PERMANENT RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Effective Date of Rule: January 1, 2008.
Purpose: The department is repealing all existing sections in chapter 388-76 WAC, Adult family home minimum licensing requirements, and is adopting new sections in chapter 388-76 WAC, Adult family home minimum licensing requirements.
The purpose of the rules are to:
(1) Comply with the Governor's Executive Order 05-03 plain talk;
(2) Simplify language, eliminate the question and answer format, reorganize and renumber the chapter so that the requirements are clearer for adult family home providers to understand;
(3) Clarify issues that have been brought to the attention of the department; and
(4) Update rules to comply with statute changes.
The department is withdrawing WAC 388-76-11000 through 388-76-11045 and has filled [filed] a new preproposal statement of inquiry (CR-101) for the resident protection program with the code reviser in WSR 07-15-026.
The effective date of this rule is January 1, 2008.
Citation of Existing Rules Affected by this Order: Repealing WAC 388-76-535, 388-76-540, 388-76-545, 388-76-550, 388-76-555, 388-76-560, 388-76-565, 388-76-570, 388-76-575, 388-76-580, 388-76-585, 388-76-590, 388-76-59000, 388-76-59010, 388-76-59050, 388-76-59060, 388-76-59070, 388-76-59080, 388-76-59090, 388-76-595, 388-76-600, 388-76-60000, 388-76-60010, 388-76-60020, 388-76-60030, 388-76-60040, 388-76-60050, 388-76-60060, 388-76-60070, 388-76-605, 388-76-610, 388-76-61000, 388-76-61010, 388-76-61020, 388-76-61030, 388-76-61040, 388-76-61050, 388-76-61060, 388-76-61070, 388-76-61080, 388-76-615, 388-76-61500, 388-76-61510, 388-76-61520, 388-76-61530, 388-76-61540, 388-76-61550, 388-76-61560, 388-76-61570, 388-76-620, 388-76-625, 388-76-630, 388-76-635, 388-76-64010, 388-76-64015, 388-76-64020, 388-76-64025, 388-76-64030, 388-76-64035, 388-76-64040, 388-76-64045, 388-76-64050, 388-76-64055, 388-76-645, 388-76-650, 388-76-655, 388-76-660, 388-76-665, 388-76-670, 388-76-675, 388-76-680, 388-76-685, 388-76-690, 388-76-695, 388-76-700, 388-76-705, 388-76-710, 388-76-715, 388-76-720, 388-76-725, 388-76-730, 388-76-735, 388-76-740, 388-76-745, 388-76-750, 388-76-755, 388-76-760, 388-76-76505, 388-76-76510, 388-76-76515, 388-76-76520, 388-76-770, 388-76-775, 388-76-780, 388-76-785, 388-76-790, and 388-76-795.
Statutory Authority for Adoption: RCW 70.128.040.
Other Authority: Chapters 70.128 and 74.34 RCW.
Adopted under notice filed as WSR 07-14-082 on June 29, 2007.
Changes Other than Editing from Proposed to Adopted Version:
WAC 388-76-10000 Definitions.
"Abandonment" means action or inaction by a person or entity with a duty of care for a frail elder or vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.
"Abuse" means:
(1) Tthe willful action or inaction that inflects injury,
unreasonable confinement, intimidation, or punishment on a
vulnerable adult;:
(21) In instances of abuse of a vulnerable adult who is
unable to express or demonstrate physical harm, pain, or
mental anguish, the abuse is presumed to cause physical harm,
pain or mental anguish; and
(32) Abuse includes sexual abuse, mental abuse, physical
abuse, and exploitation of a vulnerable adult, which have the
following meanings:
(a) "Sexual abuse" means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse includes any sexual contact between a staff person, who is not also a resident or client, of a facility or a staff person of a program authorized under chapter 71A.12 RCW, and a vulnerable adult living in that facility or receiving service from a program authorized under chapter 71A.12 RCW, whether or not consensual.
(b) "Physical abuse" means a willful action of inflicting
bodily injury or physical mistreatment. Physical abuse
includes, but is not limited to, striking with or without an
object, slapping, pinching, chocking choking, kicking,
shoving, prodding, or chemical restraints unless the
restraints are consistent with licensing requirements, and
includes restraints that are otherwise being used
inappropriately.
(c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a vulnerable adult from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.
(d) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.
"Adult family home" means:
(1) A residential home in which a person or entity are licensed to provide personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to the person or persons providing the services; and
(2) For the purposes of this chapter, any person or entity who has been granted a license to operate an adult family home.
"Affiliated with an applicant" means any person listed on the application as a partner, officer, director, resident manager, or majority owner of the applying entity, or is the spouse of the applicant.
"Applicant" means an individual, partnership, corporation, or other entity seeking a license to operate an adult family home.
"Capacity" means:
(1) Tthe maximum number of persons in need of personal or
special care permitted in an adult family home at a given
time; and
(2) Iincludes related children or adults in the home who
receive personal or special care and services.
"Caregiver" for purposes other than training, means any
person eighteen years of age or older responsible for
providing direct personal or special care to a resident and
who is not the provider, entity representative, or a student
or volunteer.
"Dementia" is defined as a condition documented through the assessment process required by WAC 388-76-10335.
"Department" means the Washington state department of social and health services.
"Department case manager" means the department authorized staff person or designee assigned to negotiate, monitor, and facilitate a care and services plan for residents receiving services paid for by the department.
"Developmental disability" means:
(1) A person who meets the eligibility criteria defined by the division of developmental disabilities under WAC 388-823-0040; or
(2) A person with a severe, chronic disability which is attributable to cerebral palsy or epilepsy, or any other condition, other than mental illness, found to be closely related to mental retardation which results in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation, and requires treatment or services similar to those required for these persons (i.e., autism); and
(a) The condition was manifested before the person
reached age twenty-two eighteen;
(b) The condition is likely to continue indefinitely; and
(c) The condition results in substantial functional limitations in three or more of the following areas of major life activities:
(i) Self-care;
(ii) Understanding and use of language;
(iii) Learning;
(iv) Mobility;
(v) Self-direction; and
(vi) Capacity for independent living.
"Direct supervision" means oversight by a person who:
(1) Has demonstrated competency in the basic training and specialty training if required, or who has been exempted from the basic training requirements and is:
(a) On the premises; and
(b) Quickly and easily available to the caregiver.
"Direct supervision" means oversight by a person who:
(1) Hhas demonstrated competency in the basic training and specialty training if required, or who has been exempted from the basic training requirements and is:
(a1) On the premises; and
(b2) Quickly and easily available to the caregiver.
"Entity provider" means any corporation, partnership, association, or limited liability company that is licensed under this chapter to operate an adult family home.
"Entity representative" means the individual designated by an entity provider who is responsible for the daily operation of the adult family home.
"Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any person for any person's profit or advantage other than for the vulnerable adult's profit or advantage.
"Home" means adult family home.
"Indirect supervision" means oversight by a person who:
(1) Has demonstrated competency in the basic training and specialty training if required; or
(2) Has been exempted from the basic training requirements; and
(3) Is quickly and easily available to the care giver, but not necessarily on-site.
