DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Aging and Long-Term Support Administration)

The statutory references for WAC 388-71-0100 through WAC ((388-71-01280)) 388-71-01281 are:

(1) Chapter 74.34 RCW; and

(2) ((Chapter 74.39A RCW; and

(3) Chapter 74.39 RCW)) 42 U.S.C. § 1396r; 42 C.F.R. § 488.335.

In addition to the definitions found in chapter 74.34 RCW, the following definitions apply:

"((ADSA)) ALTSA" means DSHS aging and ((disability)) long-term support services administration.

"ALJ" means an administrative law judge, an impartial decision-maker who is an attorney and presides at an administrative hearing. The office of administrative hearings (OAH), which is a state agency, employs the ALJs. ALJs are not DSHS employees or DSHS representatives.

"APS" means adult protective services.

"Basic necessities of life" means food, water, shelter, clothing, and medically necessary health care, including but not limited to health-related treatment or activities, hygiene, oxygen, and medication.

"BOA" means the DSHS board of appeals. The board of appeals consists of lawyers who are members of the Washington State Bar Association. An ALJ's decision can be appealed to the board of appeals, allowing a level of review before an appeal to the court system may be considered.

"DSHS" means the department of social and health services.

"Facility" means a residence licensed as ((a boarding home under chapter 18.20 RCW, an adult family home under chapter 70.128 RCW, a nursing home under chapter 18.51 RCW, a soldier's home under chapter 72.36 RCW, a residential habilitation center under chapter 71A.20 RCW, or any other facility licensed by DSHS)) an assisted living facility under chapter 18.20 RCW, an adult family home under chapter 70.128 RCW, a nursing home under chapter 18.51 RCW, a soldier's home under chapter 72.36 RCW, a residential habilitation center under chapter 71A.20 RCW, an enhanced services facility under chapter 71.05 RCW, or any other facility or residential program licensed or certified by DSHS's aging and long-term support administration.

"Final finding" means ((the department's)) a substantiated initial finding of abandonment, abuse, personal exploitation, financial exploitation or neglect that

(1) has been ((is)) upheld through the administrative appeal ((process specified)) described in WAC 388-71-01205 through 388-71-01280, or

(2) is not timely appealed to the office of administrative hearings. ((The alleged perpetrator can appeal a)) A final finding may be appealed to Superior Court and the Court of Appeals under the Administrative Procedure Act, chapter 34.05 RCW.

"Legal representative" means a guardian appointed under chapter 11.88 RCW or an attorney-in-fact under chapter 11.94 RCW.

"Person ((or entity)) with a duty of care" includes, but is not limited to, the following:

(1) A guardian appointed under chapter 11.88 RCW; or

(2) A person named in a durable power of attorney as the attorney-in-fact as defined under chapter 11.94 RCW.

(3) A person ((or entity)) providing the basic necessities of life to a vulnerable adult (([adults])) where:

(a) The person ((or entity)) is employed by or on behalf of the vulnerable adult; or

(b) The person ((or entity)) voluntarily agrees to provide, or has been providing, the basic necessities of life to the vulnerable adult on a continuing basis.

"Personal aide" as found in RCW 74.39.007.

"Self-directed care" as found in RCW 74.39.007.

"Willful" means the nonaccidental action or inaction by an alleged perpetrator that he/she knew or reasonably should have known could cause harm, injury or a negative outcome.

The purpose of an adult protective services investigation is to:

(1) Investigate allegations of abandonment, abuse, personal exploitation, financial exploitation, neglect, or self-neglect.

(2) Provide protective services with the consent of the vulnerable adult or his or her legal representative when the allegation is substantiated, or prior to substantiation when it appears abandonment, abuse, personal exploitation, financial exploitation, neglect or self-neglect may be occurring and protective services could assist in ending or preventing harm to the vulnerable adult.

(3) When an allegation is substantiated, APS may investigate whether other vulnerable adults may be at current risk of abuse, personal exploitation, neglect, abandonment or financial exploitation by the person ((or entity)).

The department ((determines when an investigation is conducted [required]. The following criteria must be met)) will conduct an investigation when:

(1) The reported circumstances fit the definition of abandonment, abuse, personal exploitation, financial exploitation, neglect, or self-neglect as defined in chapter 74.34 RCW; and

(2) The alleged victim is a vulnerable adult as defined in chapter 74.34 RCW.

(1) Subject to available funding, state-only funded in-home personal care/household services and state-only funded placement in a department licensed and contracted adult family home, ((boarding home)) assisted living facility or nursing facility may be offered without regard to the vulnerable adult's functional status or income/resources, if:

(a) The vulnerable adult is the subject of an open APS case involving an allegation of abandonment, abuse, personal exploitation, financial exploitation, neglect, and/or self-neglect;

(b) The services would help protect the vulnerable adult from harm;

(c) APS cannot verify alternative resources or options for payment for services available to the vulnerable adult at the time;

(d) Services are provided in the least restrictive and most cost effective setting available to appropriately meet the needs of the vulnerable adult;

(e) APS is actively pursuing other service alternatives and/or resolution of the issues that resulted in the need for protective services; and

(f) The state-only funded services are temporary and provided with the consent of the vulnerable adult or legal representative only until the situation has stabilized. State-only funded protective services are provided by DSHS on a discretionary basis and are not a benefit and not an entitlement. Termination of state-only funded temporary protective services is exempt from notification and appeal requirements.

