Date of Adoption: June 20, 2002.

     Purpose: Review and update chapter 388-98 WAC, Nursing home licensure program administration, under Executive Order 97-02. Repealing all sections of chapter 388-98 WAC and merging the subject matter into chapter 388-97 WAC, Nursing homes, in order to bring all nursing homes regulations into one chapter to easier reference.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-98-001, 388-98-003, 388-98-010, 388-98-015, 388-98-020, 388-98-300, 388-98-320, 388-98-330, 388-98-340, 388-98-700, 388-98-750, 388-98-810, 388-98-830, 388-98-870 and 388-98-890; and amending WAC 388-97-005, 388-97-043, 388-97-07005, 388-97-07040, 388-97-07050, 388-97-076, 388-97-160, 388-97-162, 388-97-180, 388-97-202, 388-97-205, 388-97-260, 388-97-285, 388-97-35040, 388-97-565, 388-97-570, 388-97-575, 388-97-580, 388-97-585, and 388-97-595.

     Statutory Authority for Adoption: RCW 18.51.070, 74.42.620.

      Adopted under notice filed as WSR 02-07-116 on March 20, 2002.

     Changes Other than Editing from Proposed to Adopted Version: (a) WAC 388-97-043(2), changed "outcome of the appeal" to "outcome of the hearing." Accepted amendment to be consistent with federal regulations; (b) WAC 388-97-043(3), added new subpart (e) "Any review of the administrative law judge's initial decision shall be conducted under WAC 388-02-0600(1)." Accepted amendment to comply with existing federal regulation -- clarification of federal requirement that the department must follow; (c) WAC 388-97-160(4), deleted subsection (4) from this regulation as intent of regulation as a result of public comment; (d) WAC 388-97-160(9), added "including protocols described in RCW 74.39A.060" after "according to established protocols" for clarification of standard practice; (e) WAC 388-97-204, deleted subsection (3)(e) as it is not referred to in RCW 74.34.180. Deletion of this subsection would make it consistent with state regulation; (f) WAC 388-97-595, added new subsection (1)(c) "The nursing home will assist the residents to the extent is directed to do so by the department." This is a result of public comment and to be consistent with the nursing home's responsibility already outlined under WAC 388-97-042 (3)(a) and 388-97-032(6); (g) WAC 388-97-625 (2)(b), deleted "against the nursing home, or" and replaced with "by the department such as." Added before 18.51.054, "a license suspension under RCW" and added before 74.39A.050, "a condition on a license under RCW." Revised as a result of public comment and for clarification; (h) WAC 388-97-625(3), added "If a federal remedy is imposed, the Centers for Medicare and Medicaid services will notify the nursing facility of appeal rights under the federal administrative appeals process." Accepted amendment as clarification of what is already stated in WAC 388-97-620 that nursing homes have a right to appeal the federal deficiency if there is a federal remedy; (i) WAC 388-97-625(6), added "as defined in subsection 2" after "written notification of the department's actions." Accepted as a result of public comment and clarification referring back to definition of action in subsection (2); and (j) WAC 388-97-640 (1)(a), changed from "not limited to but including resident's rights" to "including but not limited to a violation of resident's rights." Accepted amendment as clarification for easier reading.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 2, Amended 1, 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 19, Amended 19, Repealed 15.

     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 21, Amended 20, Repealed 15.
     Effective Date of Rule: Thirty-one days after filing.

June 20, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     "Abuse" means the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Further clarification of the definition of abuse, and examples of types of behavior that constitute abuse are described in RCW 74.34.020(2).

     "Administrative hearing" is a formal hearing proceeding before a state administrative law judge that gives a licensee an opportunity to be heard in disputes about licensing actions, including the imposition of remedies, taken by the department.

     "Administrative law judge (ALJ)" means an impartial decision-maker who presides over an administrative hearing. ALJs are employed by the office of administrative hearings (OAH), which is a separate state agency. ALJs are not DSHS employees or DSHS representatives.

     "Administrator" means a nursing home administrator, licensed under chapter 18.52 RCW, must be in active administrative charge of the nursing home, as that term is defined in the board of nursing home administrator's regulations.

     "Advanced registered nurse practitioner (ARNP)" means a registered nurse currently licensed in Washington under RCW ((18.88.175)) 18.79.050 or successor laws.

     "Applicant" means an individual, partnership, corporation, or other legal entity seeking a license to operate a nursing home.

     "ASHRAE" means the American Society of Heating, Refrigerating, and Air Conditioning Engineers, Inc.

     "Attending physician" means the doctor responsible for a particular individual's total medical care.

     "Berm" means a bank of earth piled against a wall.

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

     "Civil fine" is a civil monetary penalty assessed against a nursing home as authorized by chapters 18.51 and 74.42 RCW. There are two types of civil fines, "per day" and "per instance."

     (1) "Per day fine" means a fine imposed for each day that a nursing home is out of compliance with a specific requirement. Per day fines are assessed in accordance with WAC 388-97-660(1); and

     (2) "Per instance fine" means a fine imposed for the occurrence of a deficiency.

     "Condition on a license" means that the department has imposed certain requirements on a license and the licensee cannot operate the nursing home unless the requirements are observed.

     "Deficiency" is a nursing home's failed practice, action or inaction that violates any or all of the following:

     (1) Requirements of chapters 18.51 or 74.42 RCW, or the requirements of this chapter; and

     (2) In the case of a Medicare and Medicaid contractor, participation requirements under Title XVIII and XIX of the Social Security Act and federal Medicare and Medicaid regulations.

     "Deficiency citation" or "cited deficiency" means written documentation by the department that describes a nursing home's deficiency(ies); the requirement that the deficiency(ies) violates; and the reasons for the determination of noncompliance.

     "Deficient facility practice" or "failed facility practice" means the nursing home action(s), error(s), or lack of action(s) that provide the basis for the deficiency.

     "Dementia care" means a therapeutic modality or modalities designed specifically for the care of persons with dementia.

     "Denial of payment for new admissions" is an action imposed on a nursing home (facility) by the department that prohibits payment for new Medicaid admissions to the nursing home after a specified date. Nursing homes certified to provide Medicare and Medicaid services may also be subjected to a denial of payment for new admissions by the federal Centers for Medicare and Medicaid Services.

     "Department" means the state department of social and health services (DSHS).

     "Department on-site monitoring" means an optional remedy of on-site visits to a nursing home by department staff according to department guidelines for the purpose of monitoring resident care or services or both.

     "Dietitian" means a qualified dietitian. A qualified dietitian is one who is registered by the American Dietetic Association or certified by the state of Washington.

     "Disclosure statement" means a signed statement by an individual ((indicating)) in accordance with the requirements under RCW 43.43.834. The statement should include a disclosure of whether or not the individual ((was)) has been convicted of certain crimes or has been found by any court, state licensing board, disciplinary board, or protection proceeding to have neglected, sexually abused, financially exploited, or physically abused any minor or adult individual.

     "Drug" means a substance:

     (1) Recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Official National Formulary, or any supplement to any of them; or

     (2) Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease.

     "Drug facility" means a room or area designed and equipped for drug storage and the preparation of drugs for administration.

     "Emergency closure" is an order by the department to immediately close a nursing home.

     "Emergency transfer" is an order by the department to immediately transfer residents from a nursing home to safe settings.

     "Entity" means any type of firm, partnership, corporation, company, association, or joint stock association((, and the legal successor(s))).

     "Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any individual for his or her profit or advantage.

     "Habilitative services" means the planned interventions and procedures which constitute a continuing and comprehensive effort to teach an individual previously undeveloped skills.

     "Highest practicable physical, mental, and psychosocial well-being" means that the nursing home must provide each resident with the necessary individualized care and services to assist the resident to achieve or maintain the highest possible health, functional and independence level in accordance with the resident's comprehensive assessment and plan of care. Care and services provided by the nursing home must be consistent with all requirements in this chapter, chapter 74.42 and 18.51 RCW, and the resident's informed choices. For Medicaid and Medicare residents, care and services must also be consistent with Title XVIII and XIX of the Social Security Act and federal Medicare and Medicaid regulations.

     "Informal department review" is a dispute resolution process that provides an opportunity for the licensee or administrator to informally present information to a department representative about disputed, cited deficiencies. Refer to WAC 388-97-620.

     "Inspection" or "survey" means the process by which department staff evaluate the nursing home licensee's compliance with applicable statutes and regulations.

     "Intermediate care facility for the mentally retarded (ICF/MR)" means an institution certified under chapter 42 C.F.R., Part 483, Subpart I, and licensed under chapter 18.51 RCW.

     "License revocation" is an action taken by the department to cancel a nursing home license in accordance with RCW 18.51.060 and WAC 388-97-570.

     "License suspension" is an action taken by the department to temporarily revoke a nursing home license in accordance with RCW 18.51.060 and this chapter.

     "Licensee" means an individual, partnership, corporation, or other legal entity licensed to operate a nursing home.

     "Licensed practical nurse" means an individual licensed under chapter 18.79 RCW;

     "Mandated reporter" as used in this chapter means any employee of a nursing home, any health care provider subject to chapter 18.130 RCW, the Uniform Disciplinary Act, and any licensee of a nursing home. Under RCW 74.34.020, mandated reporters also include any employee of the department of social and health services, law enforcement officers, social workers, professional school personnel, individual providers, employees and licensees of boarding home, adult family homes, soldiers' homes, residential habilitation centers, or any other facility licensed by the department, employees of social service, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agencies, county coroners or medical examiners, or Christian Science practitioners.

     "Misappropriation of resident property" means the ((illegal or improper, patterned or)) deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money.

     "NFPA" means National Fire Protection Association, Inc.

     "Neglect":

     (1) For a nursing home licensed under chapter 18.51 RCW, neglect means that an individual or entity with a duty of care for nursing home residents has:

     (a) By a pattern of conduct or inaction, failed to provide goods and services to maintain physical or mental health or to avoid or prevent physical or mental harm or pain to a resident; or

     (b) By an act or omission, demonstrated a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the resident's health, welfare, or safety.

