WSR 97-20-114

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Aging and Adult Services Administration)

(Public Assistance)

[Filed September 30, 1997, 3:28 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 96-18-089.

Title of Rule: Adult family home minimum licensing designations, WAC 388-76-561, 388-76-590, 388-76-600, 388-76-610, and 388-76-615.

Purpose: To comply with legislative mandate for the Department of Social and Health Services to define, in rule, adult family home (AFH) license levels based upon the education, training, and caregiving experience of the licensed provider or staff. To comply with statute requiring providers to obtain specialty care training before admitting residents with special care needs.

Statutory Authority for Adoption: RCW 70.128.060 and 70.128.120.

Statute Being Implemented: Chapter 70.128 RCW.

Summary: Establishes AFH licensing designations based upon education, training, and caregiving experience of providers and staff. Amends "specialty" AFH standards to require specialty care training before providers may admit residents with special care needs. Amends AFH disclosure and assessment requirements to deter inappropriate admissions to adult family homes. Revises and clarifies negotiated service agreement standards.

Reasons Supporting Proposal: Comply with legislative mandate. Promote quality services and protection for AFH residents. State legislation RCW 70.128.060(6) and 70.128.120(6).

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: John Gaskell, P.O. Box 45600, Olympia, WA 98504-5600, 1-800-422-3263 or (360) 438-7937.

Name of Proponent: Department of Social and Health Services, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: These rules are intended to bring adult family home regulations into compliance with RCW 70.128.060 and 70.128.120. The rules should help ensure that AFH providers admit only those residents for whom they are capable of providing care. The rules should also allow consumers to make more informed decisions when selecting an adult family home. Finally, these rules are intended to promote the development of more highly trained providers who will have the capability to serve residents with special care needs.

Proposal Changes the Following Existing Rules: Establishes adult family home licensing designations (levels). Changes current rules to require specialty care training before providers may admit and serve residents with special care needs (with exceptions, effective July 1, 1999). Requires providers to give more detailed information about an adult family home to prospective residents. Requires completion of a comprehensive assessment prior to a resident's admission to an adult family home. Provides that the comprehensive assessment must be completed by a qualified health services assessor (with exceptions, effective July 1, 1999).

No small business economic impact statement has been prepared under chapter 19.85 RCW. An analysis of the economic impact to small businesses will be included in the detailed written analysis required by RCW 34.05.328.

RCW 34.05.328 applies to this rule adoption.

Hearing Location: Lacey Government Center (behind Tokyo Bento restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on November 4, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by October 23, 1997, phone (360) 902-7731, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to and Identify WAC Numbers: Paige Wall, Rules Assistant, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by November 4, 1997.

Date of Intended Adoption: No sooner than November 5, 1997.

September 26, 1997

Merry A. Kogut, Manager

Rules and Policies Assistance Unit

NEW SECTION

WAC 388-76-561 Adult family home licensing designations. (1) The department shall designate an adult family home as:

(a) A "basic" adult family home if the individual provider and resident manager have successfully completed the fundamentals of caregiving training or the modified fundamentals of caregiving training as required by WAC 388-76-660;

(b) An "experienced" adult family home if the home:

(i) Meets the criteria of subsection (1)(a) of this section; and

(ii) Has operated for the last two licensing periods without the imposition of any of the following:

(A) Civil penalties exceeding two hundred fifty dollars per visit;

(B) Cumulative civil penalties exceeding five hundred dollars;

(C) Conditions on the home's license related to resident care; or

(D) A stop placement order;

(c) A "RN" adult family home if:

(i) The individual provider is a licensed registered nurse, or the provider employs or contracts with a licensed registered nurse; and

(ii) The licensed registered nurse is on-site and on duty at least twenty hours per week or more, based upon assessed resident needs identified in the assessment required under WAC 388-76-610;

(d) A "specialty" adult family home if:

(i) The individual provider and resident manager have successfully completed specialty care training as required under WAC 388-76-590; and

(ii) The individual provider or resident manager is on-site and on duty at least twenty hours per week or more, based upon assessed resident needs identified in the assessment required under WAC 388-76-610; or

(e) A "RN-specialty" adult family home if:

(i) The individual provider is a licensed registered nurse, or the provider employs or contracts with a licensed registered nurse;

(ii) The individual provider, resident manager and any registered nurse have successfully completed specialty care training as required under WAC 388-76-590; and

(iii) The RN and individual with specialty care training are on-site and on duty at least twenty hours per week or more, based upon assessed resident needs identified in the assessment required under WAC 388-76-610.

