WSR 14-21-134 PROPOSED RULES DEPARTMENT OF SOCIAL AND HEALTH SERVICES (Aging and Long-Term Support Administration) [Filed October 20, 2014, 3:54 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-15-110.
Title of Rule and Other Identifying Information: The department is considering adding new sections and amending the following sections in chapter 388-76 WAC, Adult family homes: WAC 388-76-10000 Definitions, 388-76-10037 License requirements—Multiple adult family homes—Additional homes, 388-76-10125 License—May be denied, 388-76-10130 Qualifications—Provider, entity representative and resident manager, 388-76-10146 Qualifications—Training and home care aide certification, 388-76-10315 Resident record—Required, 388-76-10525 Resident rights—Description, 388-76-10535 Resident rights—Notice of change to services, 388-76-10540 Resident rights—Disclosure of fees and charges—Notice requirements—Deposits, 388-76-10595 Resident rights—Advocacy access and visitation rights, 388-76-10615 Resident rights—Transfer and discharge, 388-76-10925 Disclosure of inspection and complaint investigation reports, 388-76-10935 Washington protection and advocacy—Long-term care ombudsman—Official duties—Penalty for interference, 388-76-10960 Remedies—Department may impose remedies, 388-76-10975 Remedies—Specific—Civil penalties, 388-76-10980 Remedies—Specific—Stop placement—Admissions prohibited; and other related rules as appropriate.
Hearing Location(s): Office Building 2, Lookout Room, 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), on December 9, 2014, at 10:00 a.m.
Date of Intended Adoption: Not earlier than December 10, 2014.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., December 9, 2014.
Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, by November 25, 2014, TTY (360) 664-6178 or (360) 664-6092 or by e-mail Kildaja@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending these rules to comply with and be consistent with newly passed state laws: SHB 1629 Home care aides—Credentialing and continuing education, EHB 1677 Adult family homes—Multiple facility operators, SHB 1686 K-12 Schools—High school equivalency certificates, SSB 5077 Statutes—Gender-neutral terms, SB 5510 Vulnerable adults—Abuse, and SSB 5630 Vulnerable adults—Adult family homes. In additional [addition] the department is amending rules to comply with SHB 2056 Assisted living facilities, passed (chapter 10, Laws of 2012) in the 2012 legislative session, which change the terminology of "boarding home" to assisted living facility.
Reasons Supporting Proposal: The department is amending these rules to comply with and be consistent with newly passed state laws.
Statutory Authority for Adoption: Chapter 70.128 RCW.
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: Christi Pederson, P.O. Box 45600, Olympia, WA 98513, (360) 725-3204; Implementation: Carl Walters, P.O. Box 45600, Olympia, WA 98513, (360) 725-2401; and Enforcement: Bett Schlemmer, P.O. Box 45600, Olympia, WA 98513, (360) 725-2403.
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 statutes or regulations.
October 16, 2014
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 14-14-028, filed 6/24/14, effective 7/25/14)
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 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, safety, and well-being 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)) Assisted Living Facilities), 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 by a person or entity with duty of care 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.
"Permanent restraining order" means a restraining order and/or order of protection issued either following a hearing, or by stipulation of the parties. A "permanent" order may be in force for a specific time period (for example, one year), after which it expires.
"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 chapter 18.330 RCW 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.
"Temporary restraining order" means restraining order or order of protection that expired without a hearing, was dismissed following an initial hearing, or was dismissed by stipulation of the parties before an initial hearing.
"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)) individuals with developmental disabilities 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.
AMENDATORY SECTION (Amending WSR 12-01-004, filed 12/7/11, effective 1/7/12)
WAC 388-76-10037 License requirements—Multiple adult family homes—Additional homes.
The department will only accept and process an application for an additional license as follows:
(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.)) as follows:
(a) When twelve months have passed since the previous adult family home license and the department has taken no enforcement actions against the applicant's currently licensed adult family homes during the twelve months prior to application;
(b) When less than twelve months have passed since the previous adult family home license was granted; and
(i) The applications are due to the change in ownership of existing adult family homes that are currently licensed; and
(ii) No enforcement action was taken against any of the applicant's currently licensed homes during the twelve months prior to application.
AMENDATORY SECTION (Amending WSR 14-14-028, filed 6/24/14, effective 7/25/14)
WAC 388-76-10125 License—May be denied.