     (2) For a skilled nursing facility or nursing facility, neglect also means a failure to provide a resident with the goods and services necessary to avoid physical harm, mental anguish, or mental illness.

     "Noncompliance" means a state of being out of compliance with state and/or federal requirements for nursing homes/facilities.

     "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 ((facility as defined in)) home that has been certified to provide nursing services to Medicaid recipients under Section 1919(a) of the Federal Social Security Act ((and regulations put into effect under that law, or under successor laws)).

     "Nursing home" means any facility licensed to operate under chapter 18.51 RCW.

     "Officer" means an individual serving as an officer of a corporation.

     "Owner of five percent or more of the assets of a nursing home" means:

     (1) In the case of a sole proprietorship, the owner, or if owned as community property, the owner and the owner's spouse;

     (2) In the case of a corporation, the owner of at least five percent of the capital stock of a corporation; or

     (3) In the case of other types of business entities, the owner of a beneficial interest in at least five percent of the capital assets of an entity.

     "Partner" means an individual in a partnership owning or operating a nursing home.

     "Person" means any individual, firm, partnership, corporation, company, association or joint stock association.

     "Pharmacist" means an individual licensed by the Washington state board of pharmacy under chapter 18.64 RCW.

     "Pharmacy" means a place licensed under chapter 18.64 RCW where the practice of pharmacy is conducted.

     "Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, and which restricts freedom of movement or access to the resident's body.

     "Physician's assistant (PA)" means a physician's assistant as defined under chapter 18.57A or 18.71A RCW or successor laws.

     "Plan of correction" is a nursing home's written response to cited deficiencies that explains how it will correct the deficiencies and how it will prevent their reoccurrence.

     "Reasonable accommodation" and "reasonably accommodate" has the meaning given in federal and state anti-discrimination laws and regulations. For the purpose of this chapter:

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

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

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

     "Receivership" is established by a court action and results in the removal of a nursing home's current licensee and the appointment of a substitute licensee to temporarily operate the nursing home.

     "Recurring deficiency" means a deficiency that was cited by the department, corrected by the nursing home, and then cited again within fifteen months of the initial deficiency citation.

     "Registered nurse" means an individual licensed under chapter 18.79 RCW or successor laws.

     "Rehabilitative services" means the planned interventions and procedures which constitute a continuing and comprehensive effort to restore an individual to the individual's former functional and environmental status, or alternatively, to maintain or maximize remaining function.

     "Resident" generally means an individual residing in a nursing home, and if applicable, the surrogate decision maker. The term resident excludes outpatients and individuals receiving adult day or night care, or respite care.

     "Resident care unit" means a functionally separate unit including resident rooms, toilets, bathing facilities, and basic service facilities.

     "Respiratory isolation" is a technique or techniques instituted to prevent the transmission of pathogenic organisms by means of droplets and droplet nuclei coughed, sneezed, or breathed into the environment.

     "Siphon jet clinic service sink" means a plumbing fixture of adequate size and proper design for waste disposal with siphon jet or similar action sufficient to flush solid matter of at least two and one-eighth inches in diameter.

     "Skilled nursing facility (SNF)" or "Medicare-certified skilled nursing facility" means a ((skilled)) nursing ((facility as defined in)) home that has been certified to provide nursing services to Medicare recipients under Section 1819(a) of the Federal Social Security Act(( and regulations put into effect under that law, or successors to that law)).

     "Social/therapeutic leave" means leave which is for the resident's social, emotional, or psychological well being; it does not include medical leave.

     "Staff work station" means a location at which nursing and other staff perform charting and related activities throughout the day.

     "Stop placement" or "stop placement order" is an action taken by the department prohibiting nursing home admissions, readmissions, and transfers of patients into the nursing home from the outside.

     "Substantial compliance" means the nursing home has no deficiencies higher than severity level 1 as described in WAC 388-97-640, or for Medicaid certified facility, no deficiencies higher than a scope and severity "C."

     "Surrogate decision maker" means a resident representative or representatives as outlined in WAC 388-97-055, and as ((established by law under chapter 7.70 RCW)) authorized by RCW 7.70.065.

     "Survey" means the same as "inspection" as defined in this section.

     "Temporary manager" means an individual or entity appointed by the department to oversee the operation of the nursing home to ensure the health and safety of its residents, pending correction of deficiencies or closure of the facility.

     "Termination" means an action taken by:

     (1) The department, or the nursing home, to cancel a nursing home's Medicaid certification and contract; or

     (2) The Department of Health and Human Services Centers for Medicare and Medicaid Services, or the nursing home, to cancel a nursing home's provider agreement to provide services to Medicaid or Medicare recipients, or both.

     "Toilet room" means a room containing at least one toilet fixture.

     "Uncorrected deficiency" is a deficiency that has been cited by the department and that is not corrected by the licensee by the time the department does a revisit.

     "Violation" means the same as "deficiency" as defined in this section.

     "Volunteer" means an individual who is a regularly scheduled individual not receiving payment for services and having unsupervised access to a nursing home resident.

     "Whistle blower" means a resident, employee of a nursing home, or any person licensed under Title 18 RCW, who in good faith reports alleged abandonment, abuse, financial exploitation, or neglect to the department, the department of health or to a law enforcement agency.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-005, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-005, filed 9/15/94, effective 10/16/94.]

     (a) Provide the required written notice of transfer or discharge to the resident and, if known or appropriate, to a family member or the resident's representative;

     (b) Attach a department-designated hearing request form to the transfer or discharge notice;

     (c) Inform the resident in writing, in a language and manner the resident can understand, that:

     (i) An appeal request may be made any time up to ninety days from the date the resident receives the notice of transfer or discharge; and

     (ii) Transfer or discharge will be suspended when an appeal request is received by the office of administrative hearings on or before the date the resident actually transfers or discharges; and

     (iii) The nursing home will assist the resident in requesting a hearing to appeal the transfer or discharge decision.

     (2) A skilled nursing facility or nursing facility must suspend transfer or discharge pending the outcome of the ((appeal)) hearing when the resident's appeal is received by the office of administrative hearings on or before the date of the transfer or discharge set forth in the written transfer or discharge notice, or before the resident is actually transferred or discharged.

     (3) The resident is entitled to appeal the skilled nursing facility or nursing facility's transfer or discharge decision. The appeals process is set forth in chapter ((388-08)) 388-02 WAC and this chapter. In such appeals, the following will apply:

     (a) In the event of a conflict between a provision in this chapter and a provision in chapter ((388-08)) 388-02 WAC, the provision in this chapter will prevail;

     (b) The resident ((shall)) must be the appellant and the skilled nursing facility or the nursing facility will be the respondent;

     (c) The department must be notified of the appeal and may choose whether to participate in the proceedings. If the department chooses to participate, its role is to represent the state's interest in assuring that skilled nursing facility and nursing facility transfer and discharge actions comply substantively and procedurally with the law and with federal requirements necessary for federal funds;

     (d) If a Medicare certified or Medicaid certified facility's decision to transfer or discharge a resident is not upheld, and the resident has been relocated, the resident has the right to readmission immediately upon the first available bed in a semi -private room if the resident requires and is eligible for the services provided by ((the)) a nursing facility or skilled nursing facility.

     (e) Any review of the administrative law judge's initial decision shall be conducted under WAC 388-02-0600(1).

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-043, filed 2/24/00, effective 3/26/00.]

     (a) All rules and regulations governing resident conduct, resident's rights and responsibilities during the stay in the nursing home;

     (b) Advanced directives, and of any ((facility)) nursing home policy or practice that might conflict with the resident's advance directive if made;

     (c) Advance notice ((or)) of transfer requirements, consistent with RCW ((70.129.150)) 70.129.110;

     (d) Advance notice of deposits and refunds, consistent with RCW 70.129.150; and

     (e) Items, services and activities available in the ((facility)) nursing home and of charges for those services, including any charges for services not covered under Medicare or Medicaid or by the ((facility's)) home's per diem rate.

     (2) The resident has the right:

     (a) Upon an oral or written request, to access all records pertaining to the resident including clinical records within twenty-four hours ((for Medicare certified and Medicaid certified facilities, and according to chapter 70.02 RCW)); and

     (b) After receipt of his or her records for inspection, to purchase at a cost not to exceed twenty-five cents a page, photocopies of the records or any portions of them upon request and two working days advance notice to the nursing home. For the purposes of this chapter, "working days" means Monday through Friday, except for legal holidays.

     (3) The resident has the right to:

     (a) Be fully informed in words and language that he or she can understand of his or her total health status, including, but not limited to, his or her medical condition;

     (b) Accept or refuse treatment; and

     (c) Refuse to participate in experimental research.

     (4) The ((Medicare certified and Medicaid certified facility)) nursing home must inform each resident:

     (a) Who is entitled to Medicaid benefits, in writing, prior to the time of admission to the nursing facility or, when the resident becomes eligible for Medicaid of the items, services and activities:

     (i) That are included in nursing facility services under the Medicaid state plan and for which the resident may not be charged; and

     (ii) That the ((facility)) nursing home offers and for which the resident may be charged, and the amount of charges for those services;

     (b) That deposits, admission fees and prepayment of charges cannot be solicited or accepted from Medicare or Medicaid eligible residents; and

     (c) That minimum stay requirements cannot be imposed on Medicare or Medicaid eligible residents.

     (5) The nursing home must, except for emergencies, inform each resident in writing, thirty days in advance before changes are made to the availability or charges for items, services or activities specified in section (4)(a)(i) and (ii), or before changes to the ((facility)) nursing home rules.

     (6) The private pay resident has the right to the following, regarding fee disclosure-deposits:

     (a) Prior to admission, a nursing home that requires payment of an admission fee, deposit, or a minimum stay fee, by or on behalf of an individual seeking admission to the ((facility)) nursing home, must provide the individual:

     (i) Full disclosure in writing in a language the potential resident or his representative understands:

     (A) Of the nursing home's schedule of charges for items, services, and activities provided by the ((facility)) nursing home; and

     (B) Of what portion of the deposits, admissions fees, prepaid charges or minimum stay fee will be refunded to the resident if the resident leaves the ((facility)) nursing home.

