Original Notice.

     Preproposal statement of inquiry was filed as WSR 10-04-112.

     Title of Rule and Other Identifying Information: The department is proposing amendments to WAC 388-101-3000 Definitions, 388-101-3050 Application for initial certification, 388-101-3220 Administrator responsibilities and training, and 388-101-3250 Background checks -- Washington state.

     The department is proposing new sections WAC 388-101-3245 Background check -- General, 388-101-3253 National fingerprint background checks -- Required, 388-101-3255 Background checks -- Provisional hire -- Pending results, 388-101-3258 Training requirements for staff hired before January 1, 2011, and 388-101-3302 Certified community residential services and supports -- General training requirements.

     Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on June 22, 2010, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than June 23, 2010.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on June 22, 2010.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by June 8, 2010, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposed rule making is to implement chapters 74.39A and 18.88B RCW as codified from Initiative Measure No. 1029 and E2SHB 2284, chapter 361, Laws of 2007.

     Highlights of proposed changes:

     •     Revisions to be consistent with the training requirements in chapter 388-112 WAC.

     •     Revisions to implement the fingerprint-based background check requirements effective January 1, 2012.

     •     Clarify requirements in the criminal history background check section.

     Reasons Supporting Proposal: To have the rules comply with the statutes referenced above.

     Statutory Authority for Adoption: Chapter 71A.12 RCW.

     Statute Being Implemented: Chapter 71A.12 RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of social and health services, governmental.

     Name of Agency Personnel Responsible for Drafting: John Gaskell, P.O. Box 45600, Olympia, WA 98513, (360) 725-3210; Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98513, (360) 725-2404.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

     The purpose of this proposed rule making is to implement chapters 74.39A and 18.88B RCW as codified from Initiative Measure No. 1029 and E2SHB 2284, chapter 361, Laws of 2007.

     Highlights of proposed changes:

     •     Revisions to be consistent with the training requirements in chapter 388-112 WAC.

     •     Revisions to implement the fingerprint-based background check requirements effective January 1, 2012.

     •     Clarify requirements in the criminal history background check section.

     SMALL BUSINESS ECONOMIC IMPACT STATEMENT: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. This statute outlines information that must be included in a small business economic impact statement (SBEIS). Under RCW 19.85.025(3), preparation of a SBEIS is not required when the proposed rule adopts or incorporates by reference without material change Washington state statutes and for rules with content dictated by statute. A SBEIS is required when there is a disproportionate impact on small businesses.

     RCW 19.85.020 defines a "small business" as "any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, and that has fifty or fewer employees."

     RCS analyzed these proposed rules and concludes that the proposed rule content is dictated by statute. Under RCW 74.39A.055, the statute states that the cost of these criminal background checks shall not be passed on to the workers or their employers. The long-term care worker training requirements are required by RCW 74.39A.073 and chapter 388-112 WAC. We are amending our rules to be consistent with the terminology and training requirements in chapter 388-112 WAC.

     RCS does not believe that the proposed rules will result in any job losses or gains for certified community residential services providers. RCS concludes that the proposed rule amendments do not disproportionately impact small businesses more than larger businesses.

     EVALUATION OF PROBABLE COSTS AND PROBABLE BENEFITS: RCS has determined that some of the proposed rules are "significant legislative rules" as defined by the legislature. As required by RCW 34.05.328 (1)(c), RCS has analyzed the probable costs and probable benefits of the proposed amendments, taking into account both the qualitative and quantitative benefits and costs.

     COSTS:

     •     DSHS shared the draft language and draft small business economic statement and cost-benefit analysis (CBA) with interested parties who are on the RCS certified community residential services and supports mailing list.

     •     In addition, the draft language and draft small business economic statement and CBA was posted on the aging and disability services administration internet web site for anyone in the public to review and comment.

     •     DSHS' process is to use the input from internal and external stakeholders to determine cost impacts for the drafting of the rule.

