Original Notice.

     Preproposal statement of inquiry was filed as WSR 02-11-066.

     Title of Rule: Chapter 388-97 WAC, Nursing homes.

     Purpose: Adding new WAC 388-97-143 to incorporate new legislation (chapter 256, Laws of 2002) regarding immunizations for influenza virus and pneumoccocal disease. Amending WAC 388-97-650 in order to correct references. Amending WAC 388-97-570 (1)(i) and (3)(c) by reference in order to clarify language regarding criminal convictions and protection proceedings per new legislation (chapter 219, Laws of 2002).

     Statutory Authority for Adoption: RCW 18.51.070, 74.42.620.

     Statute Being Implemented: Chapters 74.42 and 9A.42 RCW, chapters 256 and 219, Laws of 2002.

     Summary: It is the intent of the legislature to ensure that nursing homes are safe by reducing the occurrence and severity of the influenza virus and pneumoccocal disease by educating residents about the benefits of immunizations. Other amendments are included to clarify requirements and update an incorrect reference.

     Reasons Supporting Proposal: To be in compliance with existing statute and regulations.

     Name of Agency Personnel Responsible for Drafting: Sherri Wills-Green, P.O. Box 45600, Lacey, WA 98504, (360) 725-2348; and Implementation and Enforcement: Joyce Stockwell, NHQA, P.O. Box 45600, Lacey, WA 98504, (360) 725-2348.

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

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

     Explanation of Rule, its Purpose, and Anticipated Effects: The new section has been proposed in order to bring chapter 388-97 WAC, Nursing homes into compliance with recently revised chapter 74.42 RCW, Nursing homes as well as update incorrect reference in WAC 388-97-650(1). Minor changes have also been made to WAC 388-97-570 in order to clarify current regulations.

     Proposal Changes the Following Existing Rules: The rule change has been proposed to bring chapter 388-97 WAC into compliance with recently revised chapter 74.42 RCW. The department is also correcting or clarifying the language in WAC 388-97-570 and 388-97-650.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule is amended solely to conform to existing statute and is exempt from filing a small business economic impact statement according to RCW 19.85.025(3), which exempts rules described in RCW 34.05.310(4). The proposed rule adopts and incorporates by reference and without material change Washington state statute. See RCW 34.05.310 (4)(c).

     RCW 34.05.328 does not apply to this rule adoption. Under RCW 34.05.328, these rules (WAC 388-97-143, 388-97-650 and 388-97-570) are considered a "significant legislative rule" however, under RCW 34.05.328 (5)(b) these rules are exempt from completing a cost benefit analysis because:

•	WAC 388-97-650(1) is correcting a typographical error, exempt per RCW 34.05.328 (5)(b)(iv).
•	WAC 388-97-143 is adopting without material change a new section (chapter 74.42 RCW), exempt per RCW 34.05.328 (5)(b)(iii).
•	WAC 388-97-570 (1)(i) and(3)(c) are incorporating by reference RCW 74.39A.050(8), exempt per RCW 34.05.328 (5)(b)(iii).

     Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on November 5, 2002, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by November 1, 2002, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@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, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., November 5, 2002.

     Date of Intended Adoption: Not earlier than November 6, 2002.

September 27, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (a) Failed or refused to comply with the:

     (i) Requirements established by chapters 18.51, 74.42, or 74.46 RCW and regulations adopted under these chapters; or

     (ii) Medicaid requirements of Title XIX of the Social Security Act and Medicaid regulations.

     (b) A history of significant noncompliance with federal or state regulations in providing nursing home care;

     (c) No credit history or a poor credit history;

     (d) Engaged in the illegal use of drugs or the excessive use of alcohol or been convicted of "crimes relating to drugs" as defined in RCW 43.43.830;

     (e) Unlawfully operated a nursing home, or long term care facility as defined in RCW 70.129.010, without a license or under a revoked or suspended license;

     (f) Previously held a license to operate a hospital or any facility for the care of children or vulnerable adults, and that license has been revoked, or suspended, or the licensee did not seek renewal of the license following written notification of the licensing agency's initiation of revocation or suspension of the license;

     (g) Obtained or attempted to obtain a license by fraudulent means or misrepresentation;

     (h) Permitted, aided, or abetted the commission of any illegal act on the nursing home premises;

     (i) Been convicted of a felony((,)) or other ((than a felony that is a "crime against children or other persons," or a "crime relating to financial exploitation" as defined in RCW 43.43.830, if the)) crime that would be prohibited under RCW 74.39A.050(8), if it reasonably relates to the competency of the individual to own or operate a nursing home;

     (j) Failed to:

     (i) Provide any authorization, documentation, or information the department requires in order to verify information contained in the application;

     (ii) Meet financial obligations as the obligations fall due in the normal course of business;

     (iii) Verify additional information the department determines relevant to the application;

     (iv) Report abandonment, abuse, neglect or financial exploitation in violation of chapter 74.34 RCW; or in the case of a skilled nursing facility or nursing facilities, failure to report as required by 42 C.F.R. 483.13; or

     (v) Pay a civil fine the department assesses under this chapter within ten days after assessment becomes final((;)).

