PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services)
Original Notice.
Preproposal statement of inquiry was filed as WSR 11-13-091.
Title of Rule and Other Identifying Information: The department intends to amend WAC 388-76-10000 Definitions, 388-76-10015 License -- Adult family home -- Compliance required, 388-76-10025 License annual fee, 388-76-10035 License requirements -- Multiple home providers, 388-76-10064 Application -- Forty-eight hour class training requirements, 388-76-10070 Application -- Fees required, 388-76-10073 Application -- Processing fees required, WAC 388-76-10080 Application -- Coprovider, 388-76-10105 Application -- Change of ownership, 388-76-10120 License -- Must be denied, 388-76-10130 Qualifications -- Provider, entity representative and resident manager, 388-76-10146 Qualifications -- Training and home care aide certification requirements, 388-76-10160 Background check -- General, 388-76-10174 Background check -- Disclosure of information by health care facilities, 388-76-10395 Emergency admissions, 388-76-10540 Resident rights -- Disclosure of fees and notice requirements -- Deposits, 388-76-10570 Resident rights -- Financial affairs related to resident death, 388-76-10915 Department staff access -- Willful interference prohibited, 388-76-10945 Remedies -- Imposition of remedies -- Serious risk -- Recurring violations -- Uncorrected violations, 388-76-10960 Remedies -- Department may impose remedies, and 388-76-10975 Remedies -- Specific -- Civil penalties, and other related rules as appropriate.
The department intends to repeal WAC 388-76-10162 Background check -- National fingerprint checks -- Who is required to have.
The department intends to add new sections WAC 388-76-10037 Multiple adult family homes -- Additional homes, 388-76-10561 Resident rights -- Resident security deposit account, 388-76-10911 Inspection-Multiple adult family home providers, 388-76-10946 Remedies -- Increasing severity for certain violations, 388-76-10947 Remedies -- Criteria considered, and 388-76-10976 Remedies -- Civil fine grid.
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 October 25, 2011, at 10:00 a.m.
Date of Intended Adoption: Not earlier than October 26, 2011.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on October 25, 2011.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by October 6, 2011, 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 department is amending these rules as a result of legislative activity during session and to be consistent with newly passed state laws: ESHB 1548 Implementation of long-term care worker requirements regarding background checks and training, ESHB 1277 Oversight of licensed or certified long-term care settings for vulnerable adults, SSB 5042 Vulnerable adults protection, and 2E2SHB 1738 Changing the designation of the medicaid single state agency.
Reasons Supporting Proposal: See above.
Statutory Authority for Adoption: RCW 70.128.040.
Statute Being Implemented: Chapter 70.128 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: Mike Tornquist, P.O. Box 45600, Olympia, WA 98513, (360) 725-3204; Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98513, (360) 725-2404.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025(3), a small business economic impact statement is not required for rules adopting or incorporating, by reference without material change, Washington state statutes or federal statutes or regulations.
A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b), a cost-benefit analysis is not required for rules adopting or incorporating, by reference without material change, Washington state statutes or federal statues or regulations.
August 31, 2011
Katherine I. Vasquez
Rules Coordinator
4306.3"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 contact may include interactions that do not involve touching, including but not limited to sending a resident sexually explicit messages, or cuing or encouraging a resident to perform sexual acts. 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" 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, control over, or withholding of the property, income, resources, or trust funds of the vulnerable adult by any person or entity for any person's or entity's profit or advantage other than for the vulnerable adult's profit or advantage. Some examples of financial exploitation are given in RCW 74.34.020(6).
"Financial solvency" means that the applicant or provider is able to meet debts or financial obligations with some money to spare.
"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.
"Imminent danger" or "immediate threat" means serious physical harm to or death of a resident has occurred, or there is a serious threat to the resident's life, health or safety.
"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 health and safety of residents, and 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).
"Minimal" means violations that result in little or no negative outcome and/or little or no potential harm for a resident.
"Moderate" means violations that result in negative outcome and actual or potential harm for a resident.
"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.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.
"Placement agency" is an "elder or vulnerable adult referral agency" as defined in RCW 18.XXX and means a business or person who receives a fee from or on behalf of a vulnerable adult seeking a referral to care services or supportive housing or who receives a fee from a care services provider or supportive housing provider because of any referral provided to or on behalf of a vulnerable adult.
"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; 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.
