WSR 16-01-176 PROPOSED RULES DEPARTMENT OF SOCIAL AND HEALTH SERVICES (Aging and Long-Term Support Administration) [Filed December 22, 2015, 1:29 p.m.]
Continuance of WSR 15-10-092.
Preproposal statement of inquiry was filed as WSR 15-01-180.
Title of Rule and Other Identifying Information: The department is repealing the following sections in chapter 388-76 WAC, Adult family home minimum licensing requirements: WAC 388-76-11000 Resident protection program—Investigation of reports, 388-76-11004 Resident protection program—Individual defined, 388-76-11005 Resident protection program—Notice to individual of preliminary finding, 388-76-11010 Resident protection program—Notice to others of preliminary finding, 388-76-11015 Resident protection program—Disputing a preliminary finding, 388-76-11020 Resident protection program—Hearing procedures to dispute preliminary finding, WAC 388-76-11025 Resident protection program—Finalizing a preliminary finding, 388-76-11030 Resident protection program—Appeal of the initial order or finding, 388-76-11035 Resident protection program—Reporting final findings, and 388-76-11040 Resident protection program—Disclosure of investigative and finding information.
The department is amending WAC 388-76-10000 Definitions, 388-76-10685 Bedrooms, 388-76-10655 Physical restraints, and 388-76-10660 Chemical restraints.
The department is creating WAC 388-76-10463 Medication—Psychopharmacologic.
Hearing Location(s): Office Building 2, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at https://www.dshs.wa.gov/sesa/rules-and-policies-assistance-unit/driving-directions-office-bldg-2), on January 26, 2016, at 10:00 a.m.
Date of Intended Adoption: Not earlier than January 27, 2016.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., January 26, 2016.
Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, by January 12, 2016, phone (360) 664-6092, TTY (360) 664-6178, or e-mail KildaJA@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Resident client protection program (RCPP) has been moved into adult protective services and the rules will be administered under chapters 388-71 and 388-106 WAC. References to RCPP would thus be incorrect and will be repealed from chapter 388-76 WAC. Residential care services is coordinating to eliminate these WAC sections at the same time home and community services is incorporating them into their WAC. The CR-102 for both divisions will be filed at the same time. Repealing the rules is beneficial to or supported by the regulated entities to prevent duplication of licensing rules.
Also, the department is amending rules to comply with Center for Medicare and Medicaid Services (CMS) new requirements for home and community-based services regulations (42 C.F.R. 441.302). As a part of the state's transition plan to comply with the new rules, CMS has requested WAC be changed to ensure resident rights are being addressed.
Reasons Supporting Proposal: See Purpose above.
Statutory Authority for Adoption: Chapter 70.128 RCW.
Statute Being Implemented: Chapter 70.128 RCW.
Rule is necessary because of federal law, 42 C.F.R. 441.302.
Name of Proponent: Department of social and health services, governmental.
Name of Agency Personnel Responsible for Drafting: Christi Pederson, P.O. Box 45600, Olympia, WA 98513, (360) 725-2327; Implementation: Candace Goehring, P.O. Box 45600, Olympia, WA 98513, (360) 725-2401; and Enforcement: Bett Schlemmer, P.O. Box 45600, Olympia, WA 98513, (360) 725-2404.
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)(iii), a cost-benefit analysis is not required for rules adopting or incorporating, by reference without material change, Washington state statutes or federal statutes or regulations.
December 18, 2015
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 15-03-037, filed 1/12/15, effective 2/12/15)
WAC 388-76-10000 Definitions.
"Abandonment" means action or inaction by a person or entity with a duty of care for a frail elder or vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.
"Abuse" means the willful action or inaction that inflicts 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 contact may include interactions that do not involve touching, including but not limited to sending a resident sexually explicit messages, or cuing or encouraging a resident 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 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 or physical 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 an entity is 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 a licensed operator, resident manager, or caregiver, who resides in the home.
(2) As used in this chapter, the term "entity" includes corporations, partnerships and limited liability companies, and the term "adult family home" includes the person or entity that is licensed 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 who are permitted to reside in an adult family home at a given time. The capacity includes:
(1) The number of related children or adults in the home who receive personal or special care and services; plus
(2) The number of residents the adult family home may admit and retain - The resident capacity. The capacity number listed on the license is the "resident capacity."
"Caregiver" 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:
(i) Self-care;
(ii) Understanding and use of language;
(iii) Learning;
(iv) Mobility;
(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.
"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 for the vulnerable adult's profit or advantage. Some examples of financial exploitation are given in RCW 74.34.020(6).
"Financial solvency" means that the applicant or provider is able to meet debts or financial obligations with some money to spare.
"Entity representative" means the individual designated by a provider who is or will be responsible for the daily operation of the adult family home and who meets the requirements of this chapter and chapter 388-112 WAC.
"Home" means adult family home.
"Imminent danger" or "immediate threat" means serious physical harm to or death of a resident has occurred, or there is a serious threat to the resident's life, health or safety.
"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 a review by department personnel to determine the health, safety, and well-being of residents, and 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.
"Management agreement" means a written, executed agreement between the adult family home and another individual or entity regarding the provision of certain services on behalf of the adult family home.
