WSR 12-15-073

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services)

[ Filed July 18, 2012, 9:31 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-05-114.

Title of Rule and Other Identifying Information: The department intends to amend WAC 388-78A-2020 Definitions, 388-78A-2461 Background check -- General, 388-78A-2462 Background check -- Washington state -- Who is required to have, 388-78A-2464 Background check -- Process, 388-78A-2465 Background check -- Results, 388-78A-2466 Background check -- Valid for two years, 388-78A-2468 Background check -- Conditional hire -- Pending result, 388-78A-2469 Background check -- Disclosure statement, 388-78A-2470 Background check -- Employment-disqualifying information, 388-78A-2474 Training and home care aide certification requirements, and 388-78A-2750 Application process.

The department intends to add WAC 388-78A-24641 Background checks -- Process -- Washington state name and date of birth background check, 388-78A-24642 Background checks -- Process -- National fingerprint background check, 388-78A-24681 Background checks -- Employment -- Provisional hire -- Pending results of national fingerprint background check, and 388-78A-24701 Background checks -- Employment -- Nondisqualifying information.

The department intends to repeal WAC 388-78A-2463 Background check -- National fingerprint checks -- Who is required to have.

Hearing Location(s): Office Building 2, Lookout Room, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on September 4, 2012, at 10:00 a.m.

Date of Intended Adoption: Not earlier than September 5, 2012.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on September 4, 2012.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by August 25, 2012, TTY (360) 664-6178 or (360) 664-6094.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending these rules to comply with and be consistent with Initiative 1163, and ESHB 2314 Long-term care workers. In addition, the department is clarifying in rule the provision related to disqualifying drug crimes.

Reasons Supporting Proposal: See above.

Statutory Authority for Adoption: Chapter 18.20 RCW.

Statute Being Implemented: Chapter 18.20 RCW.

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

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting: Judy Johnson, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2591; Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2404.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025(3), a small business economic impact statement is not required for rules adopting or incorporating, by reference without material change, Washington state statutes or regulations.

A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b), a cost-benefit analysis is not required for rules adopting or incorporating, by reference without material change, Washington state statues [statutes] or regulations.

July 13, 2012

Katherine I. Vasquez

Rules Coordinator

4304.8
AMENDATORY SECTION(Amending WSR 12-08-004, filed 3/22/12, effective 4/22/12)

WAC 388-78A-2020   Definitions.   "Abandonment" means action or inaction by a person with a duty of care for a vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.

"Abuse" means the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a resident. In instances of abuse of a resident 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. Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a resident, which have the following meanings:

(1) "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 resident from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing;

(2) "Physical abuse" means the 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 the use of chemical restraints or physical restraints;

(3) "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 contact may include interactions that do not involve touching, including but not limited to sending a resident sexually explicit messages, or cuing or encouraging a resident to perform sexual acts. Sexual abuse includes any sexual contact between a staff person and a resident, whether or not it is consensual;

(4) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a resident causing the resident to act in a way that is inconsistent with relevant past behavior, or causing the resident to perform services for the benefit of another.

"Activities of daily living" means the following tasks related to basic personal care: Bathing; toileting; dressing; personal hygiene; mobility; transferring; and eating.

"Administrator" means a boarding home administrator who must be in active administrative charge of the boarding home as required in this chapter. For training, certification, and background check purposes, the administrator or designee is presumed to provide direct care.

"Adult day services" means care and services provided to a nonresident individual by the boarding home on the boarding home premises, for a period of time not to exceed ten continuous hours, and does not involve an overnight stay.

"Ambulatory" means capable of walking or traversing a normal path to safety without the physical assistance of another individual:

(1) "Nonambulatory" means unable to walk or traverse a normal path to safety without the physical assistance of another individual;

(2) "Semiambulatory" means physically and mentally capable of traversing a normal path to safety with the use of mobility aids, but unable to ascend or descend stairs without the physical assistance of another individual.

"Applicant" means the person, as defined in this section, that has submitted, or is in the process of submitting, an application for a boarding home license.

"Basic services" means housekeeping services, meals, nutritious snacks, laundry, and activities.

"Bathing fixture" means a bathtub, shower or sit-down shower.

"Bathroom" means a room containing at least one bathing fixture.

