Purpose: Amending chapter 388-110 WAC, Contracted residential care services, to incorporate into administrative rules the dementia care pilot project standards for contracting with boarding homes to provide specialized dementia care to department clients:

•	Make revisions necessary to be consistent with, and not duplicate, amendments to chapter 388-78A WAC, Boarding home licensing rules; and
•	Review and update the rules under Executive Order 97-02.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-110-060 Resident rights, 388-110-080 Social and recreational activities, 388-110-170 Education and training requirements, 388-110-180 Nurse delegation training and registration, 388-110-190 Performance of delegated nursing care tasks and 388-110-200 Nurse delegation -- Penalties; and amending WAC 388-110-005 Authority, 388-110-010 Scope and applicability, 388-110-020 Definitions, 388-110-030 Contract application, 388-110-040 Contract qualifications, 388-110-050 Change of contractor, 388-110-070 General service standards, 388-110-090 Administration, 388-110-100 ((Transfer and)) Discharge, social leave, and bed hold, 388-110-120 Resident personal funds, 388-110-140 Assisted living services facility structural requirements, 388-110-150 Assisted living service standards, 388-110-220 Enhanced adult residential care service standards, 388-110-240 Adult residential care service standards, 388-110-260 Remedies, 388-110-270 Notice, hearing rights, effective dates relating to imposition of remedies, and 388-110-280 Dispute resolution.

     Statutory Authority for Adoption: RCW 74.39A.010, 74.39A.020, 74.39A.060, and 74.39A.070.

     Other Authority: Chapter 74.39A RCW.

      Adopted under notice filed as WSR 04-13-021 on June 7, 2004.

     Changes Other than Editing from Proposed to Adopted Version: The following changes have been made to the proposed rule based upon suggestions and comments received, as well as technical and editing changes noted during the process.

     WAC 388-110-020 Definitions, the definition of "personal care services" has been revised to clarify that "instrumental activities of daily living" are not included in the definition.

     WAC 388-110-040 Contract qualifications, subsection (2)(b) added to clarify, "...and each care facility that was required by law to be licensed but was not,..."

     WAC 388-110-050 Change of contractor, subsection (2) added to clarify, "...and residents' representatives..."

     WAC 388-110-140 Assisted living services facility structural requirements, subsection (1) has been revised to clarify the definition of "type 'B' dwelling unit" defined by the International Code Council has been adopted into rule by the Washington State Building Code Council.

     WAC 388-110-220 Enhanced adult residential care service standards, subsection (3)(a) deleted "re-assessment" and replaced with "assessment."

     A final cost-benefit analysis is available by contacting Denny McKee, Program Manager, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-5290, fax (360) 438-7903, e-mail McKeeDD@dshs.wa.gov.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 4, 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 0, Amended 13, Repealed 6.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 17, Repealed 6.

     Date Adopted: July 30, 2004.

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-005, filed 5/8/96, effective 6/8/96.]

     (2) Only services provided to or on behalf of the assisted living services, enhanced adult residential care, enhanced adult residential care-specialized dementia care services, or adult residential care resident, and paid for fully or partially by the department shall be subject to these rules.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-010, filed 5/8/96, effective 6/8/96.]

     (("Aging in place" means being in a care environment that can accommodate a resident's progressive disability or changing needs without relocating. For aging in place to occur, needed services are adjusted to meet the changing needs of the resident.))

     "Applicant" means the individual, partnership, corporation or other entity which has applied for a contract with the department to provide assisted living services, enhanced adult residential care, enhanced adult residential care-specialized dementia care services, or adult residential care to state funded residents in a licensed boarding home.

     "Assisted living services" is a package of services((, including)) provided by a boarding home that has a contract with the department under RCW 74.39A.010 to provide personal care ((and limited))services, intermittent nursing services, and medication administration services ((that the department contracts with a licensed boarding home to provide)) in accordance with Parts I and II of this chapter. Assisted living services include housing for the resident in a private apartment-like unit.

     "Boarding home" means the same as the definition found in RCW 18.20.020(((2))), or a boarding home located within the boundaries of a federally recognized Indian reservation and licensed by the tribe.

     (("Caregiver" means any person responsible for providing direct personal care services to a resident and may include but is not limited to the contractor, employee, volunteer, or student.))

     "Case manager" means the department staff person or designee assigned to negotiate, monitor, and facilitate a service plan for residents receiving services fully or partially paid for by the department.

     "Contractor" means the individual, partnership, corporation, or other entity which is licensed by the department or tribe to operate the boarding home and contracts with the department to provide assisted living services, enhanced adult residential care, enhanced adult residential care-specialized dementia care services, or adult residential care to state funded residents in a licensed boarding home.

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

     "Dignity" means the quality or condition of being esteemed and respected in such a way as to validate the self-worth of the resident.

     "Enhanced adult residential care" is a package of services((, including)) provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department to provide personal care ((and limited)) services, intermittent nursing services, and medication administration services ((that the department contracts with a licensed boarding home to provide)) in accordance with Parts I and III of this chapter.

     (("Frail elder or vulnerable adult" means the same as the definition found in RCW 74.34.020 or 43.43.830.))