The adult family home license may be denied if the applicant or the applicant's spouse, domestic partner, or any partner, officer, director, managerial employee or majority owner of the applying entity:
(1) Has any conviction or pending criminal charge for crime that is not automatically disqualifying under chapter 388-113 WAC, but 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;
(2) Has abused, neglected, or financially exploited a vulnerable adult, unless denial is required under WAC 388-76-10120.
(3) Has engaged in the illegal use, sale or distribution of drugs or excessive use of alcohol or drugs without the evidence of rehabilitation;
(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 a license denial under WAC 388-76-10120;
(5) Has had a license for the care of children or vulnerable adults denied, suspended, revoked, or not renewed. In connection with the operation of any facility for the care of children or vulnerable adults, relinquished or returned a license, or did not seek license renewal following written notification that the licensing agency intended to deny, suspend, or revoke the license, unless such action requires a license denial under WAC 388-76-10120;
(6) Has a history of prior violations of chapter 70.128 RCW or any law regulating residential care facilities that resulted in revocation, suspension, or nonrenewal of a license;
(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 or 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 or 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 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 other applicable laws and regulations.
(15) Misappropriated property of a resident, unless such action requires a license denial under WAC 388-76-10120;
(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) 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;
(19) 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;
(20) Has failed to meet personal financial obligations;
(21) Interfered with a long-term care ((ombudsman)) ombuds or department staff in the performance of his or her duties;
(22) Has not demonstrated financial solvency or management experience in its currently licensed homes, or has not demonstrated the ability to meet other relevant safety, health, and operating standards pertaining to the operation of multiple homes, including ways to mitigate the potential impact of vehicular traffic related to the operation of the homes; or
(23) The home is currently licensed:
(a) As an assisted living facility; or
(b) To provide care for children in the same home, unless:
(i) It is necessary in order to allow a resident's child(ren) to live in the same home as the resident or to allow a resident who turns eighteen to remain in the home;
(ii) The applicant provides satisfactory evidence to the department of the home's capacity to meet the needs of children and adults residing in the home; and
(iii) The total number of persons receiving care and services in the home does not exceed the number permitted by the licensed capacity of the home.
(24) Failed to give the department access to all parts of the home as authorized under RCW 70.128.090.
(25) Has demonstrated any other factors that give evidence the individual lacks the appropriate character, competence, and suitability to provide care or services to vulnerable adults.
AMENDATORY SECTION (Amending WSR 14-14-028, filed 6/24/14, effective 7/25/14)
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)) high school equivalency certificate as provided in RCW 28B.50.536, or any English or 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, and assure that a person is on staff and available at the home who is 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;
(8) Have completed at least 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. 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 disqualifying criminal convictions or pending criminal charges under chapter 388-113 WAC;
(10) Have none of the negative actions listed in WAC 388-76-10180;
(11) Obtain and keep valid cardiopulmonary resuscitation (CPR) and first-aid card or certificate as required in chapter 388-112 WAC; and
(12) Have tuberculosis screening to establish tuberculosis status per this chapter.
AMENDATORY SECTION (Amending WSR 12-16-087, filed 7/31/12, effective 8/31/12)
WAC 388-76-10146 Qualifications—Training and home care aide certification.
(1) The adult family home must ensure staff persons hired before January 7, 2012 meet training requirements in effect on the date hired, including requirements in chapter 388-112 WAC.
(2) The adult family home must ensure all adult family home caregivers, entity representatives, and resident managers hired on or after January 7, 2012, 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.
(3) All persons listed in subsection (2) of this section, must obtain the home-care aide certification if required by this section or chapters 246-980 or 388-112 WAC.
(a) Until March 1, 2016, a provisional home-care aide certification may be issued by the department of health to a long-term care worker who is limited English proficient.
(4) Even if an adult family home applicant does not intend to provide direct personal care, the applicant must meet the long-term care worker training and home-care aide certification requirements under chapter 388-112 WAC to the same extent that the requirements would apply if the applicant was a long-term care worker.
(5) Under RCW 18.88B.041 and chapter 246-980 WAC, certain individuals, including registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved certified nursing assistant programs, are exempt from home-care aide certification and long-term care worker training requirements. This exemption does not apply to continuing education; these individuals must comply with continuing education requirements under chapter 388-112 WAC.
(6) The adult family home must ensure that all staff receive the orientation and training necessary to perform their job duties.
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 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10315 Resident record—Required.
