HEALTH CARE AUTHORITY

[Filed April 21, 2021, 9:17 a.m.]

Supplemental Notice to WSR 21-06-100.

Preproposal statement of inquiry was filed as WSR 20-11-075.

Title of Rule and Other Identifying Information: WAC 182-543-0500 Medical equipment, supplies, and appliances—General, and 182-551-2040 Home health services—Face-to-face encounter requirements.

Hearing Location(s): On May 25, 2021, at 10:00 a.m. In response to the coronavirus disease 2019 (COVID-19) public health emergency, the agency will not provide a physical location for this hearing. This promotes social distancing and the safety of the citizens of Washington state. A virtual public hearing, without a physical meeting space, will be held instead. To attend the virtual public hearing, you must register at the following link https://attendee.gotowebinar.com/register/3149709801907452684, Webinar ID 105-469-387. After registering, you will receive a confirmation email containing the information about joining the webinar.

Date of Intended Adoption: Not sooner than May 26, 2021.

Submit Written Comments to: Health Care Authority (HCA) Rules Coordinator, P.O. Box 42716, Olympia, WA 98504-2716, email arc@hca.wa.gov, fax 360-586-9727, by May 25, 2021.

Assistance for Persons with Disabilities: Contact Amber Lougheed, phone 360-725-1349, fax 360-586-9727, telecommunication[s] relay service 711, email amber.lougheed@hca.wa.gov, by May 14, 2021.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: HCA is filing this supplemental CR-102 due to a date error submitted on the original proposed rule making (CR-102) filed under WSR 21-06-100. Instead of indicating that rules proposed under WSR 21-06-0100 would be adopted no sooner than April 7, 2021, HCA mistakenly indicated no sooner than August 7, 2021. To avoid any further delay in finalizing these rules, HCA has decided to refile the proposed rules for a second public hearing rather than waiting until August to file the permanent rules. This is a quicker route than delaying the filing of the final rules until August 7, 2021.

The original intention of the CR-102 filed under WSR 21-06-100 was to amend WAC 182-543-0500 and 182-551-2040 to allow ordering of home health services, including medical supplies, by certain nonphysician practitioners. HCA received stakeholder comments during the public hearing and made changes to WAC 182-543-0500 as a result. Those changes are reflected in the proposed rules attached to this supplemental CR-102.

HCA also plans on initiating rule making (CR-101) within the next few weeks on rule sections within chapters 182-543 and 182-551 WAC, as requested by stakeholders during the public hearing on the proposed rules under WSR 21-06-100 to align the language with changes under this filing.

Reasons Supporting Proposal: See purpose.

Statutory Authority for Adoption: RCW 41.05.021, 41.05.160.

Statute Being Implemented: RCW 41.05.021, 41.05.160; and 42 C.F.R. § 440.70.

Rule is necessary because of federal law, 42 C.F.R. § 440.70.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Not applicable.

Name of Proponent: HCA, governmental.

Name of Agency Personnel Responsible for Drafting: Jason Crabbe, P.O. Box 42716, Olympia, WA 98504-2716, 360-725-9563; Implementation and Enforcement: Cynde Rivers, P.O. Box 45506, Olympia, WA 98504-5506, 360-725-5282.

A school district fiscal impact statement is not required under RCW 28A.305.135.

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.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.061 because this rule making is being adopted solely to conform and/or comply with federal statute or regulations. Citation of the specific federal statute or regulation and description of the consequences to the state if the rule is not adopted: 42 C.F.R. § 440.70, Home health services. Federal funding would be at risk for noncompliance.

AMENDATORY SECTION(Amending WSR 18-24-021, filed 11/27/18, effective 1/1/19)

WAC 182-543-0500General.

(1) The federal government considers medical equipment, supplies, and appliances, which the medicaid agency refers to throughout this chapter as medical equipment, services under the medicaid program.

(2) The agency pays for medical equipment, including modifications, accessories, and repairs, according to agency rules and subject to the limitations and requirements in this chapter when the medical equipment is:

(a) Medically necessary, as defined in WAC 182-500-0070;

(b) Authorized, as required within this chapter, chapters 182-501 and 182-502 WAC, and the agency's published billing instructions and provider notices; and

(c) Billed according to this chapter, chapters 182-501 and 182-502 WAC, and the agency's published billing instructions and provider notices.

(3) For the initiation of medical equipment under WAC 182-551-2122, the face-to-face encounter must be related to the primary reason the client requires medical equipment and must occur no later than six months prior to the start of services.

(4) The face-to-face encounter ((must))may be conducted by ((the ordering)):

(a) A physician((, a nonphysician practitioner as described in WAC 182-500-0075,));

(b) A nurse practitioner;

(d) A certified nurse midwife under 42 C.F.R. 440.70 when furnished by a home health agency that meets the conditions of participation for medicare;

(e) A physician assistant; or

(f) The attending acute, or post-acute physician, for beneficiaries admitted to home health immediately after an acute or post-acute stay.

