SOCIAL AND HEALTH SERVICES

(Aging and Long-Term Support Administration)

[Filed February 4, 2019, 7:56 a.m.]

Continuance of WSR 18-20-016.

Preproposal statement of inquiry was filed as WSR 18-11-069.

Title of Rule and Other Identifying Information: The department is proposing to amend WAC 388-78A-3180 Required enforcement, and creates new WAC 388-78A-3181 Remedies—Specific—Civil penalties and 388-78A-3183 Remedies—Civil fine grid.

Hearing Location(s): On March 12, 2019, 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 https://www.dshs.wa.gov/sesa/rules-and-policies-assistance-unit/driving-directions-office-bldg-2.

Date of Intended Adoption: Not earlier than March 13, 2019.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, email DSHSRPAURulesCoordinator@dshs.wa.gov, fax 360-664-6185, by March 12, 2019, 5:00 p.m.

Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, phone 360-664-6092, fax 360-664-6185, TTY 711 relay service, email Kildaja@dshs.wa.gov, by February 26, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is filing this CR-102 notice of proposed rule making as a continuance to the notice filed as WSR 18-20-016 on September 21, 2018, in order to hold a second public hearing and comment period to ensure public notification of the civil penalty changes related to legislative mandates.

The department is amending and creating these rules as required by state law and to assure compliance with requirements of HB [EHB] 2750 (chapter 173, Laws of 2018) passed by the 2018 legislature. HB [EHB] 2750 requires a "tiered sanction grid that considers the extent of harm from the deficiency and the regularity of the occurrence of the deficiency when imposing civil fines." In addition, it requires that "all receipts from civil penalties imposed under this chapter must be deposited in the assisted living facility temporary management account created in RCW 18.20.430." This will require changes to the existing section and creation of the enforcement sections listed above.

Reasons Supporting Proposal: To meet the legislative requirement established under HB [EHB] 2750 passed by the 2018 legislature.

Statutory Authority for Adoption: Chapter 18.20 RCW.

Statute Being Implemented: Chapter 173, Laws of 2018.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: DSHS, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Jeanette K. Childress, P.O. Box 45600, Olympia, WA 98504, 360-725-2591.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Jeanette K. Childress, P.O. Box 45600, Olympia, WA 98504, phone 360-725-2591, fax 360-407-1976, email childjk@dshs.wa.gov.

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 rule content is explicitly and specifically dictated by statute.

Katherine I. Vasquez

AMENDATORY SECTION(Amending WSR 14-05-035, filed 2/12/14, effective 3/15/14)

WAC 388-78A-3180((Required enforcement))Remedies—Imposition of remedies.

The department must impose ((an appropriate))a remedy ((consistent with RCW 18.20.125 and as otherwise authorized by RCW 18.20.185 or 18.20.190 whenever the department finds an assisted living facility has))or remedies listed in WAC 388-78A-3181 when violations of chapter 18.20 RCW, chapter 70.129 RCW, and chapter 74.34 RCW, and this chapter are:

(1) ((A serious problem, a recurring problem, or an uncorrected problem))Repeated;

(2) ((Created a hazard that causes or is likely to cause death or serious harm to one or more residents))Uncorrected;

(3) ((Discriminated or retaliated in any manner against a resident, employee, or any other person because that person or any other person made a complaint or provided information to the department, the attorney general, a law enforcement agency, or the long-term care ombuds))Pervasive; or

(4) ((Willfully interfered with the performance of official duties by a long-term care ombuds))Present a threat to the health, safety, or welfare of one or more residents.

WAC 388-78A-3181Remedies—Specific—Civil penalties.

(1) The department may impose civil penalties of at least one hundred dollars per day per violation.

(2) Fines up to one thousand dollars per day per violation may be issued under RCW 18.20.190 until July 1, 2019, and thereafter as follows:

(a) Beginning July 1, 2019, through June 30, 2020, the civil penalties may not exceed two thousand dollars per day per violation; and

(b) Beginning July 1, 2020, the civil penalties may not exceed three thousand dollars per day per violation.

