WSR 14-05-072 PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Aging and Long-Term Support Administration)
[Filed February 18, 2014, 10:37 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-15-174.
Title of Rule and Other Identifying Information: The department is adding new sections and amending the following sections in chapter 388-78A WAC, Assisted living facilities: WAC 388-78A-2020, 388-78A-2462 Background checks—Who is required to have, 388-78A-24641 Background checks—Washington state name and date of birth background check, 388-78A-2464 Process—Background authorization form, 388-78A-24642 Background checks—National fingerprint background check, 388-78A-2465 Background check—Results—Inform, 388-78A-2467 Background check—Sharing by health care facilities, 388-78A-2468 Background checks—Employment—Conditional hire—Pending results of Washington state name and date of birth background check, 388-78A-2469 Background check—Disclosure statement, 388-78A-2470 Background check—Employment-disqualifying information, 388-78A-24701 Background checks—Employment—Nondisqualifying information, 388-78A-3170 Circumstances resulting in enforcement remedies, and 388-78A-3190 Denial, suspension, revocation, or nonrenewal of license statutorily required.
Hearing Location(s): Office Building 2, Lookout Room, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html), on April 22, 2014, at 10:00 a.m.
Date of Intended Adoption: Not earlier than April 23, 2014.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on April 22, 2014.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by April 1, 2014, TTY (360) 664-6178 or (360) 664-6094 or by e-mail jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending these rules to support the health and safety of residents living in residential setting, to consolidate various secretary's lists in aging and long-term support administration (ALTSA) thus providing a uniform background check standard for all caregivers and to reduce the overall costs of processing background checks.
In chapter 388-78A WAC, the disqualifying criminal convictions have been moved to a new WAC chapter, with pending charges added. This requires the amending of the assisted living facility rules to remove the disqualifying crimes from each applicable section, amend the language to support the reference to the new WAC chapter, and to clarify amendments to the negative actions.
Reasons Supporting Proposal: See above.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of social and health services, governmental.
Name of Agency Personnel Responsible for Drafting: Jeanette K. Childress, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2591; Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2404.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
SUMMARY OF PROPOSED RULES: The department of social and health services' ALTSA is proposing amendments to chapter 388-101 WAC, Certified community residential care services; chapter 388-78A WAC, Assisted living facilities; chapter 388-76 WAC, Adult family homes; and chapter 388-97 WAC, Nursing homes.
The purpose of this chapter is to: The department is amending these rules to support: (1) The health and safety of residents living in residential settings, (2) the consolidation of various secretary's lists in ALTSA into a new WAC chapter that provides a uniform background check standard for all caregivers, and (3) the reduction of overall costs to process background checks.
The disqualifying criminal convictions have been moved to a new WAC chapter, with pending charges added. This requires the amending of the residential care services' (RCS) WACs to remove the disqualifying crimes from each applicable section, amend the language to support the reference to the new WAC chapter, and to clarify amendments to the negative actions. This will result in increased clarity and decreased confusion for providers.
The proposed amendments to these chapters include:
(1) Aligning disqualifying criminal history standards with ALTSA.
(2) The disqualifying criminal convictions have been moved to a new WAC chapter, with pending charges added. This requires amending residential care facilities' WACs to remove the disqualifying crimes from each applicable section, amend the language to support the reference to the new WAC chapter, and to clarify amendments to the negative actions.
(3) Creating grandfathering language for workers hired and qualified prior to implementation of new standards, for all but the most egregious crimes.
SMALL BUSINESS ECONOMIC IMPACT STATEMENT—DETERMINATION OF NEED: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. The WAC chapter changes related to background check consolidation will not have a disproportionate economic impact on small businesses. The department has thoroughly reviewed background check inefficiencies in place with current rules, as written including:
(1) Duplicate background check requirements for same staff person, driven by current rules.
(2) Conflicting rules in place for same provider/same setting serving clients from two divisions (e.g. home and community services and DDA).
(3) Poor compliance with program rules due to background check complexity, varying standards, and provider confusion.
(4) Negative fiscal and workload impact on both small and large business resulting from regulatory work, contradictory standards, duplicate background check requirements and training needs.
The consolidation and standardization of background check rules across the ALTSA and DDA administrations will result in clarity of rules, efficiency in checks, reduced training needs, improved compliance and will significantly reduce the number of duplicate background checks conducted by affected businesses across the state.