"Inspection" means an on-site visit by department personnel to determine the adult family home's compliance with this chapter and chapters 70.128, 70.129, 74.34 RCW, and other applicable rules and regulations.
"Mandated reporter" means an employee of the department, law enforcement, officer, social worker, professional school personnel, individual provider, an employee of a facility, an employee of a social service, welfare, mental health, adult day health, adult day care, or hospice agency, county coroner or medical examiner, Christian Science practitioner, or health care provider subject to chapter 18.130 RCW.
For the purpose of the definition of a mandated reporter, "Facility" means a residence licensed or required to be licensed under chapter 18.20 RCW (boarding homes), chapter 18.51 RCW (nursing homes), chapter 70.128 (adult family homes), chapter 72.36 RCW (soldiers' homes), or chapter 71A.20 RCW (residential habilitation centers), or any other facility licensed by the department.
"Medical device" as used in this chapter, means any piece of medical equipment used to treat a resident's assessed need.
(1) A medical device is not always a restraint and should not be used as a restraint;
(2) Some medical devices have considerable safety risks associated with use; and
(3) Examples of medical devices with known safety risks when used are transfer poles, Posey or lap belts, and side rails.
"Medication administration" means giving resident medications by a person legally authorized to do so, such as a physician, pharmacist or nurse.
"Medication organizer" is a container with separate compartments for storing oral medications organized in daily doses.
"Mental illness" is defined as an Axis I or II diagnosed mental illness as outlined in volume IV of the Diagnostic and Statistical Manual of Mental Disorders (a copy is available for review through the aging and disability services administration).
"Multiple facility provider" means an individual or entity provider who is licensed to operate more than one adult family home.
"Neglect" means:
(1) a pattern of conduct or inaction by a person or
entity with a duty to of care that fails to provide the goods
and services that maintain physical or mental health of a
vulnerable adult, or that fails to avoid or prevent physical
or mental harm or pain to a vulnerable adult; or
(2) an act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.41.100.
"Nurse delegation" means a registered nurse transfers the performance of selected nursing tasks to competent nursing assistants in selected situations. The registered nurse delegating the task retains the responsibility and accountability for the nursing care of the resident.
"Over-the-counter medication" is any medication that can be purchased without a prescriptive order, including but not limited to vitamin, mineral, or herbal preparations.
"Personal care services" means:
(1) Bboth physical assistance and/or prompting and
supervising the performance of direct personal care tasks as
determined by the resident's needs; and
(2) Ddoes not include assistance with tasks performed by a licensed health professional.
"Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body, is used for discipline or convenience, and is not required to treat the resident's medical symptoms.
"Practitioner" includes a physician, osteopathic physician, podiatric physician, pharmacist, licensed practical nurse, registered nurse, advanced registered nurse practitioner, dentist, and physician assistant licensed in the state of Washington.
"Prescribed medication" refers to any medication (legend drug, controlled substance, and over-the-counter) that is prescribed by an authorized practitioner.
"Provider" means any person or entity that is licensed under this chapter to operate an adult family home.
"Qualified staff" means a person who:
(1) Is employed, directly or by contract, by an adult family home; and
(2) Meets all of the requirements of a provider, entity representative, resident manager or caregiver.
"Resident" means:
(1) Aany adult unrelated to the provider who lives in the
adult family home and who is in need of care; and
(2) Ffor decision-making purposes, the term "resident" includes the resident's surrogate decision maker following state law or at the resident's request.
"Resident manager" means a person employed or designated by the provider or entity representative to manage the adult family home.
"Significant change" means:
(1) A lasting change, decline or improvement, in the resident's baseline physical, mental or psychosocial status;
(2) The change is significant enough so the current assessment and/or negotiated care plan do not reflect the resident's current status; and
(3) A new assessment may be needed when the resident's condition does not return to baseline within a two week period of time.
"Special care" means care beyond personal care services as defined in this section.
"Staff" means any person who:
(1) Is employed, directly or by contract, by an adult family home; and
(2) Provides care and services to any resident.
"Unsupervised" means not in the presence of:
(1) Another employee or volunteer from the same business or organization; or
(2) Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to which the employee, student or volunteer has access during the course of his or her employment or involvement with the business or organization.
"Usable floor space" means resident bedroom floor space exclusive of:
(1) Toilet rooms;
(2) Closets;
(3) Lockers;
(4) Wardrobes;
(5) Vestibules, and
(6) The space required for the door to swing Iif the
bedroom door opens into the resident bedroom the space
required for the door to swing.
"Willful" means the deliberate or nonaccidental action or inaction by an alleged perpetrator that he/she knew or reasonably should have known could cause a negative outcome, including harm, injury, pain or anguish.
"Vulnerable adult" includes a person:
(1) Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself;
(2) Found incapacitated under chapter 11.88 RCW;
(3) Who has a developmental disability as defined under RCW 71A.10.020;
(4) Admitted to any facility;
(5) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; or
(6) Receiving services from a provider.
WAC 388-76-10020 License -- Ability to provide care and
services.
The adult family home must have the understanding,
ability, emotional stability and physical health suited to
meet the emotional and physical personal and special care
needs of vulnerable adults.
WAC 388-76-10040 License requirements -- Provider or entity
representative residence.
(1) The adult family home provider or entity
representative must either:
(a) Live in the home; or
(b) Employ or contract with a qualified resident manager
who lives in the home and is responsible for the care and
services of each resident at all times; or.
(2) The provider, entity representative or resident manager is exempt from the live-in requirement if the home has:
(ac) Provide Ttwenty-four hour staffing; and
(b2) A Ensure that a qualified staff person who can make
needed decisions is always present.
WAC 388-76-10120 License -- Must be denied.
The department must deny a license if the department finds any person or entity unqualified as follows:
(1) Has a history of prior violations of chapter 70.128 RCW or any law regulating to residential care facilities within the past five years that resulted in revocation, suspension, or nonrenewal of a license or contract with the department;
(2) When providing care or services to children or vulnerable adults:
(a) Has been found to be in significant noncompliance with federal or state regulations; or
(b) Had a license for the care of children or vulnerable adults suspended or revoked.
(3) For a period of twenty years after a provider surrendered or relinquished an adult family home license after notification of the department's intention to deny, suspend, not renew or revoke, in lieu of appealing the department's action;
(4) Been enjoined from operating a facility for the care and services of children or adults;
(5) A stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, final order issued by a disciplining authority or final decision by any federal or state agency or department, a court of law, or entered into a state registry or department or agency list with a finding of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW;
(6) Had a revocation or suspension of a license for the care of children or adults;
(7) Had a revocation, cancellation, suspension or nonrenewal of:
(a) A medicaid or medicare provider agreement by the contracting agency; or
(b) Any agreement with a public agency for the care and treatment of children or vulnerable adults, when the action was taken by the public agency.
(8) Been convicted of any crime listed in RCW 43.43.830 or 43.43.842;
(9) Been found by a court:
(a) In a protection proceeding under chapter 74.34 RCW to have abandoned, neglected, abused, or financially exploited a vulnerable adult; or
(b) In a domestic relations proceeding under Title 26 RCW to have sexually or physically abused, neglected or exploited any minor.
