PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Original Notice.
Preproposal statement of inquiry was filed as WSR 00-15-014.
Title of Rule: Chapter 388-78A WAC (entire chapter revision), Boarding home licensing rules.
Purpose: The purpose of revising the boarding home licensing rules is to make the rules easier to understand, make them more applicable to the current residents of boarding homes to improve the quality of care and services to residents, make them more consistent with current practices in residential care, make them more focused on what occurs with residents, and to comply with the Governor's Executive Order 97-02.
Statutory Authority for Adoption: RCW 18.20.090.
Statute Being Implemented: Chapter 18.20 RCW.
Summary: The proposed amendments:
• Repeal all existing sections in chapter 388-78A WAC, and replace them with new sections in the same chapter.
• Clarify and strengthen the assessment and care planning requirements for residents in boarding homes.
• Outline the minimum level of support all boarding homes must provide to the residents.
• Clarify and strengthen the nursing, medication and other health care support services available to residents in boarding homes.
• Identify when specialized training for developmental disabilities, mental illness, and dementia is required in boarding homes.
• Improve the requirements for boarding home administrators.
• Revise all sections to make the requirements easier to understand.
Reasons Supporting Proposal: See Explanation of Rule below.
Name of Agency Personnel Responsible for Drafting: Denny McKee, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2590: Implementation and Enforcement: Patricia K. Lashway, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2401.
Name of Proponent: Department of Social and Health Services, Aging and Disability Services Administration, governmental.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: DSHS intends to adopt the proposed rules after March 12, 2003, and make them effective as of September 1, 2003.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 388-78A WAC is being revised to improve the care and services provided to boarding home residents by clarifying and strengthening the requirements for assessing residents, developing and implementing negotiated care plans, and more clearly outlining the expectations regarding nursing services, medication services, and health care support services in boarding homes. The rules also establish a minimum level of care and service a boarding home must provide, and improve the qualifications of boarding home administrators. The anticipated effects of this rule are the residents will receive more appropriate and individualized care and services in a boarding home.
Proposal Changes the Following Existing Rules: The entire licensing chapter 388-78A WAC has been revised to make it easier to understand and strengthen requirements to improve care and services to boarding home residents. The proposed changes include:
• Repealing all existing sections in chapter 388-78A WAC and replacing them with new sections in the same chapter.
• Specifying the characteristics of persons that boarding homes may accept and retain in the boarding home.
• Specifying the outcomes and timing of an initial resident assessment and what topics the assessment must include.
• Specifying the process of developing negotiated care plans for residents, including the timing and content of these agreements.
• Specifying the minimum level of services a boarding home must provide.
• Specifying the requirements for medication assistance and medication administration, and storing and accounting for medications.
• Specifying the requirements associated with providing intermittent nursing services, including coordinating health care services with outside providers.
• Specifying the requirements for implementing negotiated care plans and monitoring residents' well-being.
• Specifying the requirements for hiring and training sufficient staff for the boarding home, including requirements for criminal history background checks and testing for tuberculosis.
• Specifying the qualifications and training requirements for boarding home administrators.
• Specifying the administrative requirements of operating a boarding home, including use of management agreements, development of policies and procedures, infection control practices, and reporting requirements.
• Specifying requirements for disaster preparedness and disclosing available services.
• Specifying the licensee's responsibilities in a boarding home.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Residential care services (RCS) in Aging and Disability Services Administration (ADSA), Department of Social and Health Services is proposing amendments to chapter 388-78A WAC, Boarding homes.
The purpose of these amendments is to:
• Comply with Governor Locke's Executive Order 97-02 regarding regulatory improvement.
• Make the rules easier to understand.
• Make the rules more applicable to today's boarding home residents.
• Make the rules more consistent with current practices in residential care.
• Make the rules more focused on what occurs with residents ("outcome focused").
