2011 U. S. App. Lexis 24986, 1 of 1 document

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§ 1396d(a)(24); see also [*5] 42 C.F.R. § 440.167(b) (clarifying that a family member is "a legally responsible relative"); Ctrs. for Medicare and Medicaid Servs., State Medicaid Manual § 4480(C), at 4-495 (1999) (personal care services "include a range of human assistance provided to persons with disabilities and chronic conditions . . . which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability," and "most often relate[] to . . . eating, bathing, dressing, toileting, transferring, . . . maintaining continence, . . . personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management").

Washington has elected to cover the cost of personal care services, which the state defines as "physical or verbal assistance with activities of daily living and instrumental activities of daily living provided because of a person's functional disability." Wash. Rev. Code § 74.39A.009(18). The state defines "activities of daily living," in turn, to include bathing, bed mobility, body care, dressing, eating, locomotion inside and outside one's room and immediate living environment, [*6] walking in one's room and immediate living environment, medication management, toilet use, transferring between surfaces, and personal hygiene. Wash. Admin. Code § 388-106-0010. The state defines "instrumental activities of daily living" as including meal preparation, ordinary housework, essential shopping, wood supply when wood is used as one's sole source of heat, travel to medical services, managing finances, and telephone use. Id.

Washington's DSHS administers the state's Medicaid programs. See 42 U.S.C. § 1396a(a)(5); Wash. Rev. Code § 74.09.530. DSHS covers the cost of personal care services for approximately 45,000 people. Some 15,000 of those beneficiaries are "categorically needy" participants in the state's Medicaid plan. The remaining 30,000 beneficiaries participate in one of Washington's Medicaid waiver programs, "under which the Secretary of Health and Human Services is authorized to waive certain Medicaid requirements for innovative or experimental state health care programs." Townsend, 328 F.3d at 514. Consistent with Congress's preference for community rather than institutional care, "the waiver program provides Medicaid reimbursement to States for the provision of [*7] community-based services to individuals who would otherwise require institutional care, upon a showing that the average annual cost of such services is not more than the annual cost of institutional services." Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 n.12, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999) (citing 42 U.S.C. § 1396n(c)).

Before Washington may cover the cost of in-home personal care services to participants in a Medicaid waiver program, the state must have made "a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan." Id.

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