The adult family home must:
(1) Create, maintain, and keep records for residents in the home where the resident lives and ensure that the records:
(a) Contain enough information so home can provide the needed care and services to each resident;
(b) Be in a format useful to the home;
(c) Be kept confidential so that only authorized persons see their contents;
(d) Are only released to the following persons:
(i) A health care institution;
(ii) When requested by the law;
(iii) To department representatives; and
(iv) To the resident;
(e) Be protected to prevent loss, alteration or destruction and unauthorized use;
(f) Be kept for three years after the resident leaves the home or death of the resident;
(g) Be available so that department staff may review them when requested; and
(h) Provide access to the resident to review their record and obtain copies of their record at a reasonable cost.
(2) Ensure staff has access to the parts of residents' records needed by staff to provide care and services; and
(3) Allow representatives of the long-term care ((ombudsman)) ombuds access to a resident record if approved by the resident.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10525 Resident rights—Description.
The adult family home must give each resident a written description of resident's rights that includes a:
(1) Description of how the home will protect personal funds;
(2) Posting of names, addresses, and telephone numbers of the:
(a) State survey and certification agency;
(b) State licensing office;
(c) State ((ombudsmen)) ombuds program; and
(d) Protection and advocacy systems.
(3) Statement informing the resident that he or she may file a complaint with the appropriate state licensing agency concerning alleged abandonment, abuse, neglect, or financial exploitation.
NEW SECTION
WAC 388-76-10532 Resident rights—Standardized disclosure of services form
The adult family home is required to complete the department's standardized disclosure of services form.
(1) The home must:
(a) List on the form the scope of care and services available in the home;
(b) Send the completed form to the department; and
(c) Provide an updated form to the department thirty days prior to changing services, except in emergencies, when the scope of care and services is changing.
(2) The form does not:
(a) Replace the notice of services required when a resident is admitted to the adult family home as directed in chapter 388-76-10530 WAC.
(b) Replace any other form or policy as required in chapter 388-76 WAC.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10535 Resident rights—Notice of change to services.
(1) The adult family home must inform each resident:
(a) In writing; and
(b) In advance of changes in the availability of, or the charges for services, items, or activities, or of changes in the home's rules.
(2) The home must provide notice:
(a) ((Thirty days before the change, except in emergencies; or
(b) Fourteen days before the change, if there has been a substantial and continuing change in the resident's condition necessitating substantially greater or lesser services, items, or activities)) Give residents thirty days notice prior to the effective date of the change if the home decreases services due to circumstances beyond the home's control; and
(b) Give residents ninety days notice prior to the effective date of the increase if the home voluntarily decreases services and the change results in the discharge of at least one resident.
(3) The home is not required to give notice:
(a) If the home gives each resident written notice of the availability and charges of services, items and activities before admission, when there are changes and every twenty-four months; and
(b) If the resident is provided different or additional services, items or activities from the home.
AMENDATORY SECTION (Amending WSR 12-01-004, filed 12/7/11, effective 1/7/12)
WAC 388-76-10540 Resident rights—Disclosure of fees and charges—Notice requirements—Deposits.
(1) ((If the)) The adult family home ((requires payment of an admission fee, deposit, prepaid charges or any other fees or charges, by or on behalf of a person seeking admission)) must complete the disclosure of charges forms as provided by the department and provide a copy of it to each resident who is admitted to the home.
(2) If the adult family home chooses to provide its own disclosure of fees and charges to residents in addition to the form required by the department, the home:
(a) Must give full disclosure in writing;
(b) In a language the resident understands;
(c) Prior to the receipt of any funds.
(((2))) (3) The disclosure must include:
(a) A statement of the amount of any admissions fees, security deposits, prepaid charges, 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, minimum stay fees or any other fees or charges that will be refunded to the resident if the resident leaves the home.
(((3))) (4) 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))) (5) If the home does not provide these disclosures, the home must not keep the security deposits, admission fees, prepaid charges, minimum stay fees, or any other fees or charges.
(((5))) (6) 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))) (7) 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.
(((7))) (8) 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.
(((8))) (9) 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.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10595 Resident rights—Advocacy access and visitation rights.
The adult family home must not interfere with each resident's right to have access to and from:
(1) Any representative of the state;
(2) The resident's own physician;
(4) The agency responsible for the protection and advocacy system for developmentally disabled individuals as established under Part C of the developmental disabilities assistance and bill of rights act;
(5) The agency responsible for the protection and advocacy system for mentally ill individuals as established under the protection and advocacy for mentally ill individuals act;
(6) Immediate family or other relatives of the resident and others who are visiting with the consent of the resident, subject to reasonable limits to protect the rights of others and to the resident's right to deny or withdraw consent at any time;
(7) The agency responsible for the protection and advocacy system for individuals with disabilities as established under section 509 of the Rehabilitation Act of 1973, as amended, who are not served under the mandates of existing protection and advocacy systems created under federal law; and
(8) The resident's representative or an entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10615 Resident rights—Transfer and discharge.
