WSR 03-20-040

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed September 24, 2003, 8:07 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-12-056.

Title of Rule: WAC 388-97-076 Nursing homes -- Prevention of abuse.

Purpose: The purpose of amending this rule is to comply with the recently passed legislation ESHB 1904 (chapter 230, Laws of 2003)---An act relating to the reporting of incidents by mandated reporters. The proposed rule also includes editorial changes reflecting the correct DSHS administration name.

Statutory Authority for Adoption: RCW 74.34.165, 74.08.090.

Statute Being Implemented: RCW 74.34.020 and 74.34.035, chapter 230, Laws of 2003.

Summary: Amending this rule would make it consistent with the recently passed legislation ESHB 1904 (chapter 230, Laws of 2003)---An act relating to the reporting of incidents by mandated reporters.

Reasons Supporting Proposal: ESHB 1904 (chapter 230, Laws of 2003) clarifies requirements for mandatory reporters.

Name of Agency Personnel Responsible for Drafting: Lisa Yanagida, Aging and Disability Services Administration, P.O. Box 45600, Olympia, WA 98504, (360) 725-2589; Implementation and Enforcement: Joyce Stockwell, Aging and Disability Services Administration, P.O. Box 45600, Olympia, WA 98504, (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: See Purpose, Summary, and Reasons Supporting Proposal above.

Proposal Changes the Following Existing Rules: See Purpose, Summary, and Reasons Supporting Proposal above. The proposed rule is being amended to refer providers to the statute as to when providers are required to notify law enforcement.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025(3), a small business economic impact statement is not required for rules adopting or incorporating Washington state statutes by reference without material change. The proposed rule incorporates by reference chapter 74.34 RCW without material change.

RCW 34.05.328 does not apply to this rule adoption. Under RCW 34.05.328 (5)(b)(iii), rules adopting or incorporating by reference without material change to Washington state statutes are exempt from the requirements of RCW 34.05.328. The proposed rule incorporates by reference chapter 74.34 RCW without material change.

Also, the proposed rule updates the name of the DSHS Aging and Disability Services Administration without changing the effect of the rule, and is exempt under RCW 34.05.328 (5)(b)(iv).

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on November 4, 2003, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by October 31, 2003, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, mail to P.O. Box 45850, Olympia, WA 98504-5850, deliver to 4500 10th Avenue S.E., Lacey, WA, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., November 4, 2003.

Date of Intended Adoption: No sooner than November 5, 2003.

September 18, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3315.1
AMENDATORY SECTION(Amending WSR 02-14-063, filed 6/27/02, effective 7/28/02)

WAC 388-97-076   Prevention of abuse.   (1) Each resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion.

(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 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.

(5) The nursing home 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.

(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)) disability services administration (((AASA))) ADSA;

(b) Reason to suspect that a vulnerable adult has been sexually or physically assaulted, the individual mandatory reporter must:

(i) Immediately report the incident to ((law enforcement and)) the department's aging and ((adult)) disability services administration (((AASA))) (ADSA);

(ii) Notify local law enforcement in accordance with the provisions of chapter 74.34 RCW.

(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, 74.42.620. 02-14-063, 388-97-076, filed 6/27/02, effective 7/28/02; 00-06-028, 388-97-076, filed 2/24/00, effective 3/26/00.]

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