     (ii) The amount of any admission fees, deposits, or minimum stay fees.

     (iii) If the nursing home does not provide these disclosures, the nursing home must not keep deposits, admission fees, prepaid charges or minimum stay fees.

     (b) If a resident dies or is hospitalized or is transferred and does not return to the ((facility)) nursing home, the nursing home:

     (i) Must refund any deposit or charges already paid, less the ((facility's)) home's per diem rate, for the days the resident actually resided or reserved or retained a bed in the ((facility)) nursing home, regardless of any minimum stay or discharge notice requirements; except that

     (ii) The ((facility)) nursing home may retain an additional amount to cover its reasonable, 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.

     (c) The nursing home must refund any and all refunds due the resident within thirty days from the resident's date of discharge from the ((facility)) nursing home; and

     (d) Where the nursing home requires the execution of an admission contract by or on behalf of an individual seeking admission to the ((facility)) nursing home, the terms of the contract must be consistent with the requirements of this section.

     (7) The nursing home must furnish a written description of legal rights which includes:

     (a) A description of the manner of protecting personal funds, under WAC 388-97-07015.

     (b) In the case of a nursing facility only, a description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment which determines the extent of a couple's nonexempt resources at the time of institutionalization and attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in his or her process of spending down to Medicaid eligibility levels;

     (c) A posting of names, addresses, and telephone numbers of all relevant state client advocacy groups such as the state survey and certification agency, the state licensure office, the state ombudsman program, the protection and advocacy network, and the Medicaid fraud control unit; and

     (d) A statement that the resident may file a complaint with the state survey and certification agency concerning resident abandonment, abuse, neglect, financial exploitation, and misappropriation of resident property in the nursing home.

     (8) The nursing home must:

     (a) Inform each resident of the name, and specialty of the physician responsible for his or her care; and

     (b) Provide a way for each resident to contact his or her physician.

     (9) The skilled nursing facility and nursing facility must prominently display in the facility written information, and provide to residents and ((applicants)) individuals applying for admission oral and written information, about how to apply for and use Medicare and Medicaid benefits, and how to receive refunds for previous payments covered by such benefits.

     (10) The written information provided by the nursing home pursuant to this section, and the terms of any admission contract executed between the nursing home and an individual seeking admission to the nursing home, must be consistent with the requirements of chapters 74.42 and 18.51 RCW and, in addition, for facilities certified under Medicare or Medicaid, with the applicable federal requirements.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-07005, filed 2/24/00, effective 3/26/00.]

     (a) The most recent survey ((and complaint investigation)) of the nursing home conducted by federal and state surveyors ((or inspectors and the plans of correction in effect with respect to the facility));

     (b) Surveys related to any current or subsequent complaint investigation; and

     (c) Any required accompanying plan of correction, completed or not.

     (2) Upon receipt of any deficiency citation report, the nursing home must publicly post a notice:

     (a) ((A copy of the report and plan of correction of the most recent full survey and complaint investigations; and

     (b) A notice that the results of the survey and investigation are available and the location of the reports.

     (3) The nursing home must post a copy or copies of survey and complaint investigations, with plans of correction, and notices, available for examination in a place or places:

     (a) Readily accessible to residents, which does not require staff intervention to access; and

     (b) In plain view of the nursing home residents, individuals visiting those residents, and individuals who inquire about placement in the facility)) That the results of the survey or complaint investigation, or both, are available regardless of whether the plan of correction is completed or not;

     (b) Of the location of the deficiency citation reports.

     (3) For a report posted prior to the plan of correction being completed, the nursing home may attach an accompanying notice that explains the purpose and status of the plan of correction, informal dispute review, administrative hearing and other relevant information.

     (4) Upon receipt of any citation report, the nursing home must publicly post a copy of the most recent full survey and all subsequent complaint investigation deficiency citation reports, including the completed plans of correction, when one is required.

     (5) The notices and any survey reports must be available for viewing or examination in a place or places:

     (a) Readily accessible to residents, which does not require staff interventions to access; and

     (b) In plain view of the nursing home residents, including individuals visiting those residents, and individuals who inquire about placement in the nursing home.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-07040, filed 2/24/00, effective 3/26/00.]

     (a) For Medicare and Medicaid residents any representative of the ((secretary)) U.S. Department of Health and Human Services (DHHS);

     (b) Any representative of the state;

     (c) The resident's personal physician;

     (d) Any representative of the state long term care ombudsman program (established under section 307 (a)(12) of the Older American's Act of 1965);

     (e) ((The agency responsible for the protection and advocacy system for developmentally disabled individuals)) Any representative of the Washington protection and advocacy system, or any other agency (established under part c of the Developmental Disabilities Assistance and Bill of Rights Act);

     (f) ((The agency responsible for the protection and advocacy system for mentally ill individuals)) Any representative of the Washington protection and advocacy system, or any agency (established under the Protection and Advocacy for Mentally Ill Individuals Act);

     (g) Subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and

     (h) Subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.

     (2) The nursing home must provide reasonable access to any resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.

     (3) The nursing home must allow representatives of the state ombudsman, described in subsection (1)(d) of this section, to examine a resident's clinical records with the permission of the resident or the resident's surrogate decision maker, and consistent with state law. The ombudsman may also, under federal and state law, access resident's records when the resident is incapacitated and has no surrogate decision maker, and may access records over the objection of a surrogate decision maker if access is authorized by the state ombudsman pursuant to 42 ((C.F.R.)) U.S.C. §3058g(b) and RCW 43.190.065.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-07050, filed 2/24/00, effective 3/26/00.]

     (2) The nursing home must develop and implement written policies and procedures that:

     (a) Prohibit abandonment, abuse, and neglect of residents, financial exploitation, and misappropriation of resident property; and

     (b) Require staff to report possible abuse, and other related incidents, as required by chapter 74.34 RCW, and for skilled nursing facilities and nursing facilities as required by 42 C.F.R. §483.13.

     (3) The nursing home must not allow staff to:

     (a) Engage in verbal, mental, sexual, or physical abuse;

     (b) Use corporal punishment;

     (c) Involuntarily seclude, abandon, neglect, or financially exploit residents; or

     (d) Misappropriate resident property.

     (4) The nursing home must ((not employ individuals in positions that will provide them with the opportunity for unsupervised access with vulnerable residents, if the individuals have:

     (a) Been found to have abused, neglected, exploited or abandoned a minor or vulnerable adult, by a court of law or by a licensing authority;

     (b) A finding of abuse, neglect, exploitation or abandonment on any state registry, including the nursing assistant registry; or

     (c) Been found to have abused, neglected, or misappropriated resident property by the department's resident protection program.

     (5) The nursing home must)) report any information it has about an action taken by a court of law against an employee to the department's complaint resolution unit and the appropriate department of health licensing authority, if that action would disqualify the individual from employment as described in RCW 43.43.842.

     (((6))) (5) The nursing home ((and mandatory reporters)) must ensure that all allegations involving abandonment, abuse, neglect, financial exploitation, or misappropriation of resident property, including injuries of unknown origin, are reported immediately to the department, other applicable officials, and the administrator of the facility. The nursing home must:

     (a) Ensure that the reports are made through established procedures in accordance with state law including chapter 74.34 RCW, and guidelines developed by the department; and

     (b) Not have any policy or procedure that interferes with the requirement of chapter 74.34 RCW that employees and other mandatory reporters file reports directly with the department, and also with law enforcement, if they suspect sexual or physical assault has occurred.

     (((7))) (6) The nursing home must:

     (a) Have evidence that all alleged violations are thoroughly investigated;

     (b) Prevent further potential abandonment, abuse, neglect, financial exploitation, or misappropriation of resident property while the investigation is in progress; and

     (c) Report the results of all investigations to the administrator or his designated representative and to other officials in accordance with state law and established procedures (including the state survey and certification agency) within five working days of the incident, and if the alleged violation is verified appropriate action must be taken.

     (7) When a mandated reporter has:

     (a) Reasonable cause to believe that a vulnerable adult has been abandoned, abused, neglected, financially exploited, or a resident's property has been misappropriated, the individual mandatory reporter must immediately report the incident to the department's aging and adult services administration (AASA);

     (b) Reason to suspect that a vulnerable adult has been sexually or physically assaulted, the individual mandatory reporter must immediately report the incident to law enforcement and the department's aging and adult services administration (AASA).

     (8) Under RCW 74.34.053, it is:

     (a) A gross misdemeanor for a mandated reporter knowingly to fail to report as required under this section; and

     (b) A misdemeanor for a person to intentionally, maliciously, or in bad faith make a false report of alleged abandonment, abuse, financial exploitation, or neglect of a vulnerable adult.

     (9) The nursing home must not employ individuals who are disqualified under the requirements of WAC 388-97-203.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-076, filed 2/24/00, effective 3/26/00.]

     (2) The nursing home must:

     (a) Be licensed under chapter 18.51 RCW;

     (b) Operate and provide services in compliance with:

     (i) All applicable federal, state and local laws, regulations, and codes;

     (ii) Accepted professional standards and principles that apply to professionals providing services in nursing homes; and

     (c) Have a governing body or designated individuals functioning as a governing body, that is legally responsible for establishing and implementing policies regarding the management and operation of the nursing home.

     (3) The governing body of the nursing home must appoint the administrator who:

     (a) Is licensed by the state;

     (b) Is responsible for management of the ((facility)) nursing home;

     (c) Keeps the licensee informed of all surveys and notices of noncompliance;

     (d) Complies with all requirements of chapter 18.52 RCW, and all regulations ((put into effect under the)) adopted under that chapter;

     (e) Is an onsite, full-time individual in active administrative charge at the premises of only one nursing home, a minimum of four days and an average of forty hours per week. Exception: Onsite, full-time administrator with small resident populations or in rural areas will be defined as an individual in active administrative charge at the premises of only one nursing home:

     (i) A minimum of four days and an average of twenty hours per week at facilities with one to thirty beds; or

     (ii) A minimum of four days and an average of thirty hours per week at facilities with thirty-one to forty-nine beds((; and)).