(10) Been found in any final decision issued by a disciplinary board to have:
(a) Sexually or physically abused, neglected or exploited any minor or a person with a developmental disability; or
(b) Abandoned, abused, neglected or financially exploited any vulnerable adult.
(11) Been found in any final decision by any federal or state agency or department to have abandoned, neglected, abused or financially exploited a vulnerable adult;
(12) Found in any dependency action under RCW 13.34.030 (5)(b) to have sexually or physically abused, neglected or exploited any minor;
(13) The home is currently licensed:
(a) As a boarding home; or
(b) To provide care for children in the same home, unless:
(i) It is necessary in order to allow a resident's child(ren) to live in the same home as the resident or to allow a resident who turns eighteen to remain in the home;
(ii) The applicant provides satisfactory evidence to the department of the home's capacity to meet the needs of children and adults residing in the home; and
(iii) The total number of persons receiving care and services in the home does not exceed the number permitted by the licensed capacity of the home.
(14) After January 1, 2007, if If the provider or entity
representative has not successfully completed a
department-approved forty-eight hour adult family home
administration and business planning class.
WAC 388-76-10240 Durable power of attorney for health care or
financial decisions.
The adult family home must not allow a provider, entity
representative, owner, administrator, or employees of the home
to act as a resident's power of attorney in fact for health
care decisions, according to chapter 11.94 RCW, unless the
provider, entity representative, owner, administrator, or
employee is the resident's:
(1) Spouse;
(2) Adult child; or
(3) Brother or sister.
WAC 388-76-10400 Care and services.
The adult family home must ensure each resident receives:
(1) The care and services identified in the negotiated care plan.
(2) The necessary care and services to help the resident reach the highest level of physical, mental, and psychosocial well-being consistent with resident choice, current functional status and potential for improvement or decline.
(3) The care and services in a manner and in an environment that:
(a) Actively supports, maintains or improves each resident's quality of life;
(b) Actively supports the safety of each resident; and
(c) Reasonably accommodates each resident's individual needs and preferences except when the accommodation endangers the health or safety of the individual or another resident.
(4) Services by the appropriate professionals based upon the resident's assessment and negotiated care plan, including nurse delegation if needed.
WAC 388-76-10420 Meals and snacks.
The adult family home must:
(1) Serve at least three meals:
(a) In each twenty-four hour period;
(b) At regular times comparable to normal meal times in the community; and
(c) That meet the nutritional needs of each resident.
(2) Provide Make nutritious snacks available to
residents:
(a) Between meals; and
(b) In the evening.
(3) Get input from residents' in meal planning and
scheduling;
(4) Serve nutrient concentrates, supplements, and modified diets only with written approval of the resident's physician;
(5) Only serve pasteurized milk; and
(6) Process any home-canned foods served in the home, according to the latest guidelines of the county cooperative extension service.
WAC 388-76-10430 Medication system.
(1) If the adult family home admits residents who need
medication assistance or medication administration services by
a legally authorized person, the home must have systems in
place to ensure:
(a) Tthe services provided meet the medication needs of
each resident; and
(b) Mmeet all related laws and rules relating to
medications.
(2) When providing medication assistance or medication administration for any resident, the home must ensure each resident:
(a) Assessment indicates the amount of medication assistance needed by the resident;
(b) Negotiated care plan identifies the medication service that will be provided to the resident;
(c) Medication log is kept current as required in WAC 388-76-1048010475;
(d) Receives medications as required.
(3) Records are kept which include a current list of prescribed and over-the-counter medications including name, dosage, frequency and the name and phone number of the practitioner as needed.
WAC 388-76-10440 Medication -- Assessment -- Identification of
amount of assistance needed when taking medications.
(1) The adult family home must:
(a) Ensure each resident assessment identifies the amount of assistance the resident needs when taking medications; and
(b) Let the practitioner know when the following may affect the resident's ability to take their medications:
(i) Resident's physical or mental limitations; and
(ii) The setting or environment where the resident lives.
(2) The amount of assistance needed by a resident when taking their medications is as follows:
(a) Independent with self-administration is when the
resident does not need help taking medications and is able to
directly take medications by eating or drinking, inhaling, by
shot, through the skin or other means;
(b) Self-administration with assistance, as described in chapter 246-888 WAC, is when a resident is assisted in taking their medication by a non-practitioner; and
(c) Medication administration is when medications are administered to the resident by a person legally authorized to do so, such as but not limited to a physician, nurse or pharmacist or through nurse delegation.
(3) The home must contact the resident's practitioner who will decide if a reassessment is necessary when:
(a) The resident has a change in the health status, medications, physical or mental limitations, or environment that might change the resident's need for medication assistance; or
(b) There is a need for a resident to have more than one type of medication assistance.
WAC 388-76-10445 Medication--Independent--Self-administration.
The adult family home must ensure residents who have
medication assistance assessed as independent with
self-administration:
(1) Administer their own medications; and
(2) Are allowed to keep their prescribed and over-the-counter medications securely locked in either their room or another agreed upon area if documented in the resident negotiated care plan.
WAC 388-76-10470 Medication--Timing--Special directions.
(1) The adult family home must ensure medications are given:
(a) At the specific time(s) ordered by the practitioner; and
(b) As follows, when the practitioner does not order a medication to be given at a specific time:
(i) One time per day, approximately every twenty four hours;
(ii) Two times a day, approximately twelve hours apart;
(iii) Three times a day, approximately six hours apart; and
(iv) Four times a day, approximately four hours apart.
(2) The home must ensure all directions given by the practitioner are followed when assisting or giving each resident medication. This includes but is not limited to:
(a) Before meals;
(b) After meals;
(c) With or without food; and
(d) At bed time.
WAC 388-76-10540 Resident rights -- Disclosure of fees and
notice requirements -- Deposits.
(1) Before admission, if the adult family home requires payment of an admissions fee, deposit, or a minimum stay fee, by or on behalf of a person seeking admission, the home must give the resident full disclosure in writing in a language the resident understands.
(2) The disclosure must include:
(a) A statement of the amount of any admissions fees, deposits, prepaid charges, or minimum stay fees;
(b) The home's advance notice or transfer requirements; and
(c) The amount of the deposits, admission fees, prepaid
charges, or minimum stay fees that will be refunded to the
resident or his - if the resident leaves the home.
(3) The home must ensure that the receipt of the disclosures required under subsection (1) of this section is in writing and signed and dated by the resident and the home.
(4) If the home does not provide these disclosures, the home must not keep the deposits, admission fees, prepaid charges, or minimum stay fees.
(5) If a resident dies, is hospitalized or is transferred and does not return to the home, the adult family home:
(a) Must refund any deposit or charges already paid less the home's per diem rate for the days the resident actually resided, reserved or retained a bed in the home in spite of any minimum stay policy or discharge notice requirements; except that
(b) May keep an additional amount to cover its reasonable and actual expenses incurred as a result of a private-pay resident's move, not to exceed five days per diem charges; unless the resident has given advance notice in compliance with the admission agreement.
(6) All adult family homes covered under this section are
required to refund any and all refunds due the resident or his
or within thirty days from the resident's date of discharge
from the home.
(7) Nothing in this section applies to provisions in contracts negotiated between a home or and a certified health plan, health or disability insurer, health maintenance organization, managed care organization, or similar entities.
