WSR 01-22-019

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Health and Rehabilitative Services Administration)

[ Filed October 26, 2001, 3:48 p.m. , effective November 1, 2001 ]

Date of Adoption: October 26, 2001.

Purpose: Adopt new rules, WAC 388-820-1001, 388-820-1002, 388-820-1003, 388-820-1004, 388-820-1005, 388-820-1006, 388-820-1007, 388-820-1008, 388-820-1009, 388-820-1010, 388-820-1011, and 388-820-1012, to carry out the legislative intent of Title 71A RCW authorizing the department to provide or contract for the provision of services to clients with developmental disabilities residing in community settings.

Statutory Authority for Adoption: Title 71A RCW.

Other Authority: RCW 34.05.350.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The department would be unable to contract for residential services for developmentally disabled clients living in community residential settings. Without contracted services, these clients' health and safety may then be at risk.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 12, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 12, Amended 0, Repealed 0.
Effective Date of Rule: November 1, 2001.

October 26, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3003.1
NEW SECTION
WAC 388-820-1001   Purpose.   (1) The purpose of these standards is to specify measures which shall carry out the legislative intent of Title 71A RCW authorizing the department to provide or contract for the provision of services to clients with developmental disabilities residing in community residential settings.

(2) Residential services shall provide eligible clients the opportunity to:

(a) Enjoy all rights and privileges under the Constitution and laws of the United States and the state of Washington;

(b) Participate in community life with nonhandicapped and less-handicapped persons to the greatest extent possible; and

(c) Achieve a greater measure of independence and fulfillment.

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NEW SECTION
WAC 388-820-1002   Exemptions.   (1) The department may approve an exemption to a specific rule in this chapter as defined under WAC 388-820-010(9) provided an:

(a) Assessment of the exemption request ensures granting the exemption shall not undermine the legislative intent of Title 71A RCW; and

(b) Evaluation of the exemption request shows granting the exemption shall not affect the quality of the services, supervision, health, and safety of department-served persons.

(2) Agencies and individual providers shall retain a copy of each department-approved exemption.

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NEW SECTION
WAC 388-820-1003   Review and evaluation.   (1) The department shall review and/or evaluate the agency's services as set forth by law or this chapter. Evaluation shall occur biennially, but the department may require more frequent evaluations.

(2) The department may, at any time, review each client's records and activities to ensure the agency continues serving the client's needs, interests, and welfare.

(3) The department shall file a report of the evaluation results. When the agency is out of compliance with the standards and regulations contained in chapter 388-820 WAC and department contracts, the report shall specify the corrective action to be implemented within a specific time. When corrective action is not implemented within the specified time, the department may withdraw the agency's certification as described under WAC 388-820-020.

(4) The department shall have the right to conduct additional evaluations or audits of the agency as the department deems necessary.

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NEW SECTION
WAC 388-820-1004   Eligibility for residential services and support.   Any client authorized by the division of developmental disabilities shall be eligible for residential services as defined by this chapter.

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NEW SECTION
WAC 388-820-1005   Administration.   (1) The owner or board of directors of the agency shall have department-approved written statements including, but not limited to, the following:

(a) Agency philosophy, objectives, and goals;

(b) Program description and admission criteria;

(c) Policies and procedures describing the following:

(i) Division administrative policy number one prohibiting abuse:

(A) The agency administrator shall complete and file with the division the document entitled division of developmental disabilities administrative policy number one prohibiting a client's mistreatment, neglect, or abuse. The agency shall retain a copy of the document; and

(B) All agency staff working with clients shall sign a similar department-approved document. The agency shall keep the document on record.

(ii) Organizational chart and description showing all supervisory relationships;

(iii) Definition of staff roles and responsibilities, including the person designated to act in the absence of the administrator;

(iv) Criminal background inquiries required under chapter 388-330 WAC;

(v) Client confidentiality and release of information;

(vi) Client rights and grievance procedure;

(vii) Protection of client's financial interests, including management of client accounts, if applicable;

(viii) Drug administration, supervision, handling, storage, and disposal;

(ix) Self-administration of drugs, prescribed or not;

(x) Response to and contingency planning for:

(A) Medical emergencies;

(B) Natural or other disasters;

(C) Missing persons;

(D) Clients involved with law enforcement; and

(E) Unmanageable client behavior.

(xi) Notification of client's guardian and/or relatives in case of emergency.