     "Enhanced adult residential care-specialized dementia care services" is a package of service, including specialized dementia care assessment and care planning, personal care services, intermittent nursing services, medication administration services, specialized environmental features and accommodations, and activity programming. Enhanced adult residential care-specialized dementia care services are delivered only within:

     (1) Contracted boarding homes that are dedicated solely to the care of individuals with dementia, including Alzheimer's disease, and that meet the requirements of parts I and III of this chapter; or

     (2) Designated, separate units located within contracted boarding homes that are dedicated solely to the care of individuals with dementia, including Alzheimer's disease, and that meet the requirements of parts I and III of this chapter.

     "Homelike" means an environment having the qualities of a home, including privacy, comfortable surroundings, and the opportunity to ((modify)) decorate one's living area and arrange furnishings to suit one's individual preferences. A homelike environment provides residents with an opportunity for self-expression, and encourages interaction with the community, family and friends.

     "Independence" means free from the control of others and being able to assert one's own will, personality and preferences.

     "Individuality" means the quality of being unique; the aggregate of qualities and characteristics that distinguishes one from others. Individuality is supported by modifying services to suit the needs or wishes of a specific individual.

     (("Limited nursing services" means the same as the definition found in WAC 246-316-265.))

     "Medication administration" means the direct application of a prescribed medication, whether by injection, inhalation, ingestion, or any other means, to the body of a resident by a person legally authorized to do so.

     "Personal care services" means ((both physical assistance and/or prompting and supervising the performance of direct personal care tasks as determined by the resident's needs as defined in WAC 388-71-202.)) the same as "personal care services" described in WAC 388-72A-0035. Personal care services do not include assistance with tasks that must be performed by a licensed health professional.

     "Resident" means a person residing in a boarding home for whom services are paid for, in whole or in part, by the department under a contract for assisted living services, enhanced adult residential care, enhanced adult residential care-specialized dementia care services, or adult residential care. "Resident" includes former residents when examining complaints about admissions, re-admissions, transfers or discharges. For decision-making purposes, the term "resident" includes the resident's surrogate decision maker in accordance with state law or at the resident's request.

[Statutory Authority: RCW 74.08.090, 74.09.520, and 74.39A.090. 02-21-098, § 388-110-020, filed 10/21/02, effective 11/21/02. Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-020, filed 5/8/96, effective 6/8/96.]

     (a) Have a valid boarding home license ((for the facility)) issued by the department or tribe, or have applied for a boarding home license for the boarding home at which the contracted services will be provided;

     (b) Complete and submit a contract application on department provided forms at least ((sixty)) ninety days before the requested effective date for the contract; and

     (c) Provide information regarding any licensed care facilities ((the applicant, and any partner, officer, director, managerial employee, or owner of five percent or more of the applicant has)) with which any of the following have been affiliated ((with in)) within the last ten years((.

     (2) Within sixty days of the receipt of the application the department shall approve a contract, refuse to enter into a contract, or request additional information the department deems relevant from the applicant. The department may extend the sixty days to allow the applicant to supply or clarify information requested by the department. The department shall conduct an on-site review of the contracting facility before issuing a contract)):

     (i) The applicant;

     (ii) Any partner, or owner of five percent or more of the applicant; and

     (iii) Any officer, director, or managerial employee of the applicant.

     (2) The department must confirm that the applicant has a valid boarding home license issued by the department or tribe and meets the requirements of this chapter before issuing a contract.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-030, filed 5/8/96, effective 6/8/96.]

     (2) In making a determination whether to grant a contract, the department ((shall)) must review and consider:

     (a) The information in the application; ((and))

     (b) Other documents and information the department deems relevant, including inspection and complaint investigation findings for each licensed care facility, and each care facility that was required by law to be licensed but was not, with which ((the applicant or any partner, officer, director, managerial employee, or owner of five percent or more of the entity applicant has been affiliated)) any of the following have been affiliated within the last ten years:

     (i) The applicant;

     (ii) Any partner, or owner of five percent or more of the applicant; or

     (iii) Any officer, director, or managerial employee of the applicant.

     (c) The history and quality of services provided by the applicant; and

     (d) Funding from the legislature available to the department to purchase residential care.

     (3) The applicant and the ((facility)) boarding home for which a contract is sought ((shall)) must comply with all requirements established by chapter 74.39A RCW, chapter 388-78A WAC and this chapter. (( The department may deny a contract for noncompliance with any such requirements.))

     (4) The department shall review the qualifications of applicants for enhanced adult residential care-specialized dementia care services contracts and may select a limited number with which to enter into contracts, based on:

     (a) Which applicants are best qualified to provide specialized dementia care services, as determined by the department;

     (b) The need for services in the area of the state in which the applicant is located; and

     (c) Other qualifications specified in this section.

     (5) The department ((shall)) must deny, suspend, revoke or refuse to renew a contract if an applicant or contractor or any partner, officer, director, managerial employee, or owner of five percent or more of the ((entity)) contractor or applicant ((applying for a contract)) has a history of significant noncompliance with federal or state regulations, rules or laws in providing care or services to frail elders, vulnerable adults or children. The department ((shall)) must consider((, at a minimum, the following as a history of significant noncompliance requiring denial of a contract:

     (a) Revocation or suspension of a license for the care of children, frail elders or vulnerable adults;

     (b) Enjoined from operating a facility for the care of children, frail elders or vulnerable adults; or

     (c) Termination, cancellation, suspension, or nonrenewal of a Medicaid or Medicare provider agreement, or any other agreement with a public agency for the care or treatment of children, frail elders or vulnerable adults.