(8) If the home requires the implementation of an
admission contract agreement by or on behalf of an individual
seeking admission the home must ensure the terms of the
contract agreement are consistent with the requirements of
this section, chapters 70.128, 70.129 and 74.34 RCW, and other
applicable state and federal laws.
WAC 388-76-10585 Resident rights -- Examination of inspection
results.
The adult family home must:
(1) Ensure each resident is given the ability an
opportunity to examine the most recent inspection report of
the home and related plans of correction; and
(2) Publicly post Post a notice in a visable location in
the home a notice that indicating the inspection report is
available for review.
WAC 388-76-10780 Toilets and bathing facilities.
(1) The adult family home must ensure the home has toilets and bathing facilities that provide each resident with privacy and include:
(a) One indoor flush toilet for each five persons including residents and household members in the home; and
(b) Sinks with hot and cold running water.
(2) Homes licensed after July 1, 2007, must ensure each
resident has access to a toilet, shower and or tub without
going through another resident's room.
WAC 388-76-10810 Fire extinguishers.
(1) The adult family home must have an approved five pound 2A:10B-C rated fire extinguisher on each floor of the home.
(2) The home must ensure the fire extinguishers are:
(a) Installed according to manufacturer recommendations;
(b) Inspected and serviced annually;
(c) In proper working order; and
(d) Readily available for use at all times.
(2) If required by the local fire authority, the home
must provide different fire extinguishers as in place of the
fire extinguishers required in subsection (1) of this section.
WAC 388-76-10845 Emergency drinking water supply.
The adult family home must have an on-site emergency supply of drinking water that:
(1) Will last for a minimum of seventy-two hours for each resident;
(2) Is at least three gallons for each resident; and
(3) Is stored in food grade plastic or glass containers;
rated for the storage of drinking water.
(4) Is chemically treated or replaced every six months; and
(5) Is stored appropriately.
WAC 388-76-10920 Inspection and investigation
reports -- Provided by department.
The department will mail or hand deliver the department's
inspection report to the provider or entity representative:
(1) Within ten working days of completion of the inspection of the home; or
(2) Within ten calendar days of completion of complaint
investigation the investigation if the home does not have a
deficiency.
The department is withdrawing WAC 388-76-11000 through
388-76-11045 and has filed a new preproposal statement of
inquiry (CR-101) for the resident protection program with the
code reviser, WSR 07-15-026.
WAC 388-76-11000 Resident protection program -- Abuse and
neglect reporting -- Required.
(1) In accordance with chapter 74.34 RCW, all adult family home providers, entity representatives, resident managers, owners, caregivers, staff, and students if the students provide care and services to residents; are mandated reporters and must report to the department when there is:
(a) A reasonable cause to believe that a vulnerable adult has been abandoned, abused, neglected, exploited or financially exploited, or
(b) Suspected abandonment, abuse, neglect, exploitation or financial exploitation of a vulnerable adult.
(2) Reports must be made to:
(a) The centralized toll free telephone number for reporting abandonment, abuse, neglect, exploitation or financial exploitation of vulnerable adults, provided by the department; and
(b) Law enforcement agencies, as required under chapter 74.34 RCW.
(3) The home must have policies and procedures complying with state law that specify reporting requirements for abandonment, abuse, neglect, exploitation, and financial exploitation of vulnerable adults.
WAC 388-76-11005 Resident protection
program--Investigation of mandated reports.
(1) The department will decide whether a report of abandonment, abuse, neglect, exploitation, or financial exploitation needs to be investigated, as per established procedures.
(2) The department investigation will include an investigation of allegations about one or more of the following:
(a) A provider;
(b) Entity representative;
(c) Anyone affiliated with a provider;
(d) Caregiver;
(e) Student or volunteer;
(f) Person living in the home who is not a resident; and
(g) A resident receiving care and services under this chapter.
(3) If, after completing an investigation, the department concludes that more likely than not the alleged perpetrator abandoned, abused, neglected, exploited, or financially exploited a resident, the department will make an initial finding against the perpetrator.
WAC 388-76-11010 Resident protection program -- Notice of
initial finding.
(1) The department will notify the alleged perpetrator in writing within ten working days of making an initial finding of abandonment, abuse, neglect, exploitation, or financial exploitation of a resident. The written notice must not include the identities of the alleged victim, reporter and witnesses.
(2) The department must make a reasonable, good faith effort to find the last known address of the alleged perpetrator.
(3) The time frame for notification can be extended beyond ten working days to include the time needed to translate the notification letter or make provisions for the safety of the alleged victim.
(4) Notice of the initial finding will be served as provided in chapter 388-02 WAC.
WAC 388-76-11015 Resident protection program -- Reporting
initial finding.
(1) In a manner consistent with confidentiality requirements concerning the resident, witnesses, and reporter, the department may provide notification of an initial finding to:
(a) Other divisions within the department;
(b) The agency or program identified under RCW 74.34.068 with which the alleged perpetrator is associated as an employee, volunteer, student or contractor;
(c) Law enforcement; and
(d) Other investigative authorities consistent with chapter 74.34 RCW.
(2) The notification will identify the finding as an initial finding.
WAC 388-76-11020 Resident protection program--Disputing
an initial finding.
(1) An alleged perpetrator of abandonment, abuse, neglect, exploitation, or financial exploitation of a resident may ask for an administrative hearing to challenge an initial finding made by the department.
(2) The request must be made in writing to the office of administrative hearings.
(3) The office of administrative hearings must receive the alleged perpetrator's written request for a hearing within thirty calendar days of the date the individual was served with notice of the initial finding.
(4) The written request for a hearing must include:
(a) The full legal name, current address and phone number of the alleged perpetrator;
(b) A brief explanation of why the alleged perpetrator disagrees with the initial finding;
(c) A description of any assistance needed in the administrative appeal process by the alleged perpetrator, including a foreign or sign language interpreter or any accommodation for a disability; and
(d) The alleged perpetrator's signature.
WAC 388-76-11025 Resident protection program -- Disclosure
of investigative and finding information.
(1) The alleged perpetrator may only use confidential information provided by the department as needed to challenge initial findings through the appeal process.
(2) Confidential information such as the name and other personal identifying information of the reporter, witnesses, or the resident will be redacted from documents by the department unless otherwise ordered by the administrative law judge consistent with chapter 74.34 RCW and other applicable state and federal laws.
WAC 388-76-11030 Resident protection program -- Hearing
procedures to dispute initial finding.
(1) Chapters 34.05 and 74.34 RCW, chapter 388-02 WAC, and the provisions of this chapter govern any appeal regarding an initial finding.
(2) If a conflict between the provisions of this chapter and chapter 388-02 WAC, the provisions of this chapter prevail.
(3) The administrative law judge must decide whether a preponderance of the evidence supports the initial finding that the alleged perpetrator abandoned, abused, neglected, exploited, or financially exploited a vulnerable adult, and must issue an initial order.
WAC 388-76-11035 Resident protection program--Appeal of
administrative law judge's initial order or finding.
(1) If the alleged perpetrator or the department disagrees with the administrative law judge's decision, either party may challenge this decision by filing a petition for review with the department's board of appeals under chapter 34.05 RCW and chapter 388-02 WAC.