The proposed amendments include repealing all existing sections in chapter 388-78A WAC, and replacing them with new sections, and specifying:
• The characteristics of persons boarding homes may accept and retain in the boarding home;
• The conditions under which a person may live in a building before it is licensed as a boarding home;
• The outcomes and timing of an initial resident assessment, who is qualified to perform the assessment, and what topics the assessment must include;
• The process of developing, and the timing and content of negotiated care plans for residents;
• The minimum level of services a boarding home must provide;
• The requirements for medication assistance and medication administration, and storing and accounting for medications;
• The requirements for food services;
• The requirements associated with providing intermittent nursing services, including coordinating health care services with outside providers;
• The requirements for implementing negotiated care plans and monitoring residents' well-being;
• The requirements for providing adult day care and dementia care, and the requirements for operating a unit with restricted egress;
• The requirements associated with documenting resident care, and maintaining records regarding residents' care;
• The requirements for hiring and training sufficient staff for the boarding home, including requirements for criminal history background checks and testing for tuberculosis;
• The training requirements for staff;
• The qualifications and training requirements for boarding home administrators;
• The administrative requirements of operating a boarding home, including use of management agreements, development of policies and procedures, infection control practices, and reporting requirements;
• Resident rights in boarding homes;
• Requirements for disaster preparedness and disclosing available services;
• The requirements for obtaining a boarding home license and the procedures for application;
• The licensee's responsibilities in a boarding home;
• The requirements for the building to be used as a boarding home;
• The rights and responsibilities of the boarding home during the inspection process; and
• The enforcement actions the department may take in response to a boarding home's noncompliance with rules, and the boarding home's appeal rights.
SMALL BUSINESS ECONOMIC IMPACT STATEMENT: Chapter 19.85 RCW, The Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. Small businesses are defined in this statute as those for-profit businesses that employ fifty or fewer people and are independently owned.
The statute outlines information that must be included in a small business economic impact statement (SBEIS). Preparation of an SBEIS is required when a proposed rule has the potential of placing a disproportionate economic impact on small businesses. This chapter impacts all licensed boarding homes in Washington.
Residential care services (RCS) has analyzed the proposed amendments to their rules and has determined that small businesses will be impacted by these changes, and that a comprehensive SBEIS is required.
INDUSTRY ANALYSIS: RCS is responsible for licensing boarding homes in Washington and investigating complaints regarding their operation. As part of their monitoring, RCS keeps a current internal database that identifies all licensed boarding homes. Since internal industry information can be obtained at a more accurate level than is required by chapter 19.85 RCW, it is unnecessary to conduct an industry analysis using the four-digit standard industrial classification (SIC) codes.
Residential care services has determined that there are approximately three hundred thirty-three existing boarding homes that meet the criteria for small businesses under RCW 19.85.020.
INVOLVEMENT OF SMALL BUSINESSES: Aging and Disability Services Administration began the process of obtaining public input on the development of this rule revision around March 2000 by holding meetings with a wide variety of stakeholders. The initial meetings were designed to identify the general problems that existed in current rules and the major topics that needed to be addressed. As a result of these first discussions, eight different work groups, composed of a variety of stakeholders, were created around the topics of:
• Provision of nursing services and health care supports;
• The process of assessing residents' needs;
• Boarding homes disclosing to the public the services they provide;
• Administrative issues in the boarding home;
• Providing care to persons with dementia;
• Enforcement issues;
• The building and physical environment; and
• Miscellaneous issues including the basic services that should be required in a boarding home.
These eight work groups met a total of fifty-eight times and developed two hundred-six advisory recommendations to ADSA. These advisory recommendations served as recommended general concepts or guiding principles for inclusion in the revision of chapter 388-78A WAC. Further, these recommendations were posted on a publicized web-site with e-mail links to the department for other members of the public to provide input. ADSA management team reviewed each of these recommendations and accepted the vast majority of them. The accepted guiding principles or concepts were then embodied in this proposed rule.
In addition to the multiple meetings of the different advisory work groups, on October 28, 2002, a draft of the revisions to chapter 388-78A WAC was distributed to various stakeholders, including the long-term care ombudsman program (LTCOP) and the three professional associations representing boarding home operators (Northwest Assisted Living Facilities Association - NorALFA; Washington Association of Housing and Services for the Aging - WAHSA; and Washington Health Care/Washington Center for Assisted Living - WHCA/WCAL). At the same time, LTCOP, NorALFA, WAHSA, and WHCA/WCAL were each invited to send three representatives to another meeting on December 4, 2002, to specifically discuss the costs associated with implementing the draft WAC.
