WSR 08-20-062

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed September 24, 2008, 4:12 p.m. , effective November 1, 2008 ]


Effective Date of Rule: November 1, 2008.

Purpose: The department is revising this rule to renumber the entire chapter to four digits for ease of reading and reference; update references to reflect current standards, codes and federal requirements; separate certain larger sections into smaller sections; simplify and clarify resident protection program sections; add language on electronic monitoring; and delete and update sections on department review of nursing home renewal licenses.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-97-005, 388-97-012, 388-97-017, 388-97-027, 388-97-032, 388-97-037, 388-97-042, 388-97-043, 388-97-047, 388-97-051, 388-97-052, 388-97-053, 388-97-055, 388-97-060, 388-97-065, 388-97-07005, 388-97-07010, 388-97-07015, 388-97-07020, 388-97-07025, 388-97-07030, 388-97-07035, 388-97-07040, 388-97-07045, 388-97-07050, 388-97-07055, 388-97-07060, 388-97-07065, 388-97-07070, 388-97-075, 388-97-076, 388-97-077, 388-97-08010, 388-97-08020, 388-97-08030, 388-97-08040, 388-97-08050, 388-97-08060, 388-97-08070, 388-97-085, 388-97-090, 388-97-097, 388-97-110, 388-97-115, 388-97-120, 388-97-12010, 388-97-12020, 388-97-12030, 388-97-12040, 388-97-12050, 388-97-12060, 388-97-12070, 388-97-125, 388-97-130, 388-97-135, 388-97-140, 388-97-143, 388-97-147, 388-97-155, 388-97-160, 388-97-162, 388-97-165, 388-97-170, 388-97-175, 388-97-180, 388-97-185, 388-97-190, 388-97-195, 388-97-202, 388-97-203, 388-97-204, 388-97-205, 388-97-212, 388-97-220, 388-97-247, 388-97-249, 388-97-251, 388-97-253, 388-97-260, 388-97-285, 388-97-295, 388-97-29510, 388-97-29520, 388-97-29530, 388-97-29540, 388-97-29550, 388-97-29560, 388-97-310, 388-97-315, 388-97-325, 388-97-32510, 388-97-32520, 388-97-32530, 388-97-32540, 388-97-32550, 388-97-32560, 388-97-32570, 388-97-32580, 388-97-330, 388-97-33010, 388-97-33020, 388-97-33030, 388-97-33040, 388-97-33050, 388-97-335, 388-97-33510, 388-97-33520, 388-97-33530, 388-97-33540, 388-97-33550, 388-97-33560, 388-97-33570, 388-97-33580, 388-97-340, 388-97-34010, 388-97-34020, 388-97-345, 388-97-347, 388-97-350, 388-97-35010, 388-97-35020, 388-97-35030, 388-97-35040, 388-97-35050, 388-97-35060, 388-97-352, 388-97-353, 388-97-355, 388-97-357, 388-97-35710, 388-97-35720, 388-97-360, 388-97-36010, 388-97-36020, 388-97-36030, 388-97-36040, 388-97-36050, 388-97-36060, 388-97-36070, 388-97-365, 388-97-36510, 388-97-36520, 388-97-36530, 388-97-370, 388-97-37010, 388-97-37020, 388-97-375, 388-97-385, 388-97-400, 388-97-40010, 388-97-401, 388-97-402, 388-97-403, 388-97-405, 388-97-410, 388-97-415, 388-97-420, 388-97-425, 388-97-430, 388-97-43010, 388-97-43020, 388-97-43030, 388-97-43040, 388-97-43050, 388-97-455, 388-97-45510, 388-97-460, 388-97-46010, 388-97-465, 388-97-46510, 388-97-46520, 388-97-46530, 388-97-46540, 388-97-46550, 388-97-46560, 388-97-46570, 388-97-46580, 388-97-46590, 388-97-470, 388-97-47010, 388-97-47020, 388-97-480, 388-97-48010, 388-97-48020, 388-97-48030, 388-97-48040, 388-97-550, 388-97-555, 388-97-560, 388-97-565, 388-97-570, 388-97-575, 388-97-580, 388-97-585, 388-97-590, 388-97-595, 388-97-600, 388-97-605, 388-97-610, 388-97-615, 388-97-620, 388-97-625, 388-97-630, 388-97-635, 388-97-640, 388-97-645, 388-97-650, 388-97-655, 388-97-660, 388-97-665, 388-97-670, 388-97-675, 388-97-680, 388-97-685, 388-97-690, and 388-97-695.