INDUSTRY ANALYSIS: These proposed rules impact all small businesses contracted to provide direct service to clients of RCS including: Certified community residential care services (CCRCS) (approximately one hundred fifty-three providers); adult family homes (AFH) (approximately two thousand seven hundred fifty); assisted living facilities (ALF) (approximately five hundred thirty facilities); and nursing homes (NH) (approximately two hundred thirty).
The majority of these businesses meet the definition of small business defined in RCW 19.85.020. Again, RCS has concluded any negative impact to any specific small business would be negligible and the impact on the industry as a whole will be fiscally positive, while improving the health and safety of vulnerable populations served by two administrations.
INVOLVEMENT OF SMALL BUSINESSES: These rule changes were driven, in part, by demand from businesses. Working drafts have also been shared with stakeholders including CCRCSs, ALFs, NHs, AFHs and associations, both in person and electronically. Stakeholder input is reflected in the proposed rules.
COST OF COMPLIANCE: Under chapter 19.85 RCW, DDA and ALTSA has considered annual costs to small businesses and concluded there will be no impact of fifty dollars or more per caregiver.
General Costs: RCS analysis revealed that there are no significant costs imposed by the proposed amendments.
Disproportionate Economic Impact Analysis: None.
Mitigating Costs: Not applicable.
Benefits for Proposed Rules: See above.
JOBS CREATED OR LOST: Not applicable.
CONCLUSION: RCS has given careful consideration to the impact of proposed rules in chapter 388-101 WAC, Certified community residential care services; chapter 388-78A WAC, Assisted living facilities; chapter 388-76 WAC, Adult family homes; and chapter 388-97 WAC, Nursing homes[,] on small businesses. To comply with the Regulatory Fairness Act, chapter 19.85 RCW, RCS has analyzed impacts on small businesses and proposed ways to mitigate costs considered more than minor and disproportionate, however, no significant costs were identified.
RCS has concluded that the intent of these rule-making changes are to improve the health and safety of vulnerable populations served by ALTSA.
Please contact Jeanette K. Childress if you have any questions at (360) 725-2591.
A copy of the statement may be obtained by contacting Jeanette Childress, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2591, e-mail Jeanette.childress@dshs.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Jeanette Childress, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2591, e-mail Jeanette.childress@dshs.wa.gov.
February 12, 2014
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-24641 Background checks—Washington state name and date of birth background check.
((If)) Unless the individual is eligible for an exception under WAC 388-113-0040, if the results of the Washington state name and date of birth background check indicate the person ((is disqualified by having)) has a disqualifying criminal conviction ((listed in WAC 388-78A-2470 subsections (1) through (6),)) or ((by having)) a ((finding listed in)) pending charge for a disqualifying crime under chapter 388-113 WAC, or a disqualifying negative action under WAC 388-78A-2470 ((subsections (7) through (9))), then the assisted living facility must:
(1) Not employ, directly or by contract, a caregiver, administrator, or staff person; and
(2) Not allow a volunteer or student to have unsupervised access to residents.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-2464 Background checks—Process—Background authorization form.
Before the assisted living facility employs, directly or by contract, an administrator, staff person or caregiver, or accepts any volunteer, or student, the home must:
(1) Require the person to complete a DSHS background authorization form; and
(2) ((Send the completed form)) Submit to the department's background check central unit, including any additional documentation and information requested by the department.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-24642 Background checks—National fingerprint background check.
(1) Administrators and all caregivers who are hired after January 7, 2012 and are not disqualified by the Washington state name and date of birth background check, must complete a national fingerprint background check and follow department procedures.
(2) After receiving the results of the national fingerprint background check the assisted living facility must not employ, directly or by contract, an administrator or caregiver who has ((been convicted of)) a ((crime or has a finding that is)) disqualifying criminal conviction or pending charge for a disqualifying crime under chapter 388-113 WAC, or that is disqualifying under WAC 388-78A-2470.
(3) The assisted living facility may accept a copy of the national fingerprint background check results letter and any additional information from the department's background check central unit from an individual who previously completed a national fingerprint check through the department's background check central unit, provided the national fingerprint background check was completed after January 7, 2012.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-2465 Background check—Results—Inform.
(1) After receiving the results of the Washington state name and date of birth background check, the assisted living facility must:
(a) Inform the person of the results of the background check;
(b) Inform the person that they may request a copy of the results of the background check. If requested, a copy of the background check results must be provided within ten days of the request; and
(c) Notify the department and other appropriate licensing or certification agency of any person resigning or terminated as a result of having a disqualifying criminal conviction ((record)) or pending charge for a disqualifying crime under chapter 388-113 WAC, or a negative action that is disqualifying under WAC 388-78A-2470.