(2) Licensed registered nurses under subsection (1)(c) and (e) of this section must also successfully complete the department's modified fundamentals of caregiving training.

(3) An adult family home designated as a "RN," "specialty," or "RN-specialty" home may also be designated as an "experienced" adult family home if it meets the criteria defined under subsection (1)(b) of this section.

(4) The department may change an adult family home's designation after the provider has submitted:

(a) Certification of successful completion of required specialty care training to the department's licenser for that home; or

(b) Notarized documentation that the home satisfies requirements defined in this section for designation as a "RN" adult family home.

(5) The department may revoke an adult family home's designation:

(a) If the adult family home fails to meet resident needs; or

(b) If for any reason, the home no longer qualifies for its current designation; or

(c) As permitted under WAC 388-76-705.

(6) The department will designate a qualifying home as an "experienced" adult family home at the time of the home's full reinspection.

(7) The provider shall immediately notify the department when the adult family home:

(a) No longer employs or contracts with a licensed registered nurse as required under subsection (1)(b) and (d) of this section; or

(b) For any reason, no longer qualifies for the home's current licensing designation.

(8) Failure to provide notification as required under subsection (7) of this section shall subject the provider to remedies permitted under WAC 388-76-705.

[]

AMENDATORY SECTION (Amending WSR 96-14-003, filed 6/19/96, effective 7/20/96)

WAC 388-76-590 Specialty adult family homes. (1) ((Beginning September 1, 1996,)) An applicant or provider may apply for a designation as a specialty adult family home to serve and meet the unique needs of residents with:

(a) A developmental ((disabilities)) disability as defined by subsection (3)(a) of this section;

(b) A mental ((illnesses)) illness as defined by subsection (3)(b) of this section; or

(c) Dementia.

(2) ((An adult family home is not required to have a specialty designation to serve residents identified in subsection (1) above.

(3))) For purposes of this section, the term "related condition" means a severe, chronic disability which is:

(a) Attributable to:

(i) Cerebral palsy or epilepsy; or

(ii) 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);

(b) Manifested before the person reached age twenty-two;

(c) Likely to continue indefinitely; and

(d) 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.

(3) Beginning July 1, 1999, except as provided under subsection (4) of this section, an adult family home is required to have a specialty designation to admit and serve residents whose primary disability is:

(a) Mental retardation or a related condition; or

(b) An Axis I or II diagnosed mental illness as defined by volume IV of the Diagnostic and Statistical Manual of Mental Disorders; or

(c) Dementia as determined by a department approved functional assessment.

(4) An adult family home must obtain a "specialty" designation before admitting and serving residents whose primary disability is mental retardation or a related condition if the adult family home:

(a) Is licensed after the effective date of these rules; or

(b) Does not already serve residents whose primary disability is mental retardation or a related condition.

(5) Except as limited by subsection (4) of this section, all providers may admit residents whose primary disability is defined by subsection (3) of this section. Such admissions may occur until July 1, 1999.

(6) Beginning July 1, 1999, individual providers and resident managers:

(a) Must have completed specialty care training as required by this section before admitting and retaining residents whose primary disability is defined under subsection (3) of this section; and

(b) Shall have one hundred twenty days to complete specialty care training after a resident already living in the home develops a disability as defined under subsection (3) of this section.

(7) Successful completion of specialty care training shall satisfy continuing education requirements:

(a) For the current and following calendar year; or

(b) For the following two calendar years if the specialty care training is completed in the same year as required fundamentals in caregiving training or modified fundamentals in caregiving training;

(8) Developmental Disabilities. To be designated as a home specializing in services to residents ((with)) whose primary disability is a developmental ((disabilities)) disability as defined by subsection (3)(a) of this section, the individual provider ((or)) and resident manager, in addition to complying with all other rules in this chapter, shall:

(a) Complete the department approved ((supplemental)) specialty care training addressing the residential support needs for ((persons)) residents with developmental disabilities prior to being designated as a specialty adult family home. Training shall include, at a minimum, courses in positive behavior supports addressing behavior as a means of communication, and the division of developmental disabilities residential services guidelines;

