WSR 97-11-083

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Public Assistance)

[Filed May 21, 1997, 11:20 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 95-23-074.

Title of Rule: WAC 388-15-120 Adult protective services.

Purpose: To implement changes in chapter 74.34 RCW made in 1995.

Statutory Authority for Adoption: RCW 74.08.090.

Statute Being Implemented: Chapters 74.34 and 26.44 RCW; 42 USC 1397 and 42 USC 3058.

Summary: The definitions of abuse, neglect, abandonment, and exploitation; and the definition of frail elder and vulnerable adult in chapter 74.34 RCW have changed. The changes in the current WAC will enable APS to use the appropriate criteria for determining the need for protective services for this population of people.

Reasons Supporting Proposal: Chapters 74.34 and 26.44 RCW requires that the Department of Social and Health Services provide services to protect vulnerable adults.

Name of Agency Personnel Responsible for Drafting: Melanie Johnson, Aging and Adult Services Administration, Olympia, Washington 98504, (360) 407-0354; Implementation and Enforcement: Aging and Adult Services Administration, Olympia, Washington 98504, (360) 407-0354.

Name of Proponent: Department of Social and Health Services, Aging and Adult Services Administration, P.O. Box 45600, Mailstop 45600, Olympia, WA 98504-5600, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rules implement the requirements of chapters 74.34 and 26.44 RCW to provide protective services to vulnerable adults by stating the authority and goals of the rules; defining the terms used to define an APS situation; explaining eligibility and investigative authority; and explaining scope of support services.

Proposal Changes the Following Existing Rules: WAC 388-15-120; see above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not affect small business.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Currently, this section, codified in RCW 34.05.328, does not apply to the Department of Social and Health Services.

Hearing Location: Lacey Government Center, 1009 College Street S.E., Room 104-A, Lacey, WA 98503, on June 24, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Leslie Baldwin, e-mail lbaldwin@dshs.wa.gov, by June 13, 1997, TDD (360) 902-8324, or (360) 902-7540.

Submit Written Comments to: Leslie Baldwin, Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-9292, by June 24, 1997.

Date of Intended Adoption: No sooner than June 25, 1997.

May 21, 1997

Merry A. Kogut, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION (Amending Order 3116, filed 12/18/90, effective 1/18/91)

WAC 388-15-120 Adult protective services. (1) Authority. The authority for adult protective services is:

(a) 42 U.S.C. 1397 for adults in need of protection;

(b) 42 U.S.C. 3058, for programs for prevention of elder abuse, neglect, and exploitation;

(c) Chapter 74.34 RCW for frail elders and vulnerable adults;

(((b))) and

(d) Chapter 26.44 RCW for dependent and developmentally disabled adults((; and

(c) 42 U.S.C. 1397 for other adults in need of protection)).

(2) Goals. The department shall:

(a) Limit adult protective services goals to those specified under WAC 388-15-010 (1)(c), (d), and (e) and 388-15-010(2); and

(b) Help prevent, correct, improve, or remedy situations of abuse, abandonment, exploitation, or neglect by providing adult protective services to eligible clients as defined under chapter 26.44 RCW and RCW 74.34.020.

(3) ((Description of services. To prevent, correct, improve, or remedy situations of abuse, abandonment, exploitation, or neglect, the department shall provide adult protective services to:

(a) Dependent adults eighteen years of age or older;

(b) Developmentally disabled adults eighteen years of age or older;

(c) Vulnerable adults sixty years of age or older; or

(d) Other adults similarly unable to protect interests vital to their safety and well-being)) Definitions. The department shall use the following definitions when intervening to protect frail elderly and vulnerable adults:

(a) "Abandonment" means action or inaction by a person or entity with a duty of care for a frail elder or vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care (RCW 74.34.020);

(b) "Abuse" means a nonaccidental act of physical or mental mistreatment or injury, or sexual mistreatment, which harms a person through action or inaction by another individual (RCW 74.34.020);

(c) "Adult protective services evaluation" is the term used to describe the action taken to determine if further investigation is necessary when a report of self-neglect is received.

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

(e) "Consent" means express written consent granted after the person has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary (RCW 74.34.020);

(f) "Exploitation" means the illegal or improper use of a frail elder or vulnerable adult or that person's income or resources, including trust funds, for another person's profit or advantage (RCW 74.34.020);

(g) "Frail elder or vulnerable adult" shall have the same meaning as the definition in RCW 74.34.020. Frail elder and vulnerable adults include a person:

(i) Sixty years of age and older who has the functional, mental, and physical inability to care for himself or herself;

(ii) Found incapacitated under chapter 11.88 RCW;

(iii) Who has a developmental disability under chapter 71.A.10 RCW;

(iv) Admitted to any long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW; or

(v) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 7.127 RCW.