     (4) Nursing homes temporarily without an administrator may operate up to four continuous weeks under a responsible individual authorized to act as nursing home administrator designee.

     (a) The designee must be qualified by experience to assume designated duties; and

     (b) The nursing home must have a written agreement with a ((Washington State licensed)) nursing home administrator, licensed in the state of Washington, who must be readily available to consult with the designee.

     (c) The nursing home may request from the department's designated local aging and adult services administration (AASA) field office in writing, an extension of the four weeks by stating why an extension is needed, how a resident's safety or well-being is maintained during an extension and giving the estimated date by which a full time, qualified nursing home administrator will be on-site.

     (5) The nursing home must employ on a full time, part time or consultant basis those professionals necessary to carry out the requirements of this chapter.

     (6) If the nursing home does not employ a qualified professional individual to furnish a specific service to be provided by the nursing home, the nursing home must:

     (a) Have that service furnished to residents by an individual or agency outside the nursing home under a written arrangement or agreement; and

     (b) Ensure the arrangement or agreement referred to in (a) of this subsection specifies in writing that the nursing home assumes responsibility for:

     (i) Obtaining services that meet professional standards and principles that apply to professionals providing services in nursing homes; and

     (ii) The timeliness of services.

     (7) The nursing home must:

     (a) Report to the local law enforcement agency and the department any individual threatening bodily harm or causing a disturbance which threatens any individual's welfare and safety;

     (b) Identify, investigate, and report incidents involving residents, according to department established nursing home guidelines; and

     (c) Comply with "whistle blower" rules as defined in chapter 74.34 RCW. (("Whistle blower" means a resident or employee of a nursing home, or any individual licensed under Title 18 RCW, who in good faith reports alleged abandonment, abuse, neglect, financial exploitation, or misappropriation of resident property to the department.))

     (8) The department will:

     (a) ((Discourage "whistle blower")) Investigate complaints, made ((in bad faith)) to the department according to established protocols including protocols described in RCW 74.39A.060;

     (b) Take action against a nursing home that is found to have used retaliatory treatment toward a resident or employee who has voiced grievances to nursing home staff or administration, or lodged a good faith complaint with the department; ((and))

     (c) ((Investigate complaints, made to the department's toll free number, according to established protocols)) Report to local law enforcement:

     (i) Any mandated reporter that knowingly fails to report in accordance with WAC 388-97-076; and

     (ii) Any person that intentionally, maliciously or in bad faith makes a false report of alleged abandonment, abuse, financial exploitation, or neglect of a vulnerable adult.

     (9) Refer also to WAC 388-97-204, Retaliation.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-160, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-160, filed 9/15/94, effective 10/16/94.]

     (2))) The nursing home ((and mandatory reporters, where applicable,)) must immediately notify the department's aging and adult services administration (AASA) of:

     (a) Any allegations of resident abandonment, abuse, or neglect, including substantial injuries of an unknown source, financial exploitation and misappropriation of a resident's property;

     (b) Any unusual event, having an actual or potential negative impact on residents, requiring the actual or potential implementation of the nursing home's disaster plan. These unusual events include but are not limited to those listed under WAC 388-97-185 (1)(a) through (k), and could include the evacuation of all or part of the residents to another area of the nursing home or to another address; and

     (c) Circumstances which threaten the nursing home's ability to ensure continuation of services to residents.

     (2) Mandated reporters must notify the department and law enforcement as directed in WAC 388-97-076, and according to department established nursing home guidelines.

     (3) The nursing home must notify the department's AASA of:

     (a) Physical plant changes, including but not limited to:

     (i) New construction;

     (ii) Proposed resident area or room use change;

     (iii) Resident room number changes; and

     (iv) Proposed bed banking;

     (b) Mechanical failure of equipment important to the everyday functioning of the ((facility)) nursing home, which cannot be repaired within a reasonable time frame, such as an elevator; and

     (c) An actual or proposed change of ownership (CHOW).

     (4) The nursing home must notify, in writing, the department's AASA and each resident, of a loss of, or change in, the nursing home's administrator or director of nursing services at the time the loss or change occurs.

     (5) The nursing home licensee must notify the ((department)) department's AASA in writing of any change in the name of the licensee, or of the nursing home, at the time the change occurs.

     (6) If a licensee operates in a building it does not own, the licensee must immediately notify the department of the occurrence of any event of default under the terms of the lease, or if it receives verbal or written notice that the lease agreement will be terminated, or that the lease agreement will not be renewed.

     (7) The nursing home must report any case or suspected case of a reportable disease to the appropriate department of health officer and must also notify the appropriate department(s) of other health and safety issues, according to state and local laws.

     (8) The nursing home licensee must notify the department in writing of a nursing home's voluntary closure.

     (a) The licensee must send this written notification sixty days before closure to the department's designated local aging and adult administration office and to all residents and resident representatives.

     (b) Relocation of residents must be in accordance with WAC 388-97-595(2).

     (9) The nursing home licensee must notify the department in writing of voluntary termination of its Medicare or Medicaid contract.

     (a) The license must send this written notification sixty days before contract termination, to the department's designated local aging and adult services administration office and to all residents and resident representatives.

     (b) If the contractor continues to provide nursing facility services, the contract termination will be subject to federal law prohibiting the discharge of residents who are residing in the facility on the day before the effective date of the contract termination.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-162, filed 2/24/00, effective 3/26/00.]

     (a) Maintain clinical records on each resident in accordance with accepted professional standards and practices that are:

     (i) Complete;

     (ii) Accurately documented;

     (iii) Readily accessible; and

     (iv) Systematically organized.

     (b) Safeguard clinical record information against alteration, loss, destruction, and unauthorized use; and

     (c) Keep confidential all information contained in the resident's records, regardless of the form or storage method of the records, except when release is required by:

     (i) Transfer to another health care institution;

     (ii) Law;

     (iii) Third party payment contract; or

     (iv) The resident.

     (2) The nursing home must ensure the clinical record of each resident includes at least the following:

     (a) Resident identification and sociological data, including the name and address of the individual or individuals the resident designates as significant;

     (b) Medical information required under WAC 388-97-125;

     (c) Physician's orders;

     (d) Assessments;

     (e) Plans of care;

     (f) Services provided;

     (g) In the case of the Medicaid-certified nursing facility, records related to preadmission screening and resident review;

     (h) Progress notes;

     (i) Medications administered;

     (j) Consents, authorizations, releases;

     (k) Allergic responses;

     (l) Laboratory, X-ray, and other findings; and

     (m) Other records as appropriate.

     (3) The nursing home must:

     (a) Designate an individual responsible for the record system who:

     (i) Has appropriate training and experience in clinical record management; or

     (ii) Receives consultation from a qualified clinical record practitioner, such as ((an)) a registered ((record)) health information administrator or ((accredited record)) registered health information technician.

     (b) Make all records available to authorized representatives of the department for review and duplication as necessary; and

     (c) Maintain the following:

     (i) A master resident index having a reference for each resident including the health record number, if applicable; full name; date of birth; admission dates; and discharge dates; and

     (ii) A chronological census register, including all admissions, discharge, deaths and transfers, and noting the receiving facility. The nursing home must ensure the register includes discharges for social leave and transfers to other treatment facilities in excess of twenty-four hours.

     (4) The nursing home must ensure the clinical record of each resident:

     (a) Is documented and authenticated accurately, promptly and legibly by individuals giving the order, making the observation, performing the examination, assessment, treatment or providing the care and services. "Authenticated" means the authorization of a written entry in a record by signature, including the first initial and last name and title, or a unique identifier allowing identification of the responsible individual; and:

     (i) Documents from other health care facilities that are clearly identified as being authenticated at that facility will be considered authenticated at the receiving facility; and

     (ii) The original or a durable, legible, direct copy of each document will be accepted.

     (b) Contains appropriate information for a deceased resident including:

     (i) The time and date of death;

     (ii) Apparent cause of death;

     (iii) Notification of the physician and appropriate resident representative; and

     (iv) The disposition of the body and personal effects.

     (5) In cases where the nursing home maintains records by computer rather than hard copy, the nursing home must:

     (a) Have in place safeguards to prevent unauthorized access; and

     (b) Provide for reconstruction of information.

     (6) The nursing home licensee must:

     (a) Retain health records for the time period required in RCW 18.51.300:

     (i) For a period of no less than eight years following the most recent discharge of the resident; except

     (ii) That the records of minors must be retained for no less than three years following the attainment of age eighteen years, or ten years following their most recent discharge, whichever is longer.

     (b) In the event of a change of ownership, provide for the orderly transfer of clinical records to the new licensee; and

     (c) In the event a nursing home ceases operation, make arrangements prior to cessation, as approved by the department, for preservation of the clinical records. The nursing home licensee must provide a plan for preservation of clinical records to the department's designated local aging and adult administration (AASA) office no later than seven days after the date of notice of nursing home closure as required by WAC 388-97-162 (8) and (9) unless an alternate date has been approved by the department.

     (d) Provide a resident access to all records pertaining to the resident as required under WAC 388-97-07005(2).

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-180, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-180, filed 9/15/94, effective 10/16/94.]

     (3))) A nursing home licensed under chapter 18.51 RCW must make a background inquiry request to one of the following:

     (a) The Washington state patrol;

     (b) The department;

     (c) The most recent employer licensed under chapters 18.51, 18.20, and 70.128 RCW provided termination of that employment was within twelve months of the current employment application and provided the inquiry was completed by the department or the Washington state patrol within the two years of the current date of application; or

     (d) A nurse pool agency licensed under chapter 18.52C RCW, or hereafter renamed, provided the background inquiry was completed by the Washington state patrol within two years before the current date of employment in the nursing home; and

     (e) A nursing home may not rely on a criminal background inquiry from a former employer, including a nursing pool, if the nursing home knows or has reason to know that the ((applicant)) individual applying for the job has, or may have, a disqualifying conviction or finding.

     (((4))) (2) Nursing homes must:

     (a) Request a background inquiry of any individual employed, directly or by agreement or contract, or accepted as a volunteer or student; and

     (b) Notify appropriate licensing or certification agency of any individual resigning or terminated as a result of having a conviction record.