"Boarding home" means any home or other institution, however named, which is advertised, announced, or maintained for the express or implied purpose of providing housing, basic services, and assuming general responsibility for the safety and well-being of the residents, and may also provide domiciliary care, consistent with this chapter to seven or more residents after July 1, 2000. However, a boarding home that is licensed for three to six residents prior to or on July 1, 2000, may maintain its boarding home license as long as it is continually licensed as a boarding home. "Boarding home" does not include facilities certified as group training homes pursuant to RCW 71A.22.040, nor any home, institution or section thereof which is otherwise licensed and regulated under the provisions of state law providing specifically for the licensing and regulation of such home, institution or section thereof. Nor shall it include any independent senior housing, independent living units in continuing care retirement communities, or other similar living situations including those subsidized by the Department of Housing and Urban Development. "Boarding home" may also include persons associated with the boarding home to carry out its duties under this chapter.

"Building code" means the building codes and standards adopted by the Washington state building code council.

"Caregiver" means anyone providing ((hands-on)) direct personal care to another person including, but not limited to: Cuing, reminding or supervision of residents, on behalf of a boarding home, except volunteers who are directly supervised. ((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, is on the premises, and is quickly and easily available to the caregiver.))

"Construction review services" means the office of construction review services within the Washington state department of health.

"Continuing care contract" means, as stated in RCW 70.38.025, a contract providing a person, for the duration of that person's life or for a term in excess of one year, shelter along with nursing, medical, health-related, or personal care services, which is conditioned upon the transfer of property, the payment of an entrance fee to the provider of such services, or the payment of periodic charges for the care and services involved. A continuing care contract is not excluded from this definition because the contract is mutually terminable or because shelter and services are not provided at the same location.

"Continuing care retirement community" means, as stated in RCW 70.38.025, an entity which provides shelter and services under continuing care contracts with its members and which sponsors or includes a health care facility or a health service.

"Contractor" means an agency or person who contracts with a licensee to provide resident care, services or equipment.

"Crimes relating to financial exploitation" means the same as "crimes relating to financial exploitation" as defined in RCW 43.43.830 or 43.43.842.

"Department" means the Washington state department of social and health services.

"Dietitian" means an individual certified under chapter 18.138 RCW.

"Direct supervision" means oversight by a person on behalf of the boarding home who has met training requirements, demonstrated competency in core areas, or has been fully exempted from the training requirements, is on the premises, and is quickly and easily available to the caregiver.

"Document" means to record, with signature, title, date and time:

(1) Information about medication administration, medication assistance or disposal, a nursing care procedure, accident, occurrence or change in resident condition that may affect the care or needs of a resident; and

(2) Processes, events or activities that are required by law, rule or policy.

"Domiciliary care" means:

(1) Assistance with activities of daily living provided by the boarding home either directly or indirectly; or

(2) Health support services, if provided directly or indirectly by the boarding home; or

(3) Intermittent nursing services, if provided directly or indirectly by the boarding home.

"Enforcement remedy" means one or more of the department's responses to a boarding home's noncompliance with chapter 18.20 RCW and this chapter, as authorized by RCW 18.20.190.

"Financial exploitation" means the illegal or improper use, control over, or withholding of the property, income, resources, or trust funds of the vulnerable adult by any person or entity for any person's or entity's profit or advantage other than for the vulnerable adult's profit or advantage. Some examples of financial exploitation are given in RCW 74.34.020(6).

"Food service worker" means according to chapter 246-217 WAC an individual who works (or intends to work) with or without pay in a food service establishment and handles unwrapped or unpackaged food or who may contribute to the transmission of infectious diseases through the nature of his/her contact with food products and/or equipment and facilities. This does not include persons who simply assist residents with meals.

"General responsibility for the safety and well-being of the resident" means the provision of the following:

(1) Prescribed general low sodium diets;

(2) Prescribed general diabetic diets;

(3) Prescribed mechanical soft foods;

(4) Emergency assistance;

(5) Monitoring of the resident;

(6) Arranging health care appointments with outside health care providers and reminding residents of such appointments as necessary;

(7) Coordinating health care services with outside health care providers consistent with WAC 388-78A-2350;

(8) Assisting the resident to obtain and maintain glasses, hearing aids, dentures, canes, crutches, walkers, wheelchairs, and assistive communication devices;

(9) Observation of the resident for changes in overall functioning;

(10) Blood pressure checks as scheduled;

(11) Responding appropriately when there are observable or reported changes in the resident's physical, mental, or emotional functioning; or

(12) Medication assistance as permitted under RCW 69.41.085 and as described in RCW 69.41.010 and chapter 246-888 WAC.

"Harm" means a physical or mental or emotional injury or damage to a resident including those resulting from neglect or violations of a resident's rights.