"Recurring" or "repeated" means that the department has cited the adult family home for a violation of applicable licensing laws or rules and the circumstances of (1) and (2) of this definition are present:
(1) The department previously imposed an enforcement remedy for a violation of the same section of law or rule for substantially the same problem following any type of inspection within the preceding thirty-six months; or
(2) The department previously cited a violation under the same section of law or rule for substantially the same problem following any type of inspection on two occasions within the preceding thirty-six months.
(3) If the previous violation in (1) or (2) of this definition was pursuant to a law or rule that has changed at the time of the new violation, a citation to the equivalent current law or rule section is sufficient.
"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.
"Serious" means violations that result in one or more negative outcomes and significant actual harm to residents that does not constitute imminent danger; and or, there is reasonable predictability of recurring actions, practices, situations or incidents with potential for causing significant harm to a resident.
"Severity" means the seriousness of a violation as determined by actual or potential negative outcomes for residents and subsequent actual or potential for harm. Outcomes include any negative effect on the resident's physical, mental or psychosocial well being (i.e., safety, quality of life, quality of care).
"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.
"Uncorrected" means the department has cited a violation of WAC or RCW following an inspection and the violation remains uncorrected at the time of a subsequent inspection for the specific purpose of verifying whether such violation has been corrected.
"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 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, chapter 74.39A RCW. 10-16-082, § 388-76-10000, filed 7/30/10, effective 1/1/11. 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.]
(2) The provider is ultimately responsible for the day-to-day operation of the adult family home.
[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10015, filed 1/15/10, effective 2/15/10. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10015, filed 10/16/07, effective 1/1/08.]
(2) The home must send the annual license fee to the department upon receipt of notice of fee due.
(3) If the home does not pay the fee when due, the department will impose remedies.
[Statutory Authority: RCW 70.128.040. 09-21-075, § 388-76-10025, filed 10/16/09, effective 11/16/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10025, filed 10/16/07, effective 1/1/08.]
(1) Evidence of successful completion of the forty-eight
hour residential care administrator's training to meet the
applicable requirements of chapter 388-112 WAC((.));
(2) ((Operated an adult family home in Washington for at
least one year without a significant violation of chapters
70.128, 70.129 or 74.34 RCW, this chapter or other applicable
laws and regulations; and
(3))) The ability to operate more than one home((.));
(((4))) (3) The following plans for each home the
applicant intends to operate. Each of the following plans
must be updated and maintained:
(a) A twenty-four hour a day, seven day a week staffing plan;
(b) A plan for managing the daily operations of each home; and
(c) A plan for emergencies, deliveries, staff and visitor parking.
(((5))) (4) A ((credit)) demonstrated history
((considered if the history relates)) of financial solvency
related to the ability to provide care and services((.)); and
(((6))) (5) An entity representative or a resident
manager at each home who is responsible for the care of each
resident at all times.
[Statutory Authority: RCW 70.128.040. 10-04-008, § 388-76-10035, filed 1/22/10, effective 2/22/10. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10035, filed 10/16/07, effective 1/1/08.]
(1) For a second home, if the applicant has maintained the first adult family home license for at least twenty-four months with no enforcement actions as listed in RCW 70.128.160(2) related to a significant violation of chapters 70.128, 70.129 or 74.34 RCW, this chapter or other applicable laws and regulations; and
(2) For a third or additional homes, if a minimum of twelve months have passed since the previous adult family home license was granted and no enforcement action was taken against any of the currently licensed homes.
[]
(2) An applicant and entity representative may not be required to take the forty-eight hour class if there is a change in ownership and the applicant and entity representative are already participants in the operation of a currently licensed home.
(3) An applicant and entity representative must take the forty-eight hour class when the application is for an additional licensed home and the forty-eight hour class has not already been successfully taken.
[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10064, filed 1/15/10, effective 2/15/10.]
(2) The applicant must submit the required fees with the application form.
(((3) The processing fee will be returned as required by
chapter 70.128 RCW.
(4) The license fee will be returned to the applicant if the application is withdrawn, voided or the license is denied.))
[Statutory Authority: RCW 70.128.040. 09-21-075, § 388-76-10070, filed 10/16/09, effective 11/16/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10070, filed 10/16/07, effective 1/1/08.]
[Statutory Authority: RCW 70.128.040. 09-21-075, § 388-76-10073, filed 10/16/09, effective 11/16/09.]
(1) May not apply for separate licenses; and
(2) May apply jointly to be coproviders, if they are both qualified. One person may apply to be a provider without requiring the other person to apply.
