PROPOSED RULES
SOCIAL AND HEALTH SERVICES
Original Notice.
Preproposal statement of inquiry was filed as WSR 11-13-092.
Title of Rule and Other Identifying Information: The department is amending and deleting sections to chapter 388-101 WAC, Certified community residential services and supports. The department is proposing amendments to WAC 388-101-3000 Definitions, 388-101-3050 Application for initial certification, 388-101-3220 Administrator responsibilities and training, 388-101-3245 Background check -- General, 388-101-3250 Background checks -- Washington state, 388-101-3255 Background checks -- Provisional hire -- Pending results, 388-101-3258 Training requirements for staff hired before January [1,] 2011, 388-101-3302 Certified community residential services and supports -- General training requirements, and 388-101-3545 Using client funds for health services.
The department is proposing eliminating WAC 388-101-3253 National fingerprint based background checks -- Required.
Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on November 8, 2011, at 10:00 a.m.
Date of Intended Adoption: Not earlier than November 9, 2011.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on November 8, 2011.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by October 25, 2011, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of amending these rules is to comply with changes to state law made by the 2011 legislature in SSB 5042, 2E2SHB 1738, and ESHB 1548.
Highlights of proposed changes related to SSB 5042:
| • | Expands the definition of "financial exploitation" to include improper control over or withholding of a vulnerable adult's resources by another person or entity. |
| • | Refers to examples of "financial exploitation" found in chapter 74.34 RCW. |
| • | In addition, the proposed rules amend the definition of "sexual abuse" to include examples of interactions that do not involve physical touching. |
| • | Adds term "health care authority" to WAC 388-101-3545 to reflect change in responsibility for the medicaid program. |
| • | Proposed rules revert back to long-term care working training requirements in effect prior to January 1, 2011. |
| • | Deletes changes to criminal background check requirements that were to become effective after January 1, 2012. |
Reasons Supporting Proposal: See above.
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.
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, 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. Under RCW 19.85.025(3), a small business economic impact statement is not required for rules adopting or incorporating, by reference without material change, Washington state statutes or federal statutes or regulations.
A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b), a cost-benefit analysis is not required for rules adopting or incorporating, by reference without material change, Washington state statutes or regulations.
September 14, 2011
Katherine I. Vasquez
Rules Coordinator
4308.2"Abuse" means:
(1) The willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment of a vulnerable adult;
(2) 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
(3) 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 contact may include interactions that do not involve touching, including but not limited to sending sexually explicit messages, or cuing or encouraging a resident/client to perform sexual acts. 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 it is consensual.
(b) "Physical abuse" means the 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 the use of chemical restraints or physical restraints unless the restraints are consistent with licensing and certification 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, 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.
"Associated with the applicant" means any person listed on the application as a partner, officer, director, or majority owner of the applying entity, or who is the spouse or domestic partner of the applicant.
"Case manager" means the division of developmental disabilities case resource manager or social worker assigned to a client.
"Certification" means a process used by the department to determine if an applicant or service provider complies with the requirements of this chapter and is eligible to provide certified community residential services and support to clients.
"Chaperone agreement" means a plan or agreement that describes who will supervise a community protection program client when service provider staff is not present. This plan or agreement is negotiated with other agencies and individuals who support the client, including the client's legal representative and family.
"Chemical restraint" means the use of psychoactive medications for discipline or convenience and not prescribed to treat the client's medical symptoms.
"Client" means a person who has a developmental disability as defined in RCW 71A.10.020(3) and who also has been determined eligible to receive services by the division of developmental disabilities under chapter 71A.16 RCW. For purposes of informed consent and decision making requirements, the term "client" includes the client's legal representative to the extent of the representative's legal authority.
"Client services" means instruction and support services that service providers are responsible to provide as identified in the client's individual support plan.
"Crisis diversion" means temporary crisis residential services and supports provided to clients at risk of psychiatric hospitalization and authorized by the division of developmental disabilities.