"Health support services" means any of the following optional services:

(1) Blood glucose testing;

(2) Puree diets;

(3) Calorie controlled diabetic diets;

(4) Dementia care;

(5) Mental health care; or

(6) Developmental disabilities care.

"Independent living unit" means:

(1) Independent senior housing;

(2) Independent living unit in a continuing care retirement community or other similar living environments;

(3) Boarding home unit where domiciliary services are not provided; or

(4) Boarding home unit where one or more items listed under "general responsibilities" are not provided.

"Independent senior housing" means an independent living unit occupied by an individual or individuals sixty or more years of age.

"Infectious" means capable of causing infection or disease by entrance of organisms into the body, which grow and multiply there, including, but not limited to, bacteria, viruses, protozoans, and fungi.

"Licensee" means the person, as defined in this chapter, to whom the department issues the boarding home license.

"Licensed resident bed capacity" means the resident occupancy level requested by the licensee and approved by the department. All residents receiving domiciliary care or the items or services listed under general responsibility for the safety and well-being of the resident as defined in this section count towards the licensed resident bed capacity. Adult day services clients do not count towards the licensed resident bed capacity.

"Long-term care worker", as defined in RCW 74.39A.009, has the same meaning as the term "caregiver".

"Majority owner" means any person that owns:

(1) More than fifty percent interest; or

(2) If no one person owns more than fifty percent interest, the largest interest portion; or

(3) If more than one person owns equal largest interest portions, then all persons owning those equal largest interest portions.

"Manager" means the person defined in this chapter, providing management services on behalf of the licensee.

"Management agreement" means a written, executed agreement between the licensee and the manager regarding the provision of certain services on behalf of the licensee.

"Mandated reporter":

(1) Is an employee of the department, law enforcement officer, social worker, professional school personnel, individual provider, an employee of a facility, an operator of a facility, an employee of a social service, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agency, county coroner or medical examiner, Christian Science practitioner, or health care provider subject to chapter 18.130 RCW; and

(2) For the purpose of the definition of 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.

"Maximum facility capacity" means the maximum number of individuals that the boarding home may serve at any one time, as determined by the department.

(1) The maximum facility capacity includes all residents and respite care residents and adult day services clients.

(2) The maximum facility capacity is equal to the lesser of:

(a) The sum of the number of approved bed spaces for all resident rooms (total number of approved bed spaces), except as specified in subsection (3); or

(b) Twice the seating capacity of the dining area(s) consistent with WAC 388-78A-2300 (1)(h); or

(c) The number of residents permitted by calculating the ratios of toilets, sinks, and bathing fixtures to residents consistent with WAC 388-78A-3030; or

(d) For boarding homes licensed on or before December 31, 1988, the total day room area in square feet divided by ten square feet, consistent with WAC 388-78A-3050; or

(e) For boarding homes licensed after December 31, 1988, the total day room area in square feet divided by twenty square feet, consistent with WAC 388-78A-3050.

(3) For the purposes of providing adult day services consistent with WAC 388-78A-2360, one additional adult day services client may be served, beyond the total number of approved bed spaces, for each additional sixty square feet of day room area greater than the area produced by multiplying the total number of approved bed spaces by twenty square feet, provided that:

(a) There is at least one toilet and one hand washing sink accessible to adult day services clients for every eight adult day services clients or fraction thereof;

(b) The total number of residents and adult day services clients does not exceed twice the seating capacity of the dining area(s) consistent with WAC 388-78A-2300 (1)(h); and

(c) The adult day services program area(s) and building do not exceed the occupancy load as determined by the local building official or state fire marshal.

"Medication administration" means the direct application of a prescribed medication whether by injection, inhalation, ingestion, or other means, to the body of the resident by an individual legally authorized to do so.

"Medication assistance" means assistance with self-administration of medication rendered by a nonpractitioner to a resident of a boarding home in accordance with chapter 246-888 WAC.

"Medication organizer" means a container with separate compartments for storing oral medications organized in daily doses.

"Medication service" means any service provided either directly or indirectly by a boarding home related to medication administration, medication administration provided through nurse delegation, medication assistance, or resident self-administration of medication.

"Neglect" means:

(1) A pattern of conduct or inaction resulting in the failure to provide the goods and services that maintain physical or mental health of a resident, or that fails to avoid or prevent physical or mental harm or pain to a resident; 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 resident's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.42.100.

"Nonresident individual" means an individual who resides in independent senior housing, independent living units in continuing care retirement communities, or in other similar living environments or in an unlicensed room located within a boarding home. A nonresident individual may not receive from the boarding home:

(1) Domiciliary care directly or indirectly; or

(2) The items or services listed in the definition of "general responsibility for the safety and well-being of the resident", except as allowed under WAC 388-78A-2032 or when the person is receiving adult day services.