(2) If the department appeals the administrative law judge's decision, the department will not change the finding in the department's records until a final hearing decision is issued.
WAC 388-76-11040 Resident protection program -- Finalizing
an initial finding.
(1) An initial finding becomes a final finding when:
(a) The department gives the alleged perpetrator notice of the initial finding pursuant to WAC 388-101-1110 and the alleged perpetrator does not ask for an administrative hearing;
(b) The administrative law judge:
(i) Dismisses the hearing following withdrawal of the appeal or default; or
(ii) Issues an initial order upholding the finding and the alleged perpetrator fails to appeal the initial order to the department's board of appeals; or
(c) The board of appeals issues a final order upholding the finding.
(2) The final finding is permanent and will not be removed from the department's records unless:
(a) Rescinded following judicial review; or
(b) The department decides to remove a single finding of neglect from its records based upon a written petition by the alleged perpetrator provided that at least one calendar year has passed since the finding was finalized and recorded.
WAC 388-76-11045 Resident protection program -- Reporting
final findings.
The department will report a final finding of abandonment, abuse, neglect, exploitation, and financial exploitation within ten working days to the following:
(1) The perpetrator;
(2) The provider or entity representative that was associated with the perpetrator during the time of the incident;
(3) The adult family home that is currently associated with the perpetrator, if known;
(4) The appropriate licensing authority; and
(5) The department's list of findings of abandonment, abuse, neglect, exploitation and financial exploitation.
(6) The findings may be disclosed to the public upon request.
The changes were made because:
| SUMMARY OF COMMENTS RECEIVED | THE DEPARTMENT CONSIDERED ALL THE COMMENTS. THE ACTIONS TAKEN IN RESPONSE TO THE COMMENTS, OR THE REASONS NO ACTIONS WERE TAKEN, FOLLOW. | |||
| General comment not tied to any specific
section of the proposed rule: DSHS should reissue the notice of proposed rule making and extend the deadline for public comment for an additional three months to allow for the development and publishing of a "crosswalk" between the existing rule and the proposed rule. |
No change was made in response to this comment. | |||
| | The rule will not be reissued or delayed as the entire draft of the rule, section-by-section has been shared with multiple representatives of industry, advocacy groups, internal and external stakeholders and persons identified as interested parties throughout the drafting process. | |||
| | The entire rule section-by-section has been posted on the agency web for review and comment as each area of the proposed rule was developed. | |||
| | A crosswalk will not be developed as it is not required by law. | |||
| General comment not tied to any specific
section of the proposed rule: The timing of adoption of this rule may be in conflict with the public employee relations commission, WAC 391-25-140(2). |
No change was made in response to this comment. | |||
| | The adoption of the rule is not in conflict with WAC 391-25-140(2) as the rule does not make any changes to the status quo. | |||
| | The proposed rule-making process has followed the statutory requirements of chapter 34.05 RCW. | |||
| WAC 388-76-10000 "Neglect" means: (1) a pattern of conduct or inaction by a
person or entity with a duty |
A change was made in response to this comment. | |||
| | The change was made to mirror the language of "neglect" in chapter 74.34 RCW. | |||
| WAC 388-76-10020 This section uses the phrase "emotional and physical care needs." This may or may not be the same as "personal care needs" or "special care needs" which are defined. The difference is subtle and implied, and leaves the reader to interpret. | A change was made in response to this comment. | |||
| | The change is made to provide consistent language defined in the rule for "personal care and special care." | |||
| WAC 388-76-10040 Recommend adding
clarifying and simpler language to have the AFH
provider or entity rep either: (a) Live in the home; or (b) Employ or contract with a qualified mgr ... OR (c) Have twenty-four hour staffing and a qualified person who can ... |
A change was made in response to this comment. | |||
| | The suggested change was made to simplify the rule language. | |||
| WAC 388-76-10085 Recommend adding
clarifying and simpler language to have title
read: "Application--Affiliated parties," and could be combined with WAC 388-76-1190. |
No change was made in response to this comment. | |||
| | The term "affiliated with the applicant" is consistent with statutory language in chapter 70.128 RCW. | |||
| | Did not combine WAC 388-76-10085 and 388-76-1190 as recommended: | |||
| ° | WAC 388-76-1185 relates to "provider and coprovider;" and | |||
| ° | WAC 388-76-1190 relates to an "entity." | |||
| WAC 388-76-10095 Clarifying language would
have the title read: "Application--Identification of involved landlord--Required. |
No change was made in response to this comment. | |||
| | Adding the word "involved" potentially adds confusion to the regulation. | |||
| | The common definition of "involved" is too broad in context and potentially increases the possibility of different interpretations of the regulation. | |||
| WAC 388-76-10120(14) Leaves the reader to ponder who this rule could "reach back" to. | No change was made in response to this comment. | |||
| | All providers? | | The licensing statute, chapter 70.128 RCW, states the department must not license an applicant if the prospective provider has not completed the required training. | |
| | All making application? | |||
| | All providers making application for additional licenses? | |||
| The "After January 1, 2007" creates further confusion and is unnecessary as that time has passed. | A change was made in response to this comment. | |||
| | The "After January 1, 2007" language was deleted from the rule to eliminate confusion. | |||
| WAC 388-76-10240 Recommend the following changes so the regulation is consistent with RCW 11.94.010 (3)(b): | A change was made in response to this comment. | |||
| WAC 388-76-10240 Durable power of attorney for health care or financial decisions. | | The recommended section title change is consistent with chapter 11.94 RCW and helps to clarify the requirements. | ||
| (1) | The adult family must not allow a provider, entity representative, owner, administrator, or employees of the home to act as a resident's power of attorney for health care or financial decisions, according to chapter 11.94 RCW, unless the provider, entity representative, owner, administrator, or employee is the resident's: ... | | The term "attorney in fact" was added to mirror the language in chapter 11.94 RCW. | |
| WAC 388-76-10315 The requirement to keep resident records for only three years may put the provider in conflict with the requirements of WAC 296-20-02005 which requires records must be maintained for audit purposes for a minimum of five years. | No change was made in response to this comment. | |||
| | The proposed rule language does not put the provider in conflict with WAC 296-20-02005. | |||
| | The provider is required to meet the retention of records requirement of WAC 296-20-02005 only if the provider is receiving payment from the department of labor and industries to provide care and services to a resident who is an industrially injured worker. | |||
| | The proposed language in WAC 388-76-10315 is consistent with current rule language. | |||
| | Increasing the resident record retention requirement would be a new requirement and could add additional cost for the provider. | |||
| WAC 388-76-10330(1) Is not a current written assessment the objective of this section, compared to requiring a new assessment? | No change was made in response to this comment. | |||
| | The objective of this section is to require a "new" assessment to ensure the assessment is current so the new provider can develop an appropriate negotiated care and services plan that meets the needs of the new resident being admitted to the adult family home. | |||
| WAC 388-76-10395 This section allows for the emergency admission of a resident, but only if a true emergency exists. | No change was made in response to this comment. | |||
| The term "emergency" is not defined in WAC 388-76-10000. A resident's "life, health, and safety" may or may not bring some generally accepted understanding, but what constitutes a "serious risk" has a much broader connotation. | | WAC 388-76-10395(2) establishes the parameters of a "true emergency" and states: To establish that a true emergency exists, the home must verify that the resident's life, health or safety is at serious risk due to circumstances in the resident's current place of residence or harm to the resident has occurred. | ||
| WAC 388-76-10400(3)(c) States that care and services be provided in a manner that reasonably accommodates individual needs and preferences except when it endangers the health and safety of another (but not the person himself?). | Changes were made in response to this comment. | |||