"Crisis diversion bed services" means crisis diversion that is provided in a residence maintained by the service provider.
"Crisis diversion support services" means crisis diversion that is provided in the client's own home.
"Department" means the Washington state department of social and health services.
"Financial exploitation" means the illegal or improper use, control over, or withholding of the property, income, resources, or trust funds of the vulnerable adult by any person or entity for any person's or entity's profit or advantage other than the vulnerable adult's profit or advantage. Some examples of financial exploitation are given in RCW 74.34.020(6).
"Functional assessment" means a comprehensive evaluation of a client's challenging behavior(s). This evaluation is the basis for developing a positive behavior support plan.
"Group home" means a residence that is licensed as either a boarding home or an adult family home by the department under chapters 388-78A or 388-76 WAC. Group homes provide community residential instruction, supports, and services to two or more clients who are unrelated to the provider.
"Group training home" means a certified nonprofit residential facility that provides full-time care, treatment, training, and maintenance for clients, as defined under RCW 71A.22.020(2).
"Immediate" or "immediately" means within twenty-four hours for purposes of reporting abandonment, abuse, neglect, or financial exploitation of a vulnerable adult.
"Individual financial plan" means a plan describing how a client's funds will be managed when the service provider is responsible for managing any or all of the client's funds.
"Individual instruction and support plan" means a plan developed by the service provider and the client. The individual instruction and support plan:
(1) Uses the information and assessed needs documented in the individual support plan to identify areas the client would like to develop;
(2) Includes client goals for instruction and support that will be formally documented during the year; and
(3) Must contain or refer to other applicable support or service information that describes how the client's health and welfare needs are to be met (e.g. individual financial plan, positive behavior support plan, cross system crisis plan, individual support plan, individual written plan, client-specific instructions).
"Individual support plan" means a document that authorizes and identifies the division of developmental disabilities paid services to meet a client's assessed needs.
"Instruction" means goal oriented teaching that is designed for acquiring and enhancing skills.
"Instruction and support services staff" means long-term
care workers of the service provider whose primary job
function is the provision of instruction and support services
to clients. Instruction and support services staff shall also
include employees of the service provider whose primary job
function is the supervision of instruction and support
services staff. In addition, both applicants, prior to
initial certification, and administrators, prior to assuming
duties, who may provide instruction and support services to
clients shall be considered instruction and support services
staff for the purposes of the applicable training requirements
((of chapter 388-112 WAC)).
"Legal representative" means a person's legal guardian, a person's limited guardian when the subject matter is within the scope of the limited guardianship, a person's attorney at law, a person's attorney in fact, or any other person who is authorized by law to act for another person.
"Managing client funds" means that the service provider:
(1) Has signing authority for the client;
(2) Disperses the client's funds; or
(3) Limits the client's access to funds by not allowing funds to be spent.
"Mechanical restraint" means a device or object, which the client cannot remove, applied to the client's body that restricts his/her free movement.
"Medication administration" means the direct application of a prescribed medication whether by injection, inhalation, ingestion, or other means, to the body of the client by an individual legally authorized to do so.
"Medication assistance" means assistance with self administration of medication rendered by a nonpractitioner to a client receiving certified community residential services and supports in accordance with chapter 69.41 RCW and chapter 246-888 WAC.
"Medication service" means any service provided by a certified community residential services and support provider related to medication administration or medication assistance provided through nurse delegation and medication assistance.
"Neglect" means:
(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.42.100.
"Physical intervention" means the use of a manual technique intended to interrupt or stop a behavior from occurring. This includes using physical restraint to release or escape from a dangerous or potentially dangerous situation.
"Physical restraint" means physically holding or restraining all or part of a client's body in a way that restricts the client's free movement. This does not include briefly holding, without undue force, a client in order to calm him/her, or holding a client's hand to escort the client safely from one area to another.
"Psychoactive" means possessing the ability to alter mood, anxiety level, behavior, cognitive processes, or mental tension, usually applied to pharmacological agents.