     (((5))) (3) Before a nursing home employs any individual, directly or by contract, or accepts any individual as a volunteer or student, a nursing home must:

     (a) Inform the individual that the ((facility)) nursing home must make a background inquiry and require the individual to sign a disclosure statement, ((authorizing the inquiry; or)) under penalty or perjury and in accordance with RCW 43.43.834;

     (b) Inform the individual that he or she may make a request for a copy of a completed background inquiry of this section; and

     (c) Require the individual to sign a statement authorizing the nursing home, the department, and the Washington state patrol to make a background inquiry; and

     (d) Verbally inform the individual of the background inquiry results within seventy-two hours of receipt.

     (((6))) (4) The nursing home must establish procedures ensuring that:

     (a) The individual is verbally informed of the background inquiry results within seventy-two hours of receipt;

     (b) All disclosure statements and background inquiry responses and all copies are maintained in a confidential and secure manner;

     (c) Disclosure statements and background inquiry responses are used for employment purposes only;

     (d) Disclosure statements and background inquiry responses are not disclosed to any individual except:

     (i) The individual about whom the nursing home made the disclosure or background inquiry;

     (ii) Authorized state employees including the department's licensure and certification staff, resident protection program staff and background inquiry unit staff;

     (iii) Authorized federal employees including those from the Department of Health and Human Services, ((Health Care Financing Administration)) Centers for Medicare and Medicaid Services;

     (iv) The Washington state patrol auditor; and

     (v) Potential employers licensed under chapters 18.51, 18.20, and 70.128 RCW who are making a request as provided for under subsection (((3))) (1) of this section; and

     (e) A record of findings be retained by the ((facility)) nursing home for twelve months beyond the date of employment termination.

     (5) The nursing home must not employ individuals who are disqualified under the requirements of WAC 388-97-203.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-202, filed 2/24/00, effective 3/26/00.]

     (a) Who has been found to have abused, neglected, exploited or abandoned a minor or vulnerable adult by a court of law, by a disciplining authority, including the state department of health, or by the department's resident protection program;

     (b) Against whom a finding of abuse, neglect, exploitation, misappropriation of property or abandonment has been entered on any state registry, including the nursing assistant registry; or

     (c) Who has been subject to an order of protection under chapter 74.34 RCW for abandonment, abuse, neglect, or financial exploitation of a vulnerable adult, or misappropriation of resident property.

     (2) Except as provided in this section, the nursing home must not employ directly or by contract, or accept as a volunteer or student, any individual who may have unsupervised access to residents if the individual:

     (a) Has been convicted of a "crime against children and other persons" as defined in RCW 43.43.830, unless the individual has been convicted of one of the five crimes listed below and the required number of years has passed between the most recent conviction and the date of the application for employment:

     (i) Simple assault, assault in the fourth degree, or the same offense as it may hereafter be renamed, and three or more years have passed;

     (ii) Prostitution, or the same offense as it may hereafter be renamed, and three or more years have passed;

     (iii) Theft in the second degree, or the same offense as it may hereafter be renamed, and five or more years have passed;

     (iv) Theft in the third degree, or the same offense as it may hereafter be renamed, and three or more years have passed; or

     (v) Forgery, or the same offense as forgery may hereafter be renamed, and five or more years have passed.

     (b) Has been convicted of crimes relating to financial exploitation as defined under RCW 43.43.830.

     (3) The term "vulnerable adult" is defined in RCW 74.34.020; the term "unsupervised access" is defined in RCW 43.43.830.

[]

     (a) The resident, or someone acting on behalf of the resident, or the employee:

     (i) Made a complaint, including a whistle blower complaint, to the department, the department of health, the long-term care ombudsman, attorney general's office, the courts or law enforcement;

     (ii) Provided information to the department, the department of health, the long-term care ombudsman, attorney general's office, the courts or law enforcement; or

     (iii) Testified in a proceeding related to the nursing home or its staff.

     (2) For purposes of this chapter, "retaliation" or "discrimination" against a resident means an act including, but not limited to:

     (a) Verbal or physical harassment or abuse;

     (b) Any attempt to expel the resident from the facility;

     (c) Nonmedically indicated social, dietary, or mobility restriction(s);

     (d) Lessening of the level of care when not medically appropriate; or

     (e) Nonvoluntary relocation within a nursing home without appropriate medical, psychosocial, or nursing justification;

     (f) Neglect or negligent treatment;

     (g) Withholding privileges;

     (h) Monitoring resident's phone, mail or visits without resident's permission;

     (i) Withholding or threatening to withhold food or treatment unless authorized by terminally ill resident or the resident's representative;

     (j) Persistently delaying responses to resident's request for services of assistance; or

     (k) Infringement on a resident's rights described in chapter 74.42 RCW, RCW 74.39A.060(7), WAC 388-97-051, and also, for Medicaid and Medicare certified nursing facilities, in federal laws and regulations.

     (3) For purposes of this chapter, "retaliation" or "discrimination" against an employee means an act including, but not limited to:

     (a) Harassment;

     (b) Unwarranted firing;

     (c) Unwarranted demotion;

     (d) Unjustified disciplinary action;

     (e) Denial of adequate staff to perform duties;

     (f) Frequent staff changes;

     (g) Frequent and undesirable office changes;

     (h) Refusal to assign meaningful work;

     (i) Unwarranted and unsubstantiated report of misconduct under Title 18 RCW;

     (j) Unsubstantiated letters of reprimand;

     (k) Unsubstantiated unsatisfactory performance evaluations;

     (l) Denial of employment;

     (m) A supervisor or superior encouraging coworkers to behave in a hostile manner toward the whistle blower; or

     (n) Workplace reprisal or retaliatory action as defined in RCW 74.34.180 (3)(b).

     (4) For purposes of this chapter, a "whistle blower" is defined in WAC 388-97-005.

     (5) If, within one year of the complaint by or on behalf of a resident, the resident is involuntarily discharged from the nursing home, or is subjected to any type of discriminatory treatment, there will be a presumption that the action was in retaliation for the filing of the complaint. Under these circumstances, the nursing home will have the burden of establishing that the action was not retaliatory, in accordance with RCW 18.51.220 and 74.34.180(2).

[]

     (a) Launder ((facility)) nursing home linens on the premises; or

     (b) Contract with a laundry capable of meeting quality standards, infection control, and turn-around time requirements; and

     (c) Make provision for laundering of residents' personal clothing.

     (2) For residents' personal clothing, the nursing home:

     (a) Must have a system in place to ensure that personal clothing is not damaged or lost during handling and laundering; and

     (b) May use ((department approved chemical disinfection)) a chemical disinfectant in lieu of ((the)) hot water disinfection provided that the nursing home:

     (i) Uses the product according to the manufacturer's instructions; and

     (ii) Has readily available, current documentation from the manufacturer that supports the claim that the product is effective as a laundry disinfectant and such documentation is based on scientific studies or other rational data. "Disinfectant" means a germicide that inactivates virtually all recognized pathogenic microorganisms (but not necessarily all microbial forms, such as bacterial spores) on inanimate objects.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-205, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-205, filed 9/15/94, effective 10/16/94.]

     (a) He or she has continuously resided in a nursing facility since October 1, 1987; and

     (b) The department determined, in 1990, that the resident required specialized services for a serious mental illness or developmental disability but did not require nursing facility services.

     (2) In the event that residents chose to remain in the nursing facility as outlined in subsection (1) above, the department, or designee, will clarify the effect on eligibility for Medicaid services under the state plan if the resident chooses to leave the facility, including its effect on readmission to the facility.

     (3) ((A nursing facility applicant or)) An individual applying for admission to a nursing facility or a nursing facility resident who has been adversely impacted by a PASRR determination may appeal the department's determination ((of)) that the individual is:

     (a) Not in need of nursing facility care as defined under WAC ((388-97-022)) 388-71-0700;

     (b) Not in need of specialized services as defined under WAC 388-97-251; or

     (c) Need for specialized services as defined under WAC 388-97-251.

     (4) The nursing facility must assist the ((applicant)) individual applying for admission or resident, as needed, in requesting a hearing to appeal the department's PASRR determination.

     (5) If the department's PASRR determination requires that a resident be transferred or discharged, the department will:

     (a) Provide the required notice of transfer or discharge to the resident, the resident's surrogate decision maker, and if appropriate, a family member or the resident's representative thirty days or more before the date of transfer or discharge;

     (b) Attach a hearing request form to the transfer or discharge notice;

     (c) Inform the resident, in writing in a language and manner the resident can understand, that:

     (i) An appeal request may be made any time up to ninety days from the date the resident receives the notice of transfer or discharge;

     (ii) Transfer or discharge will be suspended when an appeal request is received by the office of administrative hearings on or before the date of transfer or discharge set forth in the written transfer or discharge notice; and

     (iii) The resident will be ineligible for Medicaid nursing facility payment:

     (A) Thirty days after the receipt of written notice of transfer or discharge; or

     (B) If the resident appeals under subsection (1)(a) of this section, thirty days after the final order is entered upholding the department's decision to transfer or discharge a resident.

     (6) The department's home and community services may pay for the resident's nursing facility services after the time specified in subsection (((3)))(5)(c)(iii) of this section, if the department determines that a location appropriate to the resident's medical and other needs is not available.

     (7) The department will:

     (a) Send a copy of the transfer/discharge notice to the resident's attending physician, the nursing facility and, where appropriate, a family member or the resident's representative;

     (b) Suspend transfer or discharge:

     (i) If the office of administrative hearings receives an appeal on or before the date set for transfer or discharge or before the resident is actually transferred or discharged; and

     (ii) Until the office of appeals makes a determination; and

     (c) Provide assistance to the resident for relocation necessitated by the department's PASRR determination.

     (8) Resident appeals of PASRR determinations will be in accordance with 42 C.F.R. §431 Subpart E, chapter ((388-08)) 388-02 WAC, and the procedures defined in this section. In the event of a conflict between a provision in this chapter and a provision in chapter ((388-08)) 388-02 WAC, the provision in this chapter will prevail.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-260, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-260, filed 9/15/94, effective 10/16/94.]

