WSR 11-21-029

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed October 11, 2011, 11:56 a.m. , effective October 21, 2011 ]


Effective Date of Rule: October 21, 2011.

Purpose: The department is extending emergency rules (previously filed as WSR 11-14-016) for sections of chapter 388-76 WAC to comply with ESHB 1548, an act relating to implementation of long-term care worker requirements regarding background checks and training. ESHB 1548 postpones implementation of Initiative Measure 1029 (codified in chapters 18.88B and 74.39A RCW) which mandates increased training and background check requirements for long-term care workers. The law became effective immediately upon filing (June 15, 2011). The department has taken the following steps to adopt the emergency rules as permanent rules: The department has filed an initial public notice (CR-101), WSR 11-13-091 on June 20, 2011. The department has shared drafts of the proposed rules with stakeholders. The department has filed a proposed rule notice (CR-102), WSR 11-18-096 on September 7, 2011, with a public hearing date of October 25, 2011. However, the department needs to file an emergency extension since the permanent rules will not be in effect in time.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-76-10162; and amending WAC 388-76-10146, 388-76-10160, and 388-76-10174.

Statutory Authority for Adoption: RCW 70.128.040.

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal year 2009, 2010, 2011, 2012 or 2013, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

Reasons for this Finding: Emergency adoption of these rules is necessary in order to comply with ESHB 1548 which delays implementation of increased training and background check requirements for long-term care workers. This does not allow the department enough time to adopt rules through the regular rule adoption process.

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 3, Repealed 1.

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 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 0, Amended 3, Repealed 1.

Date Adopted: October 6, 2011.

Katherine I. Vasquez

Rules Coordinator

4307.1
AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10146   Qualifications--Training ((and home care aide certification)) requirements.   (1) The adult family home must ensure all adult family home caregivers, entity representatives, and resident managers ((hired on or after January 1, 2011,)) 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;

(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.]


AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10160   Background check -- General.   Background checks conducted by the department and required in this chapter include but are not limited to:

(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.]


AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10174   Background check--Disclosure of information--Sharing of background information by health care facilities.   In accordance with RCW 43.43.832 a health care facility may share Washington state background check results with other health care facilities under certain circumstances. ((Results of the national fingerprint-based background check may not be shared.)) For the purposes of this section health care facility means a nursing home licensed under chapter 18.51 RCW, a boarding home licensed under chapter 18.20 RCW, or an adult family home licensed under chapter 70.128 RCW.

(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.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-76-10162 Background check--National fingerprint checks--Who is required to have.

Washington State Code Reviser's Office