WSR 16-18-094 PROPOSED RULES DEPARTMENT OF SOCIAL AND HEALTH SERVICES (Aging and Long-Term Support Administration) [Filed September 7, 2016, 11:15 a.m.]
Supplemental Notice to WSR 16-10-060.
Preproposal statement of inquiry was filed as WSR 15-15-125.
Title of Rule and Other Identifying Information: The department is proposing to create WAC 388-97-1090 Direct care hours and amend WAC 388-97-0001 Definitions and 388-97-1080 Nursing services.
The department held a public hearing on June 21, 2016. Comments were received and changes were made. This supplemental CR-102 reflects those changes and other edits.
Hearing Location(s): Office Building 2, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at https://www.dshs.wa.gov/sesa/rules-and-policies-assistance-unit/driving-directions-office-bldg-2), on October 25, 2016, at 10:00 a.m.
Date of Intended Adoption: Not earlier than October 26, 2016.
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., October 25, 2016.
Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, by October 11, 2016, phone (360) 664-6092, TTY (360) 664-6178, or 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 assure compliance with requirements from recently passed legislation SB [SSB] 5600 and SHB 2678 (requirements originally passed through SHB 1274 and revised in SHB 2678 based on the outcome of a stakeholder workgroup).
Reasons Supporting Proposal: This amendment will align the rules with the recent changes to the statue [statute] in regards to the definitions related to vulnerable adults and staffing ratios in nursing homes.
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: Amy Abbott, P.O. Box 45600, Olympia, WA 98513, (360) 725-2327; Implementation: Candace Goehring, P.O. Box 45600, Olympia, WA 98513, (360) 725-2401; and Enforcement: Bett Schlemmer, 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. This rule change is related to a change in chapter 74.42 RCW.
A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b)(iii), 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. This rule change is related to a change in chapter 74.42 RCW.
September 6, 2016
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 14-14-027, filed 6/24/14, effective 7/25/14)
WAC 388-97-0001 Definitions.
"Abandonment" means action or inaction by an individual or entity with a duty of care for a vulnerable adult that leaves the vulnerable individual 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 of a vulnerable adult. In instances of abuse of a vulnerable adult who is unable to express or demonstrate physical harm, pain or mental anguish, the abuse is presumed to cause physical harm, pain, or mental anguish. Abuse includes sexual abuse, mental abuse, physical abuse, ((and)) personal exploitation of a vulnerable adult, and improper use of restraint against a vulnerable adult which have the following meanings:
(1) "Mental abuse" means ((any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a resident from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating,)) a willful verbal or nonverbal action that threatens, humiliates, harasses, coerces, intimidates, isolates, unreasonably confines, or punishes a vulnerable adult. Mental abuse may include ridiculing, yelling, or swearing.
(2) "Physical abuse" means the willful action of inflicting bodily injury or physical mistreatment. Physical abuse includes, but is not limited to, striking with or without an object, slapping, pinching, choking, kicking, shoving, or prodding((, or restraints including chemical restraints, unless the restraint is consistent with licensing requirements)).
(3) "Sexual abuse" means any form of nonconsensual sexual ((contact)) conduct, including, but not limited to, unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual ((contact)) conduct 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)) conduct between a staff person and a resident, whether or not it is consensual.
(4) "Personal exploitation" means an act of forcing, compelling, or exerting undue influence over a ((resident)) vulnerable adult causing the ((resident)) vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the ((resident)) vulnerable adult to perform services for the benefit of another.
(5) "Improper use of restraint" means the inappropriate use of chemical, physical, or mechanical restraints for convenience or discipline or in a manner that:
(a) Is inconsistent with federal or state licensing or certification requirements for facilities, hospitals, or programs authorized under chapter 71A.12 RCW;
(b) Is not medically authorized; or
(c) Otherwise constitutes abuse under this section.
"Administrative hearing" is a formal hearing proceeding before a state administrative law judge that gives:
(1) A licensee an opportunity to be heard in disputes about licensing actions, including the imposition of remedies, taken by the department; or
(2) An individual an opportunity to appeal a finding of abandonment, abuse, neglect, financial exploitation of a resident, or misappropriation of a resident's funds.
"Administrative law judge (ALJ)" means an impartial decision-maker who presides over an administrative hearing. ALJs are employed by the office of administrative hearings (OAH), which is a separate state agency. ALJs are not DSHS employees or DSHS representatives.