"Nonpractitioner" means any individual who is not a practitioner as defined in WAC 388-78A-2020 and chapter 69.41 RCW.

"Nurse" means an individual currently licensed under chapter 18.79 RCW as either a:

(1) "Licensed practical nurse" (LPN); or

(2) "Registered nurse" (RN).

"Over-the-counter (OTC) medication" means any medication that may be legally purchased without a prescriptive order, including, but not limited to, aspirin, antacids, vitamins, minerals, or herbal preparations.

"Person" means any individual, firm, partnership, corporation, company, association, joint stock association or any other legal or commercial entity.

"Physician" means an individual licensed under chapter 18.57 or 18.71 RCW.

"Practitioner" includes a licensed physician, osteopathic physician, podiatric physician, pharmacist, licensed practical nurse, registered nurse, advanced registered nurse practitioner, dentist, and physician assistant. Refer to chapter 69.41 RCW for a complete listing of practitioners.

"Prescribed medication" means any medication (legend drug, controlled substance, and over-the-counter) that is prescribed by an authorized practitioner.

"Prescriber" means a health care practitioner authorized by Washington state law to prescribe drugs.

"Problem" means a violation of any WAC or RCW applicable to the operation of a boarding home:

(1) "Recurring problem" means, for all purposes other than those described in RCW 18.20.400, that the department has cited the boarding home for a violation of WAC or RCW and the circumstances of (a) or (b) of this subsection are present:

(a) The department previously imposed an enforcement remedy for a violation of the same section of WAC or RCW for substantially the same problem following any type of inspection within the preceding thirty-six months; or

(b) The department previously cited a violation under the same section of WAC or RCW for substantially the same problem following any type of inspection on two occasions within the preceding thirty-six months.

(c) If the previous violation in (a) or (b) of this subsection was pursuant to WAC or RCW that has changed at the time of the new violation, citation to the equivalent current WAC or RCW section is sufficient.

(d) When there is a change in licensees between the first and the second or third citations, the new licensee must accept, and the department will consider, the prior licensee's compliance and enforcement record as part of the new licensee's compliance record at that boarding home if any person affiliated with the new licensee was affiliated with the prior licensee at the same boarding home. A person is considered affiliated with the licensee if the person is an applicant for the boarding home license, or is listed on the license application as a partner, officer, director, or majority owner of the applicant.

(2) "Serious problem" means:

(a) There has been a violation of a WAC or RCW; and

(b) Significant harm has actually occurred to a resident; or

(c) It is likely that significant harm or death will occur to a resident.

(3) "Uncorrected problem" means the department has cited a violation of WAC or RCW following any type of inspection and the violation remains uncorrected at the time the department makes a subsequent inspection for the specific purpose of verifying whether such violation has been corrected. When a change in licensees occurs, the new licensee is responsible for correcting any remaining violations that may exist, including complying with any plan of correction in effect immediately prior to the change in licensees.

"Prospective resident" means an individual who is seeking admission to a licensed boarding home and who has completed and signed an application for admission, or such application for admission has been completed and signed in their behalf by their legal representative if any, and if not, then the designated representative if any.

"Reasonable accommodation" and "reasonably accommodate" have the meaning given in federal and state antidiscrimination laws and regulations which include, but are not limited to, the following:

(1) Reasonable accommodation means that the boarding home must:

(a) Not impose admission criteria that excludes individuals unless the criteria is necessary for the provision of boarding home services;

(b) Make reasonable modification to its policies, practices or procedures if the modifications are necessary to accommodate the needs of the resident;

(c) Provide additional aids and services to the resident.

(2) Reasonable accommodations are not required if:

(a) The resident or individual applying for admission presents a significant risk to the health or safety of others that cannot be eliminated by the reasonable accommodation;

(b) The reasonable accommodations would fundamentally alter the nature of the services provided by the boarding home; or

(c) The reasonable accommodations would cause an undue burden, meaning a significant financial or administrative burden.

"RCW" means Revised Code of Washington.

"Records" means:

(1) "Active records" means the current, relevant documentation regarding residents necessary to provide care and services to residents; or

(2) "Inactive records" means historical documentation regarding the provision of care and services to residents that is no longer relevant to the current delivery of services and has been thinned from the active record.

