WSR 06-09-090

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed April 19, 2006, 9:34 a.m. , effective May 20, 2006 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The residential care services division recently assumed responsibility for conducting investigations of entities and alleged perpetrators where allegations of abandonment, abuse, neglect, and financial exploitation in certified supported living programs are reported. Portions of WAC 388-71-0100 through 388-71-1280 (adult protective services) and 388-97-077 (resident protection program) are being incorporated without material change into chapter 388-101 WAC to reflect this change in responsibility.

No substantive changes are being made to any existing requirements including those governing: (1) Vulnerable adult abuse and neglect reporting, (2) abuse and neglect investigations and notification, and (3) due process and appeal rights.

The only change for certified supported living providers is that they will be required to call a different phone number to make mandated reports regarding vulnerable adult abandonment, abuse, neglect, and financial exploitation.

These proposed rules only address some of the elements identified in preproposal statement of inquiry WSR 05-07-132. The department plans to propose additional changes to chapter 388-101 WAC under WSR 05-07-132.

The proposed WAC amendments reflect an internal change of responsibility for conducting investigations of alleged abandonment, abuse, neglect, and financial exploitation in certified supported living programs. Chapter 388-101 WAC needs to indicate that ADSA-residential care services division is conducting certain investigations previously done by ADSA-adult protective services.

New rule sections include WAC 388-101-1105 through 388-101-1145.

Citation of Existing Rules Affected by this Order: Amending WAC 388-101-1100.

Statutory Authority for Adoption: RCW 71A.12.030 and 71A.12.080.

Other Authority: Chapter 71A.12 RCW.

Adopted under notice filed as WSR 06-06-075 on February 28, 2006.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.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 9, Amended 1, Repealed 0.

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 9, Amended 1, Repealed 0.

Date Adopted: April 13, 2006.

Andy Fernando, Manager

Rules and Policies Assistance Unit

3643.3
AMENDATORY SECTION(Amending WSR 04-23-070 [05-05-077], filed 2/15/05, effective 2/15/05)

WAC 388-101-1100   ((What)) Abuse and neglect reporting requirements ((must service providers meet?)).   (1) ((Under chapter 74.34 RCW,)) All administrators, owners, staff and volunteers are mandated ((to)) reporters and must report instances of ((suspected client)) abandonment, abuse, neglect, or financial exploitation((, or mistreatment)) of vulnerable adults as defined in, and in accordance with chapter 74.34 RCW.

(2) Reports must be made to ((one of two different areas at DSHS:

(a) Service providers giving supported living services must report to adult protective services (APS); and

(b) Service providers giving services through group homes must report to residential care services (RCS))) the centralized toll free telephone number for reporting abandonment, abuse, neglect or financial exploitation of vulnerable adults, provided by the department.

(3) Reports must be made to law enforcement agencies, ((when appropriate)) as required under chapter 74.34 RCW.

(4) Service providers must have policies and procedures complying with state law that specify reporting requirements for client abandonment, abuse, neglect, and financial exploitation((, or mistreatment)).

(5) Each administrator, owner, staff person, and volunteer must read and sign the policy about reporting requirements. The service provider must retain the signed policy for staff and volunteers.

[05-05-077, recodified as 388-101-1100, filed 2/15/05, effective 2/15/05. Statutory Authority: RCW 71A.12.030, 71A.12.080, and chapter 71A.12 RCW. 04-23-070, 388-820-440, filed 11/15/04, effective 12/16/04. Statutory Authority: Title 71A RCW. 01-22-020, 388-820-440, filed 10/26/01, effective 1/1/02.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
NEW SECTION
WAC 388-101-1105   Investigation of mandated reports.   (1) The department will determine whether a mandated report of client abandonment, abuse, neglect, or financial exploitation needs to be investigated, in accordance with established procedures.

(2) The department investigation will include an investigation of allegations about one or more of the following:

(a) A service provider;

(b) Anyone associated with a service provider; or

(c) A client receiving services under this chapter.

