WASHINGTON STATE REGISTER

WSR 10-16-082

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed July 30, 2010, 11:20 a.m. , effective January 1, 2011 ]

Effective Date of Rule: January 1, 2011.

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

The department has proposed amending WAC 388-76-10000 Definitions, 388-76-10160 Criminal history background check -- Required, 388-76-10165 Criminal history background check -- Valid for two years, 388-76-10170 Criminal history background check -- Information -- Confidentiality -- Use restricted, 388-76-10174 Background checks -- Disclosure of information -- Sharing of criminal background information by health care facilities, 388-76-10175 Employment -- Conditional -- Pending results, 388-76-10180 Employment and other unsupervised access decisions, 388-76-10130 Qualifications -- Provider, entity representative and resident manager, and 388-76-10135 Qualifications -- Caregiver.

The department has proposed repealing WAC 388-76-10155 Unsupervised access to vulnerable adults -- Prohibited and 388-76-10173 Disclosure of employee information -- Employer immunity -- Rebuttable presumption.

The department has proposed adding new sections WAC 388-76-10161 Background check -- Washington state -- Who is required to have, 388-76-10162 Background check -- National fingerprint checks -- Who is required to have, 388-76-10163 Background check -- Process, 388-76-10164 Background check -- Results, and 388-76-10146 Qualifications -- Training and home care aide certification.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-76-10155 and 388-76-10173; and amending WAC 388-76-10000, 388-76-10130, 388-76-10135, 388-76-10160, 388-76-10165, 388-76-10170, 388-76-10174, 388-76-10175, and 388-76-10180.

Statutory Authority for Adoption: RCW 70.128.040, chapter 74.39A RCW.

Adopted under notice filed as WSR 10-10-120 on May 5, 2010.

Changes Other than Editing from Proposed to Adopted Version: Changes, other than editing changes are shown with new language underlined and deleted text lined through.

AMENDATORY SECTION (Amending WSR 10-03-064, filed 1/15/10, effective 2/15/10)

WAC 388-76-10000 Definitions. "Willful" means the deliberate or nonaccidental action or inaction by an ((~~alleged perpetrator~~)) individual that he/she knew or reasonably should have known could cause a negative outcome, including harm, injury, pain or anguish.

AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10130 Qualifications -- Provider, entity representative and resident manager. The adult family home must ensure that the provider, entity representative and resident manager have the following minimum qualifications:

(1) Be twenty one years of age or older;

(2) Have a United States high school diploma or general education development certificate, or any English translated government document of the following:

(a) Successful completion of government approved public or private school education in a foreign country that includes an annual average of one thousand hours of instruction a year for twelve years, or no less than twelve thousand hours of instruction;

(b) Graduation from a foreign college, foreign university, or United States community college with a two-year diploma, such as an Associate's degree;

(c) Admission to, or completion of course work at a foreign or United States college or university for which credit was awarded;

(d) Graduation from a foreign or United States college or university, including award of a Bachelor's degree;

(e) Admission to, or completion of postgraduate course work at, a United States college or university for which credits were awarded, including award of a Master's degree; or

(f) Successful passage of the United States board examination for registered nursing, or any professional medical occupation for which college or university education was required.

(3) Complet((e))ion of the training requirements that were in effect on the date they were hired, including the requirements described in chapter 388-112 WAC;

(4) Have good moral and responsible character and reputation;

(5) Be literate in the English language, or meet alternative requirements by assuring that a person is on staff and available at the home who is:

(a) Able to communicate or make provisions for communicating with the resident in his or her primary language; and

(b) Capable of understanding and speaking English well enough to be able to respond appropriately to emergency situations and be able to read, understand and implement resident negotiated care plans.