"Psychoactive medications" means medications prescribed to improve or stabilize mood, mental status or behavior. Psychoactive medications include anti-psychotics/neuroleptics, atypical antipsychotics, antidepressants, stimulants, sedatives/hypnotics, and antimania and antianxiety drugs.
"Qualified professional" means a person with at least three years' experience working with individuals with developmental disabilities and as required by RCW 71A.12.220(12).
"Restrictive procedure" means any procedure that restricts a client's freedom of movement, restricts access to client property, requires a client to do something which he/she does not want to do, or removes something the client owns or has earned.
"Risk assessment" means an assessment done by a qualified professional and as required by RCW 71A.12.230.
"Service provider" means a person or entity certified by the department who delivers services and supports to meet a client's identified needs. The term includes the state operated living alternative (SOLA) program.
"Support" means assistance a service provider gives a client based on needs identified in the individual support plan.
"Supported living" means instruction, supports, and services provided by service providers to clients living in homes that are owned, rented, or leased by the client or their legal representative.
"Treatment team" means the program participant and the group of people responsible for the development, implementation, and monitoring of the person's individualized supports and services. This group may include, but is not limited to, the case manager, therapist, the service provider, employment/day program provider, and the person's legal representative and/or family, provided the person consents to the family member's involvement.
"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; or
(2) Found incapacitated under chapter 11.88 RCW; or
(3) Who has a developmental disability as defined under RCW 71A.10.020; or
(4) Admitted to any facility; or
(5) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; or
(6) Receiving services from an individual provider.
"Willful" means the deliberate, or nonaccidental, action or inaction by an individual that he/she knew or reasonably should have known could cause a negative outcome, including harm, injury, pain, or anguish.
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3000, filed 7/30/10, effective 1/1/11. Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3000, filed 12/21/07, effective 2/1/08.]
(a) A letter of intent that includes:
(i) Contact information;
(ii) Geographical area of service; and
(iii) Type of service provided, including group home, supported living, community protection, or group training home.
(b) A completed and signed application on forms designated by the department;
(c) All attachments specified in the application and any other information the department may request including but not limited to:
(i) Administrator resumes;
(ii) Statements of financial stability;
(iii) Professional references;
(iv) Relevant experiences and qualifications of the individual or agency; and
(v) ((On or after January 1, 2011, a certificate of
completion of the instruction and support services staff
training required under chapter 388-112 WAC, if the applicant
may provide instruction and support services to a client or
may supervise staff who provide such services; and
(vi))) Assurances the applicant will not discriminate against any client or employee.
(d) A copy of the license if applying for certification as a group home;
(e) The name of the administrator of the program; and
(f) The department background authorization form for:
(i) The applicant;
(ii) Anyone associated with the applicant; and
(iii) The individual or individuals designated to serve as administrator of the proposed program.
(2) The applicant must submit a revised application, if any information on the application changes before the initial certification is issued.
(3) The department will only process a completed application.
(4) Each person named in the application for initial certification is considered separately and jointly by the department.
(5) Based on the documentation received, the department will notify the applicant in writing regarding the department's certification decision.
(6) The applicant must comply with additional requirements identified in this chapter if intending to support community protection clients.
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3050, filed 7/30/10, effective 1/1/11. Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3050, filed 12/21/07, effective 2/1/08.]
(a) Overseeing all aspects of staffing, such as recruitment, staff training, and performance reviews;
(b) Developing and maintaining policies and procedures that give staff direction to provide appropriate services and support as required by this chapter and the department contract; and
(c) Maintaining and securely storing client, personnel, and financial records.
(2) Before assuming duties, an administrator ((hired on
or after January 1, 2011,)) must complete ((the)) required
instruction and support services staff training ((requirements
under chapter 388-112 WAC)) if the administrator may provide
instruction and support services to clients or may supervise
instruction and support services staff.
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3220, filed 7/30/10, effective 1/1/11. Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3220, filed 12/21/07, effective 2/1/08.]
