WSR 01-07-045

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Adult Services Administration)

[ Filed March 15, 2001, 4:31 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-17-154.

Title of Rule: WAC 388-71-0500 to 388-71-0560, individual provider and home care agency provider qualifications.

Purpose:

To further define provider qualifications and include home care agencies into these qualifications.
Adds rules that require fingerprint-based background checks for individual providers and home care agency providers who have lived in the state of Washington less than three years.
Adds four drug-related crimes to the list of disqualifying crimes.
Clarifies language by removing reference to "adults," as needed.
Includes GAU provision for spousal providers, which were previously part of chapter 388-15 WAC.
Repeals WAC 388-71-0545, 388-71-0550 and 388-71-0555, and moves language into other sections.

Statutory Authority for Adoption: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830, 74.39A.095.

Statute Being Implemented: RCW 74.39A.095, 43.20A.710, 74.39A.090, 74.39A.050, chapter 74.39A RCW.

Summary: Further defines provider qualifications for individual providers and home care agency providers, adds language about fingerprint-based background check requirements for providers who have lived in the state of Washington less than three years, and adds four drug-related crimes to the list of disqualifying crimes.

Reasons Supporting Proposal: Further defines provider qualifications as mandated by legislation passed in 2000.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Sue McDonough, 640 Woodland Square Loop, Lacey, WA, (360) 725-2533.

Name of Proponent: Department of Social and Health Services, Aging and Adult Services Administration, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Rules define provider qualifications for individual providers and home care agency providers who provide in-home services to clients on the COPES, Medicaid personal care, and chore programs. Rules incorporate changes in statute, which now require fingerprint-based background checks on individual providers and home care agency providers who have lived in Washington state less than three years and adds four drug-related crimes to the list of disqualifying crimes. Clarifies language to include providers of DDD clients.

Proposal Changes the Following Existing Rules: Defines provider qualifications, changes sections for clarity, and adds new language to reflect changes in statute. Repeals WAC 388-71-0545, 38-71-0550 and 388-71-0555, which have been incorporated into other WAC sections.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required because the content of the rules is dictated by statute. There is no impact on small businesses because costs were absorbed by the department.

RCW 34.05.328 does not apply to this rule adoption. Rules do meet the definition of "significant legislative rule," but the department is exempt from preparing a cost benefit analysis under RCW 34.05.328 (5)(b)(iv)(vii).

Hearing Location: DSHS Office Building 2, Auditorium, 14th Avenue and Jefferson Street, Olympia, WA 98504, on April 24, 2001, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kelly Cooper, DSHS Rules Coordinator, by April 17, 2001, phone (360) 664-6094, TTY (360) 664-6178, e-mail coopeKD@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by April 24, 2001.

Date of Intended Adoption: No sooner than April 25, 2001.

March 14, 2001

Bonita H. Jacques, Chief

Office of Legal Affairs

2918.3
AMENDATORY SECTION(Amending WSR 00-03-043, filed 1/13/00, effective 2/13/00)

WAC 388-71-0500   What is the purpose of WAC 388-71-0500 through 388-71-0580?   ((An adult)) A client/legal ((guardian)) representative may choose an individual provider or a home care agency provider. The intent of WAC 388-71-0500 through 388-71-0580 is to describe the:

(1) Qualifications of an individual provider, as defined in WAC 388-15-202 (25) and (26);

(2) Qualifications of a home care agency provider, as defined in WAC 388-15-202(2) and chapter 246-336 WAC;

(3) Conditions under which the department((/)) or the area agency on aging (AAA) will pay for the services of an individual provider((; and

(4) Conditions under which the department/AAA may deny a contract to an individual provider or terminate payment to an individual provider)) or a home care agency provider.

[Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, 388-71-0500, filed 1/13/00, effective 2/13/00.]


AMENDATORY SECTION(Amending WSR 00-03-043, filed 1/13/00, effective 2/13/00)

WAC 388-71-0505   How does ((an adult)) a client hire an individual provider?   The ((adult)) client, or legal ((guardian, as defined in chapter 11.88 RCW)) representative:

(1) Has the primary responsibility for locating, screening, hiring, supervising, and terminating an individual provider;

(2) Establishes an employer/employee relationship with the provider; and

(3) May receive assistance from the social worker/case manager or other resources in this process.

[Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, 388-71-0505, filed 1/13/00, effective 2/13/00.]