[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10080, filed 1/15/10, effective 2/15/10; 09-03-030, § 388-76-10080, 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, § 388-76-10080, filed 10/16/07, effective 1/1/08.]
(2) A change of ownership of an adult family home requires both a new license application and a new license.
(3) A change of ownership occurs when there is a change in:
(a) The provider; or
(b) The control of a provider.
(4) Events which constitute a change of ownership include, but are not limited to:
(a) The form of legal organization of the adult family home is changed, such as when an adult family home forms:
(i) A partnership;
(ii) A corporation;
(iii) A limited liability company; or
(iv) When it merges with another legal organization.
(b) The adult family home transfers business operations and management responsibility to another party, whether or not there is a partial or whole transfer of real property, personal property, or both.
(c) Two people are both licensed as a married couple or domestic partners to operate an adult family home and an event, such as a separation, divorce, or death, results in only one person operating the home.
(d) Dissolution of a business partnership that is licensed to operate the adult family home.
(e) If the adult family home is a corporation and the corporation:
(i) Is dissolved;
(ii) Merges with another corporation, resulting in a change in the control of the provider; or
(iii) Consolidates with one or more corporations to form a new corporation;
(iv) Whether by a single transaction or multiple transactions within a continuous twenty-four month period, transfers fifty percent or more of its shares to one or more of the following:
(A) New or former shareholders; or
(B) Present shareholders, each having less than five percent of the shares before the initial transaction.
(f) Any other event or combination of events that results in a substitution, elimination, or withdrawal of the provider's control of the adult family home.
(5) The new owner:
(a) Must obtain a new license from the department before transfer of ownership;
(b) Must not begin operation of the adult family home until the department has granted the license;
(c) Must correct all deficiencies that exist at the time of the ownership change;
(d) Is subject to the provisions of chapters 70.128, 70.129, 74.34 RCW, this chapter and other applicable laws and regulations; and
(e) Must ensure that any funds in the resident's accounts at the time of the ownership change remain in an equivalent account. If any funds in resident's accounts are moved, the new owner must promptly notify residents in writing of the name, address, and location of the new depository; and
(f) Must provide the department with a copy of the written notice of the change of ownership that was given to each resident, or applicable resident representatives.
[Statutory Authority: RCW 70.128.040. 10-14-058, § 388-76-10105, filed 6/30/10, effective 7/31/10; 10-04-008, § 388-76-10105, filed 1/22/10, effective 2/22/10; 09-03-030, § 388-76-10105, 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, § 388-76-10105, filed 10/16/07, effective 1/1/08.]
(1) The applicant has not successfully completed a department-approved forty-eight hour adult family home administration and business planning class except as provided in WAC 388-76-10064.
(2) It has been less than twenty years since the applicant surrendered or relinquished an adult family home license after receiving notice that the department intended to deny, suspend, not renew or revoke the license.
(3) The applicant or the applicant's spouse, domestic partner, or any partner, officer, director, managerial employee or majority owner of the applying entity:
(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 prior violations of federal or state laws or regulations relating to residential care facilities resulting in revocation, suspension, or nonrenewal of a license or contract with the department within the past ten years;
(c) 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 (3)(c), (d), (e), (f), or (g) below;
(((c))) (d) 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))) (e) 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))) (f) Has been convicted of:
(i) Violation of the Imitation Controlled Substance 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))) (g) Has been convicted of sending or bringing
into the state depictions of a minor engaged in sexually
explicit conduct;
(((g))) (h) Has been convicted of criminal mistreatment;
(((h))) (i) Has been found to have abused, neglected,
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))) (j) 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))) (k) 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.
[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10120, filed 1/15/10, effective 2/15/10; 09-03-028, § 388-76-10120, 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, § 388-76-10120, filed 10/16/07, effective 1/1/08.]
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10,
effective 1/1/11)
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) Completion of the training requirements that were in effect on the date they were hired or became licensed providers, including the requirements described in chapter 388-112 WAC;
(4) Have good moral and responsible character and reputation;
(5) Be literate and able to communicate in the English
language, ((or meet alternative requirements by assuring)) and
assure 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)) 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) Assure that there is a mechanism to communicate with the resident in his or her primary language either through a qualified person on-site or readily available at all times, or other reasonable accommodations, such as a language line.
