WSR 04-13-138

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed June 22, 2004, 3:12 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-17-064.

Title of Rule and Other Identifying Information: WAC 388-71-0100 through 388-17-01280, adult protective services.

Hearing Location(s): Blake Office Park East (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA, on July 27, 2004, at 10:00 a.m.

Date of Intended Adoption: Not earlier than July 28, 2004.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., July 27, 2004.

Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by July 23, 2004, TTY (360) 664-6178 or (360) 664-6097.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Amending and adding new sections to WAC 388-71-0100 through 388-71-01280, adult protective services, to implement procedures for due process and update rules for clarity.

Reasons Supporting Proposal: See above.

Statutory Authority for Adoption: RCW 34.05.020, 74.08.090, 74.39A.050, chapter 74.34 RCW.

Statute Being Implemented: RCW 34.05.020, 74.39A.050, chapter 74.34 RCW.

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

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

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2531.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed these proposed rules and determined that no new costs will be imposed on small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules are not "significant legislative rules" under RCW 34.05.328 (5)(c). New WAC 388-71-01205 through 388-71-01280 are procedural rules. Amended WAC 388-71-0100, 388-71-0105, 388-71-0110, 388-71-0115, and new WAC 388-71-0121 are interpretive rules. Procedural and interpretive rules do not require a cost-benefit analysis.

June 18, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3415.3
AMENDATORY SECTION(Amending WSR 00-03-029, filed 1/11/00, effective 2/11/00)

WAC 388-71-0100   What are the statutory references for WAC 388-71-0100 through ((388-71-0155)) 388-71-01280?   The statutory references for WAC 388-71-0100 through WAC ((388-71-0155)) 388-71-01280 are:

(1) Chapter 74.34 RCW;

(2) Chapter 74.39A RCW; and

(3) Chapter 74.39 RCW.

[Statutory Authority: RCW 74.08.090, 74.34.165, and 74.39A.050(9). 00-03-029, 388-71-0100, filed 1/11/00, effective 2/11/00.]


AMENDATORY SECTION(Amending WSR 00-03-029, filed 1/11/00, effective 2/11/00)

WAC 388-71-0105   What definitions apply to adult protective services ((and the personal aide registry))?   In addition to the definitions found in chapter 74.34 RCW, the following definitions apply:

"ADSA" means DSHS aging and disability services administration.

"ALJ" means an administrative law judge. An impartial decision-maker who is an attorney and presides at an administrative hearing. The office of administrative hearings (OAH), which is a state agency, employs the ALJs. ALJs are not DSHS employees or DSHS representatives.

"APS" means adult protective services.

"Basic necessities of life" means food, water, shelter, clothing, and medically necessary health care, including but not limited to health-related treatment or activities, hygiene, oxygen, and medication.

"BOA" means the DSHS board of appeals.

"DSHS" means the department of social and health services.

"Entity" means any agency, corporation, partnership, association, limited liability company, sole proprietorship, for-profit or not-for-profit business that provides care and/or services to vulnerable adults under a license, certification or contract issued by DSHS or DSHS' contractor, or who is required to be licensed as a boarding home under chapter 18.20 RCW or an adult family home under chapter 70.128 RCW.

"Final finding" means the department's substantiated finding of abandonment, abuse, financial exploitation, neglect or self-neglect is upheld through the administrative appeal process specified in WAC 388-71-01205 through 388-71-01280, or is not appealed within thirty days.

"Finding" means a determination made by the department upon investigation of an allegation of abandonment, abuse, financial exploitation, neglect or self-neglect.

(1) If the department determines it is more likely than not the incident occurred, the department shall document the finding as "substantiated."

(2) If the department determines it is more likely than not the incident did not occur, the department shall document the finding as "unsubstantiated."

(3) If the department cannot make a determination about whether the incident occurred or did not occur on a more probable than not basis, the department shall document the finding as "inconclusive."