AMENDATORY SECTION(Amending WSR 00-03-043, filed 1/13/00, effective 2/13/00)

WAC 388-71-0510   How does a person become an individual provider?   In order to become an individual provider, a person must:

(1) Be eighteen years of age or older;

(2) Provide the social worker/case manager/designee with:

(a) Picture identification; and

(b) A Social Security card; or

(c) Authorization to work in the United States((;)).

(3) Complete and submit to the social worker/case manager/designee the department's criminal conviction background inquiry application, unless the provider is also the parent of the adult DDD client and exempted, per chapter 74.15 RCW((.));

(a) Preliminary results may require a thumb print(( or an interstate)) for identification purposes;

(b) An FBI fingerprint-based background check((; and)) is required if the person has lived in the state of Washington less than three years.

(4) Sign a home and community-based service provider contract/agreement to provide services to a COPES or Medicaid personal care client((, or other department contract or agreement)).

[Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, 388-71-0510, filed 1/13/00, effective 2/13/00.]


NEW SECTION
WAC 388-71-0513   Is a background check required of a home care agency provider?   In order to be a home care agency provider, a person must complete the department's criminal conviction background inquiry application, which is submitted by the agency to the department. This includes an FBI fingerprint-based background check if the home care agency provider has lived in the state of Washington less than three years.

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AMENDATORY SECTION(Amending WSR 00-03-043, filed 1/13/00, effective 2/13/00)

WAC 388-71-0515   What are the responsibilities of an individual provider or home care agency provider when employed to provide care to ((an adult)) a client?   An individual provider or home care agency provider must:

(1) Understand the client's service plan((, which is written in clear language,)) that is signed by the client or legal representative and social worker/case manager, and translated or interpreted, as necessary, for the client and the provider;

(2) Provide the services as outlined on the client's service plan, within the scope of practice in WAC 388-15-202(38) and 388-15-203;

(3) Accommodate client's individual preferences and differences in providing care, within the scope of the service plan;

(4) Contact the client's representative and case manager when there are changes which affect the personal care and other tasks listed on the service plan;

(5) Observe the client for change(s) in health, take appropriate action, and respond to emergencies;

(6) Notify the case manager immediately when the client enters a hospital, or moves to another setting;

(7) Notify the case manager immediately if the client dies;

(8) Notify the department((/)) or AAA immediately when unable to staff/serve the client; and

(9) Notify the department/AAA when the individual provider or home care agency will no longer provide services. Notification to the client/legal guardian must:

(a) Give at least two weeks' notice, and

(b) Be in writing.

(10) ((In addition to the above requirements, the individual provider and home care agency provider must:

(a))) Complete and keep accurate time sheets that are accessible to the social worker/case manager; and

(((b) Maintain certain employment standards, which include:

(i) Maintaining a drug/alcohol-free work place;

(ii) Absence of criminal activity; and

(iii) Skills, knowledge, ability, and willingness to provide services))(11) Comply with all applicable laws and regulations.

[Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, 388-71-0515, filed 1/13/00, effective 2/13/00.]


AMENDATORY SECTION(Amending WSR 00-03-043, filed 1/13/00, effective 2/13/00)

WAC 388-71-0540   When will the department((/)) or AAA ((pay anyone the adult client chooses to be)) deny payment for services of an individual provider or home care agency provider?   The department((/)) or AAA ((cannot contract or pay)) will deny payment for the services of an individual provider or home care agency provider who:

(1) Is the client's spouse, per 42 C.F.R 441.360(g), ((unless the client is on the chore personal care program;

(2))) except in the case of an individual provider for a Chore services client. Note: For Chore spousal providers, the department pays a rate not to exceed the amount of a one-person standard for a continuing general assistance grant, per WAC 388-478-0030;

(2) Is the natural/step/adoptive parent of a minor client aged seventeen or younger receiving services under this chapter;

(3) Has been convicted of a disqualifying crime, ((as listed in)) under RCW 43.43.830 and 43.43.842 or of a crime relating to drugs as defined in RCW 43.43.830;

(((3))) (4) Has abused, neglected, abandoned, or exploited a minor or vulnerable adult, as ((per)) defined in chapter 74.34 RCW ((or RCW 74.39A.050(8)));

(((4))) (5) Has had a license, certification, or a contract for the care of children or vulnerable adults denied, suspended, revoked, or terminated for noncompliance with state and/or federal regulations; ((and/or

(5) Is determined by the department/AAA to be unable to appropriately meet the client's needs, per RCW 74.39A.095 (7) or (8))) (6) Does not successfully complete the training requirements within the time limits required in WAC 388-71-0520;

(7) Is already meeting the client's needs on an informal basis, and the client's assessment or reassessment does not identify any unmet need; and/or

(8) Is terminated by the client (in the case of an individual provider) or by the home care agency (in the case of an agency provider).

