling services to the school setting.)) A licensed mental health counselor associate (LMHCA) under the supervision of a department of health-approved licensed supervisor.

     (3) Nursing services must be delivered by:

     (a) A licensed registered nurse (RN);

     (b) A licensed practical nurse (LPN) who is supervised by an RN; or

     (c) A noncredentialed school employee who is delegated certain limited health care tasks by ((a registered nurse)) an RN and((, trained and)) is supervised according to professional practice standards (see RCW 18.79.260).

     (4) Occupational therapy services must be delivered by:

     (a) A licensed occupational therapist (OT); or

     (b) A ((certified)) licensed occupational ((therapy)) therapist assistant (OTA) who is supervised by a licensed occupational therapist ((in accordance with professional practice standards)).

     (5) Physical therapy services must be delivered by:

     (a) A licensed physical therapist (PT); or

     (b) A licensed physical therapist assistant (PTA) who is supervised by a licensed physical therapist ((in accordance with professional practice standards)).

     (6) Psychological services must be delivered by((:

     (a))) a licensed psychologist((; or

     (b) A school-based psychologist who:

     (i) Holds a masters degree in school psychology;

     (ii) Holds a valid school psychologist educational staff associate certificate; and

     (iii) Limits their psychological services to the school setting.

     (c) A school-based psychologist who:

     (i) Holds a doctoral degree in psychology;

     (ii) Holds a valid school psychologist educational staff associate certificate; and

     (iii) Limits their psychological services to the school setting)).

     (7) Speech therapy services must be delivered by:

     (a) A licensed speech-language pathologist (SLP); or

     (b) A speech-language pathology assistant((,)) (SLPA) who:

     (i) Has graduated from a speech-language pathology assistant program, board-approved institution; and ((is))    

     (ii) Is directly supervised ((by)) a speech-language pathologist with a current certificate of clinical competence (CCC) ((in accordance with professional practice standards; or

     (c) A school-based speech-language pathologist who:

     (i) Meets the education and work experience necessary for a state professional license;

     (ii) Holds a valid school speech-language pathologist educational staff associate certificate; and

     (iii) Limits their speech therapy services to the school setting)).

     (8) For services provided under the supervision of a physical therapist, occupational therapist or speech-language pathologist, nurse, or counselor/social worker, the following requirements apply:

     (a) The nature, frequency, and length of the supervision must be provided in accordance with professional practice standards, and ((adequate to assure the)) be sufficient to ensure a child receives quality therapy services((.));

     (b) The supervising therapist must see the child face-to-face at the beginning of services and periodically during the school year;

     (c) At a minimum, supervision must be ((one-on-one)) face-to-face communication between the supervisor and the ((supervised professional.

     (c))) supervisee once per month. Supervisors are responsible for approving and cosigning all treatment notes written by the supervisee before submitting claims for payment; and

     (d) Documentation of supervisory activities must be ((on record)) recorded and available to the ((department)) agency or its designee upon request.

     (9) It is the responsibility of the school district to assure providers meet the professional licensing and certification requirements ((necessary for reimbursement)).

     (10) Licensing exemptions found in the following regulations do not apply to federal medicaid reimbursement for the services indicated below:

     (a) Counseling as found in RCW 18.225.030;

     (b) Psychology as found in RCW 18.83.200;

     (c) Social work as found in RCW 18.320.010; and

     (d) Speech therapy as found in RCW 18.35.195.

[11-14-075, recodified as § 182-537-0350, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0350, filed 3/4/09, effective 4/4/09.]

     (1) Evaluations((,)) when the child is determined to ((be a child with)) have a disability, and is in need of ((special education and)) specialized instruction and health care related services;

     (2) Direct health care services including:

     (a) Audiology;

     (b) Counseling;

     (c) Nursing;

     (d) Occupational therapy;

     (e) Physical therapy;

     (f) Psychological assessments; and

     (g) Speech-language therapy.

     (3) Reevaluations, to determine whether ((the)) a child continues to need special education and health care related services.

[11-14-075, recodified as § 182-537-0400, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0400, filed 3/4/09, effective 4/4/09.]