(5) ((If a nonphysician practitioner as described in WAC 182-500-0075 (or the attending physician when a client is discharged from an acute hospital stay) performs the face-to-face encounter, the nonphysician practitioner (or attending physician) must communicate the clinical findings of that face-to-face encounter to the ordering physician. Those clinical findings must be incorporated into a written or electronic document included in the client's medical record.))Services may be ordered by:

(a) Physicians;

(b) Nurse practitioners;

(d) Physician assistants.

(6) The agency requires prior authorization for covered medical equipment when the clinical criteria set forth in this chapter are not met, including the criteria associated with the expedited prior authorization process.

(a) The agency evaluates requests requiring prior authorization on a case-by-case basis to determine medical necessity as defined in WAC 182-500-0070, according to the process found in WAC 182-501-0165.

(b) Refer to WAC 182-543-7000, 182-543-7100, 182-543-7200, and 182-543-7300 for specific details regarding authorization.

(7) The agency bases its determination about which medical equipment requires prior authorization (PA) or expedited prior authorization (EPA) on utilization criteria (see WAC 182-543-7100 for PA and WAC 182-543-7300 for EPA). The agency considers all of the following when establishing utilization criteria:

(a) Cost;

(b) The potential for utilization abuse;

(d) Safety.

(8) The agency evaluates a request for equipment that does not meet the definition of medical equipment or that is determined not medically necessary under the provisions of WAC 182-501-0160. When early and periodic screening, diagnosis and treatment (EPSDT) applies, the agency evaluates a noncovered service, equipment, or supply according to the process in WAC 182-501-0165 to determine if it is medically necessary, safe, effective, and not experimental (see WAC 182-543-0100 for EPSDT rules).

(9) The agency may terminate a provider's participation with the agency according to WAC 182-502-0030 and 182-502-0040.

(10) The agency evaluates a request for a service that meets the definition of medical equipment but has been determined to be experimental or investigational, under the provisions of WAC 182-501-0165.

(11) If the agency denies a requested service, the agency notifies the client in writing that the client may request an administrative hearing under chapter 182-526 WAC. (For MCO enrollees, see WAC 182-538-110.)

AMENDATORY SECTION(Amending WSR 18-24-023, filed 11/27/18, effective 1/1/19)

WAC 182-551-2040Face-to-face encounter requirements.

(1) The face-to-face encounter requirements of this section may be met using telemedicine or telehealth services. See WAC 182-551-2125.

(2) The medicaid agency pays for home health services provided under this chapter only when the face-to-face encounter requirements in this section are met.

(((2)))(3) For initiation of home health services, with the exception of medical equipment under WAC 182-551-2122, the face-to-face encounter must be related to the primary reason the client requires home health services and must occur within ninety days before or within the thirty days after the start of the services.

(((3)))(4) For the initiation of medical equipment under WAC 182-551-2122, the face-to-face encounter must be related to the primary reason the client requires medical equipment and must occur no ((later))more than six months ((prior to))before the start of services.

(((4)))(5) The face-to-face encounter may be conducted by ((the ordering)):

(a) A physician((, a nonphysician practitioner as described in WAC 182-500-0075,));

(b) A nurse practitioner;

(d) A certified nurse midwife under 42 C.F.R. 440.70 when furnished by a home health agency that meets the conditions of participation for medicare;

(e) A physician assistant; or

(f) The attending acute, or post-acute physician, for beneficiaries admitted to home health immediately after an acute or post-acute stay.

(((5) If a nonphysician practitioner as described in WAC 182-500-0075 (or the attending physician when a client is discharged from an acute hospital stay) performs the face-to-face encounter, the nonphysician practitioner (or attending physician) must communicate the clinical findings of that face-to-face encounter to the ordering physician. Those clinical findings must be incorporated into a written or electronic document included in the client's medical record.))

(6) Services may be ordered by:

(a) Physicians;

(b) Nurse practitioners;

(d) Physician assistants.

(7) For all home health services except medical equipment under WAC 182-551-2122, the physician, nurse practitioner, clinical nurse specialist, or physician assistant responsible for ordering the services must:

(a) Document that the face-to-face encounter, which is related to the primary reason the client requires home health services, occurred within the required time frames described in subsection (((2)))(3) of this section prior to the start of home health services; and

(b) Indicate the practitioner who conducted the encounter, and the date of the encounter.

(((7)))(8) For medical equipment under WAC 182-551-2122, except as provided in (b) of this subsection, an ordering physician, ((a nonphysician practitioner as described in WAC 182-500-0075, except for certified nurse midwives))nurse practitioner, clinical nurse specialist, physician assistant, or the attending physician when a client is discharged from an acute hospital stay, must:

(a) Document that the face-to-face encounter, which is related to the primary reason the client requires home health services, occurred within the required time frames described in subsection (((3)))(4) of this section prior to the start of home health services; and

(b) Indicate the practitioner who conducted the encounter, and the date of the encounter.

(((8) The face-to-face encounter may occur through telemedicine. See WAC 182-551-2125.))