(7) 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))) (8) Have completed at least ((three hundred and
twenty)) one thousand hours of successful direct care
experience in the previous sixty months obtained after age
eighteen to vulnerable adults in a licensed or contracted
setting before operating or managing a home((;
(8))). Individuals holding one of the following professional licenses are exempt from this requirement:
(a) Physician licensed under chapter 18.71 RCW;
(b) Osteopathic physician licensed under chapter 18.57 RCW;
(c) Osteopathic physician assistant licensed under chapter 18.57A RCW;
(d) Physician assistant licensed under chapter 18.71A RCW;
(e) Registered nurse, advanced registered nurse practitioner, or licensed practical nurse licensed under chapter 18.79 RCW.
(9) 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))) (10) Obtain and keep valid cardiopulmonary
resuscitation (CPR) and first-aid card or certificate as
required in chapter 388-112 WAC; and
(((10))) (11) Have tuberculosis screening to establish
tuberculosis status per this chapter.
[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10130, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10130, filed 10/16/07, effective 1/1/08.]
(2) To establish that a true emergency exists, the home must verify that the resident's life, health or safety is at serious risk due to circumstances in the resident's current place of residence or harm to the resident has occurred.
(3) After establishing that a true emergency exists, the home must:
(a) Ensure the assessment and preliminary service plan are completed within five working days after admitting the resident, if the resident pays for services with private funds; or
(b) Obtain approval from an authorized department case
manager before admission if the resident's care and services
are paid by the ((department)) health care authority; and
(c) If approval is obtained verbally, document the time, date, and name of the case manager who gave approval.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10395, filed 10/16/07, effective 1/1/08.]
(a) Must give full disclosure in writing;
(b) In a language the resident understands;
(c) Prior to the receipt of any funds.
(2) The disclosure must include:
(a) A statement of the amount of any admissions fees,
security deposits, prepaid charges, ((or)) minimum stay fees
or any other fees or charges specifying what the funds are
paid for and the basis for retaining any portion of the funds
if the resident dies, is hospitalized, or is transferred or
discharged from the home;
(b) The home's advance notice or transfer requirements; and
(c) The amount of the security deposits, admission fees,
prepaid charges, ((or)) minimum stay fees or any other fees or
charges that will be refunded to the resident if the resident
leaves the home.
(3) The home must ensure that the receipt of the disclosures required under subsection (1) of this section is in writing and signed and dated by the resident and the home. The home must retain a copy of the disclosure and acknowledgement.
(4) If the home does not provide these disclosures, the
home must not keep the security deposits, admission fees,
prepaid charges, ((or)) minimum stay fees, or any other fees
or charges.
(5) If a resident dies, is hospitalized or is transferred to another facility for more appropriate care and does not return to the home, the adult family home:
(a) Must refund any deposit or charges already paid less the home's per diem rate for the days the resident actually resided, reserved or retained a bed in the home in spite of any minimum stay policy or discharge notice requirements; except that
(b) May keep an additional amount to cover its reasonable and actual expenses incurred as a result of a private-pay resident's move, not to exceed five days per diem charges; unless the resident has given advance notice in compliance with the admission agreement;
(c) May not require the resident to obtain a refund from a placement agency or person.
(6) The adult family home may not retain funds for reasonable wear and tear by the resident or for any basis that would violate RCW 70.129.150.
(((6))) (7) All adult family homes covered under this
section are required to refund any and all refunds due the
resident within thirty days from the resident's date of
discharge from the home.
(((7))) (8) Nothing in this section applies to provisions
in contracts negotiated between a home and a certified health
plan, health or disability insurer, health maintenance
organization, managed care organization, or similar entities.
(((8))) (9) If the home requires an admission agreement
by or on behalf of an individual seeking admission the home
must ensure the terms of the agreement are consistent with the
requirements of this section, chapters 70.128, 70.129 and
74.34 RCW, and other applicable state and federal laws.
[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10540, filed 1/15/10, effective 2/15/10. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10540, filed 10/16/07, effective 1/1/08.]
(1) Must be deposited by the adult family home in an interest bearing account that is separate from any of the home's operating accounts and credits all interest earned on the resident's funds to that account. The adult family home must:
(a) Ensure that a record of the account is available upon the request of the resident or their representative;
(b) Not commingle resident funds from these accounts with the adult family home's funds or with the funds of any person other than another resident. If resident funds are commingled, the home must provide each resident with a separate accounting for their share;
(c) Ensure that the account or accounts are held in a financial institution as defined in RCW 30.22.041, and notify each resident in writing of the name, address, and location of the depository.
[]
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10570, filed 10/16/07, effective 1/1/08.]