(6) Be able to carry out the management and administrative requirements of chapters 70.128, 70.129 and 74.34 RCW, this chapter and other applicable laws and regulations;

(7) Have completed at least three hundred and twenty hours of successful direct care experience obtained after age eighteen to vulnerable adults in a licensed or contracted setting before operating or managing a home;

(8) Have no criminal convictions listed in RCW 43.43.830 or 43.43.842 or state or federal findings of abandonment, abuse, neglect or financial exploitation;

(9) Obtain and keep valid cardiopulmonary resuscitation (CPR) and first-aid card or certificate as required in chapter 388-112 WAC; and

(10) Have tuberculosis screening to establish tuberculosis status per this chapter.

AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10135 Qualifications--Caregiver. The adult family home must ensure each caregiver has the following minimum qualifications:

(1) Be eighteen years of age or older;

(2) Have a clear understanding of the caregiver job responsibilities and knowledge of each resident's negotiated care plan to provide care specific to the needs of each resident;

(3) Have basic communication skills to:

(a) Be able to communicate or make provisions to communicate with the resident in his or her primary language;

(b) Understand and speak English well enough to:

(i) Respond appropriately to emergency situations; and

(ii) Read, understand and implement resident negotiated care plans.

(4) Complet((e))ion of the training requirements that were in effect on the date they were hired including requirements described in chapter 388-112 WAC;

(5) Have no criminal convictions listed in RCW 43.43.830 or 43.43.842 or state or federal findings of abandonment, abuse, neglect or financial exploitation;

(6) Have a current valid first-aid and cardiopulmonary resuscitation (CPR) card or certificate as required in chapter 388-112 WAC; and

(7) Have tuberculosis screening to establish tuberculosis status per this chapter.

NEW SECTION

WAC 388-76-10146 Qualifications -- Training and home care aide certification. (1) The adult family home must ensure Aall adult family home caregivers, entity representatives, and resident managers hired on or after January 1, 2011, ((~~must~~)) meet the long-term care worker training requirements of chapter 388-112 WAC, including but not limited to:

(a) Orientation and safety;

(b) Basic;

(c) Specialty for dementia, mental illness and/or developmental disabilities when serving residents with any of those primary special needs ((~~as primary diagnosis~~));

(d) Cardiopulmonary resuscitation and first aid; and

(e) Continuing education.

(2) All persons listed in subsection (1) of this section, must obtain the home-care aide certification ((as)) required by chapter 246-980 WAC.

(3) All adult family home applicants on or after January 1, 2011, must meet the long-term care worker training requirements of chapter 388-112 WAC and obtain the home-care aide certification ((as)) required by chapter 246-980 WAC before licensure.

(4) Under RCW 18.88B.040 and chapter 246-980 WAC, certain ((P))persons including ((exempt from long-term care worker training and certification requirements include but are not limited to adult family home applicants, caregivers, entity representatives, and resident managers who are)) registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved certified nursing assistant program are exempt from long-term care worker training requirements.

(5) The adult family home must ensure that all staff receive the orientation and training necessary to perform their job duties.

NEW SECTION

WAC 388-76-10162 Background check -- National fingerprint checks -- Who is required to have. (1) After January 1, 2012, ((A))an adult family home applicant and anyone affiliated with an applicant, ((~~after January 1, 2012))~~ must have a background check that includes a national fingerprint-based background check.

(2) The adult family home must ensure that all caregivers, entity representatives and resident managers hired after January 1, 2012 have a background check that includes a national fingerprint-based background check.

NEW SECTION

WAC 388-76-10164 Background check -- Results. (1) The adult family home must not allow persons listed in WAC 388-76-10161(2) to have unsupervised access to residents until the adult family home receives background check results from the department verifying that the person does not have convictions, or findings described in WAC 388-76-10180.

(2) If the background check results show that the person has a conviction or finding that is not disqualifying under WAC 388-76-10180, then the adult family home must determine whether the person has the character, suitability and competence to work with vulnerable adults in long-term care.