(b) ((Each calendar year, complete a minimum of ten hours of continuing education credits that relates to providing care to persons with developmental disabilities. Training is to be obtained through regional division of developmental disabilities core training courses as offered for community service providers;

(i) The continuing education requirement listed above in subsection (3)(b) shall also qualify for the continuing education requirement in WAC 388-76-660 (2)(c);

(ii) The continuing education requirement begins the calendar year after the year in which the provider or resident manager completes the training listed above in subsection (3)(a); and

(c))) Demonstrate an ability to accommodate for communication barriers of residents and recognize how behaviors may be a means for communication((.

(4) A home specializing in services to residents with developmental disabilities shall provide the degree of supervision needed by residents and specified in the residents' negotiated service plans, which may be less than twenty-four hour supervision.

(5))); and

(c) Hire qualified caregivers and assure coverage of the home during periods of absence in order to meet residents' identified service needs, and have a documented staffing plan in place at all times.

(9) Mental Illness. To be designated as a home specializing in services to residents ((with)) whose primary disability is a mental ((illnesses)) illness as defined by subsection (3)(b) of this section, the individual provider ((or)) and resident manager shall, in addition to complying with all other rules in this chapter:

(a) Complete the department approved ((specialized mental health)) specialty care training addressing the needs of ((persons)) residents who have a mental illness prior to being designated as a specialty adult family home;

(b) ((Each calendar year, complete a minimum of ten hours of continuing education credits that relates to mental health issues;

(i) The continuing education requirement listed above in subsection (5)(b) of this section shall also qualify for the continuing education requirement in WAC 388-76-660 (2)(c);

(ii) The continuing education requirement begins the calendar year after the year in which the provider or resident manager completes the training listed above in subsection (5)(a) of this section;

(c))) Have a documented crisis response plan in place, know how to access emergency mental health services, and assure all caregivers are knowledgeable and capable of implementing the plan in a crisis; and

(((d))) (c) Hire qualified caregivers and assure coverage of the home during periods of absence in order to meet residents' identified service needs, and have a documented staffing plan in place at all times.

(((6))) (10) Dementia. To be designated as a home specializing in services to residents ((with)) whose primary disability is dementia as defined by subsection (3)(c) of this section, the individual provider ((or)) and resident manager shall, in addition to complying with all other rules in this chapter:

(a) Complete the department approved specialty care training ((course)) in providing care to ((persons)) residents with dementia prior to being designated as a specialty adult family home;

(b) ((Each calendar year, complete a minimum of ten hours of continuing education credits that relate to providing care to persons with dementia;

(i) The continuing education requirement listed above in subsection (6)(b) of this section shall also qualify for the continuing education requirement in WAC 388-76-660 (2)(c);

(ii) The continuing education requirement begins the calendar year after the year in which the provider or resident manager completes the training listed above in subsection (6)(a) of this section;

(c))) Hire qualified caregivers and assure coverage of the home during periods of absence in order to meet residents' identified service needs, and have a documented staffing plan in place at all times; and

(((d) Be)) (c) Ensure the home is designed to accommodate residents with dementia in a homelike environment. The design and environment of the home shall support residents in their activities of daily living; enhance their quality of life; reduce tension, agitation, and problem behaviors; and promote their safety.

[Statutory Authority: RCW 70.128.040, 70.128.060, 70.128.120, 70.128.130, 43.43.842, 18.88A.210 and 18.88A.230. 96-14-003 (Order 3984), 388-76-590, filed 6/19/96, effective 7/20/96.]

AMENDATORY SECTION (Amending WSR 96-14-003, filed 6/19/96, effective 7/20/96)

WAC 388-76-600 General resident rights. (1) The provider shall comply with all requirements of chapter 70.129 RCW, Long-term care resident rights. The provider shall promote and protect the resident's exercise of all rights granted under that law.

(2) ((The provider shall have written policies for the services provided, house policies, financial arrangements expected, and the home's policy on refunds and deposits. Prior to admitting any resident, the provider shall provide this information to the prospective resident and his or her surrogate decision maker, if applicable.