     (5) The department shall deny, terminate, or refuse to renew a contract if an applicant or any partner, officer, director, managerial employee, an owner of fifty percent or more of the entity applicant, or an owner who exercises control over daily operations has been:

     (a) Convicted of a crime against a person as defined under RCW 43.43.830 or 43.43.842;

     (b) Convicted of a crime related to financial exploitation as defined under RCW 43.43.830 or 43.43.842;

     (c) Found by a court in a protection proceeding or in a civil damages lawsuit under chapter 74.34 RCW to have abused, neglected, abandoned or exploited a vulnerable adult;

     (d) Found in any final decision issued by a disciplinary board to have sexually or physically abused, neglected, or exploited any minor or vulnerable adult;

     (e) Found in any dependency action under chapter 13.34 RCW to have sexually assaulted, neglected, exploited, or physically abused any minor; or

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

     (6) The department may deny, terminate, or refuse to renew a contract if an applicant or any partner, officer, director, managerial employee, an owner of fifty percent or more of the entity applicant, or an owner who exercises control over daily operations has:

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

     (b) Been convicted of a felony or a crime against a person if the conviction reasonably relates to the competency of the person to contract with the department;

     (c) Had sanction, corrective or remedial action taken by federal, state, county, or municipal health or safety officials related to the care or treatment of children, frail elders or vulnerable adults;

     (d) A poor credit history;

     (e) Engaged in the illegal use of drugs or the excessive use of alcohol;

     (f) Operated a facility for the care of children or adults without a license;

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

     (h) Misappropriated property of residents;

     (i) Filed for bankruptcy, reorganization, or receivership;

     (j) Been denied a license or license renewal to operate a facility that was licensed for the care of children, frail elders or vulnerable adults;

     (k) Relinquished or returned a license in connection with the operation of any facility for the care of children, frail elders or vulnerable adults, or did not seek the renewal of such license, following written notification of the licensing agency's initiation of denial, suspension, cancellation or revocation of the license; or

     (l) Had resident trust funds or assets of an entity providing care to children, frail elders or vulnerable adults seized by the IRS or a state entity for failure to pay income or payroll taxes)) evidence of noncompliance on a case-by-case basis.

[Statutory Authority: RCW 74.39A.010, 74.39A.020 and 74.39A.080. 96-21-050, § 388-110-040, filed 10/11/96, effective 11/11/96. Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-040, filed 5/8/96, effective 6/8/96.]

     (ii) The real property or personal property assets of the facility contractor change ownership or are leased, or a lease of the real property or personal property assets is terminated, without a substitution of individual operator or operating entity and without a substitution of control of the operating entity)) change in the boarding home licensee per WAC 388-78A-2770.

     (2) When a change of licensee and contractor is contemplated, the current contractor ((shall)) must notify the department and all residents and residents' representatives at least ((sixty)) ninety days prior to the proposed date of ((transfer)) change. The notice ((shall)) must be in writing and ((shall)) must contain the following information:

     (a) Name of the present contractor and prospective contractor;

     (b) Name and address of the ((facility being transferred)) boarding home being changed; and

     (c) Date of proposed ((transfer)) change.

     (3) The operation ((or ownership)) of an assisted living services, enhanced adult residential care, enhanced adult residential care-specialized dementia care services, or adult residential care contract ((shall)) must not be ((transferred)) changed until the new operator has entered into a contract with the department. The new contractor ((shall)) must comply with contract application requirements in WAC 388-110-030.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-050, filed 5/8/96, effective 6/8/96.]

     (1) ((Ensure residents have control over their time, space and lifestyle to the extent that the health, safety and well-being of other residents is not disturbed;

     (2) Promote the resident's right to exercise decision making and self-determination to the fullest extent possible;

     (3) Follow the informed consent process as required in chapter 7.70 RCW, when applicable, in the development of the negotiated service agreement;

     (4) Provide services for residents in a manner and in an environment that encourages maintenance or enhancement of each resident's quality of life, and promotes the resident's privacy, dignity, choice, independence, individuality, and decision-making ability; and

     (5) Provide a safe, clean and comfortable homelike environment, allowing residents to use their personal belongings to the extent possible)) Provide the services agreed upon in the resident's negotiated service agreement and approved by the department case manager consistent with WAC 388-78A-2150, including any reasonable accommodations required by chapter 70.129 RCW, Long-term care residents rights; and

     (2) Provide the resident and case manager with a copy of the negotiated service agreement developed according to chapter 388-78A WAC.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-070, filed 5/8/96, effective 6/8/96.]