(2) Following emergencies, as defined under WAC 388-825-020, the agency shall:

(a) Immediately notify the department orally of a serious incident or emergency as described in department policy;

(b) Submit a written incident report to the department as required by law or policy; and

(c) Notify the client's guardian or legal representative.

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NEW SECTION
WAC 388-820-1006   Staffing.   (1) An agency shall provide sufficient staff to administer the program and perform instruction and support services.

(2) An agency shall provide the client with immediate access to staff or the means to contact staff twenty-four hours a day, seven days each week.

(3) An agency required to have twenty-four-hour, on-duty staff coverage shall have a department-approved staff coverage schedule:

(a) At the time of certification; and

(b) When substantial changes occur. The agency shall retain a copy of department approval of their staffing schedule.

(4) Staff availability.

(a) An agency operating a residential program shall have a designated administrator.

(b) Each facility-based residence shall maintain staffing requirements applicable to the specific licensing regulations and contract requirements under which the agency operates.

(c) When only one direct care staff member is on duty, the agency shall make or have provisions for a second person on call in case of an emergency.

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NEW SECTION
WAC 388-820-1007   Individual service plan.   The agency shall participate with department staff, the client, the client's guardian or legal representative, and other interested persons in the development of the individual service plan (ISP), under RCW 71A.18.010 and WAC 388-825-050, as required for each client.

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NEW SECTION
WAC 388-820-1008   Health services.   (1) The agency shall have a means and procedure for ensuring a client has access to personal care and hygiene services, health services, mental health services, and dental services. For a client for whom the agency provides an average of thirty hours or more of service per month, the agency shall provide instruction and support to the client by:

(a) Maintaining health records;

(b) Assisting the client to arrange appointments with health professionals;

(c) Assisting and ensuring transportation for the client to health services;

(d) Monitoring the client's implementation of medical treatment prescribed by health professionals; and

(e) Communicating directly with health professionals, when indicated.

(2) For each client for whom the agency provides an average of thirty hours or more a month, the agency shall ensure the client receives an annual physical and dental examination unless an exemption is granted, in writing, from the appropriate medical professional.

(3) The agency shall document client refusal to participate in health care services. Documentation shall include:

(a) A written description of events concerning client refusal to participate in health services; and

(b) A written plan to teach the client the benefits of health care participation.

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NEW SECTION
WAC 388-820-1009   Client records.   (1) The client's records shall include, but not be limited to, the following:

(a) The client's name, address, and Social Security number;

(b) The client's guardian or legal representative's name, address, and telephone number;

(c) Copies of legal guardianship papers, if any;

(d) Client health records:

(i) Names, addresses, and telephone numbers of relatives or responsible persons and the name, address, and telephone number of the client's:

(A) Physician;

(B) Dentist;

(C) Mental health provider; or

(D) Others providing client health care services.

(ii) Health care providers' instructions regarding health care needed, including appointment dates and date of next appointment if appropriate;

(iii) Written documentation that the health care providers' instructions have been followed; and

(iv) A record of prosthesis and other artificial parts;

(e) A copy of the department's individual service plan (ISP); and

(f) The client's agency-developed individual instruction and support plan (IISP).

(2) The agency shall maintain and keep current documentation of:

(a) Instruction and support activities for each client as a basis for review, study, and evaluation of the overall progress in programs provided by the agency to the participating clients;

(b) Semi-annual review of the IISP;

(c) Consultation with other service providers and other interested persons;

(d) IISP revisions and changes; and

(e) Other activities relevant to the client.

(3) The agency serving a client an average of thirty hours or more a month shall assist the client in maintaining a current, written property record. The record shall include:

(a) A list of personal possessions, including clothing the client purchases, with a value of one hundred dollars or more per item;

(b) A list of items the client owns when moving into the program;

(c) Description and identifying numbers, if any;

(d) The date of acquisition of items purchased after moving into the program;

(e) The date and reason for addition or removal from the record; and

(f) The signature of the staff making the entry.

(4) Individual providers shall maintain records as required by the department.

(5) The agency shall consider all client record information:

(a) Privileged and confidential;

(b) Available to the department, to the client, and to residential services staff, as needed, to provide client services;

(c) Available to the county developmental disabilities board when the department requests it as allowed under RCW 71A.14.070.

(6) The agency shall prepare and record all record entries:

(a) In ink;

(b) At the time of or immediately following the occurrence of the event recorded, in legible writing, dated, and signed by the person making the entry.

