WSR 08-05-098

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed February 15, 2008, 2:35 p.m. , effective March 17, 2008 ]


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

Purpose: The adopted rule adds sections to chapter 388-76 WAC regarding due process rights for persons alleged to have abandoned, abused, neglected, exploited or financially exploited adult family home residents/resident protection program (RPP).

Statutory Authority for Adoption: RCW 70.128.040.

Other Authority: Chapters 70.128 and 74.34 RCW.

Adopted under notice filed as WSR 07-14-082 on June 29, 2007, and WSR 07-21-139 on October 24, 2007.

Changes Other than Editing from Proposed to Adopted Version: WAC 388-76-11010 Resident protection program -- Reporting preliminary finding.

(1) In a manner consistent with confidentiality requirements concerning the resident, witnesses, and reporter, the department may provide notification of a preliminary finding to:

(a) The federal or state department or agency list of individuals found to have abandoned, abused, neglected, exploited, or financially exploited a vulnerable adult;

(b) Other divisions within the department;

(bc) The agency or program identified under RCW 74.34.068 with which the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident is associated as an employee;

(cd) The employer or program that is currently associated with the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident, if known;

(de) Law enforcement; and

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

(2) The notification will identify the finding as a preliminary finding.

WAC 388-76-11020 Resident protection program -- Hearing procedures to dispute preliminary finding.

(1) Chapters 34.05 and 74.34 RCW, chapter 388-02 WAC, and the provisions of this chapter govern any appeal regarding a preliminary finding.

(2) If a conflict exists between the provisions of this chapter and chapter 388-02 WAC, the provisions of this chapter prevail.

(3) If an administrative law judge within the office of administrative hearings determines that a preponderance of the evidence supports the preliminary finding that the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident, then the administrative law judge will issue an initial order.

WAC 388-76-11025 Resident protection program -- Finalizing a preliminary finding.

(1) A preliminary finding becomes a final finding when:

(a) The department notifies the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident there is a preliminary finding pursuant to WAC 388-76-11005; and

(b) The individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident does not ask for an administrative hearing; or

(c) 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 alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident fails to appeal the initial order to the department's board of appeals; or

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

(2) A final finding is permanent.

(3) A final finding will only be removed from the department or agency list of individuals found to have abandoned, abused, neglected, exploited, or financially exploited a vulnerable adult if:(a) Iit is rescinded following judicial review.; or

(4b) The department may decides to remove a single finding of neglect from its records based upon a written petition by the individual found to have abandoned, abused, neglected, exploited, or financially exploited a resident provided that at least one calendar year must have passed between the date a request was made to remove the finding of neglect and the date the final finding was finalized and recorded.


The changes were made because:

SUMMARY OF COMMENTS RECEIVED THE DEPARTMENT CONSIDERED ALL THE COMMENTS. THE ACTIONS TAKEN IN RESPONSE TO THE COMMENTS, OR THE REASONS NO ACTIONS WERE TAKEN, FOLLOW.
WAC 388-76-11010 Reporting preliminary finding.

Delete subsection (1)(a) because the finding is a preliminary finding.

WAC 388-76-11010 Reporting preliminary finding.

A clarifying change was made in response to this comment.

Subsection (1)(a) was deleted in the adopted rule because the finding is preliminary.

WAC 388-76-11020 Hearing procedures to dispute preliminary finding.

Suggestion to enhance clarity of subsection (3).

WAC 388-76-11020 Hearing procedures to dispute preliminary finding.

A clarifying change was made in response to this comment.

WAC 388-76-11025 Finalizing a preliminary finding.

(1) The department should not include in CR-102 draft language (WAC 388-76-11025(4), that the department may remove a person's name from a department or agency list, upon petition of the person, if there is only one finding of neglect and at least one year has passed. This seems to conflict with keeping adult family home residents safe.

WAC 388-76-11025 Finalizing a preliminary finding.

(1) No change was made in

response to this comment. The department chose to retain its decision-making authority and discretion in WAC 388-76-11025 Finalizing a preliminary finding about removal of someone, with a single finding of neglect, from a department or agency list. Retaining this authority allows the department to consider individual cases that may merit review.

(2) Subsection (3) published should be a stand-alone subsection. (2) A clarifying change was made in response to this comment.

Subsection (3) was revised. A new subsection (4) was created.

(3) Subsection (3)(b) is confusing with all the allegations listed. Only list neglect. (3) A clarifying change was made in response to this comment.

Subsection (3) was revised. A new subsection (4) was also created. References to other allegations were deleted.

A final cost-benefit analysis is available by contacting Roger Woodside, Mailstop 45600, Department of Social and Health Services, P.O. Box 45600, Olympia, WA 98513, phone (360) 725-3204, fax (360) 438-7903, e-mail woodsr@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 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 10, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 10, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: February 12, 2008.

Robin Arnold-Williams

Secretary

3917.7
NEW SECTION
WAC 388-76-10673   Abuse and neglect reporting -- Mandated reporting to department -- Required.   (1) In accordance with chapter 74.34 RCW, all adult family home providers, entity representatives, resident managers, owners, caregivers, staff, and students that provide care and services to residents, are mandated reporters and must report to the department when there is:

(a) A reasonable cause to believe that a vulnerable adult has been abandoned, abused, neglected, exploited or financially exploited; or

(b) Suspected abandonment, abuse, neglect, exploitation, or financial exploitation of a vulnerable adult.