     (1) Maintain substantial compliance with all requirements of ((chapter)) chapters 18.20 RCW, ((Law for)) Boarding homes, and 70.129 RCW, Long-term care resident rights, and chapters ((246-316)) 388-78A WAC, Boarding ((homes)) home licensing rules, and 388-105 WAC Medicaid rates for contracted home and community residential care services;

     (2) ((Ensure all facility staff are knowledgeable about chapter 70.129 RCW, Long-term care resident rights;

     (3) Provide residents, prior to move-in, a copy of the facility's admission agreement which clearly specifies the range of services the facility is able to provide to residents;

     (4) Not require a resident to sign any admission contract or agreement that purports to waive any rights of the resident;

     (5) Develop and implement a grievance procedure and process which is responsive to resident's complaints;

     (6) Post in a place and manner clearly visible to residents and visitors the department's toll-free complaint telephone number;

     (7) Comply with all federal and state statutory and regulatory requirements regarding nondiscrimination in all aspects of the facility's operation;

     (8) Ensure resident rooms or resident units are not located in a separate unit within a facility that has exiting doors that restrict egress from the unit, such as, but not limited to automatic locking and unlocking exiting doors, unless the contractor is already providing services to residents in such a unit under a contract with the department for assisted living services, adult residential care, or enhanced adult residential care on the effective date of this chapter;

     (9) Encourage residents and the resident council, if there is one, to provide input to the facility about residents' preferences for food choices, taking into account the cultural and religious needs of residents;

     (10) Ensure all instances of suspected abuse, neglect, exploitation, or abandonment are reported to the department, as required in chapter 74.34 RCW, and to the local law enforcement agency;

     (11) Not have any sexual contact with any resident and shall ensure that facility staff and students not have sexual contact with any resident;

     (12) Notify the department within five business days when there is a change in the facility administrator; and

     (13))) Permit department representatives to enter the ((facility)) boarding home without prior notification ((in order to)) and cooperate with department representatives as they monitor the contract requirements under this chapter and ((to)) conduct complaint investigations, including but not limited to observing and privately interviewing residents, and accessing resident records.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-090, filed 5/8/96, effective 6/8/96.]

     (1) ((Comply with chapter 70.129 RCW and chapter 246-316 WAC pertaining to transfer and discharge (move-out);

     (2) Include the department's case manager in the development of a relocation or discharge (move-out) plan, and have the case manager approve the plan before any notice required under subsection (1) of this section is issued to the resident, except in an emergency;

     (3))) Note an absence in a resident's record when a resident ((will be)) is absent from the ((facility)) boarding home for more than seventy-two consecutive hours;

     (((4) Not be required to discharge (move-out) and readmit a resident for absences less than thirty-one consecutive days;

     (5))) (2) Obtain department approval for payment for social leave in excess of fifteen consecutive days; ((and))

     (3) Notify the department within one working day whenever the resident:

     (a) Is hospitalized;

     (b) Is discharged to another boarding home, nursing home or other health care facility;

     (c) Dies; or

     (d) Is missing from the boarding home and his or her whereabouts are unknown.

     (4) Include the department's case manager in the development of a discharge (move out) plan, and have the case manager approve the plan before any required notice of discharge is issued to the resident, except in an emergency;

     (5) Notify the resident of the boarding home's policies regarding bed-holds, consistent with subsection (7) of this section as soon as possible before, or as soon as practicable following hospitalization or discharge to a nursing home. The notification must include information concerning:

     (a) Options for bed-hold payments, and

     (b) Rights to return to the boarding home.

     (6) Retain a bed or unit for a resident who is hospitalized or temporarily placed in a nursing home for up to ((thirty)) twenty days when the resident is likely to return((, but if as part of the negotiated service agreement it is determined)) to the boarding home and the department makes payment to the boarding home for holding the bed or unit consistent with WAC 388-105-0045. If, prior to the end of the ((thirty days that the resident will not return to the facility, the facility may discharge (move-out) the resident in accordance with subsections (1) and (2) above and release the bed or unit)) twenty days, the department determines, or the contractor determines and the department concurs, that the resident will likely not return to the boarding home:

     (a) The department must terminate the bed-hold payment; and     (b) The contractor may rent that bed or unit to another resident.

     (7) Not seek third-party payment for the first twenty days of retaining the bed for a resident who is hospitalized or discharged to a nursing home.

     (a) The contractor may seek third-party payment consistent with RCW 18.20.290 and chapter 388-105 WAC to hold a bed or unit for the time following the first twenty days of a resident's absence for hospitalization or nursing home care.

     (b) If third-party payment is not available, the contractor must readmit the resident to the first available and appropriate bed or unit if the resident:

     (i) Continues to meet the boarding home's admission criteria; and

     (ii) Chooses to return to the boarding home.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-100, filed 5/8/96, effective 6/8/96.]

     (a) When the personal funds of the deceased resident ((shall)) must be paid to the state of Washington, those funds and the final accounting shall be made payable to the secretary, department of social and health services, and sent to the Office of Financial Recovery, Estate Recovery Unit, P.O. Box 9501, Olympia, Washington 98507-9501, or such address as may be directed by the department in the future;

     (b) The check and final accounting accompanying the payment ((shall)) must contain the name and Social Security number of the deceased individual from whose personal funds account the monies are being paid; and

     (c) The department of social and health services shall establish a release procedure for use of funds necessary for burial expenses.

     (2) In situations where the resident is absent from the ((facility)) boarding home for an extended time without notifying the ((facility)) boarding home, and the resident's whereabouts is unknown:

     (a) The ((facility shall)) contractor must make a reasonable effort to find the missing resident; and

     (b) If the resident cannot be located after ninety days, the ((facility shall)) contractor must notify the department of revenue of the existence of "abandoned property," outlined in chapter 63.29 RCW. The ((facility shall)) contractor must deliver to the department of revenue the balance of the resident's personal funds within twenty days following such notification.