"Administrator" means a nursing home administrator, licensed under chapter 18.52 RCW, who must be in active administrative charge of the nursing home, as that term is defined in the board of nursing home administrator's regulations.
"Advanced registered nurse practitioner (ARNP)" means an individual who is licensed to practice as an advanced registered nurse practitioner under chapter 18.79 RCW.
"Applicant" means an individual, partnership, corporation, or other legal entity seeking a license to operate a nursing home.
"ASHRAE" means the American Society of Heating, Refrigerating, and Air Conditioning Engineers, Inc.
"Attending physician" means the doctor responsible for a particular individual's total medical care.
"Berm" means a bank of earth piled against a wall.
"Chemical restraint" means ((a psychopharmacologic drug that is used for discipline or convenience and is not required to treat the resident's medical symptoms)) the administration of any drug to manage a vulnerable adult's behavior in a way that reduces the safety risk to the vulnerable adult or others, has the temporary effect of restricting the vulnerable adult's freedom of movement, and is not standard treatment for the vulnerable adult's medical or psychiatric condition.
"Civil adjudication proceeding" means judicial or administrative adjudicative proceeding that results in a finding of, or upholds an agency finding of, domestic violence, abuse, sexual abuse, neglect, abandonment, violation of a professional licensing standard regarding a child or vulnerable adult, or exploitation or financial exploitation of a child or vulnerable adult under any provision of law, including but not limited to chapter 13.34, 26.44, or 74.34 RCW, or rules adopted under chapters 18.51 and 74.42 RCW. "Civil adjudication proceeding" also includes judicial or administrative findings that become final due to the failure of the alleged perpetrator to timely exercise a legal right to administratively challenge such findings.
"Civil fine" is a civil monetary penalty assessed against a nursing home as authorized by chapters 18.51 and 74.42 RCW. There are two types of civil fines, "per day" and "per instance."
(1) "Per day fine" means a fine imposed for each day that a nursing home is out of compliance with a specific requirement. Per day fines are assessed in accordance with WAC 388-97-4580(1); and
(2) "Per instance fine" means a fine imposed for the occurrence of a deficiency.
"Condition on a license" means that the department has imposed certain requirements on a license and the licensee cannot operate the nursing home unless the requirements are observed.
"Consent" means express written consent granted after the vulnerable adult or his or her legal representative has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary.
"Commuting distance radius" means the one-way travel time between any two points traveling on the generally fastest route without any impediments such as traffic, road work, or road closure.
"Deficiency" is a nursing home's failed practice, action or inaction that violates any or all of the following:
(2) In the case of a medicare and medicaid contractor, participation requirements under Title XVIII and XIX of the Social Security Act and federal medicare and medicaid regulations.
"Deficiency citation" or "cited deficiency" means written documentation by the department that describes a nursing home's deficiency(ies); the requirement that the deficiency(ies) violates; and the reasons for the determination of noncompliance.
"Deficient facility practice" or "failed facility practice" means the nursing home action(s), error(s), or lack of action(s) that provide the basis for the deficiency.
"Dementia care" means a therapeutic modality or modalities designed specifically for the care of persons with dementia.
"Denial of payment for new admissions" is an action imposed on a nursing home (facility) by the department that prohibits payment for new medicaid admissions to the nursing home after a specified date. Nursing homes certified to provide medicare and medicaid services may also be subjected to a denial of payment for new admissions by the federal Centers for Medicare and Medicaid Services.
"Department" means the state department of social and health services (DSHS).
"Department on-site monitoring" means an optional remedy of on-site visits to a nursing home by department staff according to department guidelines for the purpose of monitoring resident care or services or both.
"Dietitian" means a qualified dietitian. A qualified dietitian is one who is registered by the American Dietetic Association or certified by the state of Washington.
"Direct care staff" are those individuals who, through interpersonal contact with residents or resident care management, provide care and services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being. Direct care staff does not include individuals whose primary duty is to maintain the long term care facility's physical environment, such as housekeeping.
"Directly supervising" means that the individual responsible for providing oversight to staff is on the premises and quickly and easily available to provide necessary assessments and other direct care of residents.
"Disclosure statement" means a signed statement by an individual in accordance with the requirements under RCW 43.43.834. The statement should include a disclosure of whether or not the individual has been convicted of certain crimes or has been found by any court, state licensing board, disciplinary board, or protection proceeding to have neglected, sexually abused, financially exploited, or physically abused any minor or adult individual.
"Drug" means a substance:
(1) Recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Official National Formulary, or any supplement to any of them; or
(2) Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease.