     (k) Been certified pursuant to RCW 74.20A.320 as a person who is not in compliance with a child support order (license suspension only);

     (l) Knowingly or with reason to know makes a false statement of a material fact in the application for a license or license renewal, in attached data, or in matters under department investigation;

     (m) Refused to allow department representatives or agents to inspect required books, records, and files or portions of the nursing home premises;

     (n) Willfully prevented, interfered with, or attempted to impede the work of authorized department representatives in the:

     (i) Lawful enforcement of provisions under this chapter or chapters 18.51 or 74.42 RCW; or

     (ii) Preservation of evidence of violations of provisions under this chapter or chapters 18.51 or 74.42 RCW.

     (o) Retaliated against a resident or employee initiating or participating in proceedings specified under RCW 18.51.220; or

     (p) Discriminated against Medicaid recipients as prohibited under RCW 74.42.055.

     (2) In determining whether there is a history of significant noncompliance with federal or state regulations under subsection (1)(b), the department may, at a minimum, consider:

     (a) Whether the violation resulted in a significant harm or a serious and immediate threat to the health, safety, or welfare of any resident;

     (b) Whether the proposed or current licensee promptly investigated the circumstances surrounding any violation and took steps to correct and prevent a recurrence of a violation;

     (c) The history of surveys and complaint investigation findings and any resulting enforcement actions;

     (d) Repeated failure to comply with regulations;

     (e) Inability to attain compliance with cited deficiencies within a reasonable period of time; and

     (f) The number of violations relative to the number of facilities the proposed or current licensee, or any partner, officer, director, managing employee, employee or individual providing nursing home care or services has been affiliated within the past ten years, or owner of five percent or more of the proposed or current licensee or of the assets of the nursing home.

     (3) The department must deny, suspend, revoke, or refuse to renew a proposed or current licensee's nursing home license if the proposed or current licensee or any partner, officer, director, managing employee, owner of five percent or more of the proposed or current licensee of the nursing home or owner of five percent or more of the assets of the nursing home, proposed or current administrator, or employee or individual providing nursing home care or services has been:

     (a) Convicted of a "crime against children or other persons" as defined under RCW 43.43.830;

     (b) Convicted of a "crime relating to financial exploitation" as defined under RCW 43.43.830;

     (c) Found by a court in a criminal proceeding or a protection proceeding under chapter 74.34 RCW, or any comparable state or federal law, to have abandoned, abused, neglected or financially exploited a vulnerable adult;

     (d) Found in any final decision issued by a disciplinary board to have sexually or physically abused or exploited any minor or an individual with a developmental disability or to have abused, neglected, abandoned, or financially exploited any vulnerable adult;

     (e) Found in any dependency action to have sexually assaulted or exploited any minor or to have physically abused any minor;

     (f) Found by a court in a domestic relations proceeding under Title 26 RCW, or any comparable state or federal law, to have sexually abused or exploited any minor or to have physically abused any minor; or

     (g) Found to have abused, neglected, abandoned or financially exploited or mistreated residents or misappropriated their property, and that finding has been entered on a nursing assistant registry.

[Statutory Authority: RCW 18.51.070, 74.42.620. 02-14-063, § 388-97-570, filed 6/27/02, effective 7/28/02; 00-06-028, § 388-97-570, filed 2/24/00, effective 3/26/00.]

     (2) The nursing home has the right to an informal department review to refute the federal or state deficiencies, or both, cited as the basis for the stop placement and must request such review in accordance with WAC 388-97-620(3).

     (3) The department will not delay or suspend a stop placement order because the nursing home requests an administrative hearing or informal department review.

     (4) The stop placement order must remain in effect until:

     (a) The department terminates the stop placement order; or

     (b) The stop placement order is terminated by a final agency order following appeal conducted in accordance with chapter 34.05 RCW.

     (5) The department must terminate the stop placement when:

     (a) The nursing home states in writing that the deficiencies necessitating the stop placement action have been corrected; and

     (b) Within fifteen working days of the nursing home's notification, department staff confirm by on-site revisit of the nursing home that:

     (i) The deficiencies that necessitated the stop placement action have been corrected; and

     (ii) The nursing home exhibits the capacity to maintain adequate care and services and correction of deficiencies.

     (6) After lifting the stop placement, the department may continue to perform on site monitoring to verify that the nursing home has maintained correction of deficiencies.

     (7) While a stop placement order is in effect, the department may approve a readmission to the nursing home from the hospital in accordance with RCW 18.51.060 (5)(b) and department guidelines for readmission decisions.

[Statutory Authority: RCW 18.51.070, 74.42.620. 02-14-063, § 388-97-650, filed 6/27/02, effective 7/28/02.]

     (2) Upon admission, the nursing home shall inform residents or the resident's representative, verbally and in writing, of the benefits of receiving the influenza virus immunization and the pneumococcal disease immunization.

     (3) Nursing homes who rely exclusively upon treatment by nonmedical religious healing methods, including prayer, are exempt from the above rules.

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