(1) The adult family home must allow each resident to stay in the home, and not transfer or discharge the resident unless:
(a) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the home;
(b) The safety or health of individuals in the home is or would otherwise be endangered;
(c) The resident has failed to make the required payment for his or her stay; or
(d) The home ceases to operate.
(2) Before a home transfers or discharges a resident, the home must:
(a) First attempt through reasonable accommodations to avoid the transfer or discharge, unless agreed to by the resident;
(b) Notify the resident and representative and make a reasonable effort to notify, if known, an interested family member of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand;
(c) Record the reasons in the resident's record; and
(d) Include in the notice the items described in subsection (5) of this section.
(3) Except as specified in (4) of this section, the home must give notice of the transfer or discharge at least thirty days before the resident is transferred or discharged.
(4) The home may make the notice as soon as practicable before transfer or discharge when:
(a) The safety and health of the individuals in the home would be endangered;
(b) An immediate transfer or discharge is required by the resident's urgent medical needs; or
(c) A resident has not resided in the home for thirty days.
(5) The home must include the following in the written notice specified in subsection (2) of this section:
(a) The reason for transfer or discharge;
(b) The effective date of transfer or discharge;
(c) The location where the resident is transferred or discharged;
(d) The name, address, and telephone number of the state long-term care ((ombudsman)) ombuds;
(e) For residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals; and
(f) For residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals.
(6) The home must give residents enough preparation and orientation to ensure a safe and orderly transfer or discharge from the home.
(7) If the home discharges a resident in violation of this section, the home must readmit the resident to the home as soon as a gender-appropriate bed becomes available.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10925 Disclosure of inspection and complaint investigation reports.
((Upon request, the)) (1) The department ((must provide)) make available to the public ((with)) copies, subject to applicable public disclosure and confidentiality requirements, of:
(((1))) (a) Inspection and complaint investigation reports as soon as they are completed;
(((2) The home's plan of correction, if a copy is available at the time of the request; and
(3))) (b) Any final written decision by the department to take an enforcement action.
(2) The department will, upon request, provide the public with copies of the home's plan of correction if a copy is available at the time of the request.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10935 Washington protection and advocacy—Long-term care ombudsman—Official duties—Penalty for interference.
The adult family home must not willfully interfere with a representative of the following in the performance of official duties:
(1) Washington protection and advocacy system as defined under RCW 71A.10.080; or
(2) Long-term care ((ombudsman)) ombuds as defined under chapter 43.190 RCW, the state regulations for the long-term care ombudsman and under federal law.
(3) The department must impose a civil penalty as per WAC 388-76-10975 for any such willful interference with a representative of the long-term care ((ombudsman)) ombuds program.
AMENDATORY SECTION (Amending WSR 12-01-004, filed 12/7/11, effective 1/7/12)
WAC 388-76-10960 Remedies—Department may impose remedies.
The department may impose a remedy or remedies if the department finds any person listed in WAC 388-76-10950:
(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)) ombuds or department staff in the performance of his or her duties; or
(23) Failed to relinquish or surrender the license as required.
AMENDATORY SECTION (Amending WSR 12-01-004, filed 12/7/11, effective 1/7/12)
WAC 388-76-10975 Remedies—Specific—Civil penalties.
(1) The department may impose civil penalties of at least one hundred dollars per day per violation:
(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)) ombuds; 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)) ombuds, the department, the attorney's general office, or a law enforcement agency; and
(c) 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.
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 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10980 Remedies—Specific—Stop placement—Admissions prohibited.
(1) The department may order stop placement and prohibit the admission of residents if the home does not meet the requirements of chapters 70.128, 70.129, 74.32 RCW or this chapter.
(2) Once imposed, the adult family home must not admit any person until the stop placement order is terminated.
(3) If the home requests, the department may approve readmission of a resident to the home from a hospital or nursing home during the stop placement.
(4) The department must end the stop placement ((when)) only after the department finds the:
(a) Deficiencies necessitating the stop placement have been corrected; and
(b) Home can show it has the capacity to maintain adequate care and service.
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