SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)
Effective Date of Rule: Thirty-one days after filing.
Purpose: The purpose of the proposed rule is to clarify requirements and make grammatical correction.
Citation of Existing Rules Affected by this Order: Amending WAC 388-76-10000, 388-76-10230, 388-76-10235, 388-76-10330, 388-76-10355, 388-76-10650, 388-76-10720, 388-76-10725, 388-76-10775, 388-76-10840, 388-76-10845, 388-76-10870, 388-76-10930, and 388-76-10995.
Statutory Authority for Adoption: RCW 70.128.040.
Adopted under notice filed as WSR 08-21-036 on October 8, 2008.
Changes Other than Editing from Proposed to Adopted Version: For WAC 388-76-10930 Plan of correction -- Required, added subsection (3), "The adult family home must complete an attestation of correction for any inspection report as the department requires."
For WAC 388-76-10235 Guardianship, the following effective date language was added:
"Effective February 1, 2009, the adult family home ((
be)) must ensure that no provider, entity representative,
resident manager, or staff becomes any resident's guardian.
(2) Provider, entity representative, resident manager or staff who is a resident's guardian before February 1, 2009 may continue to be that resident's guardian."
The changes were made because residential care services seeks consistency in rule-making language to the extent possible in all settings, nursing homes, boarding homes and adult family homes.
A final cost-benefit analysis is available by contacting Maureen Lally, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-3204, fax (360) 438-7903, e-mail firstname.lastname@example.org.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 14, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 14, Repealed 0.
Date Adopted: January 12, 2009.
"Abuse" means the willful action or inaction that inflects injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult:
(1) In instances of abuse of a vulnerable adult who is unable to express or demonstrate physical harm, pain, or mental anguish, the abuse is presumed to cause physical harm, pain or mental anguish; and
(2) Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult, which have the following meanings:
(a) "Sexual abuse" means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse includes any sexual contact between a staff person, who is not also a resident or client, of a facility or a staff person of a program authorized under chapter 71A.12 RCW, and a vulnerable adult living in that facility or receiving service from a program authorized under chapter 71A.12 RCW, whether or not consensual.
(b) "Physical abuse" means a willful action of inflicting bodily injury or physical mistreatment. Physical abuse includes, but is not limited to, striking with or without an object, slapping, pinching, choking, kicking, shoving, prodding, or chemical restraints unless the restraints are consistent with licensing requirements, and includes restraints that are otherwise being used inappropriately.
(c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a vulnerable adult from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.
(d) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.
"Adult family home" means:
(1) A residential home in which a person or entity are licensed to provide personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to the person or persons providing the services; and
(2) For the purposes of this chapter, any person or entity who has been granted a license to operate an adult family home.
"Affiliated with an applicant" means any person listed on the application as a partner, officer, director, resident manager, or majority owner of the applying entity, or is the spouse or domestic partner of the applicant.
"Applicant" means an individual, partnership, corporation, or other entity seeking a license to operate an adult family home.
"Capacity" means the maximum number of persons in need of personal or special care permitted in an adult family home at a given time and includes related children or adults in the home who receive personal or special care and services.
"Caregiver" for purposes other than training, means any person eighteen years of age or older responsible for providing direct personal or special care to a resident and who is not the provider, entity representative, a student or volunteer.
"Dementia" is defined as a condition documented through the assessment process required by WAC 388-76-10335.
"Department" means the Washington state department of social and health services.
"Department case manager" means the department authorized staff person or designee assigned to negotiate, monitor, and facilitate a care and services plan for residents receiving services paid for by the department.
"Developmental disability" means:
(1) A person who meets the eligibility criteria defined by the division of developmental disabilities under WAC 388-823-0040; or
(2) A person with a severe, chronic disability which is attributable to cerebral palsy or epilepsy, or any other condition, other than mental illness, found to be closely related to mental retardation which results in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation, and requires treatment or services similar to those required for these persons (i.e., autism); and
(a) The condition was manifested before the person reached age eighteen;
(b) The condition is likely to continue indefinitely; and
(c) The condition results in substantial functional limitations in three or more of the following areas of major life activities:
(ii) Understanding and use of language;
(v) Self-direction; and
(vi) Capacity for independent living.