(3) The adult family home must:

(a) Inform the person of the results of the background check;

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

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

AMENDATORY SECTION (Amending WSR 10-03-064, filed 1/15/10, effective 2/15/10)

WAC 388-76-10180 Background check -- Employment -- Disqualifying information. ((~~Until the adult family home receives a successful background check result~~)) Unless hired conditionally as specified in WAC 388-76-10175, the adult family home must not use or employ anyone, directly or by contract, who is listed in WAC 388-76-10161 if the individual has:

(1) Any of the convictions, history, or findings, described below:

(a) Has a history of significant noncompliance with federal or state laws or regulations in the provision of care or services to children or vulnerable adults;

(b) Has been convicted of a crime in federal court or in any other state, and the department determines that the crime is equivalent to a crime under subsections (c), (d), (e), (f), or (g) below;

(c) Has been convicted of a "crime against children or other persons" as defined in RCW 43.43.830, unless the crime is simple assault, assault in the fourth degree, or prostitution and more than three years has passed since conviction;

(d) Has been convicted of "crimes relating to financial exploitation" as defined in RCW 43.43.830, unless the crime is theft in third degree and more than three years have passed since conviction, or unless the crime is forgery or theft in the second degree and more than five years has passed since conviction;

(e) Has been convicted of:

(i) Violation of the imitation controlled substances act (VICSA);

(ii) Violation of the uniform controlled substances act (VUCSA);

(iii) Violation of the uniform legend drug act (VULDA); or

(iv) Violation of the uniform precursor drug act (VUPDA).

(f) Has been convicted of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;

(g) Has been convicted of criminal mistreatment;

(h) Has been found to have abused, neglected, financially exploited, or abandoned a minor or vulnerable adult by court of law or a disciplining authority, including the department of health. Examples of legal proceedings in which such findings could be made include juvenile court proceedings under chapter 13.34 RCW, domestic relations proceeding under title 26, RCW, and vulnerable adult protection proceedings under chapter 74.34 RCW;

(i) Has a finding of abuse or neglect of a child that is:

(i) Listed on the department's background check central unit (BCCU) report; or

(ii) Disclosed by the individual, except for findings made before December, 1998.

(j) Has a finding of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult that is:

(i) Listed on any registry, including the department's registry;

(ii) Listed on the department's background check central unit (BCCU) report; or

(iii) Disclosed by the individual, except for adult protective services findings made before October, 2003.

(2) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the adult family home.

The changes were made because of the comments the department received and to provide clarification.

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

GENERAL COMMENTS:
Suggestions that the rules need to include more details about the training requirements.
No change was made.

The training required by the proposed rules is required by chapter 74.39A RCW, including RCW 74.39A.073. The specific details about the training requirements are described in chapter 388-112 WAC. The rules proposed for this chapter do not describe the details of the training requirements. Instead, the rules require compliance with chapter 388-112 WAC, the residential training requirements for boarding homes and adult family homes.

Statement that the small business economic impact statement (SBEIS) is "inadequate" and does not reflect the "significant and profound" financial impact of the proposed rule change. No change was made.

As explained in the SBEIS and cost-benefit analysis (CBA) that was filed with these rules, an evaluation of the costs and benefits of the proposed rules is not required by RCW 34.05.328(5), because they are explicitly and specifically required by law, including chapters 74.39A and 18.88B RCW.

Concern about the cost of implementing new background check requirements. No change suggested or made.

The department currently pays the cost of all background checks for providers and their employees. Department practice related to background check costs will be consistent with RCW 74.39A.055, which does not allow the department to pass the costs of fingerprint-based background checks to the adult family homes or their employees.

Concern about the financial impact of current and future backlog that will be created by the fingerprint system. No change suggested or made.

This comment will be forwarded to DSHS's BCCU, which is responsible for background check processing issues.

RCW 74.39A.055 requires that background checks be checked against the federal bureau of investigation fingerprint identification records after January 1, 2012. The department is working to mitigate issues related to processing delay. Recent changes have resulted in a reduction in the time it takes to process background checks for new applicants and newly hired staff from nearly three months in May 2010 to two days in July 2010. The processing time for all background checks is now taking five days.