     (3) Prior to the change of contractor of the ((facility)) boarding home business, the contractor ((shall)) must:

     (a) Provide each resident with a written accounting of any personal funds held by the ((facility)) boarding home;

     (b) Provide the new contractor with a written accounting of all resident funds being transferred; and

     (c) Obtain a written receipt for those funds from the new operator.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-120, filed 5/8/96, effective 6/8/96.]

     (a) ((In an existing facility, an individual unit with)) A minimum area of one hundred eighty square feet ((including counters, closets and built-ins, and excluding the bathroom. In a new facility, an individual unit with a minimum of)) in an existing boarding home, and two hundred twenty square feet ((including)) in a new boarding home. The minimum area may include counters, closets and built-ins, ((and excluding)) but must exclude the bathroom;

     (b) A separate private bathroom, which includes a sink, toilet, and a shower or bathtub. In a new ((facility, a minimum of fifty percent of resident bathrooms shall be wheelchair accessible and have a roll-in shower)) boarding home, the contractor must provide a minimum of one wheelchair accessible bathroom with a roll-in shower that is at least forty-eight inches by thirty inches for every two residents whose care is partially or fully funded by the department through the assisted living contract;

     (c) A lockable entry door;

     (d) A kitchen area equipped((, at a minimum,)) with a refrigerator, a microwave oven or stovetop, and a counter or table for food preparation. In a new ((facility, a)) boarding home, the kitchen area must also be equipped with a ((sink and counter area, and)) storage space for utensils and supplies, and a counter surface, a minimum of thirty inches wide by twenty-four inches in depth, a maximum height of thirty-four inches, and a knee space beneath at least twenty-seven inches in height; and

     (e) A living area wired for telephone and, where available in the geographic location, wired for television service.

     (2)(a) For purposes of this section, a new boarding home is:

     (i) A new building to be used as a boarding home or part of a boarding home, for which plans are submitted to the department of health for construction review on or after June 8, 1996; or

     (ii) An addition, modification, or alteration to an existing licensed boarding home, for which plans are submitted to the department of health for construction review on or after June 8, 1996.

     (A) The department may, in consultation with the office of construction review services in the department of health, exempt from selected new boarding home contract construction requirements, a limited addition, modification, or alteration to an existing licensed boarding home that will improve the quality of life for residents, if compliance with all new boarding home contract construction requirements would otherwise make the limited addition, modification, or alteration cost prohibitive. A limited addition, modification, or alteration means any physical change to an existing licensed boarding home that does not affect the structural integrity of the building, does not affect fire and life safety, and does not increase the boarding home's maximum facility capacity as defined in WAC 388-78A-2020.

     (B) A major addition, modification, or alteration to an existing licensed boarding home must meet new boarding home contract construction requirements for applicable portions of the building. A major addition, modification, or alteration means any physical change within a room or area in an existing licensed boarding home that results in reconstruction to structural or other building systems.

     (b) All boarding homes that are not new boarding homes under subsection (2)(a) of this section, are existing boarding homes. An existing building, or portion thereof, that is converted to boarding home use must be considered an existing boarding home unless there is an addition, modification or alteration to the existing building.

     (3) If a boarding home submitted plans to the department of health for construction review on or after June 8, 1996, and the boarding home had an assisted living contract as of September 1, 2004, then the boarding home is "grandfathered" under the contracting rules for structural requirements that were in effect at the time of contracting and is considered to meet the assisted living structural requirements of subsection (1) of this section. However, if the same boarding home submits plans to the department of health for construction review for an addition, modification or alteration of the boarding home after September 1, 2004, then the boarding home must meet the current new boarding home requirements of subsection (1) for the applicable portions of the building.

     (4) Married couples may share an apartment-like unit under an assisted living contract if:

     (a) Both residents understand they are each entitled to live in a separate private unit; and

     (b) Both residents mutually request to share a single apartment-like unit.

     (5) In a new ((facility)) boarding home, the contractor ((shall)) must provide a private accessible mailbox in which the resident may receive mail.

     (((3))) (6) The contractor ((shall)) must provide homelike smoke-free common areas with sufficient space for socialization designed to meet resident needs. Common areas ((shall)) must be available for resident use at any time provided such use does not disturb the health or safety of other residents. ((When possible,)) The contractor must make access to outdoor areas ((shall be made)) available to all residents.

     (((4))) (7) The contractor ((shall)) must provide a space for residents to meet with family and friends outside the resident's living unit.

     (((5)(a) For purposes of this section, a new facility is:

     (i) A new building to be used as a boarding home or part of a boarding home, for which plans are submitted to the department of health for construction review, as required by WAC 246-316-070, on or after the effective date of this chapter; or

     (ii) An addition, modification, or alteration to an existing building, for which plans are submitted to the department of health for construction review, as required by WAC 246-316-070, on or after the effective date of this chapter.

     (b) All facilities that are not new facilities under subsection (5)(a) of this section, are existing facilities. An existing building, or portion thereof, that is converted to boarding home use shall be considered an existing facility unless there is an addition, modification or alteration to the existing building))

     (8) The department may grant an exemption to the requirements of this section as they apply to a specified resident when it is in the best interest of the specific resident.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-140, filed 5/8/96, effective 6/8/96.]