"Drug facility" means a room or area designed and equipped for drug storage and the preparation of drugs for administration.
"Emergency closure" is an order by the department to immediately close a nursing home.
"Emergency transfer" means immediate transfer of residents from a nursing home to safe settings.
"Entity" means any type of firm, partnership, corporation, company, association, or joint stock association.
"Essential community provider" means a nursing home, which is the only nursing home within a commuting distance radius of at least forty minutes duration, traveling by automobile.
"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 or entity's profit or advantage other than the vulnerable adult's profit or advantage. Some examples of financial exploitation are given in RCW 74.34.020(((6)))(7).
"Geriatric behavioral health worker" means a person with a bachelor's or master's degree in social work, who has received specialized training devoted to mental illness and treatment of older adults.
"Habilitative services" means the planned interventions and procedures which constitute a continuing and comprehensive effort to teach an individual previously undeveloped skills.
"Highest practicable physical, mental, and psychosocial well-being" means providing each resident with the necessary individualized care and services to assist the resident to achieve or maintain the highest possible health, functional and independence level in accordance with the resident's comprehensive assessment and plan of care. Care and services provided by the nursing home must be consistent with all requirements in this chapter, chapters 74.42 and 18.51 RCW, and the resident's informed choices. For medicaid and medicare residents, care and services must also be consistent with Title XVIII and XIX of the Social Security Act and federal medicare and medicaid regulations.
"Informal department review" is a dispute resolution process that provides an opportunity for the licensee or administrator to informally present information to a department representative about disputed, cited deficiencies. Refer to WAC 388-97-4420.
"Inspection" or "survey" means the process by which department staff evaluates the nursing home licensee's compliance with applicable statutes and regulations.
"Intermediate care facility for individuals with intellectual disabilities (ICF/IID)" means an institution certified under chapter 42 C.F.R., Part 483, Subpart I, and licensed under chapter 18.51 RCW.
"Large nonessential community providers" means nonessential community providers that have more than sixty licensed nursing home beds, even if some of those beds are not set up or are not in use.
"License revocation" is an action taken by the department to cancel a nursing home license in accordance with RCW 18.51.060 and WAC 388-97-4220.
"License suspension" is an action taken by the department to temporarily revoke a nursing home license in accordance with RCW 18.51.060 and this chapter.
"Licensee" means an individual, partnership, corporation, or other legal entity licensed to operate a nursing home.
"Licensed practical nurse" means an individual licensed to practice ((as a licensed)) practical nursing under chapter 18.79 RCW((;)).
"Mandated reporter" as used in this chapter means any employee of a nursing home, any health care provider subject to chapter 18.130 RCW, the Uniform Disciplinary Act, and any licensee or operator of a nursing home. Under RCW 74.34.020, mandated reporters also include any employee of the department of social and health services, law enforcement officers, social workers, professional school personnel, individual providers, employees and licensees of assisted living ((facility)) facilities, adult family homes, soldiers' homes, residential habilitation centers, or any other facility licensed by the department, employees of social service, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agencies, county coroners or medical examiners, or Christian Science practitioners.
"Mechanical restraint" means any device attached or adjacent to the vulnerable adult's body that he or she cannot easily remove that restricts freedom of movement or normal access to his or her body. "Mechanical restraint" does not include the use of devices, materials, or equipment that are:
(1) Medically authorized, as required; and
(2) Used in a manner that is consistent with federal or state licensing or certification requirements for facilities.
"Misappropriation of resident property" means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money.
"NFPA" means National Fire Protection Association, Inc.
"Neglect":
(1) In a nursing home licensed under chapter 18.51 RCW, neglect means:
(([(a)])) (a) 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
(b) An act or omission by a person or entity with a 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.
(2) In a skilled nursing facility or nursing facility, neglect also means a failure to provide a resident with the goods and services necessary to avoid physical harm, mental anguish, or mental illness.
"Noncompliance" means a state of being out of compliance with state and/or federal requirements for nursing homes/facilities.
"Nonessential community provider" means a nursing home located within a commuting distance radius of less than forty minutes duration by automobile from another nursing home.
"Nursing assistant" means a nursing assistant as defined under RCW 18.88A.020 or successor laws.
"Nursing facility (NF)" or "medicaid-certified nursing facility" means a nursing home, or any portion of a hospital, veterans' home, or residential habilitation center, that is certified to provide nursing services to medicaid recipients under Section 1919(a) of the federal Social Security Act. All beds in a nursing facility are certified to provide medicaid services, even though one or more of the beds are also certified to provide medicare skilled nursing facility services.