"Legal representative" means a guardian appointed under chapter 11.88 RCW ((or individual named in a durable power of attorney as the attorney-in-fact as defined under chapter 11.94 RCW)).

"Person or entity with a duty of care" includes, but is not limited to, the following:

(1) A guardian appointed under chapter 11.88 RCW; or

(2) An individual named in a durable power of attorney as the attorney-in-fact as defined under chapter 11.94 RCW.

(3) A person or entity providing the basic necessities of life to vulnerable adults where:

(a) The person or entity is employed by or on behalf of the vulnerable adult; or

(b) The person or entity voluntarily agrees to provide, or has been providing, the basic necessities of life to the vulnerable adult on a continuing basis.

"Personal aide" as found in RCW 74.39.007.

"Self-directed care" as found in RCW 74.39.007.

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

[Statutory Authority: RCW 74.08.090, 74.34.165, and 74.39A.050(9). 00-03-029, 388-71-0105, filed 1/11/00, effective 2/11/00.]

PART A -- PROGRAM DESCRIPTION
AMENDATORY SECTION(Amending WSR 00-03-029, filed 1/11/00, effective 2/11/00)

WAC 388-71-0110   What is the purpose of an adult protective services investigation?   The purpose of an adult protective services investigation is to:

(1) ((Determine if)) Investigate allegations of abandonment, abuse, financial exploitation, neglect, or self-neglect ((are valid)).

(2) Provide protective services ((on valid reports)) with the consent of the vulnerable adult or his or her legal representative when the allegation is substantiated, or prior to substantiation when it appears abandonment, abuse, financial exploitation, neglect or self-neglect may be occurring and protective services could assist in ending or preventing harm to the vulnerable adult.

(3) ((Determine if other vulnerable adults are at risk of being harmed by individual who has abused, neglected, abandoned or financially exploited the vulnerable adult.

(4) Inform the program or facility providing care for the vulnerable adult that the reported incident of abandonment, abuse, financial exploitation, or neglect occurred. The information provided to the facility or program is required to be consistent with confidentiality requirements concerning the vulnerable adult, witnesses, and complainants)) When an allegation is substantiated, APS may investigate if other vulnerable adults may be at current risk of abuse, neglect, abandonment or financial exploitation by the individual or entity.

[Statutory Authority: RCW 74.08.090, 74.34.165, and 74.39A.050(9). 00-03-029, 388-71-0110, filed 1/11/00, effective 2/11/00.]


AMENDATORY SECTION(Amending WSR 00-03-029, filed 1/11/00, effective 2/11/00)

WAC 388-71-0115   When is an investigation conducted?   The department determines when an investigation is conducted. The following criteria must be met:

(1) The reported circumstances fit the definition of abandonment, abuse, financial exploitation, neglect, or self-neglect found in chapter 74.34 RCW; and

(2) The alleged victim is a vulnerable adult as defined in chapter 74.34 RCW.

[Statutory Authority: RCW 74.08.090, 74.34.165, and 74.39A.050(9). 00-03-029, 388-71-0115, filed 1/11/00, effective 2/11/00.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
NEW SECTION
WAC 388-71-0121   What state-only funded services may be offered to a vulnerable adult victim of abandonment, abuse, financial exploitation, neglect or self-neglect?   (1) Subject to available funding, state-only funded in-home personal care/household services and state-only funded placement in a department licensed and contracted adult family home, boarding home or nursing facility may be offered without regard to the vulnerable adult's functional status or income/resources, if:

(a) The vulnerable adult is the subject of an open APS case involving an allegation of abandonment, abuse, financial exploitation, neglect, and/or self-neglect;

(b) The services would help protect the vulnerable adult from harm;

(c) APS cannot verify alternative resources or options for payment for services available to the vulnerable adult at the time;

(d) Services are provided in the least restrictive and most cost effective setting available to appropriately meet the needs of the vulnerable adult;

(e) APS is actively pursuing other service alternatives and/or resolution of the issues that resulted in the need for protective services; and

(f) The state-only funded services are temporary and provided with the consent of the vulnerable adult or legal representative only until the situation has stabilized.

