WSR 06-11-152

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed May 23, 2006, 4:28 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-07-132.

Title of Rule and Other Identifying Information: Chapter 388-101 WAC, Certified community residential services and support, these rules address vulnerable adult abuse and neglect reporting requirements in certified supported living programs, including due process and appeal rights. These rules also address client transportation requirements.

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on June 27, 2006, at 10:00 a.m.

Date of Intended Adoption: Not earlier than June 28, 2006.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., on June 27, 2006.

Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by June 23, 2006, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Residential care services division recently assumed responsibility for conducting investigations of entities and alleged perpetrators where allegations of abandonment, abuse, neglect, and financial exploitation in certified supported living programs are reported. Portions of WAC 388-71-0100 through 388-71-1280 (adult protective services) and WAC 388-97-077 (resident protection program) are being incorporated without material change into chapter 388-101 WAC to reflect this change in responsibility.

No substantive changes are being made to any existing requirements including those governing: (1) Vulnerable adult abuse and neglect reporting, (2) abuse and neglect investigations and notification, and (3) due process and appeal rights.

The proposed rules also amend WAC 388-101-2300 to clarify that vehicles used to transport clients must be insured as required by existing state law and that providers and persons associated with the provider who transport clients must have a valid driver's license. The proposed rules incorporate existing state law by reference (chapters 46.20, 46.29, and 46.30 RCW) and do not impose new requirements.

These proposed rules only address some of the elements identified in preproposal statement of inquiry WSR 05-07-132. The department plans to propose additional changes to chapter 388-101 WAC under WSR 05-07-132.

Reasons Supporting Proposal: The proposed WAC amendments reflect an internal change of responsibility for conducting investigations of alleged abandonment, abuse, neglect, and financial exploitation in certified supported living programs. Chapter 388-101 WAC needs to indicate that ADSA-adult protective services is no longer conducting certain investigations.

A recent audit by the state auditor's office stated that the department should establish adequate internal controls to ensure that vehicles used to transport clients of supported living services are properly insured as required by state law. The audit recommended that the department clearly define its expectations for properly insured vehicles used to transport clients.

Statutory Authority for Adoption: RCW 71A.12.030 and 71A.12.080.

Statute Being Implemented: Chapter 71A.12 RCW.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Implementing these rules requires supported living providers to call a different phone number to make mandated reports regarding vulnerable adult abandonment, abuse, neglect, and financial exploitation. All mandated reports must be made to the centralized toll free telephone number provided by the department instead of to ADSA-adult protective services.

A letter was sent to providers in February 2006 describing the revised mandated reporting procedures. Material and information was included with the letter to assist providers with the transition. Based on feedback and experience from the past three months, the department is revising and reissuing the letter to providers. The revised letter will include the following information and material:

(1) Copies of mandated reporting notices including the phone number to call to make those reports. One version of the notice will be provided for posting in a service provider's office. A second version will be provided that can be posted in the homes where clients live.

(2) The DSHS-ADSA complaint hotline printed script. The printed script includes all the questions that a caller will be asked and the information that should be reported when making a mandated report. The script includes instructions and tips for how to use the complaint hotline.

(3) A copy of chapter 74.34 RCW, Washington's state vulnerable adult abuse and reporting law.

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting: John Gaskell, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-3210; Implementation and Enforcement: Joyce Stockwell, Director, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2401.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rules and determined that they will not result in more than minor costs to small businesses or nonprofits required to comply with the rules. A comprehensive small business economic impact statement is not required.

A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b)(iii) the proposed changes to chapter 388-101 WAC are exempt from a cost benefit analysis because the rule is incorporating from other state regulations and adopting by reference to other state statutes without material change.

May 17, 2006

Andy Fernando, Manager

Rules and Policies Assistance Unit

3665.2
NEW SECTION
WAC 388-101-1101   Abuse and neglect reporting requirements.   (1) All administrators, owners, staff and volunteers are mandated reporters and must report instances of abandonment, abuse, neglect, or financial exploitation of vulnerable adults as defined in, and accordance with chapter 74.34 RCW.

(2) Reports must be made to the centralized toll free telephone number for reporting abandonment, abuse, neglect or financial exploitation of vulnerable adults, provided by the department.

(3) Reports must be made to law enforcement agencies, as required under chapter 74.34 RCW.

(4) Service providers must have policies and procedures complying with state law that specify reporting requirements for client abandonment, abuse, neglect, and financial exploitation.

(5) Each administrator, owner, staff person, and volunteer must read and sign the policy about reporting requirements. The service provider must retain the signed policy for staff and volunteers.

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NEW SECTION
WAC 388-101-1106   Investigation of mandated reports.   (1) The department will determine whether a report of client abandonment, abuse, neglect, or financial exploitation needs to be investigated, in accordance with established procedures.

(2) The department investigation will include an investigation of allegations about one or more of the following:

(a) A service provider;

(b) Anyone associated with a service provider; or

(c) A client receiving services under this chapter.

(3) If, after completing an investigation under this chapter, the department concludes that it is more likely than not that a specific individual abandoned, abused, neglected, or financially exploited a client, the department will make an initial finding against the individual.

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NEW SECTION
WAC 388-101-1111   Notice of an initial finding.   (1) The department will notify the individual in writing within ten working days of making an initial finding of abandonment, abuse, neglect or financial exploitation of a client. The written notice will not include the identities of the alleged victim, reporter and witnesses.

(2) The department shall make a reasonable, good faith effort to determine the last known address of the individual.

(3) 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.