(3) Fines up to three thousand dollars may be issued under RCW 18.20.185 for willful interference with a representative of the long-term care ombuds.

(4) Fines up to three thousand dollars may 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 ombuds, the department, the attorney's general office, or a law enforcement agency.

(5) Fines up to ten thousand dollars may be issued under RCW 18.20.190 for a current or former licensed provider who is operating an unlicensed home.

(6) When the assisted living facility 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.

(7) Civil monetary penalties are due twenty-eight days after the assisted living facility or the owner or operator of an unlicensed assisted living facility is served with notice of the penalty unless the assisted living facility 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 affirming the assessed civil penalty. Thirty days after the department serves the assisted living facility with notice of the penalty, interest begins to

(8) All receipts from civil penalties imposed under this chapter must be deposited in the assisted living facility temporary management account created in RCW 18.20.430.

WAC 388-78A-3183Remedies—Civil fine grid.

Effective October 26, 2018, the department will consider the guidance in the tiered sanction grid below when imposing civil fine remedies:

No Harm	Minimal or Moderate Harm		Serious Harm		Imminent Danger, Immediate Threat, or Both
Repeat/ Uncorrected	Initial	Repeat/ Uncorrected	Initial	Repeat/ Uncorrected	Any Violation
Civil fine of at least one hundred dollars per violation.	Civil fine up to two hundred and fifty dollars per violation per day.	Civil fine up to five hundred dollars per violation per day.	Civil fine up to seven hundred and fifty dollars per violation per day.	Civil fine up to one thousand dollars per violation per day.	Civil fine of one thousand dollars per violation per day.

Beginning July 1, 2019, the department will consider the guidance in the tiered sanction grid below when imposing civil fine remedies:

No Harm	Minimal or Moderate Harm		Serious Harm		Imminent Danger, Immediate Threat, or Both
Repeat/ Uncorrected	Initial	Repeat/ Uncorrected	Initial	Repeat/ Uncorrected	Any Violation
Civil fine of at least one hundred dollars per violation.	Civil fine up to two hundred and fifty dollars per violation or a daily civil fine of at least one hundred and twenty-five dollars per day.	Civil fine up to five hundred dollars per violation or a daily civil fine of at least two hundred and fifty dollars per day.	Civil fine up to one thousand dollars per violation or a daily civil fine of at least five hundred dollars per day.	Civil fine up to one thousand five hundred dollars per violation or a daily civil fine of at least seven hundred and fifty dollars per day.	Civil fine of two thousand dollars or daily civil fine of at least one thousand dollars per day.

Beginning July 1, 2020, the department will consider the guidance in the tiered sanction grid below when imposing civil find remedies:

No Harm	Minimal or Moderate Harm		Serious Harm		Imminent Danger, Immediate Threat, or Both
Repeat/ Uncorrected	Initial	Repeat/ Uncorrected	Initial	Repeat/ Uncorrected	Any Violation
Civil fine of at least one hundred dollars per violation.	Civil fine up to five hundred dollars per violation or a daily civil fine of at least two hundred and fifty dollars per day.	Civil fine up to one thousand dollars per violation or a daily civil fine of at least five hundred dollars per day.	Civil fine up to two thousand dollars per violation or a daily civil fine of at least one thousand dollars per day.	Civil fine up to three thousand dollars per violation or a daily civil fine of at least one thousand five hundred dollars per day.	Civil fine of three thousand dollars or daily civil fine of at least one thousand dollars per day.

For the purpose of this section, the following definitions of harm apply:

(1) "Minimal" means violations that result in little or no negative outcome or little or no potential harm for a resident.

(2) "Moderate" means violations that result in negative outcome and actual or potential harm for a resident.

(3) "Serious" means violations that either result in one or more negative outcomes and significant actual harm to residents that does not constitute imminent danger, or there is a reasonable predictability of recurring actions, practices, situations, or incidents with potential for causing significant harm to a resident, or both.

(4) "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.