WSR 12-21-070



(Aging and Disability Services Administration)

[ Filed October 18, 2012, 11:29 a.m. , effective November 18, 2012 ]

     Effective Date of Rule: Thirty-one days after filing.

     Purpose: The department is amending and adding sections to these rules to comply with and be consistent with Initiative 1163, and SHB 2314 Long-term care workers. In addition, the department is clarifying in rule the provision related to disqualifying drug crimes.

     The department added new sections WAC 388-78A-24641, 388-78A-24642, 388-78A-24681, and 388-78A-24701.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-78A-2463; and amending WAC 388-78A-2020, 388-78A-2461, 388-78A-2462, 388-78A-2464, 388-78A-2465, 388-78A-2465 [388-78A-2466], 388-78A-2468, 388-78A-2469, 388-78A-2470, 388-78A-2474, and 388-78A-2750.

     Statutory Authority for Adoption: Chapter 18.20 RCW.

      Adopted under notice filed as WSR 12-15-073 on July 18, 2012.

     Changes Other than Editing from Proposed to Adopted Version: The changes, other than editing follow: Changes are shown with the new language underlined and deleted text lined through.

     WAC 388-78A-2020 Definitions.

     "Administrator" means a boarding home administrator who must be in active administrative charge of the boarding home as required in this chapter. Unless exempt under RCW 18.88B.041, the administrator must complete long-term care training and home care aide certification. For training, certification, and background check purposes, the administrator or designee is presumed to provide direct care.

     WAC 388-78A-24641 Background checks -- Washington state name and date of birth background check.

     If the results of the Washington state name and date of birth background check indicate the person has been convicted of a crime or has a finding that is disqualifying under WAC 288-78A-2470 is disqualified by having a conviction listed in WAC 388-78A-2470 subsections 1 through 6, or by having a finding listed in WAC 388-78A-2470 subsections 7 through 9, then the boarding home must:

     (1) Not employ, directly or by contract, a caregiver, administrator, or staff person; and

     (2) Not allow a volunteer or student to have unsupervised access to residents.


     WAC 388-78A-24701 Background checks -- Employment -- Nondisqualifying information.

     (1) If the any background check results show that an employee or prospective employee has a conviction or finding that is not automatically disqualifying under WAC 388-78A-2470, then the boarding home must: (a) D determine whether the person has the character, competence and suitability to work with vulnerable adults in long term care. ; and

     (b) Document in writing the basis for making the decision, and make it available to the department upon request.

     (2) Nothing in this section chapter should be interpreted as requiring the employment of any person against the better judgment of the boarding home.

WAC 388-78A-2020, change the words "presumed to provide direct care" in the definition for "administrator." This comment was accepted and the department clarified when an administrator may be exempt from training and home aide certification.
WAC 388-78A-24641, rephrase the sentence to clarify that both crimes and findings are disqualifying under WAC 388-78A-2470. This comment was accepted and the department made a change to clarify that the disqualification could be from specified convictions or findings.
WAC 388-78A-24701, delete this entire section, including language on documentation and "character, competence and suitability" to current and prospective employees. The department has accepted part of this comment. Although the department had added the language based upon stakeholder comments, we did delete the proposed language related to documentation.

     The department did not accept the comment on "character, competence and suitability" since this language is not a new requirement and is in current existing rules (WAC 388-78A-2465(2)). It was moved to a new section for clarity to make it easier for providers to find the process for assessing employees and prospective employees who have nondisqualifying crimes.

     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 4, Amended 11, Repealed 1.

     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 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 4, Amended 11, Repealed 1.

     Date Adopted: October 15, 2012.

Katherine I. Vasquez

Rules Coordinator

     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 12-22 issue of the Register.