"Direct supervision" means oversight by a person who has demonstrated competency in the basic training and specialty training if required, or who has been exempted from the basic training requirements and is:
(1) On the premises; and
(2) Quickly and easily available to the caregiver.
"Domestic partners" means two adults who meet the requirements for a valid state registered domestic partnership as established by RCW 26.60.030 and who have been issued a certificate of state registered domestic partnership.
"Entity provider" means any corporation, partnership, association, or limited liability company that is licensed under this chapter to operate an adult family home.
"Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any person for any person's profit or advantage other than for the vulnerable adult's profit or advantage.
"Entity representative" means the individual designated by an entity provider who is responsible for the daily operation of the adult family home.
"Home" means adult family home.
"Indirect supervision" means oversight by a person who:
(1) Has demonstrated competency in the basic training and specialty training if required; or
(2) Has been exempted from the basic training requirements; and
(3) Is quickly and easily available to the care giver, but not necessarily on-site.
"Inspection" means ((
an on-site visit)) a review by
department personnel to determine the adult family home's
compliance with this chapter and chapters 70.128, 70.129,
74.34 RCW, and other applicable rules and regulations. The
department's review may include an on-site visit.
"Mandated reporter" means an employee of the department, law enforcement, officer, social worker, professional school personnel, individual provider, an employee of a facility, an employee of a social service, welfare, mental health, adult day health, adult day care, or hospice agency, county coroner or medical examiner, Christian Science practitioner, or health care provider subject to chapter 18.130 RCW. For the purpose of the definition of a mandated reporter, "Facility" means a residence licensed or required to be licensed under chapter 18.20 RCW (boarding homes), chapter 18.51 RCW (nursing homes), chapter 70.128 RCW (adult family homes), chapter 72.36 RCW (soldiers' homes), chapter 71A.20 RCW (residential habilitation centers), or any other facility licensed by the department.
"Medical device" as used in this chapter, means any piece of medical equipment used to treat a resident's assessed need.
(1) A medical device is not always a restraint and should not be used as a restraint;
(2) Some medical devices have considerable safety risks associated with use; and
(3) Examples of medical devices with known safety risks when used are transfer poles, Posey or lap belts, and side rails.
"Medication administration" means giving resident medications by a person legally authorized to do so, such as a physician, pharmacist or nurse.
"Medication organizer" is a container with separate compartments for storing oral medications organized in daily doses.
"Mental illness" is defined as an Axis I or II diagnosed mental illness as outlined in volume IV of the Diagnostic and Statistical Manual of Mental Disorders (a copy is available for review through the aging and disability services administration).
"Multiple facility provider" means an individual or entity provider who is licensed to operate more than one adult family home.
(1) A pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult; or
(2) An act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.41.100.
"Nurse delegation" means a registered nurse transfers the performance of selected nursing tasks to competent nursing assistants in selected situations. The registered nurse delegating the task retains the responsibility and accountability for the nursing care of the resident.
"Over-the-counter medication" is any medication that can be purchased without a prescriptive order, including but not limited to vitamin, mineral, or herbal preparations.
"Personal care services" means both physical assistance and/or prompting and supervising the performance of direct personal care tasks as determined by the resident's needs and does not include assistance with tasks performed by a licensed health professional.
"Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body, is used for discipline or convenience, and is not required to treat the resident's medical symptoms.
"Practitioner" includes a physician, osteopathic physician, podiatric physician, pharmacist, licensed practical nurse, registered nurse, advanced registered nurse practitioner, dentist, and physician assistant licensed in the state of Washington.
"Prescribed medication" refers to any medication (legend drug, controlled substance, and over-the-counter) that is prescribed by an authorized practitioner.
"Provider" means any person or entity that is licensed under this chapter to operate an adult family home.
"Qualified staff" means a person who:
(1) Is employed, directly or by contract, by an adult family home; and
(2) Meets all of the requirements of a provider, entity representative, resident manager or caregiver.