"Resident" means an individual who:

(1) Chooses to reside in a boarding home, including an individual receiving respite care;

(2) Is not related by blood or marriage to the operator of the boarding home;

(3) Receives basic services; and

(4) Receives one or more of the services listed in the definition of "general responsibility for the safety and well-being of the resident," and may receive domiciliary care or respite care provided directly, or indirectly, by the boarding home. A nonresident individual may receive services that are permitted under WAC 388-78A-2032.

"Resident's representative" means:

(1) The legal representative who is the person or persons identified in RCW 7.70.065 and who may act on behalf of the resident pursuant to the scope of their legal authority. The legal representative shall not be affiliated with the licensee, boarding home, or management company, unless the affiliated person is a family member of the resident; or

(2) If there is no legal representative, a person designated voluntarily by a competent resident in writing, to act in the resident's behalf concerning the care and services provided by the boarding home and to receive information from the boarding home if there is no legal representative. The resident's representative may not be affiliated with the licensee, boarding home, or management company, unless the affiliated person is a family member of the resident. The resident's representative under this subsection shall not have authority to act on behalf of the resident once the resident is no longer competent. The resident's competence shall be determined using the criteria in RCW 11.88.010 (1)(e).

"Respite care" means short-term care for any period in excess of twenty-four continuous hours for a resident to temporarily relieve the family or other caregiver of providing that care.

"Restraint" means any method or device used to prevent or limit free body movement, including, but not limited to:

(1) Confinement, unless agreed to as provided in WAC 388-78A-2370;

(2) "Chemical restraint" which means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the resident's medical symptoms; and

(3) "Physical restraint" which 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 not required to treat the resident's medical symptoms.

"Room" means a space set apart by floor to ceiling partitions on all sides with all openings provided with doors or windows.

(1) "Sleeping room" means a room where a resident is customarily expected to sleep and contains a resident's bed.

(2) "Resident living room" means the common space in a resident unit that is not a sleeping room, bathroom or closet.

"Significant change" means a change in the resident's physical, mental, or psychosocial status that causes either life-threatening conditions or clinical complications.

"Special needs" means a developmental disability, mental illness, or dementia.

"Staff person" means any boarding home employee or temporary employee or contractor, whether employed or retained by the licensee or any management company, or volunteer.

"State fire marshal" means the director of fire protection under the direction of the chief of the Washington state patrol.

"Toilet" means a disposal apparatus used for urination and defecation, fitted with a seat and flushing device.

"Volunteer" means an individual who interacts with residents without reimbursement.

"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; or

(2) Found incapacitated under chapter 11.88 RCW; or

(3) Who has a developmental disability as defined under RCW 71A.10.020; or

(4) Admitted to any facility, including any boarding home; or

(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 an individual provider.

(7) For the purposes of requesting and receiving background checks pursuant to RCW 43.43.832, it shall also include adults of any age who lack the functional, mental, or physical ability to care for themselves.

"WAC" means Washington Administrative Code.

"Wellness program" means an educational program provided by the boarding home. It is a proactive and preventative approach to assist residents and nonresident individuals in achieving optimal levels of health, social, and emotional functioning. A wellness program does not include medical care or interventions.

"Willful" means the deliberate, or nonaccidental, action or inaction by an alleged perpetrator that he/she knows or reasonably should have known could cause a negative outcome, including harm, injury, pain or anguish.

"WISHA" means the Washington Industrial Safety and Health Act, chapter 49.17 RCW administered by the Washington state department of labor and industries.

[Statutory Authority: Chapter 18.20 RCW. 12-08-004, 388-78A-2020, filed 3/22/12, effective 4/22/12. Statutory Authority: RCW 18.20.090 and chapters 18.20 and 74.34 RCW. 08-05-099, 388-78A-2020, filed 2/15/08, effective 3/17/08. Statutory Authority: RCW 18.20.090 and 2006 c 242. 06-13-028, 388-78A-2020, filed 6/13/06, effective 7/14/06. Statutory Authority: RCW 18.20.090. 06-01-047, 388-78A-2020, filed 12/15/05, effective 1/15/06. Statutory Authority: RCW 18.20.090 (2004 c 142 19) and chapter 18.20 RCW. 04-16-065, 388-78A-2020, filed 7/30/04, effective 9/1/04.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2461   Background checks--General.   (1) Background checks conducted by the department and required in this chapter include ((but are not limited to)):

(((1))) (a) Washington state name and date of birth background checks ((including:

(a) Department and department of health findings)); and

(b) ((Criminal background check information from the Washington state patrol and the Washington state courts;

(2))) After ((January 1, 2012)) January 7, 2012, a national fingerprint((-based)) background check in accordance with RCW ((74.39A.055)) 74.39A.056.

