WSR 03-10-090




[ Filed May 6, 2003, 4:51 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-24-066.

Title of Rule: WAC 388-76-655 General management and administration -- Adult family homes.

Purpose: The proposed rule deletes subsection (3) addressing liability insurance. Proposed rules addressing clarification of emergency evacuation requirements and food handling safety requirements, referenced in the preproposal statement of inquiry - WSR 02-24-066 - will be included in a subsequent proposal.

Statutory Authority for Adoption: RCW 70.128.040.

Statute Being Implemented: RCW 70.128.040.

Summary: The deletion of subsection (3) removes the liability insurance requirement from the administrative code applicable to adult family homes.

Reasons Supporting Proposal: The insurance requirement was originally included in the WAC at the request of adult family home providers. Providers are currently having difficulty obtaining and retaining liability insurance.

Name of Agency Personnel Responsible for Drafting: Rosemary Biggins, ADSA-RCS, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2682; Implementation and Enforcement: Joyce Stockwell, ADSA-RCS, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2404.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: Removes rule describing the type of liability insurance an adult family home must obtain. Requirement was originally included in the WAC at the request of adult family home providers. Providers are currently having difficulty obtaining and retaining liability insurance. Removal of the rule will avoid citations for noncompliance when providers are not responsible for outcome.

Proposal Changes the Following Existing Rules: The proposed rule removes the requirement for liability insurance from WAC 388-76-655.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Residential care services has analyzed the removal of this rule and concluded the action will not impose an increase in existing costs, and imposition of a new cost or a decrease in benefit to small businesses. Deleting the subsection conforms to existing statute. No new costs are incurred.

RCW 34.05.328 applies to this rule adoption. The proposed rule revokes a qualification or standard for issuance or maintenance of an agency license, and meets the definition of a significant legislative rule under RCW 34.05.328 (5)(c)(iii).

Therefore, as required by RCW 34.05.328 (1)(c), Residential Care Services (RCS) has analyzed the probable costs and probable benefits of the proposed rule. In making this analysis, both qualitative and quantitative benefits were considered. RCS has determined that no new costs will be imposed by amendment of the rule. Obtaining liability insurance is a business decision left solely up to the adult family home licensee discretion. A benefit is that removal of the rule avoid citations of the licensee who cannot obtain liability insurance because an insurance company will not insure an adult family home.

A copy of [the] draft significant rule analysis and cost benefit analysis is available. Copies may be obtained by contacting Rosemary Biggins, Residential Care Services, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2486.

Hearing Location: Office Building 2 Auditorium (DSHS Headquarters) (parking at 11th and Jefferson), 1115 Washington, Olympia, WA, on June 10, 2003, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by June 6, 2003, phone (360) 664-6097, TTY (360) 664-6178, e-mail

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail, by 5:00 p.m., June 10, 2003.

Date of Intended Adoption: Not earlier than June 11, 2003.

May 1, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION(Amending WSR 02-15-065, filed 7/11/02, effective 8/11/02)

WAC 388-76-655   General management and administration.   (1) The provider shall not admit or retain any resident whose needs the provider cannot meet.

(2) The provider shall ensure all of the following:

(a) That staff are competent and receive necessary training, including but not limited to any training required under chapter 388-112 WAC to perform assigned tasks;

(b) The adult family home is in compliance with the requirements of this chapter and other applicable state laws;

(c) The home employs sufficient staff to meet the needs of the residents; and

(d) That he/she is available to respond to resident needs and caregiver inquiries within a reasonable time frame. In the event a provider is unavailable (including but not limited to being on vacation), a person must be designated to respond on behalf of the provider.

(3) ((The provider shall maintain liability insurance of at least one hundred thousand dollars per occurrence to cover:

(a) Damage or loss of the resident's property if due to negligence of the insured; and

(b) Injury or harm to the resident resulting from:

(i) The provision of services or failure to provide needed services; or

(ii) Incidents occurring in the adult family home or on the home's premises.

(4))) The provider shall ensure that all caregivers are at least eighteen years of age or older.

(((5))) (4) The provider shall ensure that the provider, entity representative, resident manager and all caregivers:

(a) Are able to communicate or make provisions for communicating with the resident in his or her primary language;

(b) Have a clear understanding of job responsibilities and knowledge of residents' negotiated care plans in order to be able to provide care specific to each resident's needs; and

(c) Not engage in the illegal use of drugs or the excessive use of alcohol when providing care to residents; and

(d) Possess a valid first-aid and CPR card prior to providing care for residents unless such care is directly supervised by a fully qualified caregiver who has a valid first-aid and CPR card.

(((6))) (5) The provider shall ensure that:

(a) There is at least one caregiver present in the home whenever one or more residents are on the premises;

(b) The caregiver referred to in (a) of this subsection is capable of understanding and speaking English well enough to be able to respond appropriately to emergency situations; and

(c) At least one caregiver is accessible by phone or beeper for emergencies when there are no residents on the home's premises.

(((7))) (6) An adult family home shall be exempt from subsection (((6)))(5)(a) of this section if:

(a) The home provides care to residents whose primary disabilities are developmental disabilities as defined by WAC 388-76-590; and

(b) It is determined and documented in a resident's current negotiated care plan that the resident is capable and willing to be left alone unsupervised in the adult family home during normal awake hours. The maximum period of time a resident can be left alone must be documented in the negotiated care plan.

[Statutory Authority: RCW 18.20.090, 70.128.040, 74.39A.050, 34.05.020, 2000 c 121, and 2002 c 233. 02-15-065, 388-76-655, filed 7/11/02, effective 8/11/02. Statutory Authority: RCW 70.128.040, chapters 70.128 and 70.129 RCW. 98-11-095, 388-76-655, filed 5/20/98, effective 7/1/98. Statutory Authority: RCW 70.128.040, 70.128.060, 70.128.120, 70.128.130, 43.43.842, 18.88A.210 and 18.88A.230. 96-14-003 (Order 3984), 388-76-655, filed 6/19/96, effective 7/20/96.]

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