(3) If, after completing an investigation under this chapter, the department concludes that it is more likely than not that a specific individual abandoned, abused, neglected, or financially exploited a client, the department will make an initial finding against the individual.

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NEW SECTION
WAC 388-101-1110   Notice of an initial finding.   (1) The department will notify the individual in writing within ten working days of making an initial finding of abandonment, abuse, neglect or financial exploitation of a client. The written notice will not include the identities of the alleged victim, reporter and witnesses.

(2) The department shall make a reasonable, good faith effort to determine the last known address of the individual.

(3) The time frame 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.

(4) Notice of the initial finding will be served as provided in chapter 388-02 WAC.

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NEW SECTION
WAC 388-101-1115   Reporting initial findings.   (1) In a manner consistent with confidentiality requirements concerning the client, witnesses, and reporter, the department may provide notification of an initial finding to:

(a) Other divisions within the department;

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

(c) Law enforcement; and

(d) Other investigative authorities consistent with chapter 74.34 RCW.

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

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NEW SECTION
WAC 388-101-1120   Disputing an initial finding.   (1) An individual alleged to have abandoned, abused, neglected, or financially exploited a client may request an administrative hearing to challenge an initial finding made by the department.

(2) The request must be made in writing to the office of administrative hearings.

(3) The office of administrative hearings must receive the individual's written request for a hearing within thirty calendar days of the date the individual was served with notice of the initial finding.

(4) The written request for a hearing must include:

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

(b) A brief explanation of why the individual disagrees with the initial finding;

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

(d) The individual's signature.

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NEW SECTION
WAC 388-101-1125   Disclosure of investigative and finding information.   (1) The individual may only use confidential information provided by the department as needed to challenge initial findings through the appeal process.

(2) Confidential information such as the name and other personal identifying information of the reporter, witnesses, or the client will be redacted from documents unless otherwise ordered by the administrative law judge consistent with chapter 74.34 RCW and other applicable state and federal laws.

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NEW SECTION
WAC 388-101-1130   Hearing procedures to dispute an initial finding.   (1) Chapters 34.05 and 74.34 RCW, chapter 388-02 WAC, and the provisions of this chapter govern any appeal regarding an initial 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.

(2) The administrative law judge shall determine whether a preponderance of the evidence supports the initial finding that the individual abandoned, abused, neglected, or financially exploited a vulnerable adult, and shall issue an initial order.

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NEW SECTION
WAC 388-101-1135   Appeal of the administrative law judge's initial order on a finding.   (1) If the individual or the department disagrees with the administrative law judge's decision, either party may challenge this decision by filing a petition for review with the department's board of appeals under chapter 34.05 RCW and chapter 388-02 WAC.

(2) If the department appeals the administrative law judge's decision, the department will not modify the finding in the department's records until a final hearing decision is issued.

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NEW SECTION
WAC 388-101-1140   Finalizing an initial finding.   (1) An initial finding becomes a final finding when:

(a) The department gives the individual notice of the initial finding pursuant to WAC 388-101-1110 and the individual does not request an administrative hearing;

(b) The administrative law judge:

(i) Dismisses the hearing following withdrawal of the appeal or default; or

(ii) Issues an initial order upholding the finding and the individual fails to appeal the initial order to the department's board of appeals; or

(c) The board of appeals issues a final order upholding the finding.

(2) The final finding is permanent and will not be removed from the department's records unless:

(a) It is rescinded following judicial review; or

(b) The department decides to remove a single finding of neglect from its records based upon a written petition by the individual provided that at least one calendar year has passed since the finding was finalized and recorded.

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NEW SECTION
WAC 388-101-1145   Reporting final findings.   The department will report a final finding of abandonment, abuse, neglect and financial exploitation within ten working days to the following:

(1) The individual;

(2) The service provider that was associated with the individual during the time of the incident;

(3) The service provider that is currently associated with the individual, if known;

(4) The appropriate licensing authority; and

(5) The department's registry of findings of abandonment, abuse, neglect and financial exploitation. The findings may be disclosed to the public upon request.

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Washington State Code Reviser's Office