(h) "Neglect" means a pattern of conduct or inaction by a person or entity with a duty of care for a frail elder or vulnerable adult that results in the deprivation of care necessary to maintain the vulnerable person's physical or mental health (RCW 74.34.020);

(i) "Mental mistreatment" means any infliction of mental or emotional pain or distress or both. Examples include, but are not limited to intimidation, coercion, ridiculing, harassment, treating an adult like a child, isolating an adult from family, friends, or regular activity, use of silence to control behavior, and yelling and swearing which results in mental distress.

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

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

(ii) A person or entity providing the basic necessities of life to frail elder or vulnerable adults where:

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

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

(k) "Physical abuse" means any infliction of bodily injury or physical mistreatment. Examples include, but are not limited to striking (with or without an object), slapping, pinching, choking, kicking, shoving, or inappropriate use of drugs or physical restraints;

(l) "Self-neglect" means the failure to provide for oneself the goods or services which are necessary to avoid physical harm, emotional harm, or medical harm. This definition excludes a person who is competent to make a voluntary decision to live his or her life in a manner which may threaten his or her safety or well-being;

(m) "Sexual mistreatment" means any form of nonconsensual sexual contact. Sexual mistreatment includes, but is not limited to unwanted touching, rape, sodomy, coerced nudity, sexual explicit photographing.

(4) Eligibility. ((Before a person receives adult protective services from the department, a person)) Prior to investigating or providing services:

(a) The department shall determine when an adult protective service situation exists.

(b) The department shall conduct investigations without regard to the income of the frail elder or vulnerable adult.

(c) The client shall be the frail elder or vulnerable adult as defined in WAC 388-15-120.

(d) The client shall ((show)) exhibit evidence of:

(((a) Existing)) (i) Elements of abuse, abandonment, exploitation, or neglect constituting a danger to the frail elder or vulnerable adult ((or others)); and

(((b))) (ii) No ((one willing and)) other adult is available or able to competently assist the frail elder or vulnerable adult ((responsibly)).

(e) The department may refuse to investigate reports which do not fit the definition of abuse, neglect, exploitation, abandonment or the definition of frail elder or vulnerable adult found in this chapter.

(5) Investigation.

(a) The department shall respond to ((all)) reports of abuse, neglect, exploitation, or abandonment of frail elder or vulnerable((, dependent, and developmentally disabled)) adults. Response to a report may include, but is not limited to, referral to another entity for action; another entity may include, but is not limited to, law enforcement agency, mental health center, department of health, domestic violence program, residential care services, drug or alcohol treatment.

(((a) The department shall determine if a valid adult protective service situation exists.))

(b) ((The department may refuse to investigate reports which do not constitute abuse, exploitation, neglect, or abandonment as defined under RCW 74.34.020.

(c) The department shall conduct investigations regardless of the adult's income)) The department shall report an incident of abuse or neglect pursuant to chapter 26.44 RCW involving an adult dependent or developmentally disabled person who has died or has had physical injury or injuries inflicted upon him or her other then by accidental means or who has been subjected to sexual abuse, shall report such incident to the proper law enforcement agency.

(i) In emergency cases where the person's welfare is endangered the department shall notify law enforcement within twenty-four hours after receiving the report.

(ii) In all other cases the department shall notify law enforcement within seventy-two hours after receiving the report.

(6) Support services.

(a) The department shall provide ((dependent adults, developmentally disabled adults, vulnerable adults, and other adults similarly unable to protect interests vital to their safety and well being with support services)) services only with the written consent of the client after the client has been fully informed about the services and the client's right to refuse services.

(b) The department shall provide frail elders and vulnerable adults with chore personal care services and placement into an adult family home or adult residential care facility without regard to income only:

(((a))) (i) When the services are essential to, and a subordinate part of, the adult protective services plan; and

(((b))) (ii) For a period not to exceed ((the)) ninety days during any twelve-month period of time which is specified ((under)) in WAC 388-15-209(((4)))(5), ((Chore services--Eligibility, WAC)) 388-15-552(2), ((Adult family home--Eligible persons, and WAC)) or 388-15-562(3)((, Congregate care--Eligible persons)).

(c) The department may seek the appointment of a guardian after all other less restrictive alternatives have been explored and when it is apparent that the client may meet the criteria of incapacity pursuant to chapter 11.88 RCW.

(d) The department may provide assistance to a frail elder or vulnerable adult by filing a protective order as per chapters 10.14, 26.50, and 74.34 RCW, or as otherwise provided by law.

(e) The department may provide other services to protect the vulnerable adult.