WSR 18-02-110
(Aging and Long-Term Support Administration)
[Filed January 3, 2018, 11:44 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-19-104.
Title of Rule and Other Identifying Information: The department is amending WAC 388-76-10000 Definitions, to strike the term "willful" from the definition list as a result of an order by the Division III Court of Appeals in Crosswhite v. DSHS invalidating the current definition of "willful." The removal of the current term is necessary to comply with the court's order.
Hearing Location(s): On February 6, 2018, at 10:00 a.m., at Office Building 2, Department of Social and Health Services (DSHS) Headquarters, 1115 Washington, Olympia, WA 98504. Public parking at 11th and Jefferson. A map is available at
Date of Intended Adoption: Not earlier than February 7, 2018.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, email, fax 360-664-6185, by 5:00 p.m., February 6, 2018.
Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, phone 360-664-6092, fax 360-664-6185, TTY 711 relay service, email, by January 23, 2018.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing to amend WAC 388-76-10000 to strike the term "willful" from the definition list in order to comply with the court's order.
Reasons Supporting Proposal: The Division III Court of Appeals invalidated the current definition of "willful" in WAC 388-76-10000. The removal of the term is necessary to comply with the court's order.
Statutory Authority for Adoption: Chapters 70.128, 74.34 RCW.
Rule is necessary because of state court decision, Verda Lee Crosswhite v. Washington State Department of Social and Health Services Yakima County Superior Court No. 142024800.
Name of Proponent: [DSHS], governmental.
Name of Agency Personnel Responsible for Drafting: Claudia Baetge, P.O. Box 45600, Olympia, WA 98504, 360-725-2589; Implementation: Candace Goehring, P.O. Box 45600, Olympia, WA 98504, 360-725-2401; and Enforcement: Bett Schlemmer, P.O. Box 45600, Olympia, WA 98504, 360-725-2404.
A school district fiscal impact statement is not required under RCW 28A.305.135.
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 proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.
Is exempt under RCW 19.85.030.
Explanation of exemptions: The department has analyzed the proposed rule and concluded that no new costs will be imposed on small businesses affected by them. The preparation of a comprehensive small business economic impact statement is not required under RCW 19.85.030.
December 26, 2017
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 16-20-095, filed 10/4/16, effective 11/4/16)
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 of 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.
(2) 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:
(a) "Sexual abuse" means any form of nonconsensual sexual conduct, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse also includes any sexual conduct 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 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.
(c) "Mental abuse" means 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.
(d) "Personal 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.
(e) "Improper use of restraint" means the inappropriate use of chemical, physical, or mechanical restraints for convenience or discipline or in a manner that:
(i) Is inconsistent with federal or state licensing or certification requirements for facilities, hospitals, or programs authorized under chapter 71A.12 RCW;
(ii) Is not medically authorized; or
(iii) Otherwise constitutes abuse under this section.
"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)) and
(2) The number of residents the adult family home may admit and retain ((- The)) (resident capacity((. The capacity))), which is the 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.
"Chemical restraint" means 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 a 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.
"Consent" means express written consent granted after the vulnerable adult or ((his or her)) their legal representative has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary.
"Dementia" ((is defined as)) means 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)) the same as defined under WAC 388-823-0015.
"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(7).
"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 is quickly and easily available to the caregiver, but not necessarily on-site and:
(1) Has demonstrated competency in the basic ((training)) and specialty training, if required; or
(2) ((Has been exempted)) Is exempt 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 (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.
"Mechanical restraint" means any device attached or adjacent to the vulnerable adult's body that ((he or she)) they cannot easily remove ((that)) and restricts freedom of movement or normal access to ((his or her)) the vulnerable adult's body. "Mechanical restraint" does not include the use of devices, materials, or equipment that are:
(a) Medically authorized, as required; and
(b) Used in a manner that is consistent with federal or state licensing or certification requirements for facilities, hospitals, or programs authorized under chapter 71A.12 RCW.
"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)) 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 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.
"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)) or order of protection issued either following a hearing, or by stipulation of the parties. A "permanent restraining order" 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)) and 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 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 ((on)) a vulnerable adult in order to calm or comfort ((him or her)) them, or holding a vulnerable adult's hand to safely escort ((him or her)) them from one area to another.
"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.
"Psychopharmacologic medications" means the class of prescription medications, which includes but is not limited to antipsychotics, antianxiety medications, and antidepressants, capable of affecting the mind, emotions, and behavior.
"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)) or (2) of this definition are present and if the previous violation in subsection (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 rule or law is sufficient:
(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 either result in one or more negative outcomes and significant actual harm to residents that does not constitute imminent danger((; and/or)), or there is a reasonable predictability of recurring actions, practices, situations, or incidents with potential for causing significant harm to a resident, or both.
"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.,)) such as 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 either the current assessment ((and/or)), or negotiated care plan, or both, 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 residents.
(((2))) Staff must meet all ((of)) the requirements in this chapter and chapter 388-112 WAC.
"Temporary restraining order" means a 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 individuals with developmental disabilities or vulnerable adults to which the employee, student, or volunteer has access during the course of ((his or her)) their 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 is 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)) themselves;
(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)) their own home, who is directing and supervising a paid personal aide to perform a health care task as authorized by RCW 74.39.050.