[]
(1) Department staff have access to:
(a) The home, residents, including former residents;
(b) Resident records, includes former residents records;
((and))
(c) Facility staff and relevant staff records; and
(d) Financial records of the business if good cause to believe that a financial obligation related to resident care or services will not be met.
(2) The home and staff do not willfully interfere or fail to cooperate with department staff in the performance of official duties.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10915, filed 10/16/07, effective 1/1/08.]
(1) Serious;
(2) Recurring;
(3) Uncorrected; or
(4) An immediate threat to residents.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10945, filed 10/16/07, effective 1/1/08.]
(1) Recurring; or
(2) Uncorrected.
[]
(1) The seriousness of the harm or possible harm to residents;
(2) The specific facts of the case;
(3) The compliance history of the provider including:
(a) Which remedies have been imposed;
(b) When the remedies were imposed; and
(c) The frequency of remedy imposition.
(4) Whether the noncompliance is:
(a) Pervasive;
(b) Recurring; and
(c) Uncorrected.
[]
(1) Has been convicted of:
(a) Any felony that the department determines is reasonably related to the competency of the person to be involved in the ownership or operation of an adult family home; or
(b) A crime involving a firearm used in the commission of a felony or in any act of violence against a person.
(2) Has engaged in the illegal use, sale or distribution of drugs or excessive use of alcohol or drugs without the evidence of rehabilitation;
(3) Has committed an act of domestic violence toward a family or household member;
(4) Has been found in any final decision of a federal or state agency to have abandoned, neglected, abused, or financially exploited a vulnerable adult, unless such decision requires imposition of a remedy under WAC 388-76-10955;
(5) Has had a license for the care of children or vulnerable adults denied, suspended, revoked, or not renewed;
(6) Has a history of violations of chapter 70.128 RCW, or any law regulating residential care facilities, that resulted in revocation, suspension, or nonrenewal of a license with the department;
(7) Has been enjoined from operating a facility for the care and services of children or adults;
(8) Has had a medicaid or medicare provider agreement or any other contract for the care and treatment of children or vulnerable adults, terminated, cancelled, suspended, or not renewed by any public agency, including a state medicaid agency;
(9) Has been the subject of a sanction, corrective, or remedial action taken by federal, state, county, or municipal officials or safety officials related to the care or treatment of children or vulnerable adults;
(10) Has obtained or attempted to obtain a license by fraudulent means or misrepresentation;
(11) Knowingly, or with reason to know, made a false statement of material fact on his or her application for a license or any data attached to the application, or in any matter involving the department;
(12) Permitted, aided, or abetted the commission of any illegal act on the adult family home premises;
(13) Willfully prevented, interfered with, or failed to cooperate with any inspection, investigation, or monitoring visit made by the department, including refusal to permit authorized department representatives to interview residents or have access to their records;
(14) Failed or refused to comply with:
(a) A condition or limit imposed on a license or a stop placement order; or
(b) The requirements of chapters 70.128, 70.129, 74.34 RCW, this chapter or any other applicable laws.
(15) Misappropriated property of a resident, unless such action requires a remedy under WAC 388-76-10955;
(16) Exceeded licensed capacity in the operation of an adult family home;
(17) Operated a facility for the care of children or adults without a license or with a revoked license;
(18) In connection with the operation of any facility for the care of children or adults, relinquished or returned a license, or did not seek license renewal following written notification that the licensing agency intends to deny, suspend, cancel or revoke the license, unless such action requires imposition of a remedy under WAC 388-76-10955;
(19) When providing care to children or vulnerable adults, has had resident trust funds or assets seized by the Internal Revenue Service or a state entity for failure to pay income or payroll taxes;
(20) Failed to meet financial obligations as the obligations fell due in the normal course of owning or operating a business involved in the provision of care and services to children or vulnerable adults;
(21) Has failed to meet personal financial obligations and that failure has resulted in a failure to provide necessary care and services to the residents;
(22) Interfered with a long-term care ombudsman or department staff in the performance of his or her duties; or
(23) Failed to relinquish or surrender the license as required.
[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10960, filed 1/15/10, effective 2/15/10; 09-03-028, § 388-76-10960, 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, § 388-76-10960, filed 10/16/07, effective 1/1/08.]