"Resident" means any adult unrelated to the provider who
lives in the adult family home and who is in need of care
and)). Except as specified elsewhere in this chapter, for
decision-making purposes, the term "resident" includes the
resident's surrogate decision maker (( following)) acting under
state law (( or at the resident's request)).
"Resident manager" means a person employed or designated by the provider or entity representative to manage the adult family home.
"Significant change" means:
(1) A lasting change, decline or improvement in the resident's baseline physical, mental or psychosocial status;
(2) The change is significant enough so the current assessment and/or negotiated care plan do not reflect the resident's current status; and
(3) A new assessment may be needed when the resident's condition does not return to baseline within a two week period of time.
"Special care" means care beyond personal care services as defined in this section.
"Staff" means any person who:
(1) Is employed, directly or by contract, by an adult family home; and
(2) Provides care and services to any resident.
"Unsupervised" means not in the presence of:
(1) Another employee or volunteer from the same business or organization; or
(2) Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to which the employee, student or volunteer has access during the course of his or her employment or involvement with the business or organization.
"Usable floor space" means resident bedroom floor space exclusive of:
(1) Toilet rooms;
(5) Vestibules, and
(6) The space required for the door to swing if the bedroom door opens into the resident bedroom.
"Water hazard" means any body of water over twenty-four inches in depth that can be accessed by a resident, and includes but not limited to:
(1) In-ground, above-ground, and on-ground pools;
(2) Hot tubs, spas;
(3) Fixed-in-place wading pools;
(4) Decorative water features;
(5) Ponds; or
(6) Natural bodies of water such as streams, lakes, rivers, and oceans.
"Willful" means the deliberate or nonaccidental action or inaction by an alleged perpetrator that he/she knew or reasonably should have known could cause a negative outcome, including harm, injury, pain or anguish.
"Vulnerable adult" includes a person:
(1) Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself;
(2) Found incapacitated under chapter 11.88 RCW;
(3) Who has a developmental disability as defined under RCW 71A.10.020;
(4) Admitted to any facility;
(5) Receiving services from home health, hospice, or home
care agencies licensed or required to be licensed under
chapter 70.127 RCW; ((
(6) Receiving services from an individual provider; or
(7) With a functional disability who lives in his or her own home, who is directing and supervising a paid personal aide to perform a health care task as authorized by RCW 74.39.050.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10000, filed 10/16/07, effective 1/1/08.]
(1) Does not compromise any resident rights, preferences or medical needs;
(2) Has a suitable temperament, is clean and healthy, and otherwise poses no significant health or safety risks to any resident, staff, or visitors; and
(3) Has proof of ((
regular immunizations)) up-to-date
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10230, filed 10/16/07, effective 1/1/08.]
(1) A court has appointed the home to be the guardian under chapter 11.88 RCW; and
(2) The home has petitioned the court in writing according to RCW 11.92.040(6) to:
(a) Inform the court:
(i) The home provides care for the resident in the home;
(ii) The fees the home is paid to care for the resident, the home's duties, and the types of care provided to the resident for those fees; and
(iii) Why the guardianship fees would not be duplicative of the fees paid.
(b) Request the court to direct payment to the home from the resident's funds for the resident's care, maintenance and education)) must ensure that no provider, entity representative, resident manager, or staff becomes any resident's guardian.
(2) Provider, entity representative, resident manager or staff who is a resident's guardian before February 1, 2009 may continue to be that resident's guardian.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10235, filed 10/16/07, effective 1/1/08.]
(1) Obtain a ((
new)) written assessment that contains
accurate information about the prospective resident's current
needs and preferences before admitting a resident to the home;
(2) Not admit a resident without an assessment except in cases of a genuine emergency;
(3) Ensure the assessment contains all of the information required in WAC 388-76-10335 unless the assessor can not:
(a) Obtain an element of the required assessment information; and
(b) The assessor documents the attempt to obtain the information in the assessment.
(4) Be knowledgeable about the needs and preferences of each resident documented in the assessment.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10330, filed 10/16/07, effective 1/1/08.]
