SOCIAL AND HEALTH SERVICES
(Developmental Disabilities Administration)
[Filed March 14, 2022, 10:20 a.m.]
Preproposal statement of inquiry was filed as WSR 20-15-010.
Title of Rule and Other Identifying Information: WAC 388-845-2019 What modifications to waiver services apply during the COVID-19 outbreak?
Hearing Location(s): On April 26, 2022, at 10:00 a.m., Office Building 2, Department of Social and Health Services (DSHS) Headquarters, 1115 Washington [Street S.E.], Olympia, WA 98504. Public parking at 11th and Jefferson. A map is available at https://www.dshs.wa.gov/office-of-the-secretary/driving-directions-office-bldg-2; or virtual. Due to the COVID-19 pandemic, hearings are being held virtually. Please see the DSHS website for the most current information.
Date of Intended Adoption: Not before April 27, 2022.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, email DSHSRPAURulesCoordinator@dshs.wa.gov, fax 360-664-6185, by 5:00 p.m. on April 26, 2022.
Assistance for Persons with Disabilities: Contact Shelley Tencza, rules consultant, phone 360-664-6036, fax 360-664-6185, TTY 711 relay service, email email@example.com [firstname.lastname@example.org], by 5:00 p.m. on April 12, 2022.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule makes temporary allowances necessary to address the health and safety of waiver recipients and help control the spread of COVID-19. The allowances in this rule were approved by the Centers for Medicare and Medicaid Services (CMS) in an Appendix K waiver, the purpose of which is to address the effects of the COVID-19 public health emergency. These temporary allowances will end according to direction from CMS.
Reasons Supporting Proposal: This rule is necessary to help control the spread of COVID-19.
Statute Being Implemented: Chapter 71A.12
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: DSHS, Developmental disabilities administration, governmental.
Name of Agency Personnel Responsible for Drafting: Chantelle Diaz, P.O. Box 45310, Olympia, WA 98504-5310, 360-407-1500; Implementation and Enforcement: Ann Vasilev, P.O. Box 45310, Olympia, WA 98504-5310, 360-407-1551.
A school district fiscal impact statement is not required under RCW 28A.305.135
A cost-benefit analysis is required under RCW 34.05.328
. A preliminary cost-benefit analysis may be obtained by contacting Chantelle Diaz, P.O. Box 45310, Olympia, WA 98504-5310, phone 360-407-1500, fax 360-407-0955, TTY 1-800-833-6388, email Chantelle.Diaz@dshs.wa.gov
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Explanation of exemptions: A business should incur no more-than-minor costs when complying with this rule because the rule primarily affects the way services may be delivered by allowing services to be delivered: Remotely, in excess of previous limits, and in more settings than previously allowed. Allowances in this rule are options for clients and providers to help reduce the spread of COVID-19. Providing services remotely should not increase costs because providers already have telephones and both telephonic and video calls are allowed. If a provider delivers services in excess of previous limits the provider will receive reimbursement for the services delivered. Allowing services to be delivered in more settings than before is also optional; a client may continue to receive the service in the setting they received it previously.
March 10, 2022
Katherine I. Vasquez
WAC 388-845-2019What modifications to waiver services apply during the COVID-19 outbreak?
(1) Notwithstanding any contrary requirement under this title, changes under this section to DDA's home and community-based waivers are effective immediately and necessary to respond to managing the COVID-19 outbreak. All changes, except the provision of remote waiver services, require prior approval by the DDA director of the division of field services or designee and will be assessed on a case-by-case basis. An allowance in this section is valid as long as it is approved by the Centers for Medicare and Medicaid Services through the medicaid waiver process.
(2) The following changes to waiver services are temporary, effective immediately, and necessary to respond to managing the COVID-19 outbreak.
(a) All waiver services except goods may be offered remotely by providers when travel to the waiver participant is not possible due to COVID-19 infection or exposure.
(b) Limits to the number of respite hours a client may receive that are generated in the CARE assessment are temporarily suspended. The amount of respite hours a client may receive are determined by DDA.
(c) The basic plus, CIIBS, and individual and family services waiver aggregate budgets may be exceeded for COVID-19-related health and safety needs.
(d) Respite provided out-of-state may be provided in excess of 30 days.
(e) Community guide and community engagement may be provided to more than one client at a time.