(3))) Prior to admitting any resident, the provider shall provide information about the adult family home to the prospective resident and his or her surrogate decision maker, if applicable. The information shall be presented orally and in writing in a language understandable to the prospective resident and at a minimum shall include:

(a) A description of services and activities provided and available in the home;

(b) House rules and policies governing resident conduct and responsibilities;

(c) The financial arrangements expected including payment rates and schedules;

(d) The home's policy on refunds and deposits;

(e) The education, training, and caregiving experience of the provider and resident manager. This information shall indicate if the provider or resident manager has completed department approved training in order for the home to be designated as a "specialty" adult family home under WAC 388-76-590;

(f) The availability and responsibilities of:

(i) Licensed nursing staff; and

(ii) Staff who have successfully completed department approved specialty care training;

(g) A statement indicating if the provider performs or is willing to perform nurse delegation as allowed under state law;

(h) A description of what the adult family home does or will do to accommodate a resident's increasing care needs;

(i) The resident needs and conditions for which the adult family home cannot or will not provide care;

(j) The number of persons living in the home, including their ages and gender; and

(k) All information prepared and provided for resident distribution by the department.

(3) Before admitting any resident, the provider shall offer for review all inspection reports and statements of deficiencies done in the past year to prospective residents and their families.

(4) The provider shall provide all inspection reports and statements of deficiencies done in the past year to adult family home referral sources if requested by those sources.

(5) The provider shall inform the resident both orally and in writing in a manner and in a language the resident understands when there are changes in:

(a) House policies governing resident conduct and responsibilities during the resident's stay in the adult family home;

(b) Services and activities available in the adult family home;

(c) Charges for available services including charges for services not covered by the home's per diem rate or applicable public benefit programs; and

(d) Refund and deposit policies.

(((4))) (6) House policies implemented by the provider shall be reasonable and may not conflict with rights granted to the resident under chapter 70.129 RCW, Long-term care resident rights or this chapter.

(((5))) (7) The resident has the right to be fully informed in language that he or she can understand of his or her total health status, including, but not limited to, his or her medical condition as defined under RCW 7.70.060.

(((6))) (8) The resident has the right to be fully informed in advance about recommended care and treatment and of any recommended changes in that care or treatment.

(((7))) (9) The provider shall not require or ask the resident to sign any contract or agreement that waives any rights of the resident.

(((8))) (10) The resident shall be free from abuse, neglect, abandonment, or financial exploitation.

(((9))) (11) The provider shall comply with all applicable federal and state statutory requirements regarding nondiscrimination.

(((10))) (12) The provider shall post in a place and manner clearly visible to residents and visitors the department's toll-free complaint telephone number, and the names, addresses, and telephone numbers of the state licensure office, the state ombudsman program, and the protection and advocacy systems. This posting shall include a description of the long-term care ombudsman program.

[Statutory Authority: RCW 70.128.040, 70.128.060, 70.128.120, 70.128.130, 43.43.842, 18.88A.210 and 18.88A.230. 96-14-003 (Order 3984), 388-76-600, filed 6/19/96, effective 7/20/96.]

AMENDATORY SECTION (Amending WSR 96-14-003, filed 6/19/96, effective 7/20/96)

WAC 388-76-610 Resident assessment. (1) The provider shall not admit or retain a resident unless:

(a) The adult family home can meet the resident's assessed needs and maintain a safe environment for all residents;

(b) The resident's admission will not:

(i) Adversely affect the provider's ability to meet the needs of other residents in the home; or

(ii) Endanger the safety of other residents; and

(c) All residents and household members can be safely evacuated ((in an emergency)) within five minutes of the commencement of a fire drill.

(2) ((For each resident)) Prior to the resident's admission, the provider shall ((have)) obtain a current written assessment which describes the resident's:

(a) Health and medical status;

(b) Mental status;

(c) Strengths and needs;

(((c) Activities preferences; and))

(d) Functional ability in relationship to activities of daily living including: eating, toileting, ambulating, transferring, positioning, specialized body care, personal hygiene, dressing, bathing, and management of own medication; and

(e) Preferences and choices regarding issues important to the resident (e.g., food, daily routine).

(3) ((The provider shall:

(a) Obtain sufficient assessment information to develop a negotiated service plan within fourteen days of the resident's admission; and

(b) Complete the assessment within thirty days of the resident's admission.