     (a) There must be at least one registered nurse or licensed practical nurse on duty eight hours per day, and additional licensed staff on any shift if indicated. WAC 388-97-115 (2)(a) and (3)(a) and (b) do not apply to ICF/MR nursing facilities; and

     (b) A medical director is not required.

     (2) Staff from the division of developmental disabilities will approve of social/therapeutic leave for individuals who reside in ICF/MR nursing facilities.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-285, filed 2/24/00, effective 3/26/00.]

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-35040, filed 2/24/00, effective 3/26/00.]

     (2) The department will not begin review of an incomplete license renewal application.

     (3) The ((proposed)) current licensee must respond to any department request for additional information within five working days.

     (4) When the application is determined to be complete, the department will review:

     (a) The information contained in the application;

     (b) Actions against the license (i.e., revocation, suspension, refusal to renew, etc.);

     (c) All criminal convictions, and relevant civil or administrative actions or findings including, but not limited to, findings under 42 C.F.R. §488.335, disciplinary findings, and findings of abuse, neglect, exploitation, or abandonment; and

     (d) Other relevant information.

     (5) The department will notify the current licensee of the results of the review.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-565, filed 2/24/00, effective 3/26/00.]

     (a) ((Not complied with all the requirements established by chapters 18.51, 74.42, or 74.46 RCW and rules adopted thereunder;)) Failed or refused to comply with the:

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

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

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

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

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

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

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

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

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

     (i) ((Failed to meet financial obligations as the obligations fall due in the normal course of business;

     (j))) Been convicted of a felony, other than a felony that is a "crime against children or other persons," or a "crime relating to financial exploitation" as defined in RCW 43.43.830, if the crime reasonably relates to the competency of the individual to own or operate a nursing home;

     (((k) Failed to provide any authorization, documentation, or information the department requires in order to verify information contained in the application; or

     (l) Failed to))

     (j) Failed to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     (d) Repeated failure to comply with regulations;

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

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

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

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

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

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

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

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

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

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

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-570, filed 2/24/00, effective 3/26/00.]

     (((2) Adjudicative proceedings will be governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 18.51.065, 43.20A.205, WAC 388-98-750, and chapters 388-08 and 388-97 WAC. If any provision in this chapter conflicts with chapter 388-08 WAC, the provision of this chapter will govern)) The appeals process and requirements are set forth in WAC 388-97-625.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-575, filed 2/24/00, effective 3/26/00.]

     (2) As used in this section:

     (a) "Management agreement," means a written, executed, agreement between the licensee and another individual or entity regarding the provision of certain services in a nursing home; and

     (b) "Manager" refers to the individual or entity providing services under a management agreement.

     (3) The licensee may not give the manager responsibilities that are so extensive that the licensee is relieved of responsibility for the daily operations and provisions of services of the facility. If the licensee does so, then the department must determine that a change of ownership has occurred.

     (4) The proposed licensee or the current licensee must notify the residents and their representatives sixty days before entering into a management agreement.

     (((3))) (5) The department must receive a written management agreement, including an organizational chart showing the relationship between the proposed or current licensee, management company, and all related organizations:

     (a) Sixty days before:

     (i) The proposed change of ownership date ((as part of));

     (ii) The initial ((license application or any change of ownership;)) licensure date; or

     (iii) The effective date of the management agreement; or

     (b) ((Sixty days before the effective date when submitted by the current licensee; or

     (c))) Thirty days before the effective date of any amendment to an existing management agreement.

     (((4))) (6) Management agreements, at minimum must:

     (a) Create a principal/agent relationship between the licensee and the manager;

     (b) Describe the responsibilities of the licensee and manager, including items, services, and activities to be provided;

     (c) Require the licensee's governing body, board of directors, or similar authority to appoint the facility administrator;

     (d) Provide for maintenance and retention of all records as applicable according to rules and regulations;

     (e) Allow unlimited access by the department to documentation and records according to applicable laws or regulations;

     (f) Require the licensee to participate in monthly oversight meetings and quarterly on-site visits to the facility;

     (g) Require the manager to immediately send copies of surveys and notices of noncompliance to the licensee;

     (h) State that the licensee is responsible for ensuring all licenses, certifications, and accreditations are obtained and maintained;

     (i) State that the manager and licensee will review the management agreement annually and notify the department of changes according to applicable ((rules and)) regulations; ((and))

     (j) Acknowledge that the licensee is the party responsible for meeting state and federal licensing and certification requirements((.

     (5)));

     (k) Require the licensee to maintain ultimate responsibility over personnel issues relating to the operation of the nursing home and care of the residents, including but not limited to, staffing plans, orientation, and training;

     (l) Require that, even if day-to-day management of the trust funds are delegated, the licensee:

     (i) Retains all fiduciary and custodial responsibility for funds that have been deposited with the nursing home by the resident; and

     (ii) Is directly accountable to the residents for such funds.

     (m) Provide that if any responsibilities for the day-to-day management of the resident trust fund are delegated to the manager, then the manager must:

     (i) Provide the licensee with a monthly accounting of the resident funds; and

     (ii) Meet all legal requirements related to holding, and accounting for, resident trust funds; and

     (n) State that the manager will not represent itself or give the appearance it is the licensee.

     (7) Upon receipt of a proposed management agreement, the department may require:

     (a) The licensee or manager to provide additional information or clarification;

     (b) Any changes necessary to:

     (i) Bring the management agreement into compliance with this section; and

     (ii) Ensure that the licensee has not been relieved of the responsibility for the daily operations of the facility; and

     (c) More frequent contact between the licensee and manager under subsection (((4)))(6)(f).

     (((6) The department may monitor the licensee's and manager's compliance with the terms of the management agreement and))

     (8) The licensee and manager must act in accordance with the terms of the management agreements. If the department determines that they are not, then the department may take ((any)) action deemed appropriate.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-580, filed 2/24/00, effective 3/26/00.]

     (a) The form of legal organization of the licensee is changed (e.g., a sole proprietor forms a partnership or corporation);

     (b) The licensee transfers ownership of the nursing home business enterprise to another party regardless of whether ownership of some or all of the real property and/or personal property assets of the facility is also transferred;

     (c) Dissolution or consolidation of the entity((, or merger if the licensee does not survive the merger));

     (d) Merger unless the licensee survives the merger and there is not a change in control of the licensee;

     (e) If, during any continuous twenty-four month period, fifty percent or more of the entity is transferred, whether by a single transaction or multiple transactions, to:

     (i) A different party (e.g., new or former shareholders); or

     (ii) An individual or entity that had less than a five percent ownership interest in the nursing home at the time of the first transaction; or

     (((e))) (f) Any other event or combination of events that the department determines results in a:

     (i) Substitution, elimination, or withdrawal of the licensee; or

     (ii) Substitution of control of the ((operator or the operating entity)) licensee responsible for the daily operational decisions of the nursing home.

     (2) Ownership does not change when the following, without more, occur:

     (a) A party contracts with the licensee to manage the nursing home enterprise ((as the licensee's agent (i.e., as provided in)) in accordance with the requirements of WAC 388-97-580(())); or

     (b) The real property or personal property assets of the nursing home are sold or leased, or a lease of the real property or personal property assets is terminated, as long as there is not a substitution or substitution of control of the ((operator or operating entity)) licensee.

     (3) When a change of ownership is contemplated, the current licensee must notify the department and all residents and their representatives at least sixty days prior to the proposed date of transfer. The notice must be in writing and contain the following information as specified in RCW 18.51.530:

     (a) Name of the ((current licensee and)) proposed licensee;

     (b) Name ((and address of the nursing home being transferred; and

     (c) Date of proposed transfer)) of the managing entity;

     (c) Names, addresses, and telephone numbers of department personnel to whom comments regarding the change may be directed;

     (d) Names of all officers and the registered agent in the state of Washington if proposed licensee is a corporation; and

     (e) Names of all general partners if proposed licensee is a partnership.

     (4) The proposed licensee must comply with license application requirements. The operation or ownership of a nursing home must not be transferred until the proposed licensee has been issued a license to operate the nursing home.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-585, filed 2/24/00, effective 3/26/00.]

     (a) Notify residents and, when appropriate, resident representatives of the action; ((and))

     (b) Assist with residents' relocation and specify possible alternative living choices and locations; and

     (c) The nursing home will assist the residents to the extent it is directed to do so by the department.

     (2) When a resident's relocation occurs due to a nursing home's voluntary closure, or voluntary termination of its Medicare ((and/))or Medicaid contract or both, the nursing home must:

     (a) ((The nursing home must:

     (i) Send written notification, sixty days before closure or contract termination, to the department's designated local office and to all residents and resident representatives; and

     (ii))) Notify the department and all residents and resident representatives in accordance with WAC 388-97-162; and

     (b) Provide appropriate discharge planning and coordination for all residents including a plan to the department for safe and orderly transfer or discharge of residents from the nursing home.

     (((b))) (3) The department may provide residents assistance with relocation.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-595, filed 2/24/00, effective 3/26/00.]

NURSING HOME LICENSURE PROGRAM ADMINISTRATION
NEW SECTION
WAC 388-97-605   Inspections and deficiency citation report.   (1) The department may inspect nursing homes at any time in order to determine compliance with the requirements of chapters 18.51 or 74.42 RCW and this chapter. Types of state inspections in nursing homes include pre-occupancy, licensing, revisit, and complaint investigation. In the case of a Medicaid or Medicare contractor, or both, the department may also inspect Medicare and Medicaid certified nursing homes to determine compliance with the requirements of Title XVIII and/or XIX of the Social Security Act and federal Medicare and Medicaid regulations.

     (2) The department will provide to the nursing home written documentation (notice) of the nursing home's deficiency(ies), the requirement that the deficiency(ies) violates, and the reasons for the determination of noncompliance with the requirements (RCW 18.51.091).