(2) State-only funded services to an individual vulnerable adult shall be based on assessed need and limited to:

(a) Up to one hundred forty-three hours of in-home personal care/household services per month; and

(b) A cumulative maximum total of ninety days service in any twelve-month period of time, with nursing facility services not exceeding thirty days of the ninety-day total. An exception to rule cannot be used to grant an extension.

(1) APS will notify the alleged perpetrator in writing within ten working days of making a substantiated initial finding of abandonment, abuse, personal exploitation, financial exploitation or neglect of a vulnerable adult.

(2) The time frame for notification can be extended beyond ten working days to include the time needed to translate the notification letter or make provisions for the safety of the alleged victim.

(2) APS shall have the written notice delivered or personally served upon the alleged perpetrator)) APS will notify the alleged perpetrator of the substantiated initial finding using one of the following methods:

(2) Sending a copy of the notice to the alleged perpetrator by first-class mail and by certified mail/return receipt requested, at his or her last known mailing address, which includes a post office box.

Notice is complete when:

(1) Personal service is made;

(2) Mail is properly stamped, addressed and deposited in the United States mail;

(3) A parcel is delivered to a commercial delivery service with charges prepaid; or

(4) A parcel is delivered to a legal messenger service with charges prepaid.

APS may prove notice was provided to the alleged perpetrator by any of the following:

(1) A sworn statement or declaration of personal service;

(2) The certified mail receipt signed by the recipient;

(3) An affidavit or certificate of mailing; or

(4) A signed receipt from the person who accepted the commercial delivery service or legal messenger service ((package)) parcel.

The identities of the alleged victim, reporter, and witnesses must not be included in the ((APS)) substantiated initial finding notice to the alleged perpetrator.

(1) In a manner consistent with confidentiality requirements concerning the vulnerable adult, witnesses, and reporter, APS may provide notification of a substantiated initial finding to:

(a) Other divisions within the department;

(b) The agency or program identified under RCW 74.34.068 with which the alleged perpetrator is associated as an employee, volunteer or contractor;

(c) Law enforcement;

(d) Other investigative authority consistent with chapter 74.34 RCW; ((and))

(e) The facility in which the incident occurred; and

(f) The appropriate licensing agency.

(2) In the notification APS will identify the finding as ((an)) a substantiated initial finding.

An alleged perpetrator of abandonment, abuse, personal exploitation, financial exploitation or neglect may request an administrative hearing to challenge a substantiated initial finding made by APS on or after the effective date of this rule.

(1) To request an administrative hearing the alleged perpetrator must send, deliver, or fax a written request to the office of administrative hearings (OAH). OAH must receive the written request ((within thirty)) no later than 5:00 p.m. on the thirtieth calendar ((days of)) day from the mailing date on the department's letter of notice ((is mailed or personally served upon the alleged perpetrator, whichever occurs first)) or no later than 5:00 p.m. on the thirtieth calendar day from the date the department's letter of notice was personally served upon the alleged perpetrator, whichever occurs first, as required by WAC 388-02-0035(2). If the alleged perpetrator requests a hearing by fax, the alleged perpetrator must also mail a copy of the request to OAH on the same day.

(2) The alleged perpetrator must complete and submit the form to request an administrative hearing provided by APS or submit a written request for a hearing that includes:

(a) The full legal name, current address and phone number of the alleged perpetrator;

(b) A brief explanation of why the alleged perpetrator disagrees with the substantiated initial finding;

(c) A description of any assistance needed in the administrative appeal process by the alleged perpetrator, including a foreign or sign language interpreter or any accommodation for a disability;

(d) The alleged perpetrator should keep a copy of the request.

Chapters 34.05 and 74.34 RCW, chapter 388-02 WAC, and the provisions of this chapter govern any administrative hearing regarding a substantiated ((APS)) initial finding. In the event of a conflict between the provisions of this chapter and chapter 388-02 WAC, the provisions of this chapter shall prevail.

Upon receipt of a written request for a hearing from a nursing assistant employed in a nursing facility or skilled nursing facility, the office of administrative hearings will schedule a hearing, taking into account the following requirements:

(1) The hearing decision must be issued within one hundred twenty days of the date the office of administrative hearings receives a hearing request, except as provided in subsection (6);

(2) Neither the department nor the nursing assistant can waive the one hundred twenty day requirement;

(3) The hearing will be conducted at a reasonable time and at a place that is convenient for the nursing assistant;

(4) The hearing, and any subsequent appeals, will be governed by this chapter, chapter 34.05 RCW, and chapter 388-02 WAC, or its successor regulations;

(5) A continuance may be granted for good cause upon the request of any party, as long as the hearing decision can still be issued within one hundred twenty days of the date of the receipt of the appeal, except under the circumstances described in subsection (6);

(6) If the ALJ finds that extenuating circumstances exist that will make it impossible to render a decision within one hundred twenty days, the ALJ may extend the one hundred twenty-day requirement by a maximum of sixty days; and

(7) To comply with the time limits described in this section, the nursing assistant must be available for the hearing and other preliminary matters. If the hearing decision ((is)) cannot ((rendered)) be issued within the time limits described in ((subsection (1), or if appropriate under subsection (6), the ALJ shall issue an order dismissing the appeal and the substantiated initial finding will become final)) this section due to the unavailability of the nursing assistant, then, after the time limits have expired, the nursing assistant's name will be placed on the registry pending the outcome of the hearing.