Concern that the proposed rule change does not reflect their collective bargaining rights stating that the proposed rule changes represent changes that are mandatory subjects of bargaining. No change suggested or made.

The changes to this chapter are required by the long-term care initiative, I-1029, which has been codified in chapters 74.39A and 18.88B RCW. This process is consistent with the department's authority and provisions under RCW 70.128.040 (2)(a). The scope of bargaining identified in RCW 41.56.029 does not require bargaining over regulations. Concerns about mandatory subjects for collective bargaining under RCW 41.56.029 should be directed to Diane Lutz, lead negotiator, office of financial management at (360) 725-5513 or via e-mail at Diane.Lutz@ofm.wa.gov .

Concerns about cost of training and that Initiative 1029 requires the state to pay for the required training. No change suggested or made.

RCW 74.39A.073 requires additional training, but it does not require the state pay the cost of the training.

All comments or concerns related to training requirements have been forwarded to the DSHS division responsible for implementing training requirements.

Comment that the costs and benefits in the SBEIS are utterly lacking. No change was made.

As explained in the SBEIS and CBA that was filed with these rules, an evaluation of the costs and benefits of the proposed rules is not required by RCW 34.05.328(5), because they are explicitly and specifically required by law, including chapters 74.39A and 18.88B RCW.

Concern that there is no process for how to obtain fingerprints detailed. No change suggested or made.

This comment will be forwarded to DSHS's BCCU, which is responsible for background check processing issues.

WAC 388-76-10000, under the definition of "willful," delete the term "alleged perpetrator" and replace with the term individual. A change was made in response to this comment. To be consistent with wording used throughout the chapter, the definition of "willful" was changed as recommended.

WAC 388-76-10130(3), editorial change for clarification. "Complete" was changed to "completion of."

WAC 388-76-10135(4), editorial change. "Complete" was changed to "completion of."

WAC 388-76-10146 (1) and (5), proposed changes in this WAC and chapter 388-112 WAC that would eliminate the orientation training requirement for certain staff, such as volunteers, making it inconsistent with statutory requirements. Clarifying changes were made requiring that adult family homes ensure that long-term care worker training and certification requirements are met and that all staff, including volunteers, receive orientation and training pertinent to the duties of their job.

WAC 388-76-10146 [(1)](a), we received a comment concerning the increased requirements for orientation and safety training. No change suggested or made.

Orientation and safety training is specifically required by RCW 74.39A.073(4). Details about this training requirement can be found in chapter 388-112 WAC. All comments or concerns related to training requirements have been forwarded to the DSHS division responsible for implementing the training requirements.

WAC 388-76-10146 [(1)](b), define "basic," is this the "fundamentals of care"? No change was made.

Basic training is defined in chapter 388-112 WAC. All comments or concerns related to training requirements have been forwarded to the DSHS division responsible for implementing the training requirements.

WAC 388-76-10146 [(1)](c), clarify language associated with specialty training. A clarifying change was made to this section to delete "primary diagnosis" and insert "primary special needs" to be consistent with current rule language and chapter 388-112 WAC.

WAC 388-76-10146 [(1)](e), the specific number of continuing education hours need to be included and defined. The current provision of ten hours annually does not reflect the twelve hours called for in I-1029. No change was made.

This rule requires compliance with chapter 388-112 WAC, which describes the number of hours required for continuing education. All comments or concerns related to training requirements have been forwarded to the DSHS division responsible for implementing the training requirements.

WAC 388-76-10146(2), one comment conveyed a disagreement with the requirement to obtain home care aide certification due to increased labor cost. No change suggested or made.

Home care aide certification is required by RCW 18.88B.020. All comments or concerns related to home care aide certification have been forwarded to the department of health, which is responsible for home care aide certification.

WAC 388-76-10146(4), recommend a grandfather clause to accommodate existing providers who open a new AFH after January 2011. No change was made.

Under most circumstances providers licensed before January 2011 who met the training requirements in place at the time of licensure do not have to meet the new training requirements.