     (3) The department may revisit the nursing home to confirm that corrections of deficiencies has been made. Revisits will be made:

     (a) In accordance with RCW 74.39A.060 (5)(e);

     (b) In the case of ((an)) a Medicare or Medicaid contractor, or both, in accordance with the requirements of Title XVIII or XIX, or both of the Social Security Act and federal Medicare and Medicaid regulations; and

     (c) At the department's discretion.

     (4) The licensee or nursing home must:

     (a) Ensure that department staff have access to the nursing home residents, staff and all resident records; and

     (b) Not willfully interfere or fail to cooperate with department staff in the performance of official duties. Examples of willful interference or failure to cooperate include, but are not limited to, not allowing department staff to talk to residents or staff in private or not allowing department staff access to resident records.

[]

     (2) A plan of correction is not required for deficiencies at a severity level 1/isolated scope as described in WAC 388-97-640, unless specifically requested by the department.

     (3) In the case of actual or imminent threat to resident health or safety/immediate jeopardy (severity level 4 as described in WAC 388-97-640), the department may require the licensee or nursing home to submit a document alleging that the imminent threat has been removed within a time frame specified by the department. The document must specify the steps the nursing home has taken or will take to correct the imminent harm. An allegation that the imminent harm has been removed does not substitute for the plan of correction as required by subsection (1) of this section but it will become a part of the completed plan of correction.

[]

     (a) Address how corrective action will be accomplished for those residents found to have been affected by the deficient practice;

     (b) Address how the nursing home will identify other residents having the potential to be affected by the same deficient practice;

     (c) Address what measures will be put into place or systemic changes made to ensure that the deficient practice will not recur;

     (d) Indicate how the nursing home plans to monitor its performance to make sure that solutions are sustained, including how the plan of correction will be integrated into the nursing home's quality assurance system;

     (e) Give the title of the person who is responsible for assuring lasting correction; and

     (f) Give the date by which the correction will be made.

     (2) The department will review the nursing home's plan of correction to determine whether it is acceptable.

     (3) When deficiencies involve nursing home alterations, physical plant plan development, construction review, or other circumstances where extended time to complete correction may be required, the department's designated local aging and adult services administration (AASA) field office or other department designee may accept a plan of correction as evidence of substantial compliance under the following circumstances:

     (a) The plan of correction must include the steps that the nursing home needs to take, the time schedule for completion of the steps, and concrete evidence that the plan will be carried out as scheduled; and

     (b) The nursing home must submit progress reports and/or updated plans to the department in accordance with a schedule specified by department.

     (c) The department's acceptance of a plan of correction is solely at the department's discretion and does not rule out the imposition of optional remedies.

[]

     (2) The nursing home licensee has the right to an informal department review of disputed state or federal citations, or both.

     (3) A licensee must make a written request for an informal department review within ten calendar days of receipt of the department's written deficiency citation(s) report. The request must be directed to the department's designated local aging and adult services administration (AASA) office and must identify the deficiencies that are being disputed.

     (4) At the informal department review, the licensee or nursing home may provide documentation and verbal explanations related to the disputed federal or state deficiencies, or both.

     (5) When modifications or deletions are made to the disputed federal or state deficiency citations, or both, the licensee or nursing home must modify or delete the relevant portions of the plan of correction within five days of receipt of the modified or deleted deficiency(ies). The licensee or nursing home may request from the department a clean copy of the revised deficiency citation report.

     (6) If the licensee or nursing home is unwilling to provide the modified plan of correction, the department may impose a per day civil fine for failure to return the modified deficiency citation report to the department in accordance with this subsection.

[]

     (2) The following actions may be appealed:

     (a) Imposition of a penalty under RCW 18.51.060 or 74.42.580;

     (b) An action ((against the nursing home, or)) by the department such as a denial of a license under RCW 18.51.054, a license suspension under RCW 18.51.067 or a condition on a license under RCW 74.39A.050; or

     (c) Deficiencies cited on the state survey report.

     (3) ((Deficiencies cited on the federal survey report may not be appealed.

     (4))) The appeal process will be governed by the administrative procedure act (chapter 34.05 RCW), RCW 18.51.065 and 74.42.580, chapter 388-02 WAC and this chapter. If any provision in this chapter conflicts with chapter 388-02 WAC, the provision of this chapter will govern.

     (((5))) (4) The purpose of an administrative hearing will be to review actions taken by the department under chapters 18.51, 74.42 or 74.39A RCW, and under this chapter.

     (((6))) (5) The applicant, licensee or nursing home must file a request for an administrative hearing with the office of administrative hearings within twenty days of receipt of written notification of the department's action as defined in subsection (2) of this section. Further information about administrative hearings is available in chapter 388-02 WAC and at the office of administrative hearing (OAH) website: www.oah.wa.gov.

     (((7))) (6) Orders of the department imposing a stop placement, license suspension, emergency closure emergency transfer of residents, temporary management or conditions on a license are effective immediately upon verbal or written notice and must remain in effect until they are rescinded by the department or through the state administrative appeals process.

     (7) Deficiencies cited on the federal survey report may not be appealed. If a federal remedy is imposed, the Centers for Medicare and Medicaid Services will notify the nursing facility of appeal rights under the federal administrative appeals process.

[]

     Reviser's note: The unnecessary underscoring and deletion marks in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-97-630   Remedies.   Mandatory Remedies

     (1) In accordance with RCW 18.51.060 (5)(a), the department must impose a stop placement order when the department determines that the nursing home is not in substantial compliance with applicable laws or regulations and the cited deficiency(ies):

     (a) Jeopardize the health and safety of the residents; or

     (b) Seriously limit the nursing home's capacity to provide adequate care.

     (2) When required by RCW 18.51.060(3), the department must deny payment to a nursing home that is certified to provide Medicaid services for any Medicaid-eligible individual admitted to the nursing home. Nursing homes that are certified to provide Medicare services or both Medicare and Medicaid services may be subject to a federal denial of payment for new admissions, in accordance with federal law.

     (3) The department must deny, suspend, revoke or refuse to renew a proposed or current licensee's nursing home license in accordance with WAC 388-97-570(3).

     Optional Remedies

     (4) When the department determines that a licensee has failed or refused to comply with the requirements under chapter 18.51, 74.39A or 74.42 RCW, or this chapter; or a Medicaid contractor has failed or refused to comply with Medicaid requirements of Title XIX of the Social Security Act or Medicaid regulations, the department may impose any or all of the following optional remedies:

     (a) Stop placement;

     (b) Immediate closure of a nursing home, emergency transfer of residents or both;

     (c) Civil fines;

     (d) Appoint temporary management;

     (e) Petition the court for appointment of a receiver in accordance with RCW 18.51.410;

     (f) License denial, revocation, suspension or non-renewal;

     (g) Denial of payment for new Medicaid admissions;

     (h) Termination of the Medicaid provider agreement (contract);

     (i) Department on-site monitoring as defined under WAC 388-97-005; and

     (j) Reasonable conditions on a license as authorized by chapter 74.39A RCW. Examples of conditions on a license include but are not limited to training related to the deficiency(ies); consultation in order to write an acceptable plan of correction; demonstration of ability to meet financial obligations necessary to continue operation.

[]

     (2) The department must consider the imposition of one or more optional remedy(ies) when the nursing home has:

     (a) A history of being unable to sustain compliance;

     (b) One or more deficiencies on one inspection at severity level 2 or higher as described in WAC 388-97-640;

     (c) Been unable to provide an acceptable plan of correction after receiving assistance from the department about necessary revisions;

     (d) One or more deficiencies cited under general administration and/or nursing services;

     (e) One or more deficiencies related to retaliation against a resident or an employee for whistle blower activity under RCW 18.51.220, 74.34.180 or 74.39A.060 and WAC 388-97-203;

     (f) One or more deficiencies related to discrimination against a Medicare or Medicaid client under RCW 74.42.055, and Titles XVIII and XIX of the Social Security Act and Medicare and Medicaid regulations; or

     (g) Willfully interfered with the performance of official duties by a long-term care ombudsman.

     (3) The department, in its sole discretion, may consider other relevant factors when determining what optional remedy or remedies to impose in particular circumstances.

     (4) When the department imposes an optional remedy or remedies, the department will select more severe penalties for nursing homes that have deficiency(ies) that are:

     (a) Uncorrected upon revisit;

     (b) Recurring (repeated);

     (c) Pervasive; or

     (d) Present a threat to the health, safety, or welfare of the residents.

     (5) The department will consider the severity and scope of cited deficiencies in accordance with WAC 388-97-640 when selecting optional remedy(ies). Such consideration will not limit the department's discretion to impose a remedy for a deficiency at a low level severity and scope.

[]

     (a) Whether harm to the resident((, not limited to but including resident's rights,)) has occurred, or could occur, including but not limited to a violation of resident's rights;

     (b) The impact of the actual or potential harm on the resident; and

     (c) The degree to which the nursing home failed to meet the resident's highest practicable physical, mental, and psychosocial well being as defined in WAC 388-97-005.

     (2) Severity levels

(a) Severity level 4 -- Imminent harm or immediate jeopardy Level 4 means that a resident(s)' health or safety is imminently threatened or immediately jeopardized as a result of deficient nursing home practice. This level includes actual harm or potential harm, or both, to resident(s)' health or safety that has had or could have a severe negative outcome or critical impact on resident's well being, including death or severe injury. Severity Level 4 requires immediate corrective action to protect the health and safety of resident(s).

(b) Severity level 3 -- Actual harm Level 3 means that actual harm has occurred to resident(s) as the result of deficient nursing home practice.      (i) "Serious harm" is harm that results in a negative outcome that significantly compromises the resident(s)' ability to maintain and/or reach the highest practicable physical, mental and psychosocial well being. Serious harm does not constitute imminent danger/immediate jeopardy (Severity Level 4).      (ii) "Moderate harm" is harm that results in a negative outcome that more than slightly but less than significantly compromises the resident(s)' ability to maintain and/or reach the highest practicable physical, mental and psychosocial well being.      (iii) "Minimal harm" is harm that results in a negative outcome that to a small degree compromises the resident(s)' ability to maintain and/or reach the highest practicable physical, mental well being.

