SOCIAL AND HEALTH SERVICES

(Aging and Long-Term Support Administration)

[Filed June 26, 2019, 11:05 a.m.]

Preproposal statement of inquiry was filed as WSR 19-03-149.

Title of Rule and Other Identifying Information: The department is proposing to amend WAC 388-97-4425 Notice—Service complete, 388-97-4430 Notice—Proof of service, and 388-97-4440 Appeal rights.

Hearing Location(s): On August 6, 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 August 7, 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 5:00 p.m., August 6, 2019.

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 July 23, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed amendments to these rules will clarify that notices can be delivered and proof of service can be obtained electronically through the federal web site, and will also clarify the nursing home's right to appeal WAC deficiency findings under the state appeal process, regardless of the delivery method of the deficiency report.

Reasons Supporting Proposal: These amendments will clarify rules to ensure providers can appeal state deficiencies delivered through the federal electronic web site. The amendments will also expand delivery methods and proof of service methods to include electronic delivery using the federal web site, improving the efficiency of communication between the department and the providers.

Statutory Authority for Adoption: RCW 74.42.620.

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

Name of Proponent: DSHS, governmental.

Name of Agency Personnel Responsible for Drafting: Lisa Herke, P.O. Box 45600, Olympia, WA 98504, 509-225-2819; 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 federal statutes or regulations or Washington state statutes.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal: Is exempt under RCW 19.85.030.

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.

Katherine I. Vasquez

AMENDATORY SECTION(Amending WSR 10-02-021, filed 12/29/09, effective 1/29/10)

WAC 388-97-4425Notice—Service complete.

Service of the department notices is complete when:

(1) Personal service is made;

(2) The notice is addressed to the facility or to the individual at his or her last known address, and deposited in the United States mail;

(3) The notice is faxed and the department receives evidence of transmission;

(4) Notice is delivered to a commercial delivery service with charges prepaid; ((or))

(5) Notice is delivered to a legal messenger service with charges prepaid((.)); or

(6) Notice is sent electronically, including through the federal website.

AMENDATORY SECTION(Amending WSR 10-02-021, filed 12/29/09, effective 1/29/10)

WAC 388-97-4430Notice—Proof of service.

The department may establish proof of service by any of the following:

(1) A declaration of personal service;

(2) An affidavit or certificate of mailing to the nursing home or to the individual to whom the notice is directed;

(3) A signed receipt from the person who accepted the certified mail, the commercial delivery service, or the legal messenger service package; ((or))

(4) Proof of fax transmission((.)); or

(5) Proof of electronic transmission.

AMENDATORY SECTION(Amending WSR 10-02-021, filed 12/29/09, effective 1/29/10)

WAC 388-97-4440Appeal rights.

(1) The appeal rights in this section apply to any appealable action taken by the department under chapters 18.51, 74.42 and 74.39A RCW. Notice and appeal requirements for resident protection program findings are described in WAC 388-97-0720 and 388-97-0740.

(2) The following actions may be appealed:

(a) Imposition of a penalty under RCW 18.51.060 or 74.42.580;

(b) A denial of a license under RCW 18.51.054, a license suspension under RCW 18.51.067 or a condition on a license under RCW 74.39A.050; or

(3) The appeal process will be governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 18.51.065 and 74.42.580, chapter 388-02 WAC and this chapter. If there is a conflict between chapter 388-02 WAC and this chapter, this chapter will govern.

(4) The purpose of an administrative hearing will be to review actions taken by the department under chapters 18.51, 74.42 or 74.39A RCW, and under this chapter.

(5) The office of administrative hearings must receive an administrative hearing request from the applicant, licensee, or nursing home within twenty days of receipt of written notification of the department's action listed in subsection (2) of this section. Further information about administrative hearings is available in chapter 388-02 WAC and at the office of administrative hearings (OAH) web site: www.oah.wa.gov.

(6) Orders of the department imposing a stop placement, license suspension, emergency closure, emergency transfer of residents, temporary management, or conditions on a license are effective immediately upon verbal or written notice and must remain in effect until they are rescinded by the department or through the state administrative appeals process.

(7) Federal deficiencies cited on the federal survey report may not be appealed through the state administrative appeals process. If a federal remedy is imposed, the Centers for Medicare and Medicaid Services will notify the nursing facility of appeal rights under the federal administrative appeals process.