(2) State-only funded services to an individual vulnerable adult shall be based on assessed need and limited to:

(a) Up to one hundred forty-three hours of in-home personal care/household services per month; and

(b) A cumulative maximum total of ninety days service in any twelve-month period of time, with nursing facility services not exceeding thirty days of the ninety-day total. An exception to rule cannot be used to grant an extension.

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PART B -- NOTIFICATION AND ADMINISTRATIVE APPEAL OF A SUBSTANTIATED FINDING
NEW SECTION
WAC 388-71-01205   When does APS notify the alleged perpetrator of the results of an APS investigation?   APS will notify the alleged perpetrator in writing within ten working days of making a substantiated finding of abandonment, abuse, financial exploitation or neglect of a vulnerable adult.

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NEW SECTION
WAC 388-71-01210   How may APS give the alleged perpetrator notice of the substantiated finding?   (1) APS shall notify the alleged perpetrator of a substantiated finding by sending a letter certified mail/return receipt requested and regular mail to the alleged perpetrator's last known place of residence. APS shall make a reasonable, good faith effort to determine the address of the last known place of residence of the alleged perpetrator; or

(2) APS shall have the written notice delivered or personally served upon the alleged perpetrator.

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NEW SECTION
WAC 388-71-01215   When is notice to the alleged perpetrator complete?   Notice is complete when:

(1) Personal service is made;

(2) Mail is properly stamped, addressed and deposited in the United States mail;

(3) A parcel is delivered to a commercial delivery service with charges prepaid; or

(4) A parcel is delivered to a legal messenger service with charges prepaid.

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NEW SECTION
WAC 388-71-01220   What proves that APS provided notice of the substantiated finding to the alleged perpetrator?   APS may prove notice was provided to the alleged perpetrator by any of the following:

(1) A sworn statement or declaration of personal service;

(2) The certified mail receipt signed by the recipient;

(3) An affidavit or certificate of mailing; or

(4) A signed receipt from the person who accepted the commercial delivery service or legal messenger service package.

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NEW SECTION
WAC 388-71-01225   What information must not be in the APS finding notice to the alleged perpetrator?   The identities of the alleged victim, reporter, and witnesses must not be included in the APS finding notice to the alleged perpetrator.

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NEW SECTION
WAC 388-71-01230   Will APS notify anyone other than the alleged perpetrator of the finding of abandonment, abuse, financial exploitation or neglect?   In a manner consistent with confidentiality requirements concerning the vulnerable adult, witnesses, and reporter, APS may provide notification of a substantiated finding to:

(1) Other divisions within the department;

(2) The agency or program identified under RCW 74.34.068 with which the alleged perpetrator is associated as an employee, volunteer or contractor;

(3) Law enforcement;

(4) Other investigative authority consistent with chapter 74.34 RCW; and

(5) The facility in which the incident occurred.

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NEW SECTION
WAC 388-71-01235   Can an alleged perpetrator challenge an APS finding of abandonment, abuse, financial exploitation or neglect?   An alleged perpetrator of abandonment, abuse, financial exploitation or neglect may request an administrative hearing to challenge a substantiated finding made by APS on or after the effective date of this rule.

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NEW SECTION
WAC 388-71-01240   How does an alleged perpetrator request an administrative hearing to challenge an APS finding of abandonment, abuse, financial exploitation or neglect?   (1) To request an administrative hearing the alleged perpetrator must send, deliver, or fax a written request to the office of administrative hearings within thirty calendar days of the date of the department's letter of notice is mailed or personally served upon the alleged perpetrator, whichever occurs first. If the alleged perpetrator requests a hearing by fax, the alleged perpetrator must also mail a copy of te request to the office of administrative hearings on the same day.