     •     To date, only one comment was received about costs and it had to do with the cost savings statement in the draft SBEIS/CBA being confusing. As a result, the department has accepted this comment and removed the cost savings statement from the SBEIS/CBA.

     •     The statute states that the cost of the fingerprint checks will not be passed on to the individuals or the service provider.

     •     The long-term worker training requirements are required by RCW 74.39A.073 and chapter 388-112 WAC. We are amending our rules to be consistent with the terminology and training requirements in chapter 388-112.

     COST SAVINGS: Although the proposed rules may not save providers or the department money, they do have other anticipated benefits.

     OTHER BENEFITS: The proposed rules result in several benefits which include:

     •     The amendments are consistent with current laws;

     •     The service provider will have more information to assist them in making hiring decisions; and

     •     Clients will ultimately benefit from a better trained workforce and potentially protected from staff with criminal histories.

     CONCLUSION: RCS concludes that the benefits of the proposed amendments exceed the probable cost.

     These rules continue to implement state laws and regulations related to certified community residential service providers. RCS has complied with the appropriate sections of the Administrative Procedure Act and is prepared to proceed with the rule filing.

     Please contact John Gaskell by e-mail at gaskejw@dshs.wa.gov or by phone at (360) 725-3210 if you have questions.

     A copy of the statement may be obtained by contacting John Gaskell, Program Manager, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-3210, fax (360) 438-7903, e-mail gaskejw@dshs.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting John Gaskell, Program Manager, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-3210, fax (360) 438-7903, e-mail gaskejw@dshs.wa.gov.

April 27, 2010

Katherine I. Vasquez

Rules Coordinator

     "Abuse" means:

     (1) The willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment of a vulnerable adult;

     (2) In instances of abuse of a vulnerable adult who is unable to express or demonstrate physical harm, pain, or mental anguish, the abuse is presumed to cause physical harm, pain, or mental anguish; and

     (3) Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult, which have the following meanings:

     (a) "Sexual abuse" means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse includes any sexual contact between a staff person, who is not also a resident or client, of a facility or a staff person of a program authorized under chapter 71A.12 RCW, and a vulnerable adult living in that facility or receiving service from a program authorized under chapter 71A.12 RCW, whether or not it is consensual.

     (b) "Physical abuse" means the willful action of inflicting bodily injury or physical mistreatment. Physical abuse includes, but is not limited to, striking with or without an object, slapping, pinching, choking, kicking, shoving, prodding, or the use of chemical restraints or physical restraints unless the restraints are consistent with licensing and certification requirements, and includes restraints that are otherwise being used inappropriately.

     (c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a vulnerable adult from family, friends, regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.

     (d) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.

     "Associated with the applicant" means any person listed on the application as a partner, officer, director, or majority owner of the applying entity, or is the spouse or domestic partner of the applicant.

     "Case manager" means the division of developmental disabilities case resource manager or social worker assigned to a client.

     "Certification" means a process used by the department to determine if an applicant or service provider complies with the requirements of this chapter and is eligible to provide certified community residential services and support to clients.

     "Chaperone agreement" means a plan or agreement that describes who will supervise a community protection program client when service provider staff is not present. This plan or agreement is negotiated with other agencies and individuals who support the client, including the client's legal representative and family.

     "Chemical restraint" means the use of psychoactive medications for discipline or convenience and not prescribed to treat the client's medical symptoms.

     "Client" means a person who has a developmental disability as defined in RCW 71A.10.020(3) and who also has been determined eligible to receive services by the division of developmental disabilities under chapter 71A.16 RCW. For purposes of informed consent and decision making requirements, the term "client" includes the client's legal representative to the extent of the representative's legal authority.

     "Client services" means instruction and support services that service providers are responsible to provide as identified in the client's individual support plan.

     "Crisis diversion" means temporary crisis residential services and supports provided to clients at risk of psychiatric hospitalization and authorized by the division of developmental disabilities.