(1) A list of the care and services to be provided;
(2) Identification of who will provide the care and services;
(3) When and how the care and services will be provided;
(4) How medications will be managed, including how the resident will get their medications when the resident is not in the home;
(5) The resident's activities preferences and how the preferences will be met;
(6) Other preferences and choices about issues important to the resident, including, but not limited to:
(b) Daily routine;
(c) Grooming; and
(d) How the home will accommodate the preferences and choices.
(7) If needed, a plan to:
(a) Follow in case of a foreseeable crisis due to a resident's assessed needs;
(b) Reduce tension, agitation and problem behaviors;
(c) Respond to resident's special needs, including, but
not limited to medical ((
devises)) devices and related safety
(d) Respond to a resident's refusal of care or treatment, including when the resident's physician or practitioner should be notified of the refusal;
(8) Identification of any communication barriers the resident may have and how the home will use behaviors and nonverbal gestures to communicate with the resident;
(9) A statement of the ability for resident to be left unattended for a specific length of time; and
(10) A hospice care plan if the resident is receiving services for hospice care delivered by a licensed hospice agency.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10355, filed 10/16/07, effective 1/1/08.]
(1) Review the resident assessment to determine the resident's need for and use of a medical device;
(2) Ensure the resident negotiated care plan includes the resident use of a medical device or devices; and
(3) Provide the resident and family with enough
information about the significance and level of the safety
risk of use of the device to enable them to make an informed
decision about whether or not ((
the)) to use the device.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10650, filed 10/16/07, effective 1/1/08.]
(a) Audio monitoring equipment((
(a) In the home)); or
In combination with video monitoring equipment; and
(c) Except as provided in section WAC 388-76-10725)) Video monitoring equipment if it includes an audio component.
(2) The home may video monitor and video record activities in the home, without an audio component, only in the following areas:
(a) Entrances and exits if the cameras are:
(i) Focused only on the entrance or exit doorways; and
(ii) Not focused on areas where residents gather.
(b) Outdoor areas not commonly used by residents; and
(c) Designated smoking areas, subject to the following
(i) Residents are assessed as needing supervision for smoking;
(ii) A staff person watches the video monitor at any time the area is used by such residents;
(iii) The video camera is clearly visible;
(iv) The video monitor is not viewable by general public; and
(v) The home notifies all residents in writing of the video monitoring equipment.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10720, filed 10/16/07, effective 1/1/08.]
(a) The resident has requested the monitoring; and
(b) The monitoring is only used in the sleeping room of the resident who requested the monitoring.
(2) If the resident requests audio or video monitoring, before any electronic monitoring occurs the home must ensure:
Appropriate actions are taken to ensure)) That the
electronic monitoring (( is consistent with and)) does not
violate chapter 9.73 RCW;
(b) The resident has identified a threat to the
resident's health, safety or personal property ((
requested electronic monitoring));
(c) The resident's roommate has provided written consent to electronic monitoring, if the resident has a roommate; and
(d) The resident and the home have agreed upon a specific duration for the electronic monitoring documented in writing.
(3) The home must:
(a) Reevaluate the need for the electronic monitoring
with the resident at least quarterly ((
(a) Must document the reevaluation in writing)); and
(b) Have each reevaluation in writing signed and dated by the resident.
(4) The home must immediately stop electronic monitoring if the:
(a) Resident no longer wants electronic monitoring;
(b) Roommate objects or withdraws the consent to the electronic monitoring, or
(c) Resident becomes unable to give consent.
(5) For the purposes of consenting to video electronic monitoring, without an audio component, the term "resident" includes the resident's decision maker.
(6) For the purposes of consenting to audio electronic monitoring, the term "resident includes only:
(a) The resident residing in the home; or
(b) The resident's court-appointed guardian or attorney-in-fact who has obtained a court order specifically authorizing the court-appointed guardian or attorney-in-fact to consent to audio electronic monitoring of the resident.
(7) If the resident's decision maker consents to audio electronic monitoring as specified in subsection (6) above, the home must maintain a copy of the court order authorizing such consent in the resident's record.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10725, filed 10/16/07, effective 1/1/08.]