(2) After receiving the result letter for the national fingerprint background check, the assisted living facility must inform the person:
(a) Of the national fingerprint background check result letter;
(b) That they may request a copy of the national fingerprint check result letter; and
(c) That any additional information requested can only be obtained from the department's background check central unit.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-2467 Background check—Sharing by health care facilities.
In accordance with RCW 43.43.832 a health care facility may share Washington state background check results with other health care facilities under certain circumstances. Results of the national fingerprint checks may not be shared. For the purposes of this section health care facility means a nursing home licensed under chapter 18.51 RCW, an assisted living facility license under chapter 18.20 RCW, or an adult family home licensed under chapter 70.128 RCW.
(1) The health care facility may, upon request from another health care facility, share completed Washington state background check results only if:
(a) The health care facility sharing the background check information is reasonably known to be the person's most recent employer;
(b) No more than twelve months has elapsed between the date the individual was last employed at a licensed health care facility and the date of the individual's current employment application;
(c) The background check is no more than two years old; and
(d) The assisted living facility has no reason to believe the individual has ((or may have)) a disqualifying criminal conviction or ((finding as described in)) pending charge for a disqualifying crime under chapter 388-113 WAC, a negative action that is disqualifying under WAC 388-78A-2470.
(2) The assisted living facility may also establish, maintain and follow a written agreement with home health, hospice, or home care agencies licensed under chapter 70.127 RCW or nursing pools registered under chapter 18.52C RCW in order to ensure that the agency or pool staff meet the requirements of WAC 388-78A-2470.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040. AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-2468 Background checks—Employment—Conditional hire—Pending results of Washington state name and date of birth background check.
The assisted living facility may conditionally hire an administrator, caregiver, or staff person directly or by contract, pending the result of the Washington state name and date of birth background check, provided that the assisted living facility:
(1) Submits the background authorization form for the person to the department no later than one business day after he or she starts working;
(2) Requires the person to sign a disclosure statement indicating if ((they have been convicted of)) he or she has a disqualifying criminal conviction or pending charge for a disqualifying crime ((or have a finding that is disqualifying)) under chapter 388-113 WAC, or a negative action that is disqualifying under WAC 388-78A-2470;
(3) Has received three positive references for the person;
(4) Does not allow the person to have unsupervised access to any resident;
(5) Ensures direct supervision of the administrator, all caregivers, and staff persons; and
(6) Ensures that the person is competent, and receives the necessary training to perform assigned tasks and meets the training requirements under chapter 388-112 WAC.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-2469 Background check—Disclosure statement.
(1) The assisted living facility must require each administrator, caregiver, staff person, volunteer and student, prior to starting his or her duties, to make disclosures of any crimes or findings consistent with RCW 43.43.834(2). The disclosures must be in writing and signed by the person under penalty of perjury.
(2) The department may require the assisted living facility or any administrator, caregiver, staff person, volunteer or student to complete additional disclosure statements or background authorization forms if the department has reason to believe that ((offenses specified in)) a disqualifying criminal conviction or pending charge for a disqualifying crime under chapter 388-113 WAC, or a negative action that is disqualifying under WAC 388-78A-2470 have occurred since completion of the previous disclosure statement or background check.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-2470 Background check—Employment-disqualifying information—Disqualifying negative actions.
(1) The assisted living facility must not employ ((or allow)) an administrator, caregiver, or staff person, to have unsupervised access to residents, as defined in RCW 43.43.830, if ((the person has been:))
(((1) Convicted of a "crime against children or other persons")) the individual has a disqualifying criminal conviction or pending charge for a disqualifying crime under chapter 388-113 WAC, unless the individual is eligible for an exception under WAC 388-113-0040.