     "Crisis diversion bed services" means crisis diversion that is provided in a residence maintained by the service provider.

     "Crisis diversion support services" means crisis diversion that is provided in the client's own home.

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

     "Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any person for any person's profit or advantage other than the vulnerable adult's profit or advantage.

     "Functional assessment" means a comprehensive evaluation of a client's challenging behavior(s). This evaluation is the basis for developing a positive behavior support plan.

     "Group home" means a residence that is licensed as either a boarding home or an adult family home by the department under chapters 388-78A or 388-76 WAC. Group homes provide community residential instruction, supports, and services to two or more clients who are unrelated to the provider.

     "Group training home" means a certified nonprofit residential facility that provides full-time care, treatment, training, and maintenance for clients, as defined under RCW 71A.22.020(2).

     "Immediate" or "immediately" means within twenty-four hours for purposes of reporting abandonment, abuse, neglect, or financial exploitation of a vulnerable adult.

     "Individual financial plan" means a plan describing how a client's funds will be managed when the service provider is responsible for managing any or all of the client's funds.

     "Individual instruction and support plan" means a plan developed by the service provider and the client. The individual instruction and support plan:

     (1) Uses the information and assessed needs documented in the individual support plan to identify areas the client would like to develop;

     (2) Includes client goals for instruction and support that will be formally documented during the year; and

     (3) Must contain or refer to other applicable support or service information that describes how the client's health and welfare needs are to be met (e.g. individual financial plan, positive behavior support plan, cross system crisis plan, individual support plan, individual written plan, client-specific instructions).

     "Individual support plan" means a document that authorizes and identifies the division of developmental disabilities paid services to meet a client's assessed needs.

     "Instruction" means goal oriented teaching that is designed for acquiring and enhancing skills.

     "Instruction and support services staff" means long-term care workers of the service provider whose primary job function is the provision of instruction and support services to clients. Instruction and support services staff shall also include employees of the contractor whose primary job function is the supervision of instruction and support services staff. In addition, both applicants, prior to initial certification, and administrators, prior to assuming duties, who may provide instruction and support services to clients shall be considered instruction and support services staff for the purposes of the applicable training requirements of chapter 388-112 WAC.

     "Legal representative" means a person's legal guardian, a person's limited guardian when the subject matter is within the scope of the limited guardianship, a person's attorney at law, a person's attorney in fact, or any other person who is authorized by law to act for another person.

     "Managing client funds" means that the service provider:

     (1) Has signing authority for the client;

     (2) Disperses the client's funds; or

     (3) Limits the client's access to funds by not allowing funds to be spent.

     "Mechanical restraint" means a device or object, which the client cannot remove, applied to the client's body that restricts his/her free movement.

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

     "Medication assistance" means assistance with self administration of medication rendered by a nonpractitioner to a client receiving certified community residential services and supports in accordance with chapter 69.41 RCW and chapter 246-888 WAC.

     "Medication service" means any service provided by a certified community residential services and support provider related to medication administration or medication assistance provided through nurse delegation and medication assistance.

     "Neglect" means:

     (1) A pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult; or

     (2) An act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.42.100.

     "Physical intervention" means the use of a manual technique intended to interrupt or stop a behavior from occurring. This includes using physical restraint to release or escape from a dangerous or potentially dangerous situation.

     "Physical restraint" means physically holding or restraining all or part of a client's body in a way that restricts the client's free movement. This does not include briefly holding, without undue force, a client in order to calm him/her, or holding a client's hand to escort the client safely from one area to another.

     "Psychoactive" means possessing the ability to alter mood, anxiety level, behavior, cognitive processes, or mental tension, usually applied to pharmacological agents.

     "Psychoactive medications" means medications prescribed to improve or stabilize mood, mental status or behavior. Psychoactive medications include anti-psychotics/neuroleptics, atypical antipsychotics, antidepressants, stimulants, sedatives/hypnotics, and antimania and antianxiety drugs.