(1) Ensure that the maximum and minimum temperature of any room used by a resident is comfortable for the resident and does not compromise the resident's health and safety.
(2) At a minimum, keep room temperature at:
(a) Sixty-eight degrees Fahrenheit or more during waking hours; and
(b) Sixty degrees Fahrenheit or more during sleeping
(c) Not more than seventy-eight degrees Fahrenheit day or night)).
(2))) (3) Provide ventilation in the home to ensure the
health and comfort of each resident is met.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10775, filed 10/16/07, effective 1/1/08.]
(1) Will last for a minimum of seventy-two hours for each resident and each household member; and
(2) Meets the dietary needs of each resident, including any specific dietary restrictions any resident may have.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10840, filed 10/16/07, effective 1/1/08.]
(1) Will last for a minimum of seventy-two hours for each resident and each household member;
(2) Is at least three gallons for each resident and each household member;
(3) Is stored in food grade or glass containers;
(4) Is chemically treated or replaced every six months; and
(5) Is stored appropriately.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10845, filed 10/16/07, effective 1/1/08.]
(1) Level 1 - resident is ((
capable of walking or
traversing a normal pathway to safety)) able to get out of the
home safely and independently without (( the physical))
mobility aids or any assistance (( of)) from another
(2) Level 2 - resident is physically and mentally capable of traversing a normal pathway to safety with mobility aids, but unable to ascend or descend stairs without the physical assistance of another individual; and
(3) Level 3 - resident is unable to walk or transverse a normal pathway to safety without the physical assistance of another individual.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10870, filed 10/16/07, effective 1/1/08.]
Reviser's note: The typographical error 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.
AMENDATORY SECTION(Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10930 Plan of correction (POC)--Required. ((
The plan of correction included on the inspection report
(1) Be completed by the adult family home and returned to the department within ten days of receiving the inspection report;
(2) Include an attestation statement stating:
(a) What the home did or will do to correct each deficiency;
(b) That all deficiencies are or will be corrected;
(c) The home will stay in compliance with the licensing requirements;
(d) Dates, acceptable to the department, by which each cited deficiency has been or will be corrected; and
(e) A signature by the home, certifying that the home has or will correct each deficiency)) (1) The adult family home must comply with all applicable licensing laws and regulations at all times.
(2) When the department finds the adult family home out of compliance with any licensing law or regulation, the department will send the home an inspection report with an attestation of correction statement for each cited deficiency.
(3) The adult family home must complete an attestation of correction for any inspection report as the department requires.
(4) For the purposes of this section an "attestation of correction statement" means a statement, developed by the department and signed and dated by the home, that the home:
(a) Has or will correct each cited deficiency; and
(b) Will maintain correction of each cited deficiency.
(5) The home must be able to show to the department, upon request, that, for each deficiency cited, the home has:
(a) A plan of correction and maintaining correction;
(b) Corrected or is correcting each deficiency; and
(c) Maintained or is maintaining compliance.
(6) On each attestation of correction statement, the home must:
(a) Give a date, approved by the department, showing when the cited deficiency has been or will be corrected; and
(b) By signature and date show that the home has or will correct, and maintain correction, of each deficiency.
(7) The home must return the inspection report, with completed attestation of correction statements, to the department within ten calendar days of receiving the report.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10930, filed 10/16/07, effective 1/1/08.]
(2) A provider contesting any decision by the department to impose a remedy must 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 ((
the (( board of appeals at the)) agency at the mailing address
contained in (( WAC 388-02-0030)) the department's notice
imposing the remedy; and
(b) Include in or with the application:
(i) The reasons for contesting the department decision; and
(ii) A copy of the contested department decision.
(3) Administrative proceedings are governed by chapter 34.05 RCW, RCW 43.20A.215, where applicable, this section, and chapter 388-02 WAC. If any provision in this section conflicts with chapter 388-02 WAC, the provision in this section governs.
[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10995, filed 10/16/07, effective 1/1/08.]