| | Language was added to the section to mirror the statutory language of RCW 70.129.140 (5)(a) which clarifies the intent to also protect the person themselves. | |||
| WAC 388-76-10405 If an AFH does not provide nursing care, and identifies that a resident has need for such care, this section requires the AFH to hire or contract with a licensed nurse to provide for the care. Is this "care and services," or is this "special care"? Who will pay? The language leaves the impression the AFH must pay for the licensed nurse. Without clarifying language, one must assume there would be an economic impact on the provider, unaddressed by a small business economic impact statement. This section further implies a provider must retain a resident, even though the care and services they now need are not provided by the provider, and may not be reasonably accommodated. This WAC requirement is not consistent with WAC 388-76-10390(1). | No change was made in response to these comments. | |||
| | The proposed language is consistent with current regulations and poses no new cost requirements on the provider. | |||
| | The provider must disclose what services and costs the provider offers or will not offer in the preadmission agreement. | |||
| | The provider must develop a negotiated care plan with the resident based on the resident's assessed needs. | |||
| | The resident has the right to indicate what services they will accept or not accept from the provider. | |||
| | If the provider does not disclose the costs of a service such as nursing service, the provider must comply with the requirements of chapter 70.129 RCW and/or work with the agency case manager, if the resident services are paid by the state, to change any costs charged to the resident. | |||
| | This section of the rule is consistent with WAC 388-76-10390 (1)(b), which requires reasonable accommodation. | |||
| WAC 388-76-10420(2) Says the adult family home must provide nutritious snacks to residents between meals; and in the evening. Some residents have weight problems and lack will power. They do not need to be encouraged to take in additional calories. "Provide" could be modified to read "make available." | A change was made in response to this comment. | |||
| | The proposed rule was changed to use the term "make available" which is current rule language. | |||
| WAC 388-76-10425 A clarifying language change might be found in subsection (3)(b) reading "Until" served. | No change was made in response to this comment. | |||
| | The intention of this section is clear. | |||
| | The food must be at the appropriate and safe temperature when served. | |||
| WAC 388-76-10430 Clarifying language could read: (1) If the adult family home admits residents who need medication assistance by a legally authorized person, the home must have systems in place..." | A change was made in response to this comment. | |||
| | Recommendation helps to add clarity. | |||
| Subsection [(1)](c) references an incorrect WAC - should be WAC 388-76-10475. | A change was made in response to this comment. | |||
| | WAC reference corrected. | |||
| WAC 388-76-10440 Recommend changing the title of the section to: "Medication Assistance--Identification of the type of assistance needed when taking medications." | No change was made in response to these comments. | |||
| | The layout for medication regulations is consistent throughout and includes the word "Medication" followed by an identifying statement for each section. | |||
| Recommend using the terms "type or level" instead of using the term "amount" of assistance. | | The use of the term "type" of assistance, is not consistent with either the board of pharmacy rules or the Nurse Practice Act language. | ||
| Subsections (2)(a), (b), and (c) terms in italics should match exactly to their following section titles. | Changes were made in response to this comment. | |||
| | The language in WAC 388-76-11040 and 388-76-11045 was changed to be consistent with the terms in italics which is consistent with the board of pharmacy regulations. | |||
| Subsections (1)(b) and (3): | No change was made in response to these comments. | |||
| | Require the AFH to communicate with a resident's medical practitioner would constitute a HIPPA violation; and | | This requirement is consistent with current rule language and is not a violation of HIPPA. | |
| | The practitioner is not generally privy to the assessments done by the resident's case manager, and is likely not able or involved to decide if a reassessment is necessary. | | The provider must work with the resident and if the resident has a case manager, the case manager to provide the practitioner with the appropriate information. | |
| WAC 388-76-10460(1) It is recommend[ed] to add the following clarifying language as follows: The adult family home must ensure that each resident's negotiated care plan addresses the type of medication assistance needed ... | No change was made in response to this comment. | |||
| | The use of the term "type" of assistance, is not consistent with either the board of pharmacy rules or the Nurse Practice Act language. | |||
| WAC 388-76-10470 The special directions do not use "approximately" in WAC 388-76-10470 [(1)](b)(i), but then use the term in (ii). | A change was made in response to this comment.
|
|||
| | The term "approximately" was added to subsection [(1)](b)(i) to be consistent with the term used in subsections [(1)](b)(ii), (iii) and (iv). | |||
| Suggest adding medically acceptable timeframes to each appropriate subsection such as: "plus or minus fifteen minutes" or "within fifteen minutes" or "within a half hour" to provide the necessary detail so the provider is not left to a subjective judgment as to what constitutes an appropriate "approximate." | No change was made in response to these comments. | |||
| | The text of the proposed rule indicates that medications must be given at a specific time if "ordered by a practitioner." | |||
| | Medically acceptable timeframes will not be added to the proposed rule. The "approximate" text and examples in subsections (2)(a) through (d) provide a reality based medication administration system. | |||
| WAC 388-76-10510, 388-76-10515, 388-76-10520 A concern is raised that while adult family home WACs are established to protect the rights of residents, they do not afford a resident the right to deny any other person their same and equal rights and all people should be afforded the same civil rights that any other American receives. | No change was made in response to these comments. | |||
| | The comments made no specific recommend[ation] for changes. | |||
| | Chapter 388-76 WAC establishes the licensing requirements for the adult family home provider to follow to remain licensed not what other individuals must do for the provider. | |||
| | The proposed rule enabling chapter 70.129 RCW, Long-term care resident rights is focused on the rights, of the residents and not on other civil rights. | |||
| | WAC 388-76-10545(4) requires compliance with other state and federal laws regarding nondiscrimination. | |||
| WAC 388-76-10520, 388-76-10530, 388-76-10815 A concern is raised that there is a language of some sort (both written and verbal) that can be understood by a resident with profound mental retardation/developmental disabilities, and that rules and regulations regarding personal rights and personal conduct responsibilities can be clearly communicated with that language and that this is not a realistic expectation to place on providers for a notable number of others, especially providers who serve those severely challenged by a developmental disability. | No change was made in response to these comments. | |||
| | The comments made no specific recommend[ation] for changes. | |||
| | The definition of "resident" in the proposed WAC 388-76-10000 includes the following statement in subsection (2): "For decision-making purposes, the term "resident" includes the resident's surrogate decision maker following state law or at the resident's request." | |||
| | A resident's surrogate decision maker can be appointed to act on behalf of the resident. | |||
| WAC 388-76-10525 Resident rights--Description. To help inform residents how to exercise their rights, it is recommend[ed] to add the following language to subsection (3): | No change was made in response to this comment. | |||
| | Residents may file a complaint on any issue. | |||
| A statement informing the resident that he or she may file a complaint with the appropriate state licensing agency concerning alleged abandonment, abuse, neglect, or financial exploitation, or violation of any resident right contained within this chapter. | | Adding the recommended statement may be limiting and may confuse the resident into believing they can only file a complaint if the complaint relates to abandonment, abuse, neglect, exploitation or financial exploitation. | ||
| WAC 388-76-10540(8) It is recommended to add the following language: If the homes require the implementation signing of an admission contract by or on behalf of an individual seeking admission the home must ... | No change was made in response to this comment. | |||