     "Qualified professional" means a person with at least three years' experience working with individuals with developmental disabilities and as required by RCW 71A.12.220(12).

     "Restrictive procedure" means any procedure that restricts a client's freedom of movement, restricts access to client property, requires a client to do something which he/she does not want to do, or removes something the client owns or has earned.

     "Risk assessment" means an assessment done by a qualified professional and as required by RCW 71A.12.230.

     "Service provider" means a person or entity certified by the department who delivers services and supports to meet a client's identified needs. The term includes the state operated living alternative (SOLA) program.

     "Support" means assistance a service provider gives a client based on needs identified in the individual support plan.

     "Supported living" means instruction, supports, and services provided by service providers to clients living in homes that are owned, rented, or leased by the client or their legal representative.

     "Treatment team" means the program participant and the group of people responsible for the development, implementation, and monitoring of the person's individualized supports and services. This group may include, but is not limited to, the case manager, therapist, the service provider, employment/day program provider, and the person's legal representative and/or family, provided the person consents to the family member's involvement.

     "Vulnerable adult" includes a person:

     (1) Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself; or

     (2) Found incapacitated under chapter 11.88 RCW; or

     (3) Who has a developmental disability as defined under RCW 71A.10.020; or

     (4) Admitted to any facility; or

     (5) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; or

     (6) Receiving services from an individual provider.

     "Willful" means the deliberate, or nonaccidental, action or inaction by an alleged perpetrator that he/she knew or reasonably should have known could cause a negative outcome, including harm, injury, pain, ((and)) or anguish.

     (("Written individual plan" means a plan developed for clients in the community protection program that includes:

     (1) An assessment of the client's emotional and behavioral issues as related to community protection risks;

     (2) Specific intervention strategies and techniques related to community protection risks;

     (3) Specific restrictions and measures, including security precautions, both in-home and out-of-home; and

     (4) Signatures of the client's case manager and the client.))

[Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3000, filed 12/21/07, effective 2/1/08.]

     (a) A letter of intent that includes:

     (i) Contact information;

     (ii) Geographical area of service; and

     (iii) Type of service provided, including group home, supported living, community protection, or group training home.

     (b) A completed and signed application on forms designated by the department;

     (c) All attachments specified in the application and any other information the department may request including but not limited to:

     (i) Administrator resumes;

     (ii) Statements of financial stability;

     (iii) Professional references;

     (iv) Relevant experiences and qualifications of the individual or agency; ((and))

     (v) On or after January 1, 2011, if the applicant may provide instruction and support services to a client or may supervise staff who provide instruction and support services to clients, a certificate of completion of the instruction and support services staff training required in chapter 388-112 WAC; and

     (vi) Assurances the applicant will not discriminate against any client or employee.

     (d) A copy of the license if applying for certification as a group home;

     (e) The name of the administrator of the program; and

     (f) ((Department criminal history background check on forms designated by the department for the)) The department background authorization form for:

     (i) The applicant;

     (ii) Anyone associated with the applicant; and

     (iii) The individual or individuals designated to serve as administrator of the proposed program.

     (2) The applicant must submit a revised application, if any information on the application changes before the initial certification is issued.

     (3) The department will only process a completed application.

     (4) Each person named in the application for initial certification is considered separately and jointly by the department.

     (5) Based on the documentation received, the department will notify the applicant in writing regarding the department's certification decision.

     (6) The applicant must comply with additional requirements identified in this chapter if intending to support community protection clients.

[Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3050, filed 12/21/07, effective 2/1/08.]

     (((1))) (a) Overseeing all aspects of staffing, such as recruitment, staff training, and performance reviews;

     (((2))) (b) Developing and maintaining policies and procedures that give staff direction to provide appropriate services and support as required by this chapter and the department contract; and

     (((3))) (c) Maintaining and securely storing client, personnel, and financial records.

     (2) Before assuming duties, an administrator hired on or after January 1, 2011, must complete the instruction and support services staff training requirements under chapter 388-112 WAC if the administrator may provide instruction and support services to clients or may supervise instruction and support services staff.

[Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3220, filed 12/21/07, effective 2/1/08.]

     (a) Washington state background checks including:

     (i) Department and department of health findings; and

     (ii) Criminal background check information from the Washington state patrol and Washington state courts; and

     (b) After January 1, 2012, a national fingerprint-based check in accordance with RCW 74.39A.055.

     (2) Nothing in this chapter should be interpreted as requiring the employment of a person against the better judgment of the service provider.

[]

     (2) The service provider must obtain background checks ((including, but not limited to background inquiries and criminal history disclosure)) from the department for all administrators, employees, volunteers, students, and subcontractors who may have unsupervised access to clients.

     (3) The service provider must not allow the following persons to have unsupervised access to clients until the service provider receives the department's background check results ((from the department)), verifying that the person does not have any convictions, pending criminal charges, or findings described in WAC 388-101-3090:

     (a) Administrators;

     (b) Employees;

     (c) Volunteers or students; and

     (d) Subcontractors.

     (4) If the background check results show that the individual has a conviction, pending criminal charge, or finding that is not disqualifying under WAC 388-101-3090, then the service provider must conduct a character, suitability, and competence review as described in WAC 388-06-0190.

     (5) ((Persons identified in subsection (2) of this section who have lived in Washington state less than three years or who are otherwise required to complete a fingerprint-based background check may be hired for a one hundred twenty-day provisional period when:

     (a) The person is not disqualified based on the initial result of the background check from the department; and

     (b) A fingerprint-based background check is pending.

     (6))) The service provider must ((notify)):

     (a) Inform the person((, within ten days)) of ((receiving)) the ((result, that he or she may request a copy)) results of the background check;

     (b) Inform the person that they may request a copy in writing of the results of the background check. If requested, a copy of the background check results must be provided within ten working days of the request;

     (c) Notify the department and appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record.

     (((7))) (6) The service provider must renew the Washington state background check at least every thirty-six months and keep current ((department)) background ((checks)) check results for each administrator, employee, volunteer, student, or subcontractor of a service provider.

     (((8))) (7) Licensed boarding homes or adult family homes must adhere to the current regulations in this chapter and in the applicable licensing laws.

     (((9))) (8) Service providers must prevent unsupervised access to clients by any administrator, employee, subcontractor, student, or volunteer who has a disqualifying conviction, pending criminal charge, or finding described in WAC 388-101-3090.

     (((10) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the service provider.))

[Statutory Authority: RCW 71A.12.080. 10-03-065, § 388-101-3250, filed 1/15/10, effective 2/15/10. Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3250, filed 12/21/07, effective 2/1/08.]

     (1) After January 1, 2012, applicants for initial certification and applicants for change of ownership that are not current providers, must have a background check that includes a national fingerprint-based background check.

     (2) The service provider must ensure that staff who provide instruction and support services to clients, and are hired on or after January 1, 2012, submit a background check that includes a national fingerprint based background check.

[]

     (a) The person is not disqualified based on the initial results of the background check from the department; and

     (b) A national fingerprint-based background is pending.

     (2) Persons identified in WAC 388-101-3250(2) who are hired after January 1, 2012, may be hired for a one hundred twenty-day provisional period when:

     (a) The person is not disqualified based on the initial result of the background check from the department; and

     (b) A national fingerprint-based background check is pending.

[]

[]

     (a) Applicants for initial certification and applicants for change of ownership that are not current providers, who may provide instruction and support services to clients or who may supervise instruction and support services staff;

     (b) Administrators, hired on or after the effective date, who may provide instruction and support services to clients or who may supervise instruction and support services staff; and

     (c) Instruction and support services staff, hired on or after the effective date.

     (2) Persons exempt from subsection (1) of this section include but are not limited to applicants, administrators, and staff who are registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved certified nursing assistant program.

[]

© Washington State Code Reviser's Office