(f) Staff and family consultation may be provided to more than one client at a time.
(g) Assistive technology is available on all five waiver programs when a waiver participant requires a technology in order to receive waiver-funded remote supports, to increase, maintain, or improve independence with daily living, to increase safety, or to facilitate social communication. Assistive technology is only available to the participant when access to technologies through other resources is not possible. Assistive technology includes:
(i) The evaluation of the needs of the waiver participant, including a functional evaluation of the participant in the participant's customary environment;
(ii) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices;
(iii) Selecting, designing, fitting, customizing, adapting, applying, retaining, repairing, or replacing assistive technology devices;
(iv) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
(v) Training or technical assistance for the participant and if appropriate, the participant's family;
(vi) Training or technical assistance for professionals, including individuals providing education and rehabilitation services, employers, or other individuals who provide services to, employ, or are otherwise involved in the assistive technology related life functions of individuals with disabilities; and
(vii) Distance-based observation and reporting provided by an assistive technology distance-based observation and reporting specialist.
(h) Assistive technology on the basic plus waiver is included as part of the list of aggregate services.
(i) If transportation is necessary to prevent illness or meet a client's immediate health and safety needs, waiver transportation services may be used to travel to a place where the client will not be receiving waiver services (e.g., transportation to a family member's home).
(3) If a client is displaced from their home because of quarantine or hospitalization, or if a provider is unavailable due to illness or business closure, the following waiver services may be provided in a hotel, shelter, church, other facility-based setting, or the home of a direct-care worker when those supports are not available through the medicaid state plan or another legally liable funding source:
(a) Residential habilitation;
(b) Respite care;
(c) Positive behavior support;
(d) Staff and family consultation;
(e) Behavioral health stabilization- positive behavior support;
(f) Behavioral health stabilization- crisis diversion beds;
(g) Nurse delegation; and
(h) Skilled nursing.
(4) Positive behavior support and staff and family consultation may be provided in an acute care setting such as a hospital or short-term institutional setting if:
(a) DDA determines that no other alternatives are available and a nonintegrated setting is the only setting available to meet the client's health and safety needs;
(b) The waiver service provider is not otherwise funded by another resource; and
(c) The waiver services do not duplicate services already available in that setting.
(5) The following changes to waiver service provider qualifications are temporary, effective immediately, and necessary to respond to managing the COVID-19 outbreak.
(a) Staff and family consultation may include emergency preparedness consultation support from a provider trained in emergency management or a similar field with a current DDA contract.
(b) Respite care may be provided by currently contracted positive behavior support providers.
(6) Specialized medical equipment and supply, specialized equipment and supply, and assistive technology provider types may include the use of a purchase card and community choice guides when supply or cost impacts occur due to COVID-19.
(7) The following changes to level-of-care evaluations and re-evaluations for waiver participants are temporary, effective immediately, and necessary to respond to managing the COVID-19 outbreak.
(a) A client's services may continue and the level-of-care reassessment may be postponed up to one year if due to illness or quarantine:
(i) The client, their representative, or a DDA employee are unable to participate in the reassessment; or
(ii) There is insufficient time for the case manager to complete the annual reassessment paperwork.
(b) On a case-by-case basis, the time limit for approving a client's expired person-centered service plan may be extended if:
(i) The plan currently meets the client's needs; and
(ii) Monthly remote or telephonic monitoring is provided to ensure the plan continues to meet the client's needs.
(c) Telephonic assessments may occur in place of face-to-face assessments on a case-by-case basis. An initial assessment may be conducted telephonically when needed to prevent potential exposure related to COVID-19.
(d) For initial CARE assessments, employees may complete the assessment and person-centered service plan via the telephone or other electronic means and then do a brief in-person visit before moving the assessment to current.
(e) If the previsit questionnaire response indicates it is not safe to do an in-person visit, services can be authorized prior to an in-person visit occurring.
(f) A person-centered service plan, or revisions to a person-centered service plan, may be approved with a retroactive approval date for service needs identified to mitigate harm or risk directly related to COVID-19 impacts. Telephonic (or other information technology medium) assessments may occur when the assessment cannot occur due to impacts of COVID-19.
(8) CIIBS waiver quarterly face-to-face meeting requirement may be provided telephonically when a face-to-face meeting cannot occur due to client or client representative health concerns or staffing availability.