(c) Severity level 2 -- Potential for harm Level 2, "potential for harm" means that if the deficient nursing home practice is not corrected, resident(s) may suffer actual harm.

(d) Severity level 1 -- No harm or minimal impact Level 1 means a deficient nursing home practice that does not compromise the resident(s)" ability to maintain or reach, or both, the highest practicable physical, mental and psychosocial well being. Deficiencies at level 1 are those that have no direct or potential for no more than minimal impact on the resident. Examples include certain structure deficiencies, certain physical environment deficiencies and process deficiencies.

     (3) "Scope of a deficiency" means the frequency, incidence, or extent of the occurrence of the deficiency.

     (4) Scope categories

     (a) "Isolated or limited scope" means a relatively few number of residents have been affected or have the potential to be affected, by the deficient nursing home practice.

     (b) "Moderate or pattern scope" scope means more than an isolated and less than a widespread number of residents have been affected, or have the potential to be affected by the deficient nursing home practice.

     (c) "Widespread" or "systemic scope" means most or all of the residents are affected or have the potential to be affected, by the deficient nursing home practice.

     (5) Determination of scope will be made by the department in its sole discretion. Factors the department will consider may include:

     (a) Size of the nursing home;

     (b) Size of the sample;

     (c) Number and location of affected residents;

     (d) Whether the deficiency applies to all or a subset of the residents;

     (e) Other factors relevant to the particular circumstances.

[]

     Reviser's note: The unnecessary underscoring and deletion marks in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-97-645   Separate deficiencies -- Separate remedies.   (1) Each deficiency cited by the department for noncompliance with a statute or regulation is a separate deficiency subject to the assessment of a separate remedy.

     (2) Each day upon which the same deficiency occurs is a separate deficiency subject to the assessment of a separate remedy.

[]

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

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

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

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

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

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

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

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

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

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

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

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

[]

     (a) Per day civil fine is fifty dollars to three thousand dollars; and

     (b) Per instance civil fine is one thousand to three thousand dollars.

     (2) In the event of continued noncompliance, nothing in this section must prevent the department from increasing a civil fine up to the maximum amount allowed by law.

[]

     (2) A per instance fine may be assessed for a deficiency, regardless of whether or not the deficiency had been corrected by the time the department first identified it.

     (3) Civil fine(s) are due twenty days after the nursing home is notified of the civil fine(s) if the nursing home does not request a hearing.

     (4) If the nursing home requests a hearing, the civil fine(s) including interest, if any, is due twenty days after:

     (a) A hearing decision ordering payment of the fine(s) becomes final in accordance with chapter 388-02 WAC;

     (b) The appeal is withdrawn;

     (c) A settlement agreement and order of dismissal is entered, unless otherwise specified in the agreement; or

     (d) An order of dismissal is entered.

     (5) Interest on the civil fine(s) begins to accrue at a rate of one percent per month, thirty days after the nursing home is notified of the fine, unless a settlement agreement includes other provisions for payment of interest. If the amount of the civil fine is reduced following an appeal, interest on the reduced civil fine(s) accrues from thirty days after the nursing home was notified of the original civil fine(s).

     (6) When a nursing home fails to pay a civil fine when due under this chapter, the department may:

     (a) Withhold an amount equal to the fine plus interest, if any, from the nursing home's Medicaid payment;

     (b) Impose an additional fine; or

     (c) Suspend the nursing home license under WAC 388-97-570(1). Such license suspension must continue until the fine is paid.

[]

     (2) The funds must be administered by the department according to department procedures. Uses of the fund include, but are not limited to:

     (a) Payment for the costs of relocation of residents to other facilities;

     (b) Payment to maintain operation of a nursing home pending correction of deficiencies or closure; and

     (c) Reimbursement of residents for personal funds or property lost when the resident's personal funds or property cannot be recovered from the nursing home or third party insurer.

[]

     (a) Cease operating the nursing home; and

     (b) Immediately turn over to the temporary manager possession and control of the nursing home including, but not limited to, all patient care records, financial records, and other records necessary for continued operation of the nursing home while temporary management is in effect.

     (2) The temporary manager will have authority to temporarily relocate some or all residents if the:

     (a) Temporary manager determines the resident's health, security, or welfare is jeopardized; and

     (b) Department concurs with the temporary manager's determination that relocation is necessary.

     (3) The department's authority to order temporary management is discretionary in all cases.

[]

     (2) After receivership is established, the department may recommend to the court that all residents be relocated and the nursing home closed when:

     (a) Problems exist in the physical condition of the premises which cannot be corrected in an economically prudent manner; or

     (b) The department determines the former licensee or owner:

     (i) Is unwilling or unable to manage the nursing home in a manner ensuring residents' health, safety, and welfare; and

     (ii) Has not entered into an enforceable agreement to sell the nursing home within three months of the court's decision to grant receivership.

[]

     (2) Individuals, partnerships, corporations, or other entities interested in being appointed as a temporary manager or receiver must complete and submit to the department the required application on department forms.

     (3) Individuals, partnerships, corporations, or other entities with experience in providing long-term health care and a history of satisfactory nursing home operation may submit an application to the department at any time. Applicants will be subject to the criteria established for licensees found in WAC 388-97-570, except the department may waive the requirement that it have at least sixty days to review the application.

     (4) The department must not appoint or recommend the appointment of a person (including partnership, corporation or other entity) to be a temporary manager or receiver if that person:

     (a) Is the licensee, administrator, or partner, officer, director, managing employee, or owner of five percent or more of the licensee of the nursing home subject to temporary management or receivership;

     (b) Is affiliated with the nursing home subject to temporary management or receivership; or

     (c) Has owned or operated a nursing home ordered into temporary management or receivership in any state.

[]

     (2) The department, in appointing a temporary manager or recommending appointment of a receiver, may consider one or more of the following factors:

     (a) Potential temporary manager's or receiver's willingness to serve as a temporary manager or receiver for the nursing home in question;

     (b) Amount and quality of the potential temporary manager's or receiver's experience in long-term care;

     (c) Quality of care, as determined by prior survey reports, provided under the potential temporary manager's or the potential receiver's supervision, management or operation;

     (d) Potential temporary manager's or receiver's prior performance as a temporary manager or receiver;

     (e) How soon the potential temporary manager or receiver is available to act as a temporary manager or receiver;

     (f) Potential temporary manager's or receiver's familiarity and past compliance with Washington state and federal regulations applicable to nursing homes.

[]

     (a) For receivers, the powers in RCW 18.51.490;

     (b) Correcting cited deficiencies;

     (c) Hiring, directing, and managing all consultants and employees and discharging them for just cause, discharging the administrator of the nursing home, recognizing collective bargaining agreement, and settling labor disputes;

     (d) Receiving and expending in a prudent and business-like manner all current revenues of the home provided priority will be given to debts and expenditures directly related to providing care and meeting residents' needs;

     (e) Making necessary purchases, repairs, and replacements, provided such expenditures in excess of five thousand dollars are approved by the department, or in the case of a receiver, approved by court;

     (f) Entering into contracts necessary for the operation of the nursing home, provided that, the court must approve contracts extending beyond the period of receivership;

     (g) Preparing all department-required reports;

     (h) Overseeing facility closure, when appropriate;

     (i) Planning required relocation with residents and residents' legal representative, family, or significant others in conjunction with home and community services division field staff;

     (j) Meeting regularly with and informing staff, residents, and residents' families or significant others of:

     (i) Plans for correcting the cited deficiencies;

     (ii) Progress achieved in correction of deficiencies;

     (iii) Plans for facility closure and relocation; and

     (iv) Plans for continued operation of the nursing home, including training of staff.

     (2) The temporary manager or receiver must make a detailed monthly accounting of all expenditures and liabilities to the department and to the owner of the nursing home, and to the court when required.

     (3) The receiver must consult the court in cases of extraordinary or questionable debts incurred prior to the receiver's appointment and will not have the power to close the home or sell any of the nursing home's assets without prior court approval.

     (4) The temporary manager or receiver must comply with all applicable state and federal laws and regulations. If the nursing home is certified and is providing care to Medicaid clients, the temporary manager or receiver must become the Medicaid contractor for the duration of the temporary management or receivership period.

[]

     (a) After three months unless good cause is shown to continue the temporary management. Good cause for continuing the temporary management exists when returning the nursing home to its former licensee would subject residents to a threat to health, safety, or welfare;

     (b) When all residents are transferred and the nursing home is closed;

     (c) When deficiencies threatening residents' health, safety, or welfare are eliminated and the former licensee agrees to department-specified conditions regarding the continued facility operation; or

     (d) When a new licensee assumes control of the nursing home.

     (2) The department may appoint an alternate temporary manager:

     (a) When the temporary manager is no longer willing to serve as a temporary manager;

     (b) If a temporary manager is not making acceptable progress in correcting the nursing home deficiencies or in closing the nursing home; or

     (c) If the department determines the temporary manager is not operating the nursing home in a financially responsible manner.

     (3) The receivership will terminate in accordance with RCW 18.51.450 and 18.51.460.

     (4) The department may recommend to the court an alternate receiver be appointed:

     (a) When the receiver is no longer willing to serve as a receiver; or

     (b) If a receiver is not making acceptable progress in correcting the deficiencies in the nursing home.

[]

     The following sections of the Washington Administrative Code are repealed:

WAC 388-98-001	Definitions.
WAC 388-98-003	Remedies.
WAC 388-98-010	List of qualified receivers.
WAC 388-98-015	Duties and powers of receiver.
WAC 388-98-020	Termination of receivership.
WAC 388-98-300	Temporary management.
WAC 388-98-320	Temporary managers -- Application.
WAC 388-98-330	Duties and powers of temporary manager.
WAC 388-98-340	Termination of temporary management.
WAC 388-98-700	Stop placement -- Informal review.
WAC 388-98-750	Notice and hearing rights.
WAC 388-98-810	Civil penalty fund.
WAC 388-98-830	Notification of response time.
WAC 388-98-870	Separate violations.
WAC 388-98-890	Reporting.

© Washington State Code Reviser's Office