(a))) Washington state background checks including:
(((i))) (a) Department and department of health findings;
and
(((ii))) (b) Criminal background check information from
the Washington state patrol and Washington state courts((; and
(b) After January 1, 2012, a national fingerprint-based check in accordance with RCW 74.39A.055)).
(2) Nothing in this chapter should be interpreted as requiring the employment of a person against the better judgment of the service provider.
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3245, filed 7/30/10, effective 1/1/11.]
(2) The service provider must obtain background checks from the department for all administrators, employees, volunteers, students, and subcontractors who may have unsupervised access to clients.
(3) The service provider must not allow the following persons to have unsupervised access to clients until the service provider receives the department's background check results, verifying that the person does not have any convictions, pending criminal charges, or findings described in WAC 388-101-3090:
(a) Administrators;
(b) Employees;
(c) Volunteers or students; and
(d) Subcontractors.
(4) If the background check results show that the individual has a conviction, pending criminal charge, or finding that is not disqualifying under WAC 388-101-3090, then the service provider must conduct a character, suitability, and competence review as described in WAC 388-06-0190.
(5) The service provider must:
(a) Inform the person of the results of the background check;
(b) Inform the person that they may request a copy in writing of the results of the background check. If requested, a copy of the background check results must be provided within ten working days of the request;
(c) Notify the department and other appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record.
(6) The service provider must renew the Washington state background check at least every thirty-six months and keep current background check results for each administrator, employee, volunteer, student, or subcontractor of a service provider.
(7) Licensed boarding homes or adult family homes must adhere to the current regulations in this chapter and in the applicable licensing laws.
(8) Service providers must prevent unsupervised access to clients by any administrator, employee, subcontractor, student, or volunteer who has a disqualifying conviction, pending criminal charge, or finding described in WAC 388-101-3090.
(9) All applicants for certification must have a background check.
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3250, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 71A.12.080. 10-03-065, § 388-101-3250, filed 1/15/10, effective 2/15/10. Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3250, filed 12/21/07, effective 2/1/08.]
(((a))) (1) The person is not disqualified based on the
initial results of the background check from the department;
and
(((b))) (2) A national fingerprint-based background check
is pending.
(((2) Persons identified in WAC 388-101-3250(2) who are
hired after January 1, 2012, may be hired for a one hundred
twenty-day provisional period when:
(a) The person is not disqualified based on the initial result of the background check from the department; and
(b) A national fingerprint-based background check is pending.))
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3255, filed 7/30/10, effective 1/1/11.]
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3258, filed 7/30/10, effective 1/1/11.]
(a) Administrators((, hired on or after the effective
date,)) who may provide instruction and support services to
clients or may supervise instruction and support services
staff; and
(b) Instruction and support services staff including
their supervisors((, who are hired on or after the effective
date)).
(2) ((On or after January 1, 2011,)) Applicants for
initial certification and applicants for change of ownership
that are not current providers, who may provide instruction
and support services to clients or may supervise instruction
and support services staff must meet the training requirements
of this chapter ((388-112 WAC, including orientation and
safety training, and basic training)).
(((3) Under RCW 18.88B.040 and chapter 246-980 WAC,
certain persons including registered nurses, licensed
practical nurses, certified nursing assistants or persons who
are in an approved certified nursing assistant program are
exempt from long-term care worker training requirements.))
[Statutory Authority: RCW 71A.12.080, chapter 74.39A RCW. 10-16-084, § 388-101-3302, filed 7/30/10, effective 1/1/11.]
(1) Must notify the case manager of the denial in writing; and
(2) May use client funds for the client's health services if no other funding is available.
[Statutory Authority: Chapter 71A.12 RCW. 08-02-022, § 388-101-3545, filed 12/21/07, effective 2/1/08.]
The following section of the Washington Administrative Code is repealed:
| WAC 388-101-3253 | National fingerprint-based background checks--Required. |