(((3))) (2) Nothing in this chapter should be interpreted as requiring the employment of a person against the better judgment of the boarding home.

(((4))) (3) In addition to chapter 18.20 RCW, these rules are authorized by RCW 43.20A.710, RCW 43.43.830 through 43.43.842 and RCW ((74.39A.050(8))) 74.39A.051.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2461, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2462   Background checks--((Washington state -- ))Who is required to have.   (1) Applicants for a boarding home license, as defined in WAC 388-78A-2740, ((are required to have a Washington state)) must have the following background checks before licensure:

(a) A Washington state name and date of birth background check; and

(b) A national fingerprint background check.

(2) The boarding home must ensure ((the following have Washington state)) that the administrator and all caregivers employed directly or by contract after January 7, 2012 have the following background checks:

(a) A Washington state name and date of birth background check; and

(b) A national fingerprint background check.

(3) The boarding home must ensure that the following individuals have a Washington state name and date of birth background check:

(a) ((Caregivers, including)) Volunteers who are not residents, and students who may have unsupervised access to residents;

(b) ((Administrators;

(c) Licensee;

(d))) Staff persons who are not caregivers or administrators;

(((e))) (c) Managers who do not provide direct care to residents; and

(((f))) (d) Contractors other than the administrator and caregivers who may have unsupervised access to residents.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2462, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2464   Background checks--Process--Background authorization form.   (((1))) Before the boarding home employs, directly or by contract, an administrator, staff person or caregiver, or accepts ((as a caregiver,)) any volunteer ((who is not a resident)), or student, the home must:

(((a))) (1) Require the person to complete a DSHS background authorization form; and

(((b))) (2) Send the completed form to the department's background check central unit (((BCCU))), including any additional documentation and information requested by the department.

(((2) For purposes of this section, the administrator is presumed to provide direct care.))

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2464, filed 7/30/10, effective 1/1/11.]


NEW SECTION
WAC 388-78A-24641   Background checks--Washington state name and date of birth background check.   If the results of the Washington state name and date of birth background check indicate the person has been convicted of a crime or has a finding that is disqualifying under WAC 388-78A-2470, the boarding home must:

(1) Not employ, directly or by contract, a caregiver, administrator, or staff person; and

(2) Not allow a volunteer or student to have unsupervised access to residents.

[]


NEW SECTION
WAC 388-78A-24642   Background checks--National fingerprint background check.   (1) Administrators and all caregivers who are hired after January 7, 2012 and are not disqualified by the Washington state name and date of birth background check, must complete a national fingerprint background check and follow department procedures.

(2) After receiving the results of the national fingerprint background check the boarding home must not employ, directly or by contract, an administrator or caregiver who has been convicted of a crime or has a finding that is disqualifying under WAC 388-78A-2470.

(3) The boarding home may accept a copy of the national fingerprint background check results letter and any additional information from the department's background check central unit from an individual who previously completed a national fingerprint check through the department's background check central unit, provided the national fingerprint background check was completed after January 7, 2012.

[]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2465   Background check--Results--Inform.   (1) ((The boarding home must not allow the persons listed in WAC 388-78A-2462(2) to have unsupervised access to residents until the boarding home receives background check results from the department verifying that the person does not have any convictions, or findings described in WAC 388-78A-2470.

(2) If the background check results show that the person has a conviction or finding that is not disqualifying under WAC 388-78A-2470, then the boarding home must determine whether the person has the character, suitability and competence to work with vulnerable adults in long-term care.

(3))) After receiving the results of the Washington state name and date of birth background check, the boarding home must:

(a) Inform the person of the results of the background check;

(b) Inform the person that they may request a copy of the results of the background check. If requested, a copy of the background check results must be provided within ten days of the request; and

(c) Notify the department and other appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record.

(2) After receiving the final result letter for the national fingerprint background check, the boarding home must inform the person:

(a) Of the national fingerprint background check final result letter;

(b) That they may request a copy of the national fingerprint check final result letter; and

(c) That any additional information requested can only be obtained from the department's background check central unit.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2465, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2466   Background checks--Washington state name and date of birth background check--Valid for two years--National fingerprint background check--Valid indefinitely.   (1) A Washington state name and date of birth background check is valid for two years from the initial date it is conducted. The boarding home must ensure:

(((1))) (a) A new DSHS background authorization form is submitted to ((BCCU)) the department's background check central unit every two years for ((individuals listed in WAC 388-78A-2462)) all administrators, caregivers, staff persons, volunteers and students; and

(((2))) (b) There is a valid Washington state name and date of birth background check for all ((individuals listed in WAC 388-78A-2462)) administrators, caregivers, staff persons, volunteers and students.