| | The proposed rule language requires the signing and dating of the admission agreement required in WAC 388-76-10540(3). | |||
| The current term used is: "admission contract." "Admission agreement" would be a better term. | A change was made in response to this comment. | |||
| | The term was changed to "admission agreement" to be consistent with the language in other sections of the rule. | |||
| WAC 388-76-10545(4) Refers to all applicable federal and state requirements regarding nondiscrimination and is a very broad statement. Suggest DSHS offer an adult family home targeted class on this subject. | No change was made in response to this comment. | |||
| | The proposed rule language will not be changed as the language clearly informs the provider they must comply with all laws and regulations relating to nondiscrimination. | |||
| WAC 388-76-10550 (2)(e) This section appears to be in conflict with WAC 388-76-10405, wherein the provider must provide a nurse and/or a nurse delegate. May the provider declare they will not provide for these services? | No change was made in response to these comments. | |||
| | The language is not in conflict with WAC 388-76-10404. | |||
| | The provider can designate the services the provider will and will not provide in the providers preadmission agreement. | |||
| WAC 388-76-10585 An adult family home cannot give a resident "the ability to examine" reports but can provide the "opportunity" to examine. | Changes were made in response to this comment. | |||
| | Changed the wording in the section to "opportunity" for clarity. | |||
| Suggest changing the language in subsection (2) to post "in a visible location in the home, a notice ..." | Changes were made in response to this comment. | |||
| | Changed the wording to help clarify the posting requirement. | |||
| WAC 388-76-10655 Recommend incorporating the following language into the WAC: "A resident who is injuring himself/herself or is threatening physical harm to others may be restrained in an emergency to safeguard the resident and others." | No change was made in response to this comment. | |||
| | Current proposed rule language clearly states the requirements and limitations for the use of restraints. | |||
| WAC 388-76-10685(2) It is recommended to add the following language to state that window and door screens are in fact required: Ensure there are window and door screens: ... | No change was made in response to this comment. | |||
| | Screens are not required. However, if windows or doors have screens, they must comply with the requirements in the proposed rule. | |||
| | The provider is required to keep the bedroom free of flies and other insects as per WAC 388-76-685 (2)(b). | |||
| WAC 388-76-10690 Bedroom usable floor space -- In adult family homes after the effective date of this chapter. A concern was raised for changing bedroom size square footage calculations by the elimination of space for closets and door swing. | No change was made in response to these comments. | |||
| | Current proposed rule language clarifies preexisting agency practice for calculating bedroom floor space which has been in effect for at least two years. | |||
| WAC 388-76-10750(4) A concern is raised regarding the difficulty a home has in meeting and maintaining the 120° Fahrenheit maximum temperature for hot water due to the limitations of hot water systems. | No change was made in response to this comment. | |||
| | The maximum temperature is a current regulation requirement and will not be changed for the safety of the residents. | |||
| WAC 388-76-10775 (1)(c) Recommend raising the maximum temperature to 80° instead of the required 79° as on hot days the interior temperature can reach 79 to 80°. | No change was made in response to this comment. | |||
| | The 78° temperature requirement required by the state adopted energy code. | |||
| WAC 388-76-10780 Refers to "toilet, shower and tub." Must homes licensed after July 1, 2007, actually have a tub? We installed handicapped showers which accept a wheelchair. Is "tub" really required? | A change was made in response to this comment. | |||
| | The building code requires the installation of a tub or shower. | |||
| | The word "or" was added to add clarification of the building code requirement. | |||
| WAC 388-76-10810 Suggest adding clarifying language to clarify whether "the home must have different fire extinguishers "in addition to" or "in place of," as required in ...." | A change was made in response to this comment.
|
|||
| | Added clarifying language indicating the required fire extinguishers would be "in place of." | |||
| WAC 388-76-10820 Questions were raised about the definition of grade level. | No change was made in response to this comment. | |||
| | The comments made no specific recommend[ation] for changes. | |||
| | The definition of grade level is complex and is established in the state adopted building code. | |||
| | Building code officials are given the authority to enforce "grade level" facility regulations in chapter 19.27 RCW. | |||
| WAC 388-76-10845 Emergency drinking water supply. Due to the importance of having a good clean supply of drinking water during an emergency, suggest adding very specific language to this section. | A change was made in response to these comments. | |||
| | Added clarifying language for : | |||
| ° | The type of storage containers used to store the drinking water; | |||
| ° | Chemical treatment or replaced; and | |||
| ° | Appropriate storage. | |||
| WAC 388-76-10850 Emergency medical supplies. Recommend adding very specific language to this section so the expectations required for first-aid supplies are clear. | No change was made in response to these comments. | |||
| | Current proposed language allows the provider flexibility to provide the required first-aid supplies consistent with: | |||
| ° | The number and needs of the residents served by the home. | |||
| | Proposed language is consistent with currently adopted language. | |||
| WAC 388-76-10920 The title to this section includes both inspections and investigations, while the body of the text only speaks to the inspection report. Striking the word "inspection" (to read: "the department's report") in the first part allows subsections (1) and (2) to clarify the separate delivery timeframes for inspections and investigations. | Changes were made in response to these comments. | |||
| | Removed the word "inspection" to provide clarity within the section. | |||
| | Changed subsection (2) to be consistent with statutory language in chapter 70.128 RCW. | |||
| Subsection (2) refers to calendar days related to a complaint investigation and should refer to calendar days related to an inspection of the facility has no violations. | ||||
| WAC 388-76-10930 Suggest adding the following clarifying language: "If a plan of correction is indicated on the inspection or investigation report. It must: ...." | No change was made in response to this comment. | |||
| | The department report states if a plan of correction is or is not required. | |||
| WAC 388-76-10955 That the department "must impose" a remedy under subsection (6)(a) in a situation where a medicaid/medicare provider agreement is suspended, rather than "may impose" (WAC 300-76-10960 [388-76-10960]) (until the situation is resolved,) would appear arbitrary, unless required by law. | No change was made in response to this comment. | |||
| | The proposed language provides the department flexibility relating to the imposition of remedies based upon the specific circumstances of the situation. | |||
| WAC 388-76-10990 Recommend amending this section to clarify that the resident has the right to participate in IDR and will likely encourage them to do so. | No change was made in response to this comment. | |||
| | Department policy provides an opportunity for residents to participate in the informal dispute resolution process. | |||
| | Department policy will not be placed in the proposed rule. | |||
| WAC 388-76-11040 (2)(b) A reasonable change would have the department able to decide to remove a "single finding of violation with this chapter" (in lieu of only "neglect"). | No change was made in response to this comment. | |||
| | The department is withdrawing this section and has filed a new preproposal statement of inquiry (CR-101) for the resident protection program with the code reviser, WSR 07-15-026. | |||
| WAC 388-76-11045(6) Suggest adding the following clarifying language: "the public, upon request." | No change was made in response to this comment. | |||
| | The department is withdrawing this section and has filed a new preproposal statement of inquiry (CR-101) for the resident protection program with the code reviser, WSR 07-15-026. | |||
A final cost-benefit analysis is available by contacting Roger A. Woodside, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-3204, fax (360) 438-7903, e-mail woodsr@dshs.wa.gov. The cost-benefit analysis was not changed.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 199, Amended 0, Repealed 97.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 199, Amended 0, Repealed 97.