(4) Notice of the initial finding will be served as provided in chapter 388-02 WAC.

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NEW SECTION
WAC 388-101-1116   Reporting initial findings.   (1) In a manner consistent with confidentiality requirements concerning the client, witnesses, and reporter, the department may provide notification of an initial finding to:

(a) Other divisions within the department;

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

(c) Law enforcement; and

(d) Other investigative authorities consistent with chapter 74.34 RCW.

(2) The notification will identify the finding as an initial finding.

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NEW SECTION
WAC 388-101-1121   Disputing an initial finding.   (1) An individual alleged to have abandoned, abused, neglected, or financially exploited a client may request an administrative hearing to challenge an initial finding made by the department.

(2) The request must be made in writing to the office of administrative hearings.

(3) The office of administrative hearings must receive the individual's written request for a hearing within thirty calendar days of the date the individual was served with notice of the initial finding.

(4) The written request for a hearing must include:

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

(b) A brief explanation of why the individual disagrees with the initial finding;

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

(d) The individual's signature.

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NEW SECTION
WAC 388-101-1126   Disclosure of investigative and finding information.   (1) The individual may only use confidential information provided by the department as needed to challenge initial findings through the appeal process.

(2) Confidential information such as the name and other personal identifying information of the reporter, witnesses, or the client will be redacted from documents unless otherwise ordered by the administrative law judge consistent with chapter 74.34 RCW and other applicable state and federal laws.

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NEW SECTION
WAC 388-101-1131   Hearing procedures to dispute an initial finding.   (1) Chapters 34.05 and 74.34 RCW, chapter 388-02 WAC, and the provisions of this chapter govern any appeal regarding an 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.

(2) The administrative law judge shall determine whether a preponderance of the evidence supports the initial finding that the individual abandoned, abused, neglected, or financially exploited a vulnerable adult, and shall issue an initial order.

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NEW SECTION
WAC 388-101-1136   Appeal of the administrative law judge's initial order on a finding.   (1) If the individual or the department disagrees with the administrative law judge's decision, either party may challenge this decision by filing a petition for review with the department's board of appeals under chapter 34.05 RCW and chapter 388-02 WAC.

(2) If the department appeals the administrative law judge's decision, the department will not modify the finding in the department's records until a final hearing decision is issued.

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NEW SECTION
WAC 388-101-1141   Finalizing an initial finding.   (1) An initial finding becomes a final finding when:

(a) The department gives the individual notice of the initial finding pursuant to WAC 388-101-1110 and the individual does not request an administrative hearing;

(b) The administrative law judge:

(i) Dismisses the hearing following withdrawal of the appeal or default; or

(ii) Issues an initial order upholding the finding and the individual fails to appeal the initial order to the department's board of appeals; or

(c) The board of appeals issues a final order upholding the finding.

(2) The final finding is permanent and will not be removed from the department's records unless:

(a) It is rescinded following judicial review; or

(b) The department decides to remove a single finding of neglect from its records based upon a written petition by the individual provided that at least one calendar year has passed since the finding was finalized and recorded.

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NEW SECTION
WAC 388-101-1146   Reporting final findings.   The department will report a final finding of abandonment, abuse, neglect and financial exploitation within ten working days to the following:

(1) The individual;

(2) The service provider that was associated with the individual during the time of the incident;

(3) The service provider that is currently associated with the individual, if known;

(4) The appropriate licensing authority; and

(5) The department's registry of findings of abandonment, abuse, neglect and financial exploitation. The findings may be disclosed to the public upon request.

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AMENDATORY SECTION(Amending WSR 04-23-070 [05-05-077], filed 2/15/05, effective 2/15/05)

WAC 388-101-2300   ((How must the service provider be involved with a client's transportation needs?)) Client transportation.   (1) The service provider must provide transportation or ensure that clients have a way to get to:

(a) Emergency medical care;

(b) Medical appointments; and

(c) Therapies.

(2) Within available resources, the service provider must provide necessary assistance with transportation to and from:

(a) Work, school or other publicly funded services;

(b) Leisure or recreation activities;

(c) Client-requested activities; and

(d) ISP/POC- or IISP-related activities.

(3) ((A vehicle that the service provider uses to transport clients must be)) Service providers and persons associated with the provider, who transport clients, must:

(a) Have a valid driver's license as required by chapter 46.20 RCW; and

(b) Only use vehicles that are:

(i) In safe operating condition; and

(((b) Properly)) (ii) Insured ((for its usage)) as required by chapters 46.29 and 46.30 RCW.

[05-05-077, recodified as 388-101-2300, filed 2/15/05, effective 2/15/05. Statutory Authority: RCW 71A.12.030, 71A.12.080, and chapter 71A.12 RCW. 04-23-070, 388-820-720, filed 11/15/04, effective 12/16/04. Statutory Authority: Title 71A RCW. 01-22-020, 388-820-720, filed 10/26/01, effective 1/1/02.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-101-1100 Abuse and neglect reporting requirements.
WAC 388-101-1105 Investigation of mandated reports.
WAC 388-101-1110 Notice of an initial finding.
WAC 388-101-1115 Reporting initial findings.
WAC 388-101-1120 Disputing an initial finding.
WAC 388-101-1125 Disclosure of investigative and finding information.
WAC 388-101-1130 Hearing procedures to dispute an initial finding.
WAC 388-101-1135 Appeal of the administrative law judge's initial order on a finding.
WAC 388-101-1140 Finalizing an initial finding.
WAC 388-101-1145 Reporting final findings.

Washington State Code Reviser's Office