     (1) ((The contractor shall)) Ensure that both the physical environment and the delivery of assisted living services are designed to enhance autonomy in ways which reflect personal and social values of dignity, privacy, independence, individuality, choice and decision-making of residents. The contractor ((shall)) must provide ((the)) resident services ((in a manner which:

     (a) Makes the services available)) in a homelike environment for residents ((with)) who may have a range of needs and preferences((;

     (b) Facilitates aging in place by providing flexible services in an environment that accommodates and supports the resident's individuality;

     (c) Supports managed risk which includes the resident's right to take responsibility for the risks associated with decision-making; and

     (d) Develops a formal written, negotiated plan to decrease the probability of a poor outcome when a resident's decision or preference places the resident or others at risk, leads to adverse consequences, or conflicts with other residents' rights or preferences.

     (2) Building on the department's assessment and service plan completed before admission, the contractor shall complete a negotiated service agreement within thirty days of move-in. The contractor shall involve the following persons in the negotiation and renegotiation of the agreement:

     (a) The resident to the greatest extent practicable;

     (b) Appropriate facility staff;

     (c) The department's case manager; and

     (d) If the resident chooses, the resident's family or any other person the resident wants included.

     (3) The contractor shall ensure the negotiated service agreement:

     (a) Includes recognition of the resident's capabilities and choices, and defines the division of responsibility in the implementation of services;

     (b) Addresses, at a minimum, the following elements: assessed health care needs; social needs and preferences; personal care tasks; and if applicable, limited nursing and medication services, including frequency of service and level of assistance;

     (c) Is signed and approved by the resident, the contractor, and the department case manager; and

     (d) Includes the date the agreement was approved.

     (4) The contractor shall provide the resident and case manager with a copy of the agreement, and place a copy in the resident's record.

     (5) The contractor shall update the agreement when there are changes in the services the resident needs and wants to receive. At a minimum, the contractor shall review and update the negotiated service agreement semiannually.

     (6) The contractor shall provide personal care services based on the resident's negotiated service agreement.

     (7) The contractor shall provide the range of services required to meet the increasing or changing needs of residents as they age in place to the maximum extent permitted by the boarding home regulations.

     (8) The contractor shall provide or arrange for limited nursing services to meet the needs of residents who require nursing services, at no additional cost to the resident.

     (9) The contractor shall provide written policies and procedures that ensure the facility will provide limited nursing services and will allow additional on-site health care services to the maximum extent allowed under chapter 246-316 WAC, and if requested, shall assist the resident to obtain the additional on-site health care services.

     (10) If requested or needed by the resident, the contractor shall assist the resident to obtain, arrange, and coordinate services such as: transportation to medical services and recreational activities; ancillary services for medically related care (e.g., physician, pharmacist, mental health services, physical or occupational therapy, hospice, home health care, podiatry); barber/beauty services; and other services necessary to support and assist the resident in maintaining as much independence as possible.

     (11) The contractor shall)).

     (2) Must provide or arrange for, at no additional cost to the resident and consistent with chapter 388-78A WAC:

     (a) Intermittent nursing services;

     (b) Medication administration;

     (c) Personal care services; and

     (d) Supportive services that promote independence and self-sufficiency.

     (3) Make available and offer at no additional cost to the resident generic personal care items needed by the resident such as soap, shampoo, toilet paper, toothbrush, toothpaste, deodorant, sanitary napkins, and disposable razors. This does not include items covered by medical coupons or preclude residents from choosing to purchase their own personal care items.

     (((12) The contractor shall))

     (4) Provide all residents with access to an on-site washing machine and dryer for resident use.

     (((13) The contractor shall))

     (5) Make beverages and snacks available to residents.

     (((14) The contractor shall develop written policies and procedures to be followed by staff and shared with residents which illustrate how employees shall deliver services to residents while ensuring resident's privacy, dignity, choice, independence, individuality and decision-making ability.))

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-150, filed 5/8/96, effective 6/8/96.]

     (7) The contractor shall allow a maximum of two residents per room)) In a boarding home with an enhanced adult residential care contract, the contractor must meet the requirements of parts I and III of this chapter, and for residents served under the enhanced adult residential care contract:

     (a) Develop for each resident a negotiated service agreement that supports the principles of dignity, privacy, choice in decision making, individuality, and independence.

     (b) Provide or arrange for, at no additional cost to the resident and consistent with the resident's negotiated service agreement and chapter 388-78A WAC:

     (i) Intermittent nursing services;

     (ii) Medication administration;

     (iii) Personal care services; and

     (iv) Supportive services that promote independence and self-sufficiency; and

     (c) Not allow more than two residents per room.

     (2) An enhanced adult residential care-specialized dementia care services contract is a distinct contract, separate from an enhanced adult residential care contract. In a boarding home with an enhanced adult residential care-specialized dementia care services contract, the contractor must:

     (a) Meet the requirements of parts I and III of this chapter,

     (b) Meet the requirements of subsection (1) of this section, and

     (c) Maintain an enhanced adult residential care services contract or an assisted living services contract in addition to the enhanced adult residential care-specialized dementia care services contract.

     (3) In a boarding home with an enhanced adult residential care-specialized dementia care services contract, for residents served under that contract, the contractor must:

     (a) Complete a full re-assessment of residents as specified in chapter 388-78A WAC, at a minimum, on a semi-annual basis;

     (b) Maintain awake staff twenty-four hours per day. The contractor must provide staffing that is adequate to respond to the assessed sleeping and waking patterns and needs of residents;

     (c) Develop and implement policies and procedures:

     (i) To manage residents who may wander;

     (ii) To outline actions to be taken in case a resident elopes; and

     (iii) To obtain consultative resources to address behavioral issues for residents. The contractor must include a plan that identifies the professional (i.e., clinical psychologist, psychiatrist, psychiatric nurse practitioner, or other behavioral specialist familiar with care of persons with dementia with complex or severe problems) who will provide the consultation, and when and how the consultation will be utilized.