     (1) Applied behavior analysis (ABA);

     (2) Attending meetings;

     (((2))) (3) Charting;

     (((3))) (4) Equipment preparation;

     (((4))) (5) Instructional assistant contact;

     (((5))) (6) Parent consultation;

     (((6))) (7) Parent contact;

     (((7))) (8) Planning;

     (((8))) (9) Preparing and sending correspondence to parents or other professionals;

     (((9))) (10) Professional consultation;

     (((10))) (11) Report writing;

     (((11))) (12) Review of records;

     (((12))) (13) School district staff accompanying a child in special education to and from school on the bus;

     (14) Set-up;

     (((13))) (15) Teacher contact;

     (((14))) (16) Telehealth;

     (17) Test interpretation;

     (((15))) (18) Travel and transporting; and

     (((16) Observation; and

     (17) For the purposes of this chapter, the department does not reimburse school districts for a RN or LPN to monitor a child continuously throughout the school day.)) (19) Continuous observation of a child when direct school-based health care services are not actively provided. The agency pays for the act of watching carefully and attentively only if it involves actual interventions.

[11-14-075, recodified as § 182-537-0500, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0500, filed 3/4/09, effective 4/4/09.]

     (1) Have a current, signed core provider agreement (CPA) with the ((department)) agency. A copy of the CPA must be on-site within the school district;

     (2) Have a current, signed, and executed interagency agreement with the agency. A copy of the agreement must be on-site within the school district;

     (3) Meet the applicable requirements in chapter ((388-502)) 182-502 WAC; and

     (((3))) (4) Comply with the agency's current, published ProviderOne billing and resource guide;

     (5) Bill according to the ((department's)) agency's current, published school-based health care services ((billing instructions)) for children in special education medicaid provider guide, the school-based health care services fee schedule, and the intergovernmental transfer (IGT) process;

     (6) Meet the applicable requirements in chapter 182-537 WAC;

     (7) Provide only health care related services identified through a current individualized education program (IEP);

     (8) Use only licensed health care professionals, as described in WAC 182-537-0350 and the school-based care services for children in special education medicaid provider guide;

     (9) Meet documentation requirements in WAC 182-537-0700; and

     (10) Give parents or guardians prior, informal, written notification on an annual basis, that the school district may be submitting claims for third-party insurance or medicaid reimbursement.

[11-14-075, recodified as § 182-537-0600, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0600, filed 3/4/09, effective 4/4/09.]

     (2) Health care related documentation must include, at a minimum:

     (a) Professional assessment reports;

     (b) Evaluation and reevaluation reports;

     (c) Individualized education program (IEP); and

     (d) Treatment notes for each date of service the provider billed ((to)) the ((department)) agency.

     (((2) All provider licenses and other credentials must be current and on file with the school district and available for review upon request.)) Treatment notes must include the following information:

     (i) Activity and intervention involved;

     (ii) Child's name;

     (iii) Child's ProviderOne client ID;

     (iv) Date of birth;

     (v) Date of service, actual time-in and time-out, and the number of billed units for the service;

     (vi) Indication if the treatment note was for individual or group therapy; and

     (vii) Original signature of the licensed provider, title, and National provider identifier (NPI) number.

     (3) As described in WAC 182-502-0020, all records must be legible and easily and readily available to the ((department)) agency upon request.

[11-14-075, recodified as § 182-537-0700, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0700, filed 3/4/09, effective 4/4/09.]

     (2) ((The department monitors school-based health care services as established by the school-based health care services program manager and in compliance with the department's monitoring policy and plan.)) School districts are responsible for the accuracy, compliance, truthfulness, and completeness of all claims submitted for medicaid reimbursement.

     (3) The ((department)) medicaid agency conducts ((audits of school-based health care services in accordance with)) monitoring activities annually according to chapter ((388-502A)) 182-502A WAC. The agency conducts a minimum of ten school-based medicaid program reviews annually. During this time frame, the agency:

     (a) Completes a minimum of five record reviews as a desk review;

     (b) Conducts a minimum of five record reviews on-site; and

     (c) Bases the monitoring and auditing activities on usage and payment data from the previous school year.

     (4) The ((department authority to)) agency conducts audits and recovers any overpayments if a school district is found ((in)) not in compliance with agency requirements according to RCW 74.09.200, 74.09.220 and 74.09.290, which concern audits and investigations of providers.

     (5) On or before October 31st of each year, school districts must submit to the school-based health care services program manager the following information:

     (a) A provider update Form 12-325, to include all new health care professionals; and

     (b) Copies of all new health care professionals' licenses issued by the Washington state department of health (DOH), and verification of the National provider identifier (NPI) number.

[11-14-075, recodified as § 182-537-0800, filed 6/30/11, effective 7/1/11. Statutory Authority: RCW 74.08.090, 74.09.500, and 42 C.F.R. 440.110. 09-07-004, § 388-537-0800, filed 3/4/09, effective 4/4/09.]