(4))) For purposes of this section, "health services assessor" means:

(a) An individual with a master's degree in social services, human services, behavioral sciences or an allied field and two years social service experience working with adults who have functional or cognitive disabilities; or a bachelor's degree in social services, human services, behavioral sciences, or an allied field and three years social service experience working with adults who have functional or cognitive disabilities; or

(b) An individual with a bachelor's degree involving major study in nursing and three years of clinical nursing experience. A master's degree in nursing may be substituted for one year of clinical nursing experience. A valid Washington state license to practice as a registered nurse is required.

(4) Prior to admitting a private pay resident, the provider shall obtain an assessment of the resident and a service plan which have been completed by a health services assessor as defined by subsection (3) of this section. The assessment required by this subsection shall include a department approved functional assessment for dementia. The requirements of this subsection shall become effective beginning July 1, 1999.

(5) Prior to admitting residents receiving services paid for fully or partially by the department, the provider shall obtain a comprehensive assessment and service plan completed by department staff or department approved contractors.

(6) The provider shall ensure that the resident's assessment is reviewed and updated ((for accuracy)) to document the resident's ongoing needs:

(a) ((As needed; and)) At least every twelve months;

(b) When there is a significant change in the resident's physical or mental condition; and

(c) At the resident's or the resident legal representative's request.

(7) The assessment review required by subsection (6) of this section shall be completed by:

(a) A health services assessor as defined by subsection (3) of this section for private pay residents beginning July 1, 1999; or

(b) Department staff or department approved contractors for residents receiving services paid for fully or partially by the department.

(8) If it is determined that the provider cannot continue to meet the resident's needs, then the provider must immediately initiate the discharge process.

[Statutory Authority: RCW 70.128.040, 70.128.060, 70.128.120, 70.128.130, 43.43.842, 18.88A.210 and 18.88A.230. 96-14-003 (Order 3984), 388-76-610, filed 6/19/96, effective 7/20/96.]

AMENDATORY SECTION (Amending WSR 96-14-003, filed 6/19/96, effective 7/20/96)

WAC 388-76-615 Negotiated service ((plan)) agreement. (1) Within fourteen days of the resident's admission the provider shall develop a negotiated service ((plan)) agreement with the resident which identifies:

(a) The services to be provided;

(b) Who will provide the services; ((and))

(c) When and how the services will be provided((.

(2)));

(d) The resident's activities preferences and how those preferences will be accommodated; and

(e) Other preferences and choices regarding issues important to the resident (e.g., food, daily routine, grooming), and what efforts will be made to accommodate those preferences and choices.

(2) For private pay residents, the provider shall build upon the assessment and service plan required under WAC 388-76-610(4) to develop the negotiated service agreement.

(3) For residents receiving services paid for fully or partially by the department, the provider shall build upon the department's comprehensive assessment and service plan when developing the negotiated service agreement.

(4) The provider shall ensure that the negotiated service ((plan)) agreement is((:

(a) Designed to meet resident needs and preferences currently identified in the assessment; and

(b))) agreed to and signed by the resident or the resident's surrogate decision maker, if applicable.

(((3))) (5) For residents receiving services paid for fully or partially by the department, the provider shall implement and provide the negotiated service agreement to the home and community services (HCS) staff person or authorized department case manager for review and determination that the agreement is designed to meet the resident's identified needs.

(6) The negotiated service ((plan)) agreement shall be completed with input from:

(a) The resident to the greatest extent practicable;

(b) The resident's family, if approved by the resident;

(c) The resident's surrogate decision maker, if applicable;

(d) Appropriate professionals;

(e) Other individuals the resident wants included; and

(f) The ((case manager,)) HCS staff person or authorized department case manager if the resident is receiving services paid for fully or partially by the department.

(((4))) (7) The provider shall ensure that the resident's negotiated service ((plan)) agreement is reviewed and revised:

(a) ((As needed)) At least every twelve months;

(b) When there is a significant change in the resident's physical or mental condition;

(c) At the resident's request; and

(((c))) (d) If changes or additions to assessment information result in significant changes to the resident's identified needs or preferences and choices.

(8) If there are significant changes to a resident's identified needs, and the resident is receiving services paid for fully or partially by the department, the provider shall notify the HCS staff person or the authorized department case manager. No payment rate change will be approved without an assessment and authorization by the department.