     (d) Ensure that each staff who works directly with residents has at least six hours of continuing education per year related to dementia, including Alzheimer's disease. This six hours of continuing education may be part of the ten hours of continuing education required by WAC 388-112-0205. Appropriate topics include, but are not limited to:

     (i) Aggressive behaviors and catastrophic reactions;

     (ii) Agitation: Caregiving strategies;

     (iii) Delusions and hallucinations;

     (iv) Dementia problem-solving strategies;

     (v) Depression and dementia;

     (vi) Fall prevention for dementia;

     (vii) Personal care as meaningful activity;

     (viii) Promoting pleasant and purposeful activity; and

     (ix) Resistance to care: Caregiving strategies.

     (e) Provide all necessary physical assistance with bathing and toilet use for residents who require caregivers to perform these activities and subtasks of these activities, and required oversight and supervision, encouragement and cuing. For the purposes of this subsection:

     (i) "Bathing" has the same meaning as described in WAC 388-72A-0035; and

     (ii) "Toilet use" has the same meaning as described in WAC 388-72A-0035.

     (f) Provide extensive assistance with eating as necessary, including required oversight and supervision, encouragement and cuing. The contractor must also provide all necessary physical assistance with eating on an occasional basis for residents who require total feeding assistance. However, the contractor is not required to provide tube feedings or intravenous nutrition nor provide total feeding assistance for an extended or indefinite period.

     (i) "Eating" has the same meaning as described in WAC 388-72A-0035, except that the contractor is not required to provide tube feedings or intravenous nutrition;

     (ii) "Extensive assistance" has the same meaning as described in WAC 388-72A-0040.

     (g) Provide daily activities consistent with the functional abilities, interests, habits and preferences of the individual residents. The contractor must support the participation of residents and the resident council, if there is one, in the development of recreational and activity programs that reflect the needs and choices of residents. On a daily basis, the contractor must provide residents access to:

     (i) Opportunities for independent, self-directed, activities.

     (ii) Individual activities, in which a staff person or volunteer engages the resident in a planned and/or spontaneous activity of interest. Activities may include personal care activities that provide opportunities for purposeful and positive interactions; and

     (iii) Group activities.

     (h) Offer opportunities for activities that accommodate variations in a resident's mood, energy and preferences. The contractor must make appropriate activities available based upon the resident's individual schedule and interests. For example, individuals up at night must have access to staff support, food and appropriate activities;

     (i) Make available multiple common areas, at least one of which is outdoors, that vary by size and arrangement such as: various size furniture groupings that encourage social interaction; areas with environmental cues that may stimulate activity, such as a resident kitchen or workshop; areas with activity supplies and props to stimulate conversation; a garden area; and paths and walkways that encourage exploration and walking. These areas must accommodate and offer opportunities for individual or group activity;

     (j) Ensure that the outdoor area for residents:

     (i) Is accessible to residents without staff assistance;

     (ii) Is surrounded by walls or fences at least seventy-two inches high;

     (iii) Has areas protected from direct sunshine and rain throughout the day;

     (iv) Has walking surfaces that are firm, stable, slip-resistant and free from abrupt changes, and are suitable for individuals using wheelchairs and walkers;

     (v) Has suitable outdoor furniture;

     (vi) Has plants that are not poisonous or toxic to humans; and

     (vii) Has areas for appropriate outdoor activities of interest to residents, such as walking paths, raised garden or flower beds, bird feeders, etc.

     (k) Ensure that areas used by residents have a residential atmosphere, and residents have opportunities for privacy, socialization, and wandering behaviors;

     (l) Ensure any public address system in the area of specialized dementia care services is used only for emergencies;

     (m) Encourage residents' individualized spaces to be furnished and or decorated with personal items based on resident needs and preferences;

     (n) Ensure residents have access to their own rooms at all times without staff assistance; and

     (o) Make available and offer at no additional cost to the resident generic personal care items needed by the resident such as soap, shampoo, toilet paper, toothbrush, toothpaste, deodorant, sanitary napkins, and disposable razors. This does not include items covered by medical coupons or preclude residents from choosing to purchase their own personal care items.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-220, filed 5/8/96, effective 6/8/96.]

     (3) The)) In a boarding home with an adult residential care contract, the contractor must meet the requirements of parts I and IV of this chapter, and for residents served under the adult residential care contract:

     (1) Develop for each resident a negotiated service agreement ((shall support)) that supports the principles of dignity, privacy, choice in decision making, individuality, and independence((.

     (4) At a minimum, the contractor shall review and update the negotiated service agreement semi-annually, give a copy of the agreement to the resident and case manager, and keep a copy in the resident's record.

     (5) The contractor shall)); and

     (2) Provide personal care services based on the resident's negotiated service agreement.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-240, filed 5/8/96, effective 6/8/96.]