(9) In addition, the department or AAA may deny payment to or terminate the contract of an individual provider as provided under WAC 388-71-0546, 388-71-0551, and 388-71-0556.

[Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, 388-71-0540, filed 1/13/00, effective 2/13/00.]


NEW SECTION
WAC 388-71-0546   When can the department or AAA reject the client's choice of an individual provider?   The department or AAA may reject a client's request to have a family member or other person serve as his or her individual provider if the case manager has a reasonable, good faith belief that the person will be unable to appropriately meet the client's needs. Examples of circumstances indicating an inability to meet the client's needs could include, without limitation:

(1) Evidence of alcohol or drug abuse;

(2) A reported history of domestic violence, no-contact orders, or criminal conduct (whether or not the conduct is disqualifying under RCW 43.43.830 and 43.43.842;

(3) A report from the client's health care provider or other knowledgeable person that the requested provider lacks the ability or willingness to provide adequate care;

(4) Other employment or responsibilities that prevent or interfere with the provision of required services;

(5) Excessive commuting distance that would make it impractical to provide services as they are needed and outlined in the client's service plan.

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NEW SECTION
WAC 388-71-0551   When can the department or AAA terminate or summarily suspend an individual provider's contract?   The department or AAA may take action to terminate an individual provider's contract if the provider's inadequate performance or inability to deliver quality care is jeopardizing the client's health, safety, or well-being. The department or AAA may summarily suspend the contract pending a hearing based on a reasonable, good faith belief that the client's health, safety, or well-being is in imminent jeopardy. Examples of circumstances indicating jeopardy to the client could include, without limitation:

(1) Domestic violence or abuse, neglect, abandonment, or exploitation of a minor or vulnerable adult;

(2) Using or being under the influence of alcohol or illegal drugs during working hours;

(3) Other behavior directed toward the client or other persons involved in the client's life that places the client at risk of harm;

(4) A report from the client's health care provider that the client's health is negatively affected by inadequate care;

(5) A complaint from the client or client's representative that the client is not receiving adequate care;

(6) The absence of essential interventions identified in the service plan, such as medications or medical supplies; and/or

(7) Failure to respond appropriately to emergencies.

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NEW SECTION
WAC 388-71-0556   When can the department or AAA otherwise terminate an individual provider's contract?   The department or AAA may otherwise terminate the individual provider's contract for default or convenience in accordance with the terms of the contract and to the extent that those terms are not inconsistent with these rules.

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AMENDATORY SECTION(Amending WSR 00-03-043, filed 1/13/00, effective 2/13/00)

WAC 388-71-0560   What are the ((adult)) client's rights if the department denies, terminates, or summarily suspends an individual provider's contract?   If the department denies, terminates, or summarily suspends the individual provider's contract, the client has the right to:

(1) A fair hearing to appeal the decision, per chapter ((388-08)) 388-02 WAC, and

(2) Receive services from another currently contracted individual provider or home care agency provider, or other options the client is eligible for, if a contract is summarily suspended.

(3) The hearing rights afforded under this section are those of the client, not the individual provider.

[Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, 388-71-0560, filed 1/13/00, effective 2/13/00.]


AMENDATORY SECTION(Amending WSR 00-03-043, filed 1/13/00, effective 2/13/00)

WAC 388-71-0580   Self-directed care -- Who must direct self-directed care?   Self-directed care under chapter 74.39 RCW must be directed by ((the)) an adult client for whom the health-related tasks are provided. The adult client is responsible to train the individual provider in the health-related tasks which the client self-directs.

[Statutory Authority: RCW 74.08.090, 74.09.520, 43.20A.050, 43.43.842, 74.39A.090, 43.20A.710, 74.39.050, 43.43.830. 00-03-043, 388-71-0580, filed 1/13/00, effective 2/13/00.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-71-0545 Under what conditions will the department/AAA deny payment to or terminate the contract of an individual provider, or deny payment to a home care agency provider?
WAC 388-71-0550 Are there other conditions under which the department/AAA may deny payment, or deny or terminate a contract to an individual provider?
WAC 388-71-0555 When can the department/AAA summarily suspend an individual provider's contract?

Washington State Code Reviser's Office