"Nursing home" means any facility licensed to operate under chapter 18.51 RCW.
"Officer" means an individual serving as an officer of a corporation.
"Owner of five percent or more of the assets of a nursing home" means:
(1) The individual, and if applicable, the individual's spouse, who operates, or is applying to operate, the nursing home as a sole proprietorship;
(2) In the case of a corporation, the owner of at least five percent of the shares or capital stock of the corporation; or
(3) In the case of other types of business entities, the owner of a beneficial interest in at least five percent of the capital assets of an entity.
"Partner" means an individual in a partnership owning or operating a nursing home.
"Permanent restraining order" means a restraining order 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.
"Person" means any individual, firm, partnership, corporation, company, association or joint stock association.
"Pharmacist" means an individual licensed by the Washington state board of pharmacy under chapter 18.64 RCW.
"Pharmacy" means a place licensed under chapter 18.64 RCW where the practice of pharmacy is conducted.
"Physical restraint" ((means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, and which restricts freedom of movement or access to the resident's body)) means the application of physical force without the use of any device for the purpose of restraining the free movement of a vulnerable adult's body. "Physical restraint" does not include briefly holding without undue force a vulnerable adult in order to calm or comfort him or her, or holding a vulnerable adult's hand to safely escort him or her from one area to another.
"Physician's assistant (PA)" means a physician's assistant as defined under chapter 18.57A or 18.71A RCW or successor laws.
"Plan of correction" is a nursing home's written response to cited deficiencies that explains how it will correct the deficiencies and how it will prevent their reoccurrence.
"Reasonable accommodation" and "reasonably accommodate" has the meaning given in federal and state antidiscrimination laws and regulations. For the purpose of this chapter:
(1) Reasonable accommodation means that the nursing home must:
(a) Not impose admission criteria that excludes individuals unless the criteria is necessary for the provision of nursing home services;
(b) Make reasonable modification to its policies, practices or procedures if the modifications are necessary to accommodate the needs of the resident;
(c) Provide additional aids and services to the resident.
(2) Reasonable accommodations are not required if:
(a) The resident or individual applying for admission presents a significant risk to the health or safety of others that cannot be eliminated by the reasonable accommodation;
(b) The reasonable accommodations would fundamentally alter the nature of the services provided by the nursing home; or
(c) The reasonable accommodations would cause an undue burden, meaning a significant financial or administrative burden.
"Receivership" is established by a court action and results in the removal of a nursing home's current licensee and the appointment of a substitute licensee to temporarily operate the nursing home.
"Recurring deficiency" means a deficiency that was cited by the department, corrected by the nursing home, and then cited again within fifteen months of the initial deficiency citation.
"Registered nurse" means an individual licensed to practice as a registered nurse under chapter 18.79 RCW.
"Rehabilitative services" means the planned interventions and procedures which constitute a continuing and comprehensive effort to restore an individual to the individual's former functional and environmental status, or alternatively, to maintain or maximize remaining function.
"Resident" generally means an individual residing in a nursing home. 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. The term resident excludes outpatients and individuals receiving adult day or night care, or respite care.
"Resident care unit" means a functionally separate unit including resident rooms, toilets, bathing facilities, and basic service facilities.
"Respiratory isolation" is a technique or techniques instituted to prevent the transmission of pathogenic organisms by means of droplets and droplet nuclei coughed, sneezed, or breathed into the environment.
"Siphon jet clinic service sink" means a plumbing fixture of adequate size and proper design for waste disposal with siphon jet or similar action sufficient to flush solid matter of at least two and one-eighth inches in diameter.
"Skilled nursing facility (SNF)" or "medicare-certified skilled nursing facility" means a nursing home, a portion of a nursing home, or a long-term care wing or unit of a hospital that has been certified to provide nursing services to medicare recipients under Section 1819(a) of the federal Social Security Act.
"Small nonessential community providers" means nonessential community providers that have sixty or fewer nursing home licensed beds, even if some of those beds are not set up or are not in use.
"Social/therapeutic leave" means leave which is for the resident's social, emotional, or psychological well-being; it does not include medical leave.
"Staff work station" means a location at which nursing and other staff perform charting and related activities throughout the day.
"Stop placement" or "stop placement order" is an action taken by the department prohibiting nursing home admissions, readmissions, and transfers of patients into the nursing home from the outside.