(2) The assisted living facility must not employ an administrator, caregiver, or staff person, or allow an administrator, caregiver, or staff person to have unsupervised access to residents, as defined in RCW 43.43.830, ((unless the crime is simple assault, assault in the fourth degree, or prostitution and more than three years have passed since the last conviction;
(2) Convicted of "crimes relating to financial exploitation" as defined in RCW 43.43.830, unless the crime is theft in the third degree, and more than three years have passed since conviction, or unless the crime is forgery or theft in the second degree and more than five years has passed since conviction;
(3) Convicted of the manufacture, delivery, or possession with intent to manufacture or deliver drugs under one of the following laws:
(a) Violation of the Imitation Controlled Substances Act (VICSA);
(b) Violation of the Uniform Controlled Substances Act (VUCSA);
(c) Violation of the Uniform Legend Drug Act (VULDA); or
(d) Violation of the Uniform Precursor Drug Act (VUPDA);
(4) Convicted of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;
(5) Convicted of criminal mistreatment;
(6) Convicted of a crime in any federal or state court, and the department determines that the crime is equivalent to a crime described in this section;
(7) Found to have abused, neglected, financially exploited or abandoned a minor or vulnerable adult by a court of law or a disciplining authority, including the department of health;
(8) Found to have abused or neglected a child and that finding is:
(a) Listed on the department's background check central unit report; or
(b) Disclosed by the individual, except for finding made before December, 1998.
(9) Found to have abused, neglected, financially exploited or abandoned a vulnerable adult and that finding is:
(a) Listed on any registry, including the department's registry;
(b) Listed on the department's background check central unit report; or
(c) Disclosed by the individual, except for adult protective services findings made before October, 2003.)) if the individual has one or more of the following disqualifying negative actions:
(a) A court has issued a permanent restraining order or order of protection, either active or expired, against the person that was based upon abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult;
(b) The individual is a registered sex offender;
(c) The individual is on a registry based upon a final finding of abuse, neglect or financial exploitation of a vulnerable adult, unless the finding was made by Adult Protective Services prior to October 2003;
(d) A founded finding of abuse or neglect of a child was made against the person, unless the finding was made by Child Protective Services prior to October 1, 1998;
(e) The individual was found in any dependency action to have sexually assaulted or exploited any child or to have physically abused any child;
(f) The individual was found by a court in a domestic relations proceeding under Title 26 RCW, or under any comparable state or federal law, to have sexually abused or exploited any child or to have physically abused any child;
(g) The person has had a contract or license denied, terminated, revoked, or suspended due to abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult; or
(h) The person has relinquished a license or terminated a contract because an agency was taking an action against the individual related to alleged abuse, neglect, financial exploitation or mistreatment of a child or vulnerable adult.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-24701 Background checks—Employment—Nondisqualifying information.
(1) If the background check results show that an employee or prospective employee has a criminal conviction or ((finding)) pending charge for a crime that is not a disqualifying crime under chapter 388-113 WAC ((388-78A-2470)), then the assisted living facility must determine whether the person has the character, competence and suitability to work with vulnerable adults in long-term care.
(2) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the assisted living facility.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-3170 Circumstances ((resulting)) that may result in enforcement remedies.
(1) The department is authorized to impose enforcement remedies described in WAC 388-78A-3160 if any person described in subsection (2) of this section is found by the department to have:
(a) A history of significant noncompliance with federal or state laws or regulations in providing care or services to frail elders, vulnerable adults or children, whether as a licensee, contractor, managerial employee or otherwise. Evidence of significant noncompliance may include, without limitation:
(i) Citations for violation of laws or regulations imposed by regulating entities;
(ii) Sanctions for violation of laws or regulations imposed by regulating entities;
(iii) Involuntary termination, cancellation, suspension, or nonrenewal of a medicaid contract or medicare provider agreement, or any other agreement with a public agency for the care or treatment of children, frail elders or vulnerable adults;
(iv) Been denied a license or contract relating to the care of frail elders, vulnerable adults or children; or
(v) Relinquished or failed to renew a license or contract relating to care of frail elders, vulnerable adults or children following written notification of the licensing agency's initiation of denial, suspension, cancellation or revocation of a license.
(b) Failed to provide appropriate care to frail elders, vulnerable adults or children under a contract, or having such contract terminated or not renewed by the contracting agency due to such failure;
(c) ((Been convicted of a felony, or a crime against a person, if the conviction reasonably relates to the competency of the person to operate an assisted living facility;
(d))) Failed or refused to comply with the requirements of chapter 18.20 RCW, applicable provisions of chapter 70.129 RCW or this chapter;
(((e))) (d) Retaliated against a staff person, resident or other individual for:
(i) Reporting suspected abuse, neglect, financial exploitation, or other alleged improprieties;
(ii) Providing information to the department during the course of ((the department conducting)) an inspection of the assisted living facility; or
(iii) Providing information to the department during the course of ((the department conducting)) a complaint investigation in the assisted living facility.