Statutory Authority for Adoption: Chapters 18.51 and 74.42 RCW.

Other Authority: 42 C.F.R. 489.52.

Adopted under notice filed as WSR 08-14-065 on June 24 [25], 2008.

Changes Other than Editing from Proposed to Adopted Version:

NEW SECTION

WAC 388-97-0380 Electronic monitoring equipment -- Audio monitoring and video monitoring. (1) Except as provided in this section or in WAC 388-97-0400, the nursing home must not use the following in the facility or on the premises:

(a) Audio monitoring equipment; or

(b) Video monitoring equipment if it includes an audio component.

(2) The facility nursing home may video monitor and video record activities in the facility or on the premises, without an audio component, only in the following areas:

(a) Entrances and exits as long as the cameras are:

(i) Focused only on the entrance or exit doorways; and

(ii) Not focused on areas where residents gather.

(b) Areas used exclusively by staff persons such as, medication preparation and storage areas or food preparation areas, if residents do not go into these areas;

(c) (b) Outdoor areas not commonly used by residents, such as, but not limited to, delivery areas; and

(d) (c) Designated smoking areas, subject to the following conditions:

(i) Residents have been assessed as needing supervision for smoking;

(ii) A staff person watches the video monitor at any time the area is used by such residents;

(iii) The video camera is clearly visible;

(iv) The video monitor is not viewable by general public; and

(v) The facility notifies all residents in writing of the use of video monitoring equipment.

NEW SECTION

WAC 388-97-0660 Resident protection program definition. As used in WAC 388-97-0680 through 388-97-0840, the term "individual," means anyone, including a volunteer, used by the nursing home facility to provide services to residents who is alleged to have abandoned abused, neglected, misappropriated property of a resident or financially exploited a resident. or misappropriated a resident's property. "Individual" includes, but is not limited to, employees, contractors, and volunteers.

NEW SECTION

WAC 388-97-0680 Investigation of mandated reports. (1) The department will review all allegations of resident abandonment, abuse, neglect, or financial exploitation, or misappropriation of resident property, as those terms are defined in this chapter, RCW 74.34.020 or 42 C.F.R. 488.301.

(2) If, after the review of an allegation, the department concludes that there is reason to believe that an individual has abandoned, abused, neglected, or financially exploited a resident, or has misappropriated a resident's property, then the department will initiate an investigation.

(3) The department's investigation may include, but is not limited to:

(a) The review of facility and state agency records;

(b) Interviews with anyone who may have relevant information about the allegation; and

(c) The collection of any evidence deemed necessary by the investigator.

NEW SECTION

WAC 388-97-0700 Preliminary finding. If, after review of the results of the investigation, the department makes a preliminary determinesation that an individual has abandoned, abused, neglected, or financially exploited a resident, or has misappropriated a resident's property funds, the department will make a preliminary finding to that effect. However, a preliminary finding of neglect will not be made if the individual is able to demonstrates that the neglect was caused by factors beyond the control of the individual.

NEW SECTION

WAC 388-97-0720 Notification of preliminary finding. (1) Within ten working days of making a it's preliminary finding determination, the department will send notice of the preliminary finding:

(a) To the individual by first class and certified mail, return receipt requested. The department may choose to substitute personal service for certified mail;

(b) To the current administrator of the facility where the incident occurred; and

(c) To the appropriate licensing agency.

(2) The notice will include the following information:

(a) A description of the allegation;

(b) The date and time of the incident, if known;

(c) That the individual may appeal the preliminary finding;

(d) That the preliminary finding will become final unless the individual makes a written request for a hearing within thirty days of the date of the notice; and

(e) That if the finding becomes final, it will be reported to the department's registry and the appropriate licensing authority.

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

(a) Other divisions within the department;

(b) The agency, program or employer with which the individual was associated including the current employer, if known;

(c) Law enforcement; and

(d) Other entities as authorized by law and this chapter including investigative authorities consistent with chapter 74.34 RCW.

