Purpose: Amending, repealing and adding new sections in chapter 388-71 WAC related to adult protective services, to implement procedures for due process and update rules for clarity.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-71-0120, 388-71-0150, and 388-71-0155; and amending WAC 388-71-0100, 388-71-0105, 388-71-0110, and 388-71-0115.

     Statutory Authority for Adoption: RCW 34.05.020, 74.08.090.

     Other Authority: RCW 74.39A.050, chapter 74.34 RCW.

      Adopted under notice filed as WSR 04-13-138 on June 22, 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 388-71-0105 (amended) Definitions.

•	The following definitions have been revised or clarified in response to suggestions or comments:

ALJ - A comma replaced a period to fix a sentence fragment: "ALJ" means an administrative law judge., An an impartial decision-maker....

BOA - A description of BOA function has been added to the final rule definition for clarity and for consistency with the OAH definition: The board of appeals consists of lawyers who are members of the Washington State Bar Association. An ALJ's decision can be appealed to the board of appeals, allowing a level of review before an appeal to the court system may be considered.

Entity - The definition in the final rule has been modified as follows to clarify that APS does not and will not make entity findings against a licensed AFH, BH, or NH: "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 licensed under chapter 18.20 RCW or an adult family home licensed under chapter 70.128 RCW. An entity does not include a boarding home licensed under chapter 18.20 RCW, an adult family home licensed under chapter 70.128 RCW, or a nursing home licensed under chapter 18.51 RCW, but does include such facilities if they are required to be licensed but are not currently licensed.

Facility - Added the following definition for clarity because the term is used in the rule, consistent with RCW 74.34.020(5): "Facility" means a residence licensed as a boarding home under chapter 18.20 RCW, an adult family home under chapter 70.128 RCW, a nursing home under chapter 18.51 RCW, a soldier's home under chapter 72.36 RCW, a residential habilitation center under chapter 71A.20 RCW, or any other facility licensed by DSHS.

Final finding

•	Edit: "self-neglect" has been removed from the list of types of mistreatment that may result in a hearing and placement on a registry because there is no perpetrator in a case of self-neglect.
•	Clarified the appeal process as follows: ... is upheld through the administrative appeal process specified in WAC 388-71-01205 through 388-71-01280, or is not timely appealed within thirty days to the Office of Administrative Hearings.
•	Added: The alleged perpetrator can appeal a final finding to Superior Court and the Court of Appeals under the Administrative Procedure Act, chapter 34.05 RCW.

Initial Ffinding - Added the term "initial" for clarification to differentiate between findings that have and have not been the subject of a due process opportunity.

Person or entity with a duty of care

•	Renumbered subsections consistent with adding numbering to each definition.
•	(2)(b): The word "individual" was replaced by the word "person" in order to be consistent with the rest of the chapter and the phrase "Person or entity with a duty of care" that is used in the RCW 74.34.020 definitions of abandonment and neglect. The change: An individual person named in a durable power of attorney as the attorney-in-fact as defined under chapter 11.94 RCW.
•	(3)(c): Corrected the tense from plural to singular for consistency within the section, as follows: A person or entity providing the basic necessities of life to a vulnerable adults where:...

Willful - Edit. Made the term in bold font.

WAC 388-71-0110 (amended) What is the purpose of an adult protective services investigation?

•	(3) The sentence was modified for clarity, as follows: When an allegation is substantiated, APS may investigate if whether other vulnerable adults may be at current risk of...
•	(3) The word "individual" was replaced by the word "person" in order to be consistent with the phrase "Person or entity with a duty of care" that is used in the rule definition and the RCW 74.34.020 definitions of abandonment and neglect.

WAC 388-71-0115 (amended) When is an investigation conducted?

•	(1) Edit, as follows: The reported circumstances fit the definition of abandonment, abuse, financial exploitation, neglect, or self-neglect found as defined in chapter 74.34 RCW; and...

WAC 388-71-0121 (new) What state-only funded services may be offered to a vulnerable adult victim of abandonment, abuse, financial exploitation, neglect or self-neglect?

•

(1)(f) The following clarification has been added to the final rule: State only funded services are temporary and provided with the consent of the vulnerable adult or legal representative only until the situation has stabilized. State-only funded protective services are provided by DSHS on a discretionary basis and are not a benefit and not an entitlement. Termination of state-only funded temporary protective services is exempt from notification and appeal requirements.