REMEDIES FOR ASSISTED LIVING, ENHANCED ADULT RESIDENTIAL CARE, ((AND)) ENHANCED ADULT RESIDENTIAL CARE -- SPECIALIZED DEMENTIA CARE, AND ADULT RESIDENTIAL CARE
AMENDATORY SECTION(Amending WSR 96-21-050, filed 10/11/96, effective 11/11/96)

WAC 388-110-260   Remedies.   (1) The department may take one or more of the actions listed in subsection (3)(a) of this section in any case in which the department finds that a contractor of assisted living services, enhanced adult residential care services, enhanced residential care-specialized dementia care services, or adult residential care services has:

     (a) Failed or refused to comply with the applicable requirements of chapter 74.39A RCW, of chapter 70.129 RCW, chapter 388-78A WAC or of this chapter;

     (b) Operated without a license or under a revoked license;

     (c) Knowingly, or with reason to know, made a false statement of material fact on his or her application for a contract or any data attached thereto, or in any matter under investigation by the department; or

     (d) Willfully prevented or interfered with any inspection or investigation by the department.

     (2)(a) For failure or refusal to comply with any applicable requirements of chapter 74.39A RCW, of chapter 70.129 RCW, chapter 388-78A WAC or of this chapter, the department may provide consultation ((and shall allow the contractor a reasonable opportunity to correct)) before imposing remedies under subsection (3)(a) unless the violations pose a serious risk to residents, are recurring or have been uncorrected.

     (b) When violations of this chapter pose a serious risk to a resident, are recurring or have been uncorrected, the department ((shall)) must impose a remedy or remedies listed under subsection (3)(a). In determining which remedy or remedies to impose, the department ((shall)) must take into account the severity of the impact of the violations on residents and which remedy or remedies are likely to improve resident outcomes and satisfaction in a timely manner.

     (3)(a) Actions and remedies the department ((may)) is authorized to impose include:

     (i) Refusal to enter into a contract;

     (ii) Imposition of reasonable conditions on a contract, such as correction within a specified time, training, and limits on the type of clients the provider may admit or serve;

     (iii) Imposition of civil penalties of not more than one hundred dollars per day per violation;

     (iv) Suspension, termination, or refusal to renew a contract; or

     (v) Order stop placement of persons under the contract.

     (b) When the department orders stop placement, the ((facility shall)) boarding home must not admit any person under the contract until the stop placement order is terminated. The department may approve readmission of a resident to the ((facility)) boarding home from a hospital or nursing home during the stop placement. The department ((shall)) must terminate the stop placement when the department determines that:

     (i) The violations necessitating the stop placement have been corrected; and

     (ii) The provider exhibits the capacity to maintain adequate care and service.

     (c) Conditions the department may impose on a contract include, but are not limited to the following:

     (i) Correction within a specified time;

     (ii) Training related to the violations; and

     (iii) Discharge of any resident when the department determines discharge is needed to meet that resident's needs or for the protection of other residents.

     (d) When a contractor fails to pay a fine when due under this chapter, the department may, in addition to other remedies, withhold an amount equal to the fine plus interest, if any, from the contract payment.

[Statutory Authority: RCW 74.39A.010, 74.39A.020 and 74.39A.080. 96-21-050, § 388-110-260, filed 10/11/96, effective 11/11/96. Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-260, filed 5/8/96, effective 6/8/96.]

     (2) Civil monetary penalties shall become due twenty eight days after the contractor is served with a notice of the penalty unless the contractor requests a hearing in compliance with chapter 34.05 RCW and RCW 43.20A.215. If a hearing is requested, the penalty becomes due ten days after a final decision in the department's favor is issued. Interest shall accrue beginning thirty days after the department serves the contractor with notice of the penalty at a rate of one percent per month in accordance with RCW 43.20B.695.

     (3) A person contesting any decision by the department to impose a remedy ((shall)) must within twenty-eight days of receipt of the decision:

     (a) File a written application for an adjudicative proceeding by a method showing proof of receipt with the ((Office)) Board of Appeals, PO Box ((2465)) 45803, Olympia, WA 98504; and

     (b) Include in or with the application:

     (i) The grounds for contesting the department decision; and

     (ii) A copy of the contested department decision.

     (4) Administrative proceedings shall be governed by chapter 34.05 RCW, RCW 43.20A.215, where applicable, this section, and chapter ((388-08)) 388-02 WAC. If any provision in this section conflicts with chapter ((388-08)) 388-02 WAC, the provision in this section governs.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-270, filed 5/8/96, effective 6/8/96.]

     (2) When requested by a contractor, the department ((shall)) must expedite the dispute resolution process to review violations upon which a department order imposing contract suspension, stop placement, or a contract condition is based.

     (3) Orders of the department imposing contracts suspension, stop placement, or conditions for continuation of a contract are effective immediately upon notice and shall continue pending dispute resolution.

[Statutory Authority: RCW 74.39A.010, 74.39A.020, 74.39A.060, 74.39A.080, 74.39A.170, 18.88A.210-[18.88A.]240 and 70.129.040. 96-11-045 (Order 3979), § 388-110-280, filed 5/8/96, effective 6/8/96.]

     The following sections of the Washington Administrative Code are repealed:

WAC 388-110-060	Resident rights.
WAC 388-110-080	Social and recreational activities.
WAC 388-110-170	Education and training requirements.
WAC 388-110-180	Nurse delegation training and registration.
WAC 388-110-190	Performance of delegated nursing care tasks.
WAC 388-110-200	Nurse delegation--Penalties.

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