(8) If a substantiated initial finding made against a nursing assistant employed in a nursing facility or skilled nursing facility is upheld in an ALJ's initial decision, the nursing assistant's name will be placed on the registry.

Reviser's note: The unnecessary underscoring and strike through 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.

(1) All information and documents provided by the department to the alleged perpetrator shall be used by the alleged perpetrator only to challenge the findings in the administrative hearing.

(2) Confidential information such as the name and other personal identifying information of the ((reporter)) person making a report to APS and the vulnerable adult shall be redacted from documents and ((the parties shall use means)) in testimony to protect the identify of such persons, unless otherwise ordered by the ALJ consistent with chapter 74.34 RCW and other applicable state and federal laws.

(1) ((The)) If the ALJ ((shall decide if)) determines that a preponderance of the evidence in the hearing record supports ((a determination)) the substantiated initial finding that the alleged perpetrator ((committed an act of abandonment, abuse, financial exploitation or neglect of)) abandoned, abused, personally exploited, financially exploited or neglected a vulnerable adult, the ALJ shall uphold the substantiated initial finding.

(2) ((If the ALJ determines that a preponderance of the evidence in the hearing record supports the substantiated APS finding, the ALJ shall uphold the finding.

(3))) If the ALJ determines that the substantiated ((APS)) initial finding is not supported by a preponderance of the evidence in the hearing record, the ALJ shall remand the matter to the department to modify the finding consistent with the initial decision of the ALJ.

((After the administrative hearing, the)) The ALJ will send a written initial decision to the alleged perpetrator and the department within ninety calendar days after the administrative hearing record is closed.

If the alleged perpetrator or the department disagrees with the ALJ's initial decision, either party may challenge ((this)) the initial decision by filing a ((petition)) request for review with the department's board of appeals ((consistent with the procedures contained)) in accordance with chapter 34.05 RCW and chapter 388-02 WAC. If the alleged perpetrator files a request for review, the department will not change the substantiated finding in its records until a final decision is issued on the alleged perpetrator's request for review.

If the department appeals the ALJ's decision, the department will not modify the substantiated initial finding in the department's records until a final ((hearing)) agency decision is issued. If the department does not appeal the ALJ's initial decision, the department will modify the substantiated initial finding in the department's records consistent with the ALJ's initial decision and document the ALJ's initial decision in the record.

(1) A substantiated initial finding becomes a final finding when:

(((1))) (a) The department gives the alleged perpetrator notice of the substantiated initial finding pursuant to WAC 388-71-01210 and the alleged perpetrator does not request an administrative hearing as set forth in WAC 388-71-01240; or

(((2))) (b) The ALJ dismisses the alleged perpetrator's request for hearing following default or withdrawal by the alleged perpetrator, or issues an initial order upholding the substantiated initial finding and the alleged perpetrator fails to file a request for review of the ALJ's initial decision with the department's board of appeals consistent with the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC; or

(((3) The board of appeals issues a final order upholding)) (c) A party requests review of the substantiated finding ((when a request for review to the department's board of appeals is made)) consistent with the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC, and the department's board of appeals issues a review decision upholding the substantiated finding.

(d) When a final finding is made against a nursing assistant, employed in a nursing facility or skilled nursing facility based upon a singular instance of neglect of a resident, the department may remove the finding of neglect from the department's registry in response to a petition. Any such removal shall be based upon a written petition by the nursing assistant at least one year after the finding of neglect has been finalized and in accordance with requirements of federal law, 42 U.S.C.1396r (g)(1)(D).

The department will maintain a registry of final findings of abuse, personal exploitation, abandonment, neglect and financial exploitation and, upon request of any person, the department may disclose the identity of a person ((or entity)) with a final finding of abandonment, abuse, personal exploitation, financial exploitation or neglect.

The department will report a final finding of abandonment, abuse, personal exploitation, neglect, financial exploitation of a resident within ten working days to the following:

(1) The nursing assistant employed in a nursing facility or skilled nursing facility where the abuse, personal exploitation, abandonment, neglect or financial exploitation occurred;

(2) The current administrator of the facility in which the incident occurred;

(3) The administrator of the facility that currently employs the nursing assistant, if known;

(4) The department's registry;

(5) The appropriate licensing authority; and

(6) Any other lists maintained by a state or federal agency as appropriate.