WAC 388-71-01205 (new) When does APS notify the alleged perpetrator of the results of an APS investigation?

•	Added numbering.
•	(1) For clarity, added the term "initial" consistent with the addition of the term to the definition of a finding, as follows: APS will notify the alleged perpetrator in writing within ten working days of making a substantiated initial finding of abandonment, abuse, financial exploitation or neglect of a vulnerable adult.
•	(a) Clarified the limited circumstances under which notification can take longer, by adding: The timeframe for notification can be extended beyond ten working days to include the time needed to translate the notification letter or make provisions for the safety of the alleged victim.

WAC 388-71-01210 (new) How may APS give the alleged perpetrator notice of the substantiated finding?

•	Title: Added the term "initial" before the term "finding" to be consistent with the addition of the term to the definition of a finding, as follows: How may APS give the alleged perpetrator notice of the substantiated initial finding?
•	(1) For clarification, added the term "initial" before the term "finding" consistent with the addition of the term to the definition of a finding, as follows: APS shall notify the alleged perpetrator of a substantiated initial finding by sending a letter certified mail/return receipt requested and regular mail to the alleged perpetrator's last known place of residence.
•	(1) Added clarification: The duty of notification created by this section is subject to the ability of the department to ascertain the location of the alleged perpetrator. APS shall make a reasonable, good faith effort to determine the address of the last known place of residence of the alleged perpetrator; or...

WAC 388-71-01220 (new) What proves that APS provided notice of the substantiated finding to the alleged perpetrator?

•	Title: For clarification, added the term "initial" before the term "finding" consistent with the addition of the term to the definition of a finding.

WAC 388-71-01230 (new) Will APS notify anyone other than the alleged perpetrator of the finding of abandonment, abuse, financial exploitation or neglect?

•	(1) - (5) Renumbered subsections.
•	(1) For clarification, added the term "initial" before the term "finding" consistent with the addition of the term to the definition of a finding, as follows: (1) In a manner consistent with confidentiality requirements concerning the vulnerable adult, witnesses, and reporter, APS may provide notification of a substantiated initial finding to...
•	(2) Added clarification: In the notification APS will identify the finding as an initial finding.

WAC 388-71-01235 (new) Can an alleged perpetrator challenge an APS finding of abandonment, abuse, financial exploitation or neglect?

•

For clarification, added the term "initial” before the term "finding” consistent with the addition of the term to the definition of a finding, as follows: An alleged perpetrator of abandonment, abuse, financial exploitation or neglect may request an administrative hearing to challenge a substantiated initial finding made by APS on or after the effective date of this rule.

WAC 388-71-01240 (new) How does an alleged perpetrator request an administrative hearing to challenge an APS finding of abandonment, abuse, financial exploitation or neglect?

•	(1) Corrected a typographical error by inserting an "h" omitted from the word "the."
•	(1) Changed office of administrative hearings to "OAH."
•	(1) Clarified timeframe in which to request an administrative hearing.
	The (1) changes are as follows:

(1) To request an administrative hearing the alleged perpetrator must send, deliver, or fax a written request to the office of administrative hearings. OAH must receive the written request 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 the request to the office of administrative hearings OAH on the same day.

•	(2)(b) Inserted the word "initial" before the word finding for clarity and consistency.
•	(2)(d) Added: The alleged perpetrator should keep a copy of the request.

WAC 388-71-01250 (new) How is confidential information protected in the appeal process?

•	(1) Replaced the term "appellant" with the term "alleged perpetrator" for consistency throughout the rule chapter, as follows: All information and documents provided by the department to the appellant alleged perpetrator shall be used by the appellant alleged perpetrator only to challenge the findings in the administrative hearing.
•	(2) Editing correction, replaced "personally" with "personal" as follows: Confidential information such as the name and other personally identifying information of the reporter and the vulnerable adult...

WAC 388-71-01265 (new) What if the alleged perpetrator or the department disagrees with the decision?

•

Editing correction. Replaced a term with a more technically appropriate term: If the alleged perpetrator or the department disagrees with the ALJ's decision, either party may challenge this decision by filing a request petition for review with the department's board of appeals consistent with the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC.