NEW SECTION

WAC 388-97-0760 Hearing procedures to dispute preliminary finding. Upon receipt of a written request for a hearing from an individual, the office of administrative hearings will schedule a hearing, taking into account the following requirements:

(1) The hearing decision must be issued within one hundred twenty days of the date the office of administrative hearings receives a hearing request; except as provided in subsection (6);

(2) Neither the department nor the individual can waive the one hundred twenty day requirement;

(3) The hearing will be conducted at a reasonable time and at a place that is convenient for the individual;

(4) The hearing, and any subsequent appeals, will be governed by this chapter, chapter 34.05 RCW, and chapter 388-02 WAC, or its successor regulations;

(5) A continuance may be granted for good cause upon the request of any party, as long as the hearing decision can still be issued within one hundred twenty days of the date of the receipt of the appeal; except under the circumstances described in subsection 6;

(6) If the administrative law judge finds that extenuating circumstances exist that will make it impossible to render a decision within one hundred twenty days, the administrative law judge may extend the one hundred twenty-day requirement by a maximum of sixty days; and

(7) To comply with the time limits described in this section, the individual must be available for the hearing and other preliminary matters. If the decision is not rendered within the time limit described in subsection (1), or if appropriate under subsection (6), the administrative law judge shall issue an order dismissing the appeal and the preliminary finding will become final.

NEW SECTION

WAC 388-97-0780 Finalizing the preliminary finding. (1) The preliminary finding becomes a final finding when:

(a) The department notifies the individual of a preliminary finding; and the individual does not ask for an administrative hearing within the timeframe provided under WAC 388-97-0740;

(b) The individual does not ask for an administrative hearing within the timeframe provided under WAC 388-97-0740(3); or;

(b) (c) The individual requested an administrative hearing to appeal the preliminary finding and the administrative law judge:

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

(ii) Dismisses the appeal for failure to comply with the time limits under WAC 388-97-0760; or

(iii) Issues an initial order upholding the finding; or and the individual does not appeal the initial order to the department's board of appeals within the required timeframe; or;

(c) (d) The board of appeals reverses an administrative law judge's initial order and issues a final order upholding the preliminary finding.

(2) A final finding is permanent, except under the circumstances described in (3).

(3) A final finding may be removed from the department's registry and, as appropriate, any other department lists of individuals found to have abandoned abused, neglected, misappropriated property or financially exploited a vulnerable adult under the following circumstances:

(a) The department determines the finding was made in error; It is rescinded following judicial review;

(b) The finding is rescinded following judicial review; The department determines the finding was in error;

(c) At least one year after a single the finding of neglect has been finalized, the department may remove the single finding of neglect from the department's registry or department lists based upon a written petition by the individual and in accordance with requirements of federal law, 42 U.S.C. 1396r (g)(1)(D); or

(d) The department is notified of the individual's death.

NEW SECTION

WAC 388-97-08000820 Reporting final findings. The department will report a final finding of abandonment, abuse, neglect, financial exploitation of a resident, and misappropriation of resident property within ten working days to the following:

(1) The individual;

(2) The current administrator of the facility in which the incident occurred;

(3) The administrator of the facility that currently employs the individual, if known;

(4) The department's registry;

(5) The appropriate licensing authority; and

(6) Any other lists maintained by a state or federal agency as appropriate.

NEW SECTION

WAC 388-97-08200800 Appeal of administrative law judge's initial order or finding. (1) If the individual or the department disagrees with the administrative law judge's decision, either party may appeal this decision by filing a petition for review with the department's board of appeals as provided under chapter 34.05 RCW and chapter 388-02 WAC.

(2) If the individual department appeals the administrative law judge's decision, the department will not change the finding will remain on in the department's registry or other lists. records until a final hearing decision is issued.

NEW SECTION

WAC 388-97-0840 Disclosure of investigative and finding information. (1) Information obtained during the investigation into allegations of abandonment, abuse, neglect, misappropriation of property, or and financial exploitation of a resident, and any documents generated by the department will be maintained and disseminated with regard for the privacy of the resident and any reporting individuals and in accordance with laws and regulations regarding confidentiality and privacy.

(2) Confidential information about resident and mandated reporters provided to the individual by the department must be kept confidential and may only be used by the individual to challenge findings through the appeals process.

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

A final cost-benefit analysis is available by contacting Judy Johnson, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2591, fax (360) 438-7903, e-mail johnsjm1@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 237, Amended 0, Repealed 216.

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 237, Amended 0, Repealed 216.

Date Adopted: September 24, 2008.

Robin Arnold-Williams

Secretary

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 08-22 issue of the Register.

Washington State Code Reviser's Office