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

     Purpose: The department is creating this chapter to formalize the due process rights and abuse reporting requirements for individuals working in state residential habilitation centers (RHCs) that are also intermediate care facilities for persons with intellectual disabilities (ICFs/ID).

     Vulnerable adult abuse reporting requirements and due process rights are codified in chapters 388-78A and 388-97 WAC, and chapters 74.34 and 34.05 RCW for individuals working in ICFs/ID that are licensed boarding homes or nursing homes. All staff working in ICFs/ID, including state RHCs is [are] subject to the requirements in chapter 74.34 RCW.

     The department is proposing new sections: WAC 388-111-0001 Definitions, 388-111-0010 Mandated reporting to the department, 388-111-0020 Mandated reporting to law enforcement, 388-111-0030 Mandated reporting policies and procedures, 388-111-0040 Resident and client protection program -- Investigation of reports of abandonment, abuse, neglect, or financial exploitation, 388-111-0050 Resident and client protection program -- Notice to individual of preliminary findings, 388-111-0060 Resident and client protection program -- Notice to others of preliminary findings, 388-111-0070 Resident and client protection program -- Disputing a preliminary finding, 388-111-0080 Resident and client protection program -- Disputing a preliminary finding -- Hearing procedures, 388-111-0090 Resident and client protection program -- Finalizing the preliminary finding, 388-111-0100 Resident and client protection program -- Reporting final findings, 388-111-0110 Resident and client protection program -- Appeal of administrative law judge's initial order or finding, 388-111-0120 Resident and client protection program -- Disclosure of investigative and finding information, 388-111-0130 Notice -- Service complete, and 388-111-0140 Notice -- Proof of service.

     Statutory Authority for Adoption: Chapter 74.34 RCW, RCW 74.08.090, and 71A.12.030.

      Adopted under notice filed as WSR 11-02-073 on January 5, 2011.

     A final cost-benefit analysis is available by contacting John Gaskell, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-3210, fax (360) 438-7903, e-mail gaskejw@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     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.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 15, Amended 0, 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 15, Amended 0, Repealed 0.

     Date Adopted: March 9, 2011.

Susan N. Dreyfus

Secretary

     "Abuse" means the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment of a vulnerable adult. 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. Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult, which have the following meanings:

     (1) "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 resident from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.

     (2) "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 or physical restraints unless the restraint is consistent with certification requirements.

     (3) "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 and a resident, whether or not it is consensual.

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

     "Administrative hearing" is a formal hearing proceeding before a state administrative law judge that gives an individual an opportunity to appeal a finding of abandonment, abuse, neglect or financial exploitation of a resident.

     "Administrative law judge (ALJ)" means an impartial decision maker who presides over an administrative hearing. ALJs are employed by the office of administrative hearings (OAH), which is a separate state agency. ALJs are not DSHS employees or DSHS representatives.

     "Department" means the department of social and health services (DSHS).

     "Facility":

     (1) Except as defined in subsection (2) of this definition, the term "facility" means an intermediate care facility for persons with intellectual disabilities (ICF/ID).

     (2) When used in the definition of "mandated reporter", the term "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; or chapter 71A.20 RCW, residential habilitation centers; or any other facility licensed by the department.

     "Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any individual for his or her profit or advantage.

     "Individual" means anyone used by the facility to provide services to residents, who is alleged to have abandoned, abused, neglected, misappropriated property of, or financially exploited a resident. "Individual" includes, but is not limited to, employees, contractors and volunteers. "Individual" also includes a person used by the certified nursing facility portion of a residential habilitation center operated under chapter 71A.20 RCW.

     "Intermediate care facility for persons with intellectual disabilities (ICF/ID)" means an institution certified under chapter 42 C.F.R., Part 483, Subpart I, unless the facility is licensed as a nursing home under chapter 18.51 RCW or as a boarding home under chapter 18.20 RCW.

     "Mandated reporter" is an employee of the department; law enforcement officer; social worker; professional school personnel; individual provider; an employee of a facility; an operator of a facility; an employee of a social service, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agency; county coroner or medical examiner; Christian Science practitioner; or health care provider subject to chapter 18.130 RCW.