(2) Reports must be made to:

(a) The centralized toll free telephone number provided by the department; and

(b) Law enforcement agencies, as required under chapter 74.34 RCW.

[]


NEW SECTION
WAC 388-76-11000   Resident protection program -- Investigation of reports.   (1) The department may investigate allegations of abandonment, abuse, neglect, exploitation, and financial exploitation of a resident.

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

(a) A provider;

(b) Employee of the adult family home;

(c) Entity representative;

(d) Anyone affiliated with a provider; and

(e) Caregiver.

[]


NEW SECTION
WAC 388-76-11005   Resident protection program -- Notice of preliminary finding.   (1) The department will notify the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident in writing within ten working days of making a preliminary finding of abandonment, abuse, neglect, exploitation, or financial exploitation of a resident. The written notice:

(a) Will not include the identities of the alleged victim, reporter and witnesses; and

(b) Will include the necessary information for the individual to ask for an administrative hearing to challenge the preliminary finding.

(2) The department must make a reasonable, good faith effort to find the last known address of the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident.

(3) The department may extend the time frame for notification beyond ten working days for good cause.

(4) The department will serve notice of the preliminary finding as provided in chapter 388-02 WAC.

[]


NEW SECTION
WAC 388-76-11010   Resident protection program -- Reporting preliminary finding.   (1) In a manner consistent with confidentiality requirements concerning the resident, witnesses, and reporter, the department may provide notification of a preliminary finding to:

(a) Other divisions within the department;

(b) The agency or program identified under RCW 74.34.068 with which the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident is associated as an employee;

(c) The employer or program that is currently associated with the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident, if known;

(d) Law enforcement; and

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

(2) The notification will identify the finding as a preliminary finding.

[]


NEW SECTION
WAC 388-76-11015   Resident protection program -- Disputing a preliminary finding.   (1) The individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident may request an administrative hearing to challenge a preliminary 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 an administrative hearing within thirty calendar days of the date written on the notice of the preliminary finding.

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

(a) The individual's full legal name, current mailing address and telephone number;

(b) A brief explanation of why the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident disagrees with the preliminary 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 reasonable accommodation for a disability; and

(d) The individual's signature.

[]


NEW SECTION
WAC 388-76-11020   Resident protection program -- Hearing procedures to dispute preliminary finding.   (1) Chapters 34.05 and 74.34 RCW, chapter 388-02 WAC, and the provisions of this chapter govern any appeal regarding a preliminary finding.

(2) If a conflict exists between the provisions of this chapter and chapter 388-02 WAC, the provisions of this chapter prevail.

(3) If an administrative law judge within the office of administrative hearings determines that a preponderance of the evidence supports the preliminary finding that the individual abandoned, abused, neglected, exploited, or financially exploited a resident, then the administrative law judge will issue an initial order.

[]


NEW SECTION
WAC 388-76-11025   Resident protection program -- Finalizing a preliminary finding.   (1) A preliminary finding becomes a final finding when:

(a) The department notifies the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident there is a preliminary finding pursuant to WAC 388-76-11005; and

(b) The individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident does not ask for an administrative hearing; or

(c) 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 alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident fails to appeal the initial order to the department's board of appeals; or

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

(2) A final finding is permanent.

(3) A final finding will only be removed from the department or agency list of individuals found to have abandoned, abused, neglected, exploited, or financially exploited a vulnerable adult if it is rescinded following judicial review.

(4) The department may remove a single finding of neglect from its records based upon a written petition by the individual found to have neglected a resident provided that at least one calendar year must have passed between the date a request was made to remove the finding of neglect and the date the final finding was finalized and recorded.

[]


NEW SECTION
WAC 388-76-11030   Resident protection program -- Appeal of administrative law judge's initial order or finding.   (1) If the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident 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, Administrative Procedures Act, and chapter 388-02 WAC.

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

[]

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.
NEW SECTION
WAC 388-76-11035   Resident protection program -- Reporting final findings.   The department will report a final finding of abandonment, abuse, neglect, exploitation, and financial exploitation within ten working days to the following:

(1) The individual found to have abandoned, abused, neglected, exploited, or financially exploited a resident and for whom there is a final finding;

(2) The provider or entity representative that was associated with the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident during the time of the incident;

(3) The adult family home or program that is currently associated with the individual, if known;

(4) The appropriate licensing, certification or registration authority;

(5) The federal or state department or agency list of individuals found to have abandoned, abused, neglected, exploited, or financially exploited a vulnerable adult; and

(6) The findings may be disclosed to the public upon request subject to applicable public disclosure laws.

[]


NEW SECTION
WAC 388-76-11040   Resident protection program -- Disclosure of investigative and finding information.   (1) Confidential information about residents and mandated reporters received from the department may only be used by the individual alleged to have abandoned, abused, neglected, exploited, or financially exploited a resident to challenge findings through the appeals process.

(2) Confidential information such as the name and other personal identifying information of the reporter, witnesses, or the resident will be redacted from documents unless release of that information is consistent with chapter 74.34 RCW and other applicable state and federal laws.

[]

Washington State Code Reviser's Office