The invited participants were asked to:
• Review the draft WAC;
• Identify the requirements in the draft WAC that they perceived to be new requirements beyond current standards; and
• Determine as near as possible the additional costs to the boarding home of implementing/complying with that requirement.
A meeting was held from 9:00 a.m. - 3:30 p.m. on December 4, 2002, and was attended by six provider representatives, one representative from LTCOP, and two staff from ADSA. Additionally, one invited provider who was not able to attend the meeting submitted comments by fax. Provider representatives were asked to identify what they perceived as new requirements and the associated new costs, and to present them in order, starting with what the provider representatives considered to be the most costly. The department noted all of the new requirements that the provider representatives thought would have "more than minor costs."
It was noted that the costs of complying with a new requirement could have a large variation across the industry because of the unique factors associated with each boarding home. However, as the result of discussion, approximate industry averages were agreed upon by attendees. It was also agreed upon that to the extent possible, the on-going costs associated with complying with the revised rules should be expressed in terms of dollars per resident-day. And it was further agreed upon that the "average" "small business" is best represented by a boarding home licensed for thirty-one beds, and that the "average" "large business" is best represented by a boarding home licensed for eighty-four beds.
The one-time costs associated with achieving compliance are best expressed in cost per licensed bed.
COST OF COMPLIANCE: To fairly consider costs of compliance, residential care services has elected to look at costs per licensed bed for the one-time costs associated with achieving compliance with the new rules, and costs per resident-day for on-going expenses associated with maintaining compliance. This is due to these facts:
Boarding homes' revenues are based on the numbers of residents being served in the boarding home. Boarding homes generally prorate expenses over the average number of residents served.
In order to fairly compare expenses between large and small businesses, the cost per resident-day provides a measure of the impact any change would have on each resident.
GENERAL COSTS: The one-time costs associated with complying with the requirements of the proposed rule were estimated to be as follows:
| Providers' Perceived One-time Costs | ADSA's Analysis for Small Businesses (Average thirty-one beds) | ADSA's Analysis for Large Businesses (Average eighty-four beds) |
| • Cost for revising existing policies and procedures (100 hours @ $20/hour). | • To the extent that the proposed
amended rule reflects a different
standard, providers will need to
revise their operating policies and
procedures. • $32.26 total per bed in the first year only. (50 hours x $20/hr/31). |
• $11.09 total per bed in the first year only (50 hours x $20/hr/84). |
| • Cost of additional in-service training on revised policies and procedures (4 hours training per direct care employee @ $12/hr and 8 hours training per professional staff @ $20/hr). | • To the extent that the proposed
amended rule reflects a different
standard, providers will need to
train their staffs. • Assuming thirteen direct care staff and two professional staff, $30.45 total per bed in the first year only [(4 x $12 x 13)+ (8 x $20 x 2)]/31=$30.45. |
• To the extent that the proposed
amended rule reflects a different
standard, providers will need to
train their staffs. • Assuming twenty-six direct care staff and four professional staff, $22.48 total per bed in the first year only [(4 x $12 x 26)+ (8 x $20 x 4)]/84= $22.48. |
| • Cost of obtaining a social history on current residents with dementia (1 hour @ $20/hr). | • Obtaining a social history for
residents with dementia is
consistent with current standards
of practice in successful boarding
homes today, and is consistent
with recommendations from work
groups regarding the appropriate
standards. • No additional one-time costs are anticipated for current residents with dementia. |
• Obtaining a social history for
residents with dementia is
consistent with current standards
of practice in successful boarding
homes today, and is consistent
with recommendations from work
groups regarding the appropriate
standards. • No additional one-time costs are anticipated for current residents with dementia. |
| • Total one-time first year costs per bed: | • $62.71 per bed in first year only. | • $33.57 per bed in first year only. |
| Providers' Perceived New Costs | ADSA's Analysis |
| • Assessment requirements would cost an additional $.22 per resident-day because of increased qualifications for assessor and specified elements of assessment (4 hours of additional time per resident per year @ $20/hr). | • Current chapter 388-78A WAC and chapter 70.129 RCW
presently require boarding homes to assess residents'
needs and the proposed WAC does not create any new
assessment requirement. The proposed new WAC only
elaborates on existing assessment topics, such as health
professional's diagnosis, and safety needs. This