     "Neglect" means that an individual or entity with a duty to care for residents has:

     (1) By an act or omission, demonstrated a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the resident's health, welfare or safety; or

     (2) Through conduct or inaction, or a pattern of conduct or inaction, failed to provide a resident with the goods and services that maintain physical or mental health of a vulnerable adult, or that failed to avoid or prevent physical harm, pain, mental anguish, or mental illness.

     "Resident" means an individual residing in a facility or in the certified nursing facility portion of a residential habilitation center operated under chapter 71A.20 RCW.

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

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     (1) Must comply with reporting requirements under chapter 74.34 RCW and this chapter;

     (2) Must immediately make mandated reports to the department's centralized toll free complaint telephone number or fax number when:

     (a) There is reasonable cause to believe that a vulnerable adult, as defined in chapter 74.34 RCW, has been abandoned, abused, neglected, or financially exploited; or

     (b) There is a reason to suspect physical or sexual assault.

     (3) Must make any other written and oral reports as required by the department; and

     (4) Must protect the alleged victim and others from further abuse, neglect, abandonment, and financial exploitation.

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     (1) Sexual assault - Any alleged or suspected sexual assault;

     (2) Physical assault (nonclient to client) - Any suspected physical assault as well as any act that causes fear of imminent harm; and

     (3) Physical assault (client to client) - Any suspected physical assault that causes bodily injury requiring more than first aid, or in the event of:

     (a) Injuries that appear on the back, face, head, neck, chest, breasts, groin, inner thigh, buttock, genital, or anal area;

     (b) Fractures;

     (c) Choking attempts;

     (d) Patterns of physical assault between the same vulnerable adults or involving the same vulnerable adults;

     (e) A reasonable cause to believe that an act has caused fear of imminent harm; and

     (f) Any incident, regardless of injury, if requested by the client, his/her legal representative, or family member.

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     (a) Immediately reporting mandated reporting incidents to:

     (i) The department and law enforcement;

     (ii) The facility; and

     (iii) The alleged victim's legal representative.

     (b) Protecting clients;

     (c) Preserving evidence when necessary; and

     (d) Initiating an outside review or investigation.

     (2) The facility must not have or implement any policies or procedures that interfere with a mandated reporter's obligation to report.

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     (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, 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.

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     (2) The department may establish proof of service as provided in WAC 388-111-0140.

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     (1) Other divisions within the department;

     (2) The facility where the incident occurred;

     (3) The employer or program that is currently associated with the individual;

     (4) Law enforcement;

     (5) Other entities as authorized by law, including chapter 74.34 RCW and this chapter; and

     (6) The appropriate licensing agency.

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     (2) The request must be made in writing to the office of administrative hearings and include the following information:

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

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

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

     (d) The individual's signature.

     (3) The office of administrative hearings must receive the individual's written request for an administrative hearing within thirty calendar days of the date of the notice of the preliminary finding; except under the circumstances described in WAC 388-111-0080.

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     (2) The hearing, and any subsequent appeals, will be governed by this chapter, chapter 34.05 RCW, and chapter 388-02 WAC.

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

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     (a) The department notifies the individual of a preliminary finding and the individual does not ask for an administrative hearing within the time frame provided under WAC 388-111-0080.

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

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

     (ii) Issues an initial order upholding the finding.

     (c) 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 subsection (3) of this section.

     (3) A final finding may be removed from the department's registry and, as appropriate, any other department lists under the following circumstances:

     (a) The department determines the finding was made in error;

     (b) The finding is rescinded following judicial review; or

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

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     (1) The individual;

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

     (3) The superintendent or 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.

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     (2) If the individual appeals the administrative law judge's decision, the finding will remain on the department's registry or other lists, unless removal is required under WAC 388-111-0090(3).

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     (2) Confidential information 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.

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     (1) Personal service is made;

     (2) The notice is addressed to the facility or to the individual at his or her last known address, and deposited in the United States mail;

     (3) The notice is faxed and the department receives evidence of transmission;

     (4) Notice is delivered to a commercial delivery service with charges prepaid; or

     (5) Notice is delivered to a legal messenger service with charges prepaid.

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     (1) A declaration of personal service;

     (2) An affidavit or certificate of mailing to the facility or to the individual to whom the notice is directed;

     (3) A signed receipt from the person who accepted the certified mail, the commercial delivery service, or the legal messenger service package; or

     (4) Proof of fax transmission.

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