Original Notice.
Preproposal statement of inquiry was filed as WSR 21-10-084.
Title of Rule and Other Identifying Information: The department is considering amending WAC 388-97-0001 Definitions, 388-97-1090 Direct care hours; and other related rules as may be required to implement EHB 1564 (chapter 301, Laws of 2019).
Hearing Location(s): On October 5, 2021, 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/office-of-the-secretary/driving-directions-office-bldg-2; or virtually. Due to the COVID-19 pandemic, hearings are being held virtually. Please see the DSHS website for the most current information.
Date of Intended Adoption: Not earlier than October 6, 2021.
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., October 5, 2021.
Assistance for Persons with Disabilities: Contact Shelley Tencza, DSHS rules consultant, phone 360-664-6198, fax 360-664-6185, TTY 711 relay service, email shelley.tencza@dshs.wa.gov, by September 21, 2021.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is considering amending WAC 388-97-0001 and 388-97-1090 to implement EHB 1564 (chapter 301, Laws of 2019). This bill revised the definition of "direct care staff" to establish the methodology for calculating the hours per day minimum staffing standard. The department will consider amending the staffing language in WAC 388-97-0001 and 388-97-1090 to include when the director of nursing services hours must be included or excluded in calculating the minimum staffing standard.
Reasons Supporting Proposal: This rule making is necessary to implement EHB 1564 (chapter 301, Laws of 2019) and to be consistent with the underlying statute.
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: Sondra Silverman, P.O. Box 45600, Olympia, WA 98504-5600, 360-688-0715.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Katherine I. Vasquez
"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, personal exploitation of a vulnerable adult, and improper use of restraint against a vulnerable adult which have the following meanings:
(1) "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.
(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.
(3) "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 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 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 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.
(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 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:
(1) Requirements of chapters
18.51 or
74.42 RCW, or the requirements of this chapter; and
(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))means the staffing domain identified and defined in the Centers for Medicare and Medicaid Service's five-star quality rating system and as reported through the Centers for Medicare and Medicaid Service's payroll-based journal.
"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(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 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 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 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 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;
(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) Who self directs his or her own care and receives services from a personal aide under chapter
74.39 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.