elaboration is consistent with current standards of practice
in successful boarding homes today, and is consistent
with recommendations from work groups regarding the
appropriate standards. • ADSA has reviewed the information submitted by providers regarding the draft rule that increased the time and qualifications of the person responsible for conducting the initial resident assessment (for needs or services other than nursing care). As a result of this analysis, ADSA has determined the increased costs to be $.12 per resident day (2.25 hours of additional time per resident per year @ $20/hr). |
| • The requirements to develop the negotiated care plan would cost an additional $.24 per resident-day because of specified elements of the negotiated care plan, accommodating resident preferences, and developing plans with residents' families when they are involved in providing care or services to the resident (5 minutes more per resident per week @ $20/hr). | • Current chapter 388-78A WAC and chapter 70.129 RCW
require boarding homes to develop an individual's resident
plan to address resident needs and accommodate
residents' preferences, and the proposed WAC does not
create a new requirement. • The proposed WAC is consistent with current standards of practice in successful boarding homes today, and is consistent with recommendations from work groups regarding the appropriate standards. • Any costs that may be related to changes in requirements for developing negotiated care plans are considered "minor" in amounts. |
| • The requirements to provide a basic level of services in a boarding home would cost between $3.10 and $4.65 per resident day in a small business and between $2.86 and $4.29 per resident day in a large business (8-12 total additional direct care staff hours per day per 31 beds @ $12 per hour, and 20-30 total additional direct care staff hours per day per 84 beds @ $12 per hour). | • Current chapter 388-78A WAC and chapter 70.129 RCW
require boarding homes to provide the listed services, but
do not specify the extent of services. By defining the
exact level of services that are expected, in some cases it
limits how much services may be required, and in other
cases it more clearly describes the extent of services that
are expected. • No new costs are associated with these clarifying statements. |
| • The requirements to provide a higher level of activities in a boarding home would cost between $3.10 per resident day in a small business and $2.29 per resident day in a large business (1 additional FTE in a small business @ $12/hr and 2 additional FTEs in a large business). | • ADSA has reviewed the information submitted by
providers regarding the draft rule that increased boarding
homes' requirements to provide individualized activities
daily. As a result of this analysis, ADSA concurs that the
costs of this draft requirement outweighs the benefits. • Additionally, since this requirement would have disproportionately impacted small businesses, the proposed rule will be changed to reflect existing requirements. The draft requirement to provide individualized activities on a daily basis is being withdrawn. • Therefore no new costs will be incurred because the draft requirement is being withdrawn. |
| • The expanded role of the registered nurse will cost more. | • The proposed rule and role of the registered nurse is consistent with nursing practice as described in chapter 246-840 WAC. ADSA did not create the requirements regarding the role of the registered nurse and therefore this rule did not create any new requirement or expense. |
| • There are a number of additional requirements that individually are very minor, but in the aggregate would cost @ $.25 per resident per day. | • Other minor requirements not mentioned above are
consistent with current standards of practice in successful
boarding homes today, and are consistent with
recommendations from work groups regarding the
appropriate standards. • A significant number of these requirements would only impact a fraction of the boarding homes on only an occasional basis, and therefore would not have a significant affect on the industry as a whole. • Any costs that may be related to changes in other requirements are considered "minor" in amounts. |
| Summary: | • ADSA has analyzed the costs associated with the
on-going requirements of the draft rules and evaluated the
probable benefits of them. In response to the boarding
home industry's concerns, ADSA has deleted one major
requirement from the draft rules: The requirement for
individualized activities on a daily basis has been deleted
from the proposed rules. • New on-going costs associated with the proposed rules are considered to be $.12 per resident day. |
However, the one-time costs associated with achieving compliance are disproportionate between small businesses and large businesses, since there are fewer licensed beds over which to spread the fixed costs in a small business. In the average small business boarding home, the first year cost of complying with the one-time expenses is estimated to be $62.71 per licensed bed. In the average large business boarding home, the first year cost of complying with the one-time expenses is estimated to be $33.57 per licensed bed.