(2) A national fingerprint background check is valid for an indefinite period of time. The boarding home must ensure there is a valid national fingerprint background check completed for all administrators and caregivers hired after January 7, 2012. To be considered valid, the national fingerprint background check must be initiated and completed through the department's background check central unit after January 7, 2012.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2466, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2468   Background checks--Employment--Conditional hire--Pending results of Washington state name and date of birth background check.   The boarding home may conditionally hire an ((individual described in WAC 388-78A-2462,)) administrator, caregiver, or staff person directly or by contract, pending the result of ((a)) the Washington state name and date of birth background check, provided that the boarding home:

(1) Submits the background authorization form for the ((individual)) person to the department no later than one business day after ((the individual)) he or she starts working;

(2) Requires the ((individual)) person to sign a disclosure statement((, and the individual denies having)) indicating if they have been convicted of a ((disqualifying)) crime or have a ((disqualifying)) finding that is disqualifying under WAC 388-78A-2470;

(3) Has received three positive references for the ((individual)) person;

(4) Does not allow the ((individual)) person to have unsupervised access to any resident;

(5) Ensures direct supervision((, of the individual, as defined in RCW 18.20.270)) of the administrator, all caregivers, and staff persons; and

(6) Ensures that the person is competent, and receives the necessary training to perform assigned tasks and meets the training requirements under chapter 388-112 WAC.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2468, filed 7/30/10, effective 1/1/11.]


NEW SECTION
WAC 388-78A-24681   Background checks--Employment--Provisional hire--Pending results of national fingerprint background check.   The boarding home may provisionally employ a caregiver and an administrator hired after January 7, 2012 for one hundred and twenty-days and allow the caregiver or administrator to have unsupervised access to residents when:

(1) The caregiver or administrator is not disqualified based on the results of the Washington state name and date of birth background check; and

(2) The results of the national fingerprint background check are pending.

[]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2469   Background check--Disclosure statement.   (1) ((Prior to first starting his or her duties,)) The boarding home must require each ((individual described in WAC 388-78A-2462)) administrator, caregiver, staff person, volunteer and student, prior to starting his or her duties, to make disclosures((,)) of any crimes or findings consistent with RCW 43.43.834(2). The disclosures must be in writing and signed by the ((individual)) person under penalty of perjury.

(2) The department may require the boarding home or any ((individual described in WAC 388-78A-2462)) administrator, caregiver, staff person, volunteer or student to complete additional disclosure statements or background authorization forms if the department has reason to believe that offenses specified in WAC 388-78A-2470 have occurred since completion of the previous disclosure statement or background check.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2469, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2470   Background check--Employment-disqualifying information.   The boarding home must not employ or allow an ((individual described in WAC 388-78A-2462)) administrator, caregiver, or staff person, to have unsupervised access to residents, as defined in RCW 43.43.830, if the ((individual)) person has been:

(1) Convicted of a "crime against children or other persons" as defined in RCW 43.43.830, unless the crime is simple assault, assault in the fourth degree, or prostitution and more than three years has passed since the last conviction;

(2) Convicted of "crimes relating to financial exploitation" as defined in RCW 43.43.830, unless the crime is theft in the third degree, and more than three years have passed since conviction, or unless the crime is forgery or theft in the second degree and more than five years has passed since conviction;

(3) Convicted of the manufacture, delivery, or possession with intent to manufacture or deliver drugs under one of the following laws:

(a) Violation of the Imitation Controlled Substances Act (VICSA);

(b) Violation of the Uniform Controlled Substances Act (VUCSA);

(c) Violation of the Uniform Legend Drug Act (VULDA); or

(d) Violation of the Uniform Precursor Drug Act (VUPDA);

(4) Convicted of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;

(5) Convicted of criminal mistreatment;

(6) Convicted of a crime in federal court or in any other state, and the department determines that the crime is equivalent to a crime described in this subsection;

(7) Found to have abused, neglected, financially exploited or abandoned a minor or vulnerable adult by a court of law or a disciplining authority, including the department of health;

(8) Found to have abused or neglected a child and that finding is:

(a) Listed on the department's background check central unit (((BCCU))) report; or

(b) Disclosed by the individual, except for finding made before December, 1998.