(((f))) (e) Operated a facility for the care of children or vulnerable adults without a current, valid license or under a defunct or revoked license;
(f) Attempted to obtain a contract or license from the department by fraudulent means or by misrepresentation;
(g) ((Been convicted of a crime)) A conviction or pending charge for a crime that is not automatically disqualifying under chapter 388-113 WAC, but that:
(i) Was committed on an assisted living facility premises; or knowingly permitted, aided or abetted an illegal act on an assisted living facility premises; ((or engaged in))
(ii) Involved the illegal use of drugs or the excessive use of alcohol; or
(iii) Is reasonably related to the competency of the person to operate an assisted living facility.
(h) Abused, neglected or exploited a vulnerable adult ((or));
(i) Had a sanction or corrective or remedial action taken by federal, state, county or municipal officials or safety officials related to the care or treatment of children or vulnerable adults;
(j) ((knowingly failed)) Failed to report alleged abuse, neglect or exploitation of a vulnerable adult ((as required by)) in violation of chapter 74.34 RCW;
(((i))) (k) Failed to exercise fiscal accountability and responsibility involving a resident, the department, public agencies, or the business community; or to have insufficient financial resources or unencumbered income to sustain the operation of the assisted living facility;
(((j))) (l) Knowingly or with reason to know, made false statements of material fact in the application for the license or the renewal of the license or any data attached thereto, or in any matter under investigation by the department;
(((k))) (m) Willfully prevented or interfered with or attempted to impede in any way any inspection or investigation by the department, or the work of any authorized representative of the department or the lawful enforcement of any provision of this chapter;
(((l))) (n) Refused to allow department representatives or agents to examine any part of the licensed premises including the books, records and files required under this chapter;
(((m))) (o) Moved all residents out of the assisted living facility without the department's approval and appears to be no longer operating as an assisted living facility; or
(((n))) (p) Demonstrated any other factors that give evidence the applicant lacks the appropriate character, suitability and competence to provide care or services to vulnerable adults.
(2) This section applies to any assisted living facility:
(a) Applicant;
(b) Partner, officer or director;
(c) Manager or managerial employee; or
(d) Majority owner of the applicant or licensee:
(i) Who is involved in the management or operation of the assisted living facility;
(ii) Who may have direct access to assisted living facility residents;
(iii) Who controls or supervises the provision of care or services to assisted living facility residents; or
(iv) Who exercises control over daily operations of the assisted living facility.
(3) For other circumstances resulting in discretionary enforcement remedies, see WAC 388-78A-3200.
AMENDATORY SECTION (Amending WSR 13-13-063, filed 6/18/13, effective 7/19/13)
WAC 388-78A-3190 Denial, suspension, revocation, or nonrenewal of license statutorily required.
(1) The department must deny, suspend, revoke, or refuse to renew an assisted living facility license if any person described in subsection (2) of this section ((who may have unsupervised access to residents has a conviction or finding described in WAC 388-78A-2470)) is found by the department to have:
(i) A court has issued a permanent restraining order or order of protection, either active or expired, against the person that was based upon abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult;
(ii) The individual is a registered sex offender;
(iii) The individual is on a registry based upon a final finding of abuse, neglect or financial exploitation of a vulnerable adult, unless the finding was made by Adult Protective Services prior to October 2003;
(iv) A founded finding of abuse or neglect of a child was made against the person, unless the finding was made by Child Protective Services prior to October 1, 1998;
(v) The individual was found in any dependency action to have sexually assaulted or exploited any child or to have physically abused any child;
(vi) The individual was found by a court in a domestic relations proceeding under Title 26 RCW, or under any comparable state or federal law, to have sexually abused or exploited any child or to have physically abused any child;
(vii) The person has had a contract or license denied, terminated, revoked, or suspended due to abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult; or
(viii) The person has relinquished a license or terminated a contract because an agency was taking an action against the individual related to alleged abuse, neglect, financial exploitation or mistreatment of a child or vulnerable adult.
(2) This section applies to any assisted living facility:
(a) Applicant;
(b) Partner, officer or director;
(c) Manager or managerial employee; or
(d) Owner of five percent or more of the applicant:
(i) Who is involved in the operation of the assisted living facility; or
(ii) Who controls or supervises the provision of care or services to the assisted living facility residents; or
(iii) Who exercises control over daily operations.
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