WAC 388-76-10146(4), add "under RCW 18.88B.040 and chapter 246-980 WAC" to clarify who is exempt from the long-term care worker training requirements. A change was made to add the statutory and rule references.

WAC 388-76-10161 and 388-76-10162, we received a comment stating that the "anyone affiliated" wording of the proposed rule is beyond the scope of the language in I-1029. No change was made.

The term "affiliated with an applicant" is defined in current WAC 388-76-1000 [388-76-10000] as "any person listed on the application as a partner, officer, director, resident manager or majority owner of the applying entity, or is the spouse or domestic partner of the applicant." As defined, the scope of the rule is consistent with statutory requirements.

WAC 388-76-10162, editorial change for clarification. The phrase "after January 1, 2012," was moved to the beginning of the sentence for clarification.

WAC 388-76-10164 (2)(c), unclear about the requirement for providers to notify both the department and the licensing agency about resignations/terminations due to background check results. A clarifying change was made.

For clarity the word "other" was added before "appropriate licensing or certification agency" to distinguish DSHS from other agencies; e.g. the department of health.

WAC 388-76-10165, does not indicate for how long the fingerprint is valid. No change was made.

The law does not specify a recheck requirement for national fingerprint-based background checks.

WAC 388-76-10174, concern that the financial impact will be profound for the state, for providers, and for caregivers. Are the fingerprint checks transferrable? Many caregivers work in more than one AFH, or in multiple LTC facilities. No change suggested or made.

RCW 74.39A.055(2) requires DSHS to share federal and state background checks with the department of health, but it explicitly prohibits these agencies from sharing the federal background check results with any other state agency or person.

It is our understanding that the BCCU will retain copies of federal fingerprint check results in order to reduce the number of checks that need to be completed. Your comments have been forwarded to the BCCU.

WAC 388-76-10180, language is inconsistent with WAC 388-76-10175. Individuals may be hired conditionally pending the result of a background check. A change was made to clarify that a person may be hired on a conditional basis as described in WAC 388-76-10175.

A final cost-benefit analysis is available by contacting Michael Tornquist, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2589, fax (360) 438-7903, e-mail tornqmj@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 5, Amended 8, Repealed 2.

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 0, 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 5, Amended 9, Repealed 2.

Date Adopted: July 29, 2010.

Susan N. Dreyfus

Secretary

4196.6
AMENDATORY SECTION(Amending WSR 10-03-064, filed 1/15/10, effective 2/15/10)

WAC 388-76-10000 Definitions. "Abandonment" means action or inaction by a person or entity with a duty of care for a frail elder or vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.

"Abuse" means the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult:

(1) 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

(2) 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 consensual.

(b) "Physical abuse" means a 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 chemical or physical restraints unless the restraints are consistent with licensing 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, or 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.

"Adult family home" means:

(1) A residential home in which a person or an entity is licensed to provide personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to a licensed operator, resident manager, or caregiver, who resides in the home.

(2) As used in this chapter, the term "entity" includes corporations, partnerships and limited liability companies, and the term "adult family home" includes the person or entity that is licensed to operate an adult family home.

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

"Applicant" means an individual, partnership, corporation, or other entity seeking a license to operate an adult family home.

"Capacity" means the maximum number of persons in need of personal or special care who are permitted to reside in an adult family home at a given time. The capacity includes:

(1) The number of related children or adults in the home who receive personal or special care and services; plus

(2) The number of residents the adult family home may admit and retain - the resident capacity. The capacity number listed on the license is the "resident capacity."

"Caregiver" ((~~for purposes other than training,~~)) means any person eighteen years of age or older responsible for providing direct personal or special care to a resident and who is not the provider, entity representative, a student or volunteer.

"Dementia" is defined as a condition documented through the assessment process required by WAC 388-76-10335.

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

"Department case manager" means the department authorized staff person or designee assigned to negotiate, monitor, and facilitate a care and services plan for residents receiving services paid for by the department.