(9) Found to have abused, neglected, financially exploited or abandoned a vulnerable adult and that finding is:

(a) Listed on any registry, including the department's registry;

(b) Listed on the department's background check central unit (((BCCU))) report; or

(c) Disclosed by the individual, except for adult protective services findings made before October, 2003.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2470, filed 7/30/10, effective 1/1/11. Statutory Authority: Chapter 18.20 RCW. 10-03-066, 388-78A-2470, filed 1/15/10, effective 2/15/10. Statutory Authority: Chapters 18.20 and 74.34 RCW. 09-01-052, 388-78A-2470, filed 12/10/08, effective 1/10/09. Statutory Authority: RCW 18.20.090 and chapters 18.20 and 74.34 RCW. 08-05-099, 388-78A-2470, filed 2/15/08, effective 3/17/08. Statutory Authority: RCW 18.20.090. 06-01-047, 388-78A-2470, filed 12/15/05, effective 1/15/06. Statutory Authority: RCW 18.20.090 (2004 c 142 19) and chapter 18.20 RCW. 04-16-065, 388-78A-2470, filed 7/30/04, effective 9/1/04.]


NEW SECTION
WAC 388-78A-24701   Background checks--Employment--Nondisqualifying information.   (1) If any background check results show that an employee or prospective employee has a conviction or finding that is not automatically disqualifying under WAC 388-78A-2470, then the boarding home must:

(a) Determine whether the person has the character, competence and suitability to work with vulnerable adults in long-term care; and

(b) Document in writing the basis for making the decision, and make it available to the department upon request.

(2) Nothing in this chapter should be interpreted as requiring the employment of any person against the better judgment of the boarding home.

[]


AMENDATORY SECTION(Amending WSR 12-01-003, filed 12/7/11, effective 1/7/12)

WAC 388-78A-2474   Training and home care aide certification requirements.   (1) The boarding home must ensure staff persons hired before January 7, 2012 meet training requirements in effect on the date hired, including requirements in chapter 388-112 WAC.

(2) The boarding home must ensure all boarding home administrators, or their designees, and caregivers hired on or after January 7, 2012 meet the long-term care worker training requirements of chapter 388-112 WAC, including but not limited to:

(a) Orientation and safety;

(b) Basic;

(c) Specialty for dementia, mental illness and/or developmental disabilities when serving residents with any of those primary special needs;

(d) Cardiopulmonary resuscitation and first aid; and

(e) Continuing education.

(3) The boarding home must ensure that all staff receive appropriate training and orientation for their specific duties and responsibilities.

(4) The boarding home must ensure all persons listed in subsection (2) of this section, obtain the home-care aide certification ((if required by chapter 246-980 WAC)).

(5) Under RCW 18.88B.040 and chapter 246-980 WAC, certain persons including registered nurses, licensed practical nurses, certified nursing assistants, or persons who are in an approved certified nursing assistant program are exempt from long-term care worker training requirements. Continuing education requirements still apply as outlined in chapter 388-112 WAC.

(6) For the purpose of this section, the term "caregiver" has the same meaning as the term "long-term care worker" as defined in RCW 74.39A.009.

[Statutory Authority: Chapter 18.20 RCW. 12-01-003, 388-78A-2474, filed 12/7/11, effective 1/7/12. Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2474, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 12-01-003, filed 12/7/11, effective 1/7/12)

WAC 388-78A-2750   Application process.   To apply for a boarding home license, a person must:

(1) Submit to the department a complete license application on forms designated by the department at least ninety days prior to the proposed effective date of the license;

(2) Submit all relevant attachments specified in the application;

(3) Submit department background authorization forms ((as required in WAC 388-78A-2462 and 388-78A-2463));

(4) Sign the application;

(5) Submit the license fee as specified in WAC 388-78A-3230;

(6) Submit verification that construction plans have been approved by construction review services;

(7) Submit a revised application before the license is issued if any information has changed since the initial license application was submitted;

(8) Submit a revised application containing current information about the proposed licensee or any other persons named in the application, if a license application is pending for more than one year; and

(9) If the licensee's agent prepares an application on the licensee's behalf, the licensee must review, sign and attest to the accuracy of the information contained in the application.

(10) A license must be issued only to the person who applied for the license.

(11) A license may not exceed twelve months in duration and expires on a date set by the department.

[Statutory Authority: Chapter 18.20 RCW. 12-01-003, 388-78A-2750, filed 12/7/11, effective 1/7/12. Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, 388-78A-2750, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 18.20.090 (2004 c 142 19) and chapter 18.20 RCW. 04-16-065, 388-78A-2750, filed 7/30/04, effective 9/1/04.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-78A-2463 Background check--National fingerprint checks--Who is required to have.

Washington State Code Reviser's Office