WSR 17-24-086 EMERGENCY RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Aging and Long-Term Support Administration)
[Filed December 5, 2017, 12:10 p.m., effective December 6, 2017]
Effective Date of Rule: December 6, 2017.
Purpose: The department is amending WAC 388-71-0105 to strike the term "willful" from the definitions list as a result of an order by the Division III Court of Appeals in Crosswhite v. DSHS invalidating the current definition of "willful."
Citation of Rules Affected by this Order: Amending WAC 388-71-0105.
Statutory Authority for Adoption: RCW 74.08.090.
Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: The Division III Court of Appeals invalidated the current definition of "willful" in WAC 388-71-0105. The removal of the current term is necessary to comply with the court's order. The department filed a CR-102 on October 17, 2017, and held a public hearing on November 21, 2017. The permanent rule will not be in effect before the current emergency rule expires on December 6, 2017. This CR-103E extends the emergency rule until the permanent rule becomes effective.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.
Date Adopted: November 27, 2017.
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 16-05-022, filed 2/8/16, effective 4/1/16)
WAC 388-71-0105 What definitions apply to adult protective services?
In addition to the definitions found in chapter 74.34 RCW, the following definitions apply to adult protective services:
"ALTSA" means DSHS aging and long-term support administration.
"Adult family home" means a home or building licensed under chapter 70.128 RCW.
"ALJ" means an administrative law judge, an impartial decision-maker who is an attorney and presides at an administrative hearing. The office of administrative hearings (OAH), which is a state agency, employs the ALJs. ALJs are not DSHS employees or DSHS representatives.
"APS" means adult protective services.
"Basic necessities of life" means food, water, shelter, clothing, and medically necessary health care, including but not limited to health-related treatment or activities, hygiene, oxygen, and medication.
"BOA" means the DSHS board of appeals. The board of appeals consists of lawyers who are members of the Washington State Bar Association. An ALJ's decision can be appealed to the board of appeals, allowing a level of review before an appeal to the court system may be considered.
"DSHS" means the department of social and health services.
"Enhanced service facility" means a home or building licensed under chapter 70.97 RCW.
"Facility" means a residence licensed as an assisted living facility under chapter 18.20 RCW, an adult family home under chapter 70.128 RCW, a nursing home under chapter 18.51 RCW, a soldier's home under chapter 72.36 RCW, a residential habilitation center under chapter 71A.20 RCW, an enhanced services facility under chapter 71.05 RCW, or any other facility or residential program licensed or certified by DSHS's aging and long-term support administration.
"Final finding" means a substantiated initial finding of abandonment, abuse, financial exploitation or neglect that:
(1) Has been upheld through the administrative appeal described in WAC 388-71-01205 through 388-71-01280, or
(2) Is not timely appealed to the office of administrative hearings. A final finding may be appealed to superior court and the court of appeals under the Administrative Procedure Act, chapter 34.05 RCW.
"Intermediate care facility for individuals with intellectual disabilities (ICF/IID)" means a facility certified under 42 C.F.R. Part 483, Subpart I.
"Legal representative" means a guardian appointed under chapter 11.88 RCW or an attorney-in-fact under chapter 11.94 RCW.
"Nursing Assistant" means a nursing assistant as defined under RCW 18.88A.020 or successor laws.
"Nursing facility (NF)" or "medicaid-certified nursing facility" means a nursing home licensed under chapter 18.51 RCW, or any portion of a hospital, veterans' home, or residential habilitation center, that is certified to provide nursing services to medicaid recipients under section 1919(a) of the federal Social Security Act (42 U.S.C. § 1396r). All beds in a nursing facility are certified to provide medicaid services, even though one or more of the beds may also be certified to provide medicare skilled nursing facility services.
"Nursing home" means any facility licensed to operate under chapter 18.51 RCW.
"Person with a duty of care" includes, but is not limited to, the following:
(2) A person named in a durable power of attorney as the attorney-in-fact as defined under chapter 11.94 RCW((.)); or
(3) A person providing the basic necessities of life to a vulnerable adult where:
(a) The person is employed by or on behalf of the vulnerable adult; or
(b) The person voluntarily agrees to provide, or has been providing, the basic necessities of life to the vulnerable adult on a continuing basis.
"Personal aide" as found in RCW 74.39.007.
"Self-directed care" as found in RCW 74.39.007.
"Skilled nursing facility (SNF)" or "medicare-certified skilled nursing facility" means a nursing home, a portion of a nursing home, or a long-term care wing or unit of a hospital that has been certified to provide nursing services to medicare recipients under section 1819(a) of the federal Social Security Act (42 U.S.C. § 1395i-3).
"Substantiated initial finding" means a determination made by the department upon investigation of an allegation of abandonment, abuse, financial exploitation, neglect, or self-neglect that more likely than not occurred.
(("Willful" means the nonaccidental action or inaction by an alleged perpetrator that he/she knew or reasonably should have known could cause harm, injury or a negative outcome.))
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