(7) Any transfer or inspection of records, except under subsection (5) of this section, shall be authorized by a release of information form, specific to the transfer or inspection signed by the client or guardian.

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NEW SECTION
WAC 388-820-1010   Notice of fine and appeal rights.   (1) The department shall give the provider written notice of the civil fine. The department shall ensure the notice:

(a) States the amount and reasons for the fine and the applicable law under which the fine is imposed; and

(b) Informs the provider of the right to request an adjudicative hearing.

(2) A civil fine becomes due twenty-eight days after the service of the written notice of the fine unless the provider requests a hearing in compliance with chapter 34.05 RCW and RCW 43.20A.215. If a hearing is requested, the department shall stay the fine pending a final decision on the matter.

(3) A provider contesting the department's decision to impose a civil fine shall, within twenty-eight days of receipt of the decision:

(a) File a written application for an adjudicative proceeding by a method showing proof of receipt with the Office of Appeals, P.O. Box 2465, Olympia, WA 98504; and

(b) Include in or with the application:

(i) The grounds for contesting the department decision; and

(ii) A copy of the contested department decision.

(4) Administrative proceedings shall be governed by chapter 34.05 RCW, RCW 43.20A.215, and chapter 388-02 WAC. If any provision in this section conflicts with chapter 388-02 WAC, the provision in this section governs.

(5) When a provider disagrees with the department's finding of a violation under this chapter, the provider shall have the right to have the violation reviewed under the department's dispute resolution process.

(6) Upon request by the provider, the department shall expedite the dispute resolution process to review the imposition of a civil fine.

(7) No agency may discriminate or retaliate in any manner against a person because the person made a complaint or cooperated in the complaint investigation.

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NEW SECTION
WAC 388-820-1011   Physical requirements.   (1) The agency shall ensure facility-based residential services provide clients the following conditions or necessary equipment:

(a) A clean, safe, and healthful environment;

(b) A location in a residential neighborhood within reasonable distance of necessary physical resources, such as stores, banks, laundromats, churches, job opportunities, and other public services;

(c) An adequate first-aid kit or supplies and a first-aid manual; and

(d) Compliance with all licensing regulations, when applicable.

(e) Current facility-based agencies are exempt from subsection (1)(b) effective the date of this amendatory act.

(2) The agency shall ensure nonfacility-based residential services provide clients with the following conditions or necessary equipment:

(a) A clean, safe, and healthful environment;

(b) Access to client-usable telephone equipment;

(c) A working smoke detector, light-alarmed if clients are hearing impaired, located in proximity to sleeping rooms;

(d) A flashlight or other nonelectrical light source in working condition;

(e) Basic first-aid supplies;

(f) An evacuation plan, developed and practiced with the client, placed or stored within the living unit;

(g) A safe storage area for flammable and combustible materials;

(h) Unblocked exits; and

(i) Accessibility by customary forms of ingress and egress for space utilized for residential purposes, excluding ladders, folding stairs, or trap doors.

(3) The agency providing nonfacility-based residential services shall document activities with a client relevant to subsection (2) of this section.

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NEW SECTION
WAC 388-820-1012   Payment for service.   (1) The department shall pay for residential services provided to eligible clients under department contract or policy.

(2) For a client receiving facility-based residential services and support:

(a) The client shall pay for cost of care or service from earnings or financial resources under department policy;

(b) Department payments under this chapter shall be supplemental to other financial resources of the client; and

(c) When a client's guardian controls the client's income, estate, or trust fund, the guardian shall reimburse the agency as described under this section.

(3) A client receiving nonfacility-based residential services shall pay for their own housing, utilities, food, clothing, and other personal and incidental expenses from earnings and other financial resources.

(4) The department shall require a client to participate in defraying the cost of services when mandated by federal or state statute or regulation.

(5) The provider shall inform the department when the client requires services beyond levels described under chapter 388-820 WAC. The department may approve and provide payment for additional expenses or services. The provider shall retain a copy of department approval.

(6) To ensure a client is not charged for services provided by state-funded programs, any payment made for health services with client funds shall be supported by the department's written denial.

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NEW SECTION
WAC 388-820-1013   Change of ownership.   (1) An agency shall inform the department in writing sixty days prior to a change of ownership.

(2) On the effective date of a change of ownership, the department shall terminate the department's certification with the previous provider.

(3) The department shall withhold final payment to the previous provider until the previous provider submits and the department accepts all reports and required documents.

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Washington State Code Reviser's Office