While the estimated time required for boarding homes to achieve compliance may be worth the amounts described above, it is most likely that boarding homes will not have to bear all this expense as an additional expenditure. It is expected that providers will shift some of the costs associated with staff time from other priorities. For example, staff may be trained on the new policies and procedures at times that were normally scheduled for staff training on other subjects. While there is no debate about the value of staff time, there in fact may not be a significant additional expenditure required for this training.
Mitigating Expenses: Residential Care Services has plans for mitigating expenses for small businesses by delaying the effective date of the rules approximately one hundred-twenty days from the date of adoption. It is estimated that the adoption date will be no later than April 30, 2003. Consequently, the effective date for the rules has been set for September 1, 2003. This will allow both small businesses and large businesses to spread the costs of developing policies and presenting training over four months. This will help reduce the likelihood that additional actual expenditures would be required, such as having additional staff provide resident care services while other staff are being trained on new polices.
Additionally, ADSA intends to present several training sessions around the state for providers to help them more quickly understand and implement the new rules. This will help keep the amount of time necessary to revise or develop new policies and procedures to a minimum.
Finally, ADSA will not impose sanctions for a period of six months after the effective date of the rules, for a boarding home's failure to have written policies and procedures formally written and/or adopted regarding the following areas where new policies and procedures are required by WAC 388-78A-0600, subsection:
• (2)(a) regarding what to do when a resident is not capable of making necessary decisions;
• (2)(b) regarding what to do when a substitute decision maker is no longer appropriate;
• (2)(k)(i) regarding how medications are to be ordered and brought into the boarding home;
• (2)(k)(ii) regarding what to do if a resident's medications are not available;
• (2)(k)(vi) regarding sending medications with a resident when the resident leaves the premises;
• (2)(k)(viii) regarding inventorying schedule II and III drugs;
• (2)(k)(x) regarding the use of medication organizers;
• (2)(k)(xi) regarding what to do if a resident chooses not to take prescribed medications;
• (2)(l) regarding nurse delegation; and
• (2)(n) regarding the safe operation of boarding home vehicles.
ADSA will continue to impose enforcement actions or sanctions for negative outcomes that a resident may experience beginning with the effective date of the rules. ADSA will withhold sanctions for six months only for the limited purposes of having such policies and procedures formally written or adopted by the boarding home. This will allow small businesses to concentrate their time and energies on meeting the requirements of the rule, and will provide an extended period to achieve compliance with the necessary documentation. The broader time frame for compliance will allow boarding home operators to further spread out the costs of complying with this rule.
CONCLUSION: Residential care services has given careful consideration to the impact of proposed rules in chapter 388-78A WAC on small businesses. In accordance with the Regulatory Fairness Act, chapter 19.85 RCW, Residential care services has analyzed impacts on small businesses and proposed ways to mitigate those costs associated with the one-time requirements of developing new policies and procedures and training staff on them. Residential care services will delay the effective date of the rules, provide training, and suspend enforcement actions for specific violations for a period of six months following the effective date of the rules.
A copy of the statement may be obtained by writing to Denny McKee, Residential Care Services, ADSA, P.O. Box 45600, Olympia, WA 98504-5600, e-mail mckeedd@dshs.wa.gov, phone (360) 725-2590, fax (360) 438-7903.
RCW 34.05.328 applies to this rule adoption. A cost-benefit analysis has been prepared regarding this proposed rule. A copy of the cost-benefit analysis may be obtained by contacting Denny McKee, Residential Care Services, ADSA, P.O. Box 45600, Olympia, WA 98504-5600, e-mail mckeedd@dshs.wa.gov, phone (360) 725-2590, fax (360) 438-7903.
Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on March 11, 2003, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by March 7, 2003, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.
Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., March 11, 2003.
Date of Intended Adoption: Not earlier than March 12, 2003.
December 30, 2002
Bonita H. Jacques
for Brian H. Lindgren, Manager
Rules and Policies Assistance Unit
Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 03-04 issue of the Register.