"Substantial compliance" means the nursing home has no deficiencies higher than severity level 1 as described in WAC 388-97-4500, or for medicaid certified facility, no deficiencies higher than a scope and severity "C."
"Surrogate decision maker" means a resident representative or representatives as outlined in WAC 388-97-0240, and as authorized by RCW 7.70.065.
"Survey" means the same as "inspection" as defined in this section.
"Temporary manager" means an individual or entity appointed by the department to oversee the operation of the nursing home to ensure the health and safety of its residents, pending correction of deficiencies or closure of the facility.
"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.
"Termination" means an action taken by:
(1) The department, or the nursing home, to cancel a nursing home's medicaid certification and contract; or
(2) The department of health and human services Centers for Medicare and Medicaid Services, or the nursing home, to cancel a nursing home's provider agreement to provide services to medicaid or medicare recipients, or both.
"Toilet room" means a room containing at least one toilet fixture.
"Uncorrected deficiency" is a deficiency that has been cited by the department and that is not corrected by the licensee by the time the department does a revisit.
"Violation" means the same as "deficiency" as defined in this section.
"Volunteer" means an individual who is a regularly scheduled individual not receiving payment for services and having unsupervised access to a nursing home resident.
"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; ((or))
(4) Admitted to any facility((, including any assisted living facility)); ((or))
(5) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; ((or))
(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)) Who self directs his or her own care and receives services from a personal aide under chapter 74.39((.050)) RCW.
"Whistle blower" means a resident, employee of a nursing home, or any person licensed under Title 18 RCW, who in good faith reports alleged abandonment, abuse, financial exploitation, or neglect to the department, the department of health or to a law enforcement agency.
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings. AMENDATORY SECTION (Amending WSR 08-20-062, filed 9/24/08, effective 11/1/08)
WAC 388-97-1080 Nursing services.
(1) The nursing home must ensure that a sufficient number of qualified nursing personnel are available on a twenty-four hour basis seven days per week to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident as determined by resident assessments and individual plans of care.
(2) The nursing home must:
(a) Designate a registered nurse or licensed practical nurse to serve as charge nurse((,)) who is accountable for nursing services on each ((tour of duty)) shift; and
(b) Have a full time director of nursing service who is a registered nurse.
(3) ((The nursing home must have:
(a) A registered nurse on duty directly supervising resident care a minimum of sixteen hours per day, seven days per week; and
(b) A registered nurse or licensed practical nurse on duty directly supervising resident care the remaining eight hours per day, seven days per week. "Directly supervising" means the supervising individual is on the premises and is quickly and easily available to provide necessary assessments and other direct care of residents; and oversight of supervised staff.)) Large nonessential community providers must have a registered nurse on duty directly supervising resident care twenty-four hours per day, seven days per week.
(4) The department may permit limited exceptions to subsection (3) of this section if the facility can demonstrate good faith effort to hire a registered nurse for the last eight hours of required coverage per day. The department may not grant exceptions for coverage that are less than sixteen hours per day. When considering an exception, the department may consider the following:
(a) Wages and benefits offered by the facility; and
(b) The availability of registered nurses in the facility's geographical area.
(5) The department may grant a one-year exception that may be renewable for up to three consecutive years.
(6) If a registered nurse is not on-site and readily available to complete full assessments during a shift, the department may limit the admission of new residents based on the resident's medical conditions or complexity during this period only for the particular shift that a registered nurse is not on-site or readily available.
(7) If the department grants an exception for a facility, the department must include this information in its nursing home locator.
(8) Essential community providers and small nonessential community providers must have a registered nurse on duty who directly supervises resident care a minimum of sixteen hours per day, seven days per week, and a registered nurse or a licensed practical nurse on duty who directly supervises resident care the remaining eight hours per day, seven days per week.
(9) The nursing home must ensure that staff respond to ((each)) resident(('s)) requests for assistance ((in a manner which promptly meets the quality of life and quality of care needs of all the residents)) in a manner that promptly meets the resident's quality of life and quality of care needs.
(((5))) (10) The director of nursing services is responsible for:
(a) Coordinating the plan of care for each resident;
(b) Ensuring that registered nurses and licensed practical nurses comply with chapter 18.79 RCW; and
(c) Ensuring that the nursing care provided is based on the nursing process in accordance with nationally recognized and accepted standards of professional nursing practice.