"Developmental disability" means:

(1) A person who meets the eligibility criteria defined by the division of developmental disabilities under WAC 388-823-0040; or

(2) A person with a severe, chronic disability which is attributable to cerebral palsy or epilepsy, or any other condition, other than mental illness, found to be closely related to mental retardation which results in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation, and requires treatment or services similar to those required for these persons (i.e., autism); and

(a) The condition was manifested before the person reached age eighteen;

(b) The condition is likely to continue indefinitely; and

(c) The condition results in substantial functional limitations in three or more of the following areas of major life activities:

(i) Self-care;

(ii) Understanding and use of language;

(iii) Learning;

(iv) Mobility;

(v) Self-direction; and

(vi) Capacity for independent living.

"Direct supervision" means oversight by a person who has demonstrated competency in the basic training and specialty training if required, or who has been exempted from the basic training requirements and is:

(1) On the premises; and

(2) Quickly and easily available to the caregiver.

"Domestic partners" means two adults who meet the requirements for a valid state registered domestic partnership as established by RCW 26.60.030 and who have been issued a certificate of state registered domestic partnership.

"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 for the vulnerable adult's profit or advantage.

"Entity representative" means the individual designated by a provider who is or will be responsible for the daily operation of the adult family home and who meets the requirements of this chapter and chapter 388-112 WAC.

"Home" means adult family home.

"Indirect supervision" means oversight by a person who:

(1) Has demonstrated competency in the basic training and specialty training if required; or

(2) Has been exempted from the basic training requirements; and

(3) Is quickly and easily available to the care giver, but not necessarily on-site.

"Inspection" means a review by department personnel to determine the adult family home's compliance with this chapter and chapters 70.128, 70.129, 74.34 RCW, and other applicable rules and regulations. The department's review may include an on-site visit.

"Management agreement" means a written, executed agreement between the adult family home and another individual or entity regarding the provision of certain services on behalf of the adult family home.

"Mandated reporter" means an employee of the department, law enforcement, officer, social worker, professional school personnel, individual provider, an employee of a facility, an employee of a social service, welfare, mental health, adult day health, adult day care, or hospice agency, county coroner or medical examiner, Christian Science practitioner, or health care provider subject to chapter 18.130 RCW. For the purpose of the definition of a mandated reporter, "Facility" means a residence licensed or required to be licensed under chapter 18.20 RCW (boarding homes), chapter 18.51 RCW (nursing homes), chapter 70.128 RCW (adult family homes), chapter 72.36 RCW (soldiers' homes), chapter 71A.20 RCW (residential habilitation centers), or any other facility licensed by the department.

"Medical device" as used in this chapter, means any piece of medical equipment used to treat a resident's assessed need.

(1) A medical device is not always a restraint and should not be used as a restraint;

(2) Some medical devices have considerable safety risks associated with use; and

(3) Examples of medical devices with known safety risks when used are transfer poles, Posey or lap belts, and side rails.

"Medication administration" means giving resident medications by a person legally authorized to do so, such as a physician, pharmacist or nurse.

"Medication organizer" is a container with separate compartments for storing oral medications organized in daily doses.

"Mental illness" is defined as an Axis I or II diagnosed mental illness as outlined in volume IV of the Diagnostic and Statistical Manual of Mental Disorders (a copy is available for review through the aging and disability services administration).

"Multiple facility provider" means a provider who is licensed to operate more than one adult family home.

"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.41.100~~)) 9A.42.100.

"Nurse delegation" means a registered nurse transfers the performance of selected nursing tasks to competent nursing assistants in selected situations. The registered nurse delegating the task retains the responsibility and accountability for the nursing care of the resident.

"Over-the-counter medication" is any medication that can be purchased without a prescriptive order, including but not limited to vitamin, mineral, or herbal preparations.

"Personal care services" means both physical assistance and/or prompting and supervising the performance of direct personal care tasks as determined by the resident's needs and does not include assistance with tasks performed by a licensed health professional.

"Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body, is used for discipline or convenience, and is not required to treat the resident's medical symptoms.

"Practitioner" includes a physician, osteopathic physician, podiatric physician, pharmacist, licensed practical nurse, registered nurse, advanced registered nurse practitioner, dentist, and physician assistant licensed in the state of Washington.

"Prescribed medication" refers to any medication (legend drug, controlled substance, and over-the-counter) that is prescribed by an authorized practitioner.

"Provider" means:

(1) Any person who is licensed to operate an adult family home and meets the requirements of this chapter ((~~and chapter 388-112 WAC~~)); or

(2) Any corporation, partnership, or limited liability company that is licensed under this chapter to operate an adult family home and meets the requirements of this chapter.

"Resident" means any adult unrelated to the provider who lives in the adult family home and who is in need of care. Except as specified elsewhere in this chapter, for decision-making purposes, the term "resident" includes the resident's surrogate decision maker acting under state law.

"Resident manager" means a person employed or designated by the provider to manage the adult family home and who meets the requirements of this chapter ((~~and chapter 388-112 WAC~~)).

"Significant change" means:

(1) A lasting change, decline or improvement in the resident's baseline physical, mental or psychosocial status;

(2) The change is significant enough so the current assessment and/or negotiated care plan do not reflect the resident's current status; and

(3) A new assessment may be needed when the resident's condition does not return to baseline within a two week period of time.

"Special care" means care beyond personal care services as defined in this section.

"Staff" means any person who:

(1) Is employed or used by an adult family home, directly or by contract, to provide care and services to any resident.

(2) Staff must meet all of the requirements in this chapter and chapter 388-112 WAC.

"Unsupervised" means not in the presence of:

(1) Another employee or volunteer from the same business or organization; or

(2) Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to which the employee, student or volunteer has access during the course of his or her employment or involvement with the business or organization.

"Usable floor space" means resident bedroom floor space exclusive of:

(1) Toilet rooms;

(2) Closets;

(3) Lockers;

(4) Wardrobes;

(5) Vestibules, and

(6) The space required for the door to swing if the bedroom door opens into the resident bedroom.

"Water hazard" means any body of water over twenty-four inches in depth that can be accessed by a resident, and includes but not limited to:

(1) In-ground, above-ground, and on-ground pools;

(2) Hot tubs, spas;

(3) Fixed-in-place wading pools;

(4) Decorative water features;

(5) Ponds; or

(6) Natural bodies of water such as streams, lakes, rivers, and oceans.

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

"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;

(2) Found incapacitated under chapter 11.88 RCW;

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

(4) Admitted to any facility;

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

(6) Receiving services from an individual provider; or

(7) With a functional disability who lives in his or her own home, who is directing and supervising a paid personal aide to perform a health care task as authorized by RCW 74.39.050.

[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10000, filed 1/15/10, effective 2/15/10; 09-03-029, § 388-76-10000, filed 1/12/09, effective 2/12/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10000, filed 10/16/07, effective 1/1/08.]

AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)

WAC 388-76-10130 Qualifications--Provider, entity representative and resident manager. The adult family home must ensure that the provider, entity representative and resident manager have the following minimum qualifications:

(1) Be twenty-one years of age or older;

(2) Have a United States high school diploma or general education development certificate, or any English translated government document of the following:

(b) Graduation from a foreign college, foreign university, or United States community college with a two-year diploma, such as an Associate's degree;

(c) Admission to, or completion of course work at a foreign or United States college or university for which credit was awarded;

(d) Graduation from a foreign or United States college or university, including award of a Bachelor's degree;

(e) Admission to, or completion of postgraduate course work at, a United States college or university for which credits were awarded, including award of a Master's degree; or

(f) Successful passage of the United States board examination for registered nursing, or any professional medical occupation for which college or university education was required.

(3) ((~~Meet~~)) Completion of the ((~~department's~~)) training requirements ((of)) that were in effect on the date they were hired, including the requirements described in chapter 388-112 WAC;