WAC 388-71-01270 (new) What happens if the administrative law judge rules against the department?

•

Clarification, as follows: 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 a final hearing decision is issued. If the department does not appeal the ALJ's initial decision, the department will modify the finding in the department's records to "unsubstantiated" consistent with the ALJ's initial decision and document the ALJ's decision in the record.

WAC 388-71-01275 (new) When does the APS substantiated finding become a final finding?

•	Title: For clarification, added the term "initial" before each "finding" to be consistent with the addition of the term to the definition of a finding, as follows: WAC 388-71-01275 When does the APS substantiated initial finding become a final finding? A substantiated initial finding becomes a final finding when:...
•	(1) Added clarification: The department gives the alleged perpetrator notice of the substantiated initial finding pursuant to WAC 388-71-01210 and tThe alleged perpetrator does not request an administrative hearing as set forth in WAC 388-71-01240; or
•	(2) Added clarification: The ALJ dismisses the hearing following default or withdrawl by the alleged perpetrator, or 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...
•	(4) Added to clarify the status of the finding during post-BOA appeal, as follows: (a) The final finding will remain as substantiated in the department's records unless the final finding is reversed after judicial review.

WAC 388-71-01280 (new) Does the department disclose information about findings of abuse, abandonment, neglect and financial exploitation?

•	Title clarified as follows: Does the department disclose information about final findings of abuse, abandonment, neglect and financial exploitation?
•	(1) clarified as follows: The department will maintain a registry of final findings and, upon request of any person, the department may disclose the identity of a person or entity with a final finding of abandonment, abuse, financial exploitation or neglect.
•	(2)(a)-(c) Eliminated.

     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 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 17, Amended 4, Repealed 3.

     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 17, Amended 4, Repealed 3.

     Date Adopted: September 15, 2004.

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (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.]

     "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. The board of appeals consists of lawyers who are members of the Washington State Bar Association. An ALJ's decision can be appealed to the board of appeals, allowing a level of review before an appeal to the court system may be considered.

     "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. An entity does not include a boarding home licensed under chapter 18.20 RCW, an adult family home licensed under chapter 70.128 RCW, or a nursing home licensed under chapter 18.51 RCW, but does include such facilities if they are required to be licensed but are not currently licensed.

     "Facility" means a residence licensed as a boarding home under chapter 18.20 RCW, an adult family home under chapter 70.128 RCW, a nursing home under chapter 18.51 RCW, a soldier's home under chapter 72.36 RCW, a residential habilitation center under chapter 71A.20 RCW, or any other facility licensed by DSHS.

     "Final finding" means the department's substantiated finding of abandonment, abuse, financial exploitation or neglect is upheld through the administrative appeal process specified in WAC 388-71-01205 through 388-71-01280, or is not timely appealed to the office of administrative hearings. The alleged perpetrator can appeal a final finding to Superior Court and the Court of Appeals under the Administrative Procedure Act, chapter 34.05 RCW.

     "Initial 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) A person 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 a vulnerable adult 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.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.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 whether other vulnerable adults may be at current risk of abuse, neglect, abandonment or financial exploitation by the person 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.]

     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.
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)) as defined 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.]

     (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. State-only funded protective services are provided by DSHS on a discretionary basis and are not a benefit and not an entitlement. Termination of state-only funded temporary protective services is exempt from notification and appeal requirements.

     (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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     (2) The timeframe for notification can be extended beyond ten working days to include the time needed to translate the notification letter or make provisions for the safety of the alleged victim.

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

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     (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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     (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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     (a) Other divisions within the department;

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

     (c) Law enforcement;

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

     (e) The facility in which the incident occurred.

     (2) In the notification APS will identify the finding as an initial finding.

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     (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 initial 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;

     (d) The alleged perpetrator should keep a copy of the request.

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     (2) Confidential information such as the name and other personal 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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     (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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     (1) The department gives the alleged perpetrator notice of the substantiated initial finding pursuant to WAC 388-71-01210 and the alleged perpetrator does not request an administrative hearing as set forth in WAC 388-71-01240; or

     (2) The ALJ dismisses the hearing following default or withdrawal by the alleged perpetrator, or 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.

     (4) The final finding will remain as substantiated in the department's records unless the final finding is reversed after judicial review.

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     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?

© Washington State Code Reviser's Office