NEW SECTION
WAC 388-97-1090 Direct care hours
(1) Each nursing facility must provide a minimum of 3.4 hours of direct care per resident day (HRD). Direct care means the staffing domain identified and defined in the center for medicare and medicaid services' five star quality rating system and as reported through the center for Medicare and Medicaid services' payroll-based journal. Compliance with the minimum staffing standard must be measured using the center for Medicare and Medicaid services' payroll based journal and nursing facility census and payroll data.
(2) On a quarterly basis the department will use the center for Medicare and Medicaid services' payroll based journal to determine compliance with the minimum staffing standard.
(3) Payroll based journal data must be submitted after the end of each calendar quarter and filed electronically.
(4) The department will presume that all hours worked by direct care employees at the facility have been spent providing direct care.
(5) The department may use census and payroll data from facilities to perform enforcement audits.
(6) The department must monitor facility census information, reported staff hours, and payroll data to determine whether HRD figures are relatively constant throughout a quarter or are being increased at the end of the quarter through unusual spending on direct care.
(7) A facility may use the hours of geriatric behavioral health workers as defined under RCW 74.42.010 to meet this section's direct care minimum staffing requirements.
(8) A nursing facility that fails to meet the minimum staffing requirement of 3.4 hours and of direct care per resident day for any quarter is subject to a fine. The department will determine the amount of the fine as follows:
(a) The fine must be based on the total cost the facility would have incurred had it complied with the 3.4 HRD requirement;
(b) The department will use a formula that calculates a fine based on the cost of certified nurse aid wages and benefits for the missing staff hours;
(c) If the facility believes that the department's application of the standard in subsection (8)(b) of this section is inequitable, it may explain its position to the department and request consideration of an alternative method of calculating the fine; and
(d) The fine will be one and a half times the additional amount it would have cost the facility to provide direct care at the 3.4 HRD standard for a facility's first violation and two times the additional amount for each subsequent violation by the facility. After a facility has not violated the 3.4 HRD requirement for three years the department will reset the facility's status and treat any subsequent violation as an initial violation.
(9) If a non-compliant facility believes that it made a good-faith effort to meet the minimum staffing requirement and asks that the penalty not be imposed, the department may in its sole discretion waive the penalty.
(10) If the department waives a facility's fine under subsection (9) of this section, its noncompliance with the 3.4 HRD requirement must not count as a violation for determining whether a future violation is a first violation or a subsequent violation under subsection (8)(d) of this section and must not count as a violation for the purposes of resetting a facility's status under section (8)(d).
(11) The amount of money the facility would have been required to spend to reach 3.4 HRD must be treated as a direct care cost for the year in which the facility staffing was deficient for settlement purposes. The portion of the fine representing the additional one-half or one times that amount is a penalty, and will not be added to the actual costs of the facility in the settlement process.
(12) The department will monitor compliance with the 3.4 HRD minimum staffing requirement for the quarter beginning July 1, 2016, but will not impose any penalties on facilities that do not comply during that quarter. The department instead will notify non-complying facilities what their penalty would otherwise have been, and will require those facilities to submit a written plan for correcting the deficiency. The department will begin imposing fines for the quarter beginning October 1, 2016. Noncompliance with the 3.4 HRD requirement during the quarter beginning July 1, 2016 must not count as a first violation for fine calculation purposes under subsection (8)(d) of this section.
(13) The facility must pay penalties under WAC 388-97-1090(8) by check. The department will deposit penalty checks into the nursing facility quality enhancement account in the custody of the state treasurer. The department's secretary, or the secretary's designee, may authorize expenditures from the nursing facility quality enhancement account. Such expenditures may only be for: technical assistance to nursing facilities, specialized training for nursing facilities, or an increase to the quality enhancement component of the daily medicaid rate provided by RCW 74.46.581.
(14) The department may grant a limited exception to the 3.4 HRD staffing requirements for facilities demonstrating a good faith effort to hire and retain staff.
(15) To determine initial facility eligibility for exception consideration, the department must send surveys to facilities anticipated to be below, at, or slightly above the 3.4 HRD requirement.
(16) These surveys report the staffing of a facility from October through December 2015, January through March 2016, and April through June 2016. These surveys must measure the HRD in a manner as similar as possible to the centers for Medicare and Medicaid services' payroll-based journal.
(17) In the event the center for Medicare and Medicaid services' payroll-based journal is not available, the department may use any data source that is reasonably consistent with data metrics used by the payroll-based journal to measure direct care being provided by a nursing home. To gather data similar to the data gathered by the payroll-based journal, the department may survey facilities. The metrics will be used to determine whether the nursing home has complied with the 3.4 HRD requirement.
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