Date Adopted: October 16, 2007.
Robin Arnold-Williams
Secretary
3891.9ADULT FAMILY HOME MINIMUM LICENSING REQUIREMENTS
"Abuse" means the willful action or inaction that inflects injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult:
(1) In instances of abuse of a vulnerable adult who is unable to express or demonstrate physical harm, pain, or mental anguish, the abuse is presumed to cause physical harm, pain or mental anguish; and
(2) Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult, which have the following meanings:
(a) "Sexual abuse" means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse includes any sexual contact between a staff person, who is not also a resident or client, of a facility or a staff person of a program authorized under chapter 71A.12 RCW, and a vulnerable adult living in that facility or receiving service from a program authorized under chapter 71A.12 RCW, whether or not consensual.
(b) "Physical abuse" means a willful action of inflicting bodily injury or physical mistreatment. Physical abuse includes, but is not limited to, striking with or without an object, slapping, pinching, choking, kicking, shoving, prodding, or chemical restraints unless the restraints are consistent with licensing requirements, and includes restraints that are otherwise being used inappropriately.
(c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a vulnerable adult from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.
(d) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.
"Adult family home" means:
(1) A residential home in which a person or entity are licensed to provide personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to the person or persons providing the services; and
(2) For the purposes of this chapter, any person or entity who has been granted a license to operate an adult family home.
"Affiliated with an applicant" means any person listed on the application as a partner, officer, director, resident manager, or majority owner of the applying entity, or is the spouse of the applicant.
"Applicant" means an individual, partnership, corporation, or other entity seeking a license to operate an adult family home.
"Capacity" means the maximum number of persons in need of personal or special care permitted in an adult family home at a given time and includes related children or adults in the home who receive personal or special care and services.
"Caregiver" for purposes other than training, means any person eighteen years of age or older responsible for providing direct personal or special care to a resident and who is not the provider, entity representative, a student or volunteer.
"Dementia" is defined as a condition documented through the assessment process required by WAC 388-76-10335.
"Department" means the Washington state department of social and health services.
"Department case manager" means the department authorized staff person or designee assigned to negotiate, monitor, and facilitate a care and services plan for residents receiving services paid for by the department.
"Developmental disability" means:
(1) A person who meets the eligibility criteria defined by the division of developmental disabilities under WAC 388-823-0040; or
(2) A person with a severe, chronic disability which is attributable to cerebral palsy or epilepsy, or any other condition, other than mental illness, found to be closely related to mental retardation which results in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation, and requires treatment or services similar to those required for these persons (i.e., autism); and
(a) The condition was manifested before the person reached age eighteen;
(b) The condition is likely to continue indefinitely; and
(c) The condition results in substantial functional limitations in three or more of the following areas of major life activities:
(i) Self-care;
(ii) Understanding and use of language;
(iii) Learning;
(iv) Mobility;
(v) Self-direction; and
(vi) Capacity for independent living.
"Direct supervision" means oversight by a person who has demonstrated competency in the basic training and specialty training if required, or who has been exempted from the basic training requirements and is:
(1) On the premises; and
(2) Quickly and easily available to the caregiver.
"Entity provider" means any corporation, partnership, association, or limited liability company that is licensed under this chapter to operate an adult family home.
"Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any person for any person's profit or advantage other than for the vulnerable adult's profit or advantage.
"Entity representative" means the individual designated by an entity provider who is responsible for the daily operation of the adult family home.
"Home" means adult family home.
"Indirect supervision" means oversight by a person who:
(1) Has demonstrated competency in the basic training and specialty training if required; or
(2) Has been exempted from the basic training requirements; and
(3) Is quickly and easily available to the care giver, but not necessarily on-site.
"Inspection" means an on-site visit by department personnel to determine the adult family home's compliance with this chapter and chapters 70.128, 70.129, 74.34 RCW, and other applicable rules and regulations.
"Mandated reporter" means an employee of the department, law enforcement, officer, social worker, professional school personnel, individual provider, an employee of a facility, an employee of a social service, welfare, mental health, adult day health, adult day care, or hospice agency, county coroner or medical examiner, Christian Science practitioner, or health care provider subject to chapter 18.130 RCW. For the purpose of the definition of a mandated reporter, "Facility" means a residence licensed or required to be licensed under chapter 18.20 RCW (boarding homes), chapter 18.51 RCW (nursing homes), chapter 70.128 RCW (adult family homes), chapter 72.36 RCW (soldiers' homes), chapter 71A.20 RCW (residential habilitation centers), or any other facility licensed by the department.
"Medical device" as used in this chapter, means any piece of medical equipment used to treat a resident's assessed need.
(1) A medical device is not always a restraint and should not be used as a restraint;
(2) Some medical devices have considerable safety risks associated with use; and
(3) Examples of medical devices with known safety risks when used are transfer poles, Posey or lap belts, and side rails.
"Medication administration" means giving resident medications by a person legally authorized to do so, such as a physician, pharmacist or nurse.
"Medication organizer" is a container with separate compartments for storing oral medications organized in daily doses.
"Mental illness" is defined as an Axis I or II diagnosed mental illness as outlined in volume IV of the Diagnostic and Statistical Manual of Mental Disorders (a copy is available for review through the aging and disability services administration).
"Multiple facility provider" means an individual or entity provider who is licensed to operate more than one adult family home.
"Neglect" means:
(1) A pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult; or
(2) An act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.41.100.
"Nurse delegation" means a registered nurse transfers the performance of selected nursing tasks to competent nursing assistants in selected situations. The registered nurse delegating the task retains the responsibility and accountability for the nursing care of the resident.
"Over-the-counter medication" is any medication that can be purchased without a prescriptive order, including but not limited to vitamin, mineral, or herbal preparations.
"Personal care services" means both physical assistance and/or prompting and supervising the performance of direct personal care tasks as determined by the resident's needs and does not include assistance with tasks performed by a licensed health professional.
"Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body, is used for discipline or convenience, and is not required to treat the resident's medical symptoms.
"Practitioner" includes a physician, osteopathic physician, podiatric physician, pharmacist, licensed practical nurse, registered nurse, advanced registered nurse practitioner, dentist, and physician assistant licensed in the state of Washington.
"Prescribed medication" refers to any medication (legend drug, controlled substance, and over-the-counter) that is prescribed by an authorized practitioner.
"Provider" means any person or entity that is licensed under this chapter to operate an adult family home.
"Qualified staff" means a person who:
(1) Is employed, directly or by contract, by an adult family home; and
(2) Meets all of the requirements of a provider, ent