(2) The alleged perpetrator must complete and submit the form to request an administrative hearing provided by APS or submit a written request for a hearing that includes:

(a) The full legal name, current address and phone number of the alleged perpetrator;

(b) A brief explanation of why the alleged perpetrator disagrees with the substantiated finding;

(c) A description of any assistance needed in the administrative appeal process by the alleged perpetrator, including a foreign or sign language interpreter or any accommodation for a disability.

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NEW SECTION
WAC 388-71-01245   What laws and rules will control the administrative hearings held regarding substantiated APS findings?   Chapters 34.05 and 74.34 RCW, chapter 388-02 WAC, and the provisions of this chapter govern any administrative hearing regarding a substantiated APS finding. In the event of a conflict between the provisions of this chapter and chapter 388-02 WAC, the provisions of this chapter shall prevail.

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NEW SECTION
WAC 388-71-01250   How is confidential information protected in the appeal process?   (1) All information and documents provided by the department to the appellant shall be used by the appellant only to challenge the findings in the administrative hearing.

(2) Confidential information such as the name and other personally identifying information of the reporter and the vulnerable adult shall be redacted from documents and the parties shall use means in testimony to protect the identify of such persons, unless otherwise ordered by the ALJ consistent with chapter 74.34 RCW and other applicable state and federal laws.

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NEW SECTION
WAC 388-71-01255   How does the administrative law judge make a decision regarding the substantiated APS finding?   (1) The ALJ shall decide if a preponderance of the evidence in the hearing record supports a determination that the alleged perpetrator committed an act of abandonment, abuse, financial exploitation or neglect of a vulnerable adult.

(2) If the ALJ determines that a preponderance of the evidence in the hearing record supports the substantiated APS finding, the ALJ shall uphold the finding.

(3) If the ALJ determines that the substantiated APS finding is not supported by a preponderance of the evidence in the hearing record, the ALJ shall remand the matter to the department to modify the finding consistent with the initial decision of the ALJ.

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NEW SECTION
WAC 388-71-01260   How is the alleged perpetrator notified of the administrative law judge's decision?   After the administrative hearing, the ALJ will send a written decision to the alleged perpetrator and the department within ninety calendar days after the record is closed.

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NEW SECTION
WAC 388-71-01265   What if the alleged perpetrator or the department disagrees with the decision?   If the alleged perpetrator or the department disagrees with the ALJ's decision, either party may challenge this decision by filing a request for review with the department's board of appeals consistent with the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC.

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NEW SECTION
WAC 388-71-01270   What happens if the administrative law judge rules against the department?   If the department appeals the ALJ's decision, the department will not modify the finding in the department's records until the finding is final. If the department does not appeal the ALJ's initial decision, the department will modify the finding in the department's records to "unsubstantiated" and document the ALJ's decision in the record.

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NEW SECTION
WAC 388-71-01275   When does the APS substantiated finding become a final finding?   A substantiated finding becomes a final finding when:

(1) The alleged perpetrator does not request an administrative hearing as set forth in WAC 388-71-01240; or

(2) The ALJ issues an initial order upholding the substantiated finding and the alleged perpetrator fails to file a request for review of the ALJ's initial decision with the department's board of appeals consistent with the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC; or

(3) The board of appeals issues a final order upholding the substantiated finding when a request for review to the department's board of appeals is made consistent with the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC.

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NEW SECTION
WAC 388-71-01280   Does the department disclose information about findings of abuse, abandonment, neglect and financial exploitation?   (1) The department will maintain a registry of final findings and, upon request, the department may disclose the identity of a person or entity with a final finding of abandonment, abuse, financial exploitation or neglect.

(2) The department may consider an APS substantiated finding in determining:

(a) If an individual or entity is qualified to be licensed to care for children or vulnerable adults;

(b) If an individual or entity is qualified to care for or have unsupervised access to children or vulnerable adults;

(c) If an individual or entity may be authorized or funded by the department to provide care or services to children or vulnerable adults.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-71-0120 What adjunct services are provided?
WAC 388-71-0150 When is the name of a personal aide placed on a registry?
WAC 388-71-0155 Prior to placing his or her name on the registry is the personal aide notified?

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