(a) Fines up to one thousand dollars can be issued under RCW 70.128.150 for willful interference with a representative of the long-term care ombudsman; and
(b) Fines up to three thousand dollars can be issued under RCW 74.39A.060 for retaliation against a resident, employee, or any other person making a complaint, providing information to, or cooperating with, the ombudsman, the department, the attorney's general office, or a law enforcement agency;
(c) Fines up to three hundred dollars for each inspection may be issued under RCW 70.128.065(5) when one or more actions listed in RCW 70.128.160(2) is imposed on multiple home provider and inspections of other homes are required to determine whether the same or related deficiencies are present in those homes; and
(d) Fines up to ten thousand dollars may be issued under RCW 70.128.065(2) for a current or former licensed provider who is operating an unlicensed home.
(2) When the adult family home fails to pay a fine under this chapter when due, the department may, in addition to other remedies, withhold an amount equal to the fine plus interest, if any, from any contract payment due to the provider from the department.
(3) Civil monetary penalties are due twenty-eight days after the adult family home or the owner or operator of an unlicensed adult family home is served with notice of the penalty unless the adult family home requests a hearing in compliance with chapter 34.05 RCW, RCW 43.20A.215, and this chapter. If the hearing is requested, the penalty becomes due ten days after a final decision in the department's favor is issued. Thirty days after the department serves the adult family home with notice of the penalty, interest begins to accrue at a rate of one percent per month as authorized by RCW 43.20B.695.
[Statutory Authority: RCW 70.128.040. 10-04-008, § 388-76-10975, filed 1/22/10, effective 2/22/10. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10975, filed 10/16/07, effective 1/1/08.]
| NO HARM | MINIMAL or MODERATE HARM | SERIOUS HARM | IMMINENT DANGER and/or IMMEDIATE THREAT | ||
| Repeat / Uncorrected | Initial | Repeat / Uncorrected | Initial | Repeat / Uncorrected | Any Violation |
| Civil fine up to $100 per violation | Civil fine up to $500 per violation or a daily civil fine of at least $250 per day | Civil fine up to $1,000 per violation or a daily civil fine of at least $500 per day | Civil fine up to $2,000 per violation or a daily civil fine of at least $1,000 per day | Civil fine up to $3,000 per violation or a daily civil fine of at least $1,500 per day | Civil fine of $3,000 or daily civil fine of at least $1,000 per day |
[]
4307.1(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;
(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 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 required by chapter 246-980 WAC.
(4) Under RCW 18.88B.040 and chapter 246-980 WAC, certain persons including 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.
[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10146, filed 7/30/10, effective 1/1/11.]
(1) Washington state background checks including:
(a) Department and department of health findings; and
(b) Criminal background check information from the Washington state patrol and the Washington state courts.
(2) ((After January 1, 2012, a national fingerprint-based
check in accordance with RCW 74.39A.055.
(3))) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the adult family home.
(((4))) (3) In addition to chapter 70.128 RCW, these
rules are authorized by RCW 43.20A.710, 43.43.830 through
43.43.842 and RCW 74.39A.050(8).
[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10160, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10160, filed 10/16/07, effective 1/1/08.]
(1) A health care facility may, upon request from another health care facility, share completed Washington state background check results only if:
(a) The health care facility sharing the background check information is reasonably known to be the person's most recent employer;
(b) No more than twelve months has elapsed between the date the person was last employed at a licensed health care facility and the date of the person's current employment application; and
(c) The background check is no more than two years old.
(2) If background check information is shared, the health care facility employing the subject of the check must require the applicant to sign a disclosure statement indicating that there has been no conviction or finding as described in WAC 388-76-10180 since the completion date of the most recent background check.
(3) Any health care facility that knows or has reason to believe that an applicant has or may have a disqualifying conviction or finding as described in WAC 388-76-10180, after the completion date of their most recent background check:
(a) Cannot rely on the applicant's previous employer's background check information; and
(b) Must request a new background check as required by this chapter.
(4) Health care facilities that share background check information shall be immune from any claim of defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of this information in accordance with this section.
(5) Health care facilities must send and receive the background check information in a manner that reasonably protects the subject's rights to privacy and confidentiality.
(6) In accordance with RCW 74.39A.210, a home that discloses information about a former or current employee to certain types of prospective employers is presumed to act in good faith and is immune from civil and criminal liability for such disclosure or its consequences.
[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10174, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 70.128.040. 09-03-030, § 388-76-10174, filed 1/12/09, effective 2/12/09.]
The following section of the Washington Administrative Code is repealed:
| WAC 388-76-10162 | Background check--National fingerprint checks--Who is required to have. |