"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 (Assisted living facilities), 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).
"Minimal" means violations that result in little or no negative outcome and/or little or no potential harm for a resident.
"Moderate" means violations that result in negative outcome and actual or potential harm for a resident.
"Multiple facility provider" means a provider who is licensed to operate more than one adult family home.
"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 by a person or entity with duty of care 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.
"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.
"Permanent restraining order" means a restraining order and/or order of protection issued either following a hearing, or by stipulation of the parties. A "permanent" order may be in force for a specific time period (for example, one year), after which it expires.
"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.
"Placement agency" is an "elder or vulnerable adult referral agency" as defined in chapter 18.330 RCW and means a business or person who receives a fee from or on behalf of a vulnerable adult seeking a referral to care services or supportive housing or who receives a fee from a care services provider or supportive housing provider because of any referral provided to or on behalf of a vulnerable adult.
"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:
(1) Any person who is licensed to operate an adult family home and meets the requirements of this chapter; or
(2) Any corporation, partnership, or limited liability company that is licensed under this chapter to operate an adult family home and meets the requirements of this chapter.
"Psychopharmacologic medications" means the class of prescription medications, which includes but is not limited to antipsychotics, antianxiety medications, and antidepressants, capable of affecting the mind, emotions, and behavior.
"Recurring" or "repeated" means that the department has cited the adult family home for a violation of applicable licensing laws or rules and the circumstances of (1) and (2) of this definition are present:
(1) The department previously imposed an enforcement remedy for a violation of the same section of law or rule for substantially the same problem following any type of inspection within the preceding thirty-six months; or
(2) The department previously cited a violation under the same section of law or rule for substantially the same problem following any type of inspection on two occasions within the preceding thirty-six months.
(3) If the previous violation in (1) or (2) of this definition was pursuant to a law or rule that has changed at the time of the new violation, a citation to the equivalent current law or rule section is sufficient.
"Resident" means any adult unrelated to the provider who lives in the adult family home and who is in need of care. Except as specified elsewhere in this chapter, for decision-making purposes, the term "resident" includes the resident's surrogate decision maker acting under state law.
"Resident manager" means a person employed or designated by the provider to manage the adult family home and who meets the requirements of this chapter.
"Serious" means violations that result in one or more negative outcomes and significant actual harm to residents that does not constitute imminent danger; and/or, there is reasonable predictability of recurring actions, practices, situations or incidents with potential for causing significant harm to a resident.
"Severity" means the seriousness of a violation as determined by actual or potential negative outcomes for residents and subsequent actual or potential for harm. Outcomes include any negative effect on the resident's physical, mental or psychosocial well being (i.e., safety, quality of life, quality of care).
"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 or used by an adult family home, directly or by contract, to provide care and services to any resident.
(2) Staff must meet all of the requirements in this chapter and chapter 388-112 WAC.
"Temporary restraining order" means restraining order or order of protection that expired without a hearing, was dismissed following an initial hearing, or was dismissed by stipulation of the parties before an initial hearing.
"Uncorrected" means the department has cited a violation of WAC or RCW following an inspection and the violation remains uncorrected at the time of a subsequent inspection for the specific purpose of verifying whether such violation has been corrected.
"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 individuals with developmental disabilities 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;
(2) Closets;
(3) Lockers;
(4) Wardrobes;
(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 individual 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.
NEW SECTION
WAC 388-76-10463 Medication—Psychopharmacologic
For residents who are given psychopharmacologic medications, the adult family home must ensure:
(1) The resident assessment indicates that a psychopharmacologic medication is necessary to treat the resident's medical symptoms; and
(2) The drug is prescribed by a physician or health care professional with prescriptive authority; and
(3) The resident's negotiated care plan includes strategies and modifications of the environment and staff behavior to address the symptoms for which the medication is prescribed; and
(4) Changes in medication only occur when the prescriber decides it is medically necessary; and
(5) The resident has given informed consent for its use.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10655 Physical restraints.
The adult family home must ensure:
(1) Each resident's right to be free from physical restraints used for discipline or convenience;
(2) ((Less)) Prior to the use of a physical restraint, less restrictive alternatives have been tried and are documented in the resident's negotiated care plan; and
(3) That physical restraints used have been assessed as necessary to treat the resident's medical symptoms and addressed on the resident's negotiated care plan; and
(4) That if physical restraints are used to treat a resident's medical symptoms that the restraints are applied and immediately supervised on-site by a:
(a) Licensed registered nurse;
(b) Licensed practical nurse; or
(c) Licensed physician; and
(d) For the purposes of this subsection, immediate supervised means that the licensed person is in the home and quickly and easily available.
AMENDATORY SECTION (Amending WSR 07-21-080, filed 10/16/07, effective 1/1/08)
WAC 388-76-10660 Chemical restraints.
(1) For the purposes of this section "chemical restraint" means a ((psychopharmacologic)) drug that is ((used)) given for discipline or convenience and not required to treat the resident's medical symptoms.
(2) The adult family home must ensure that each resident is free from chemical restraints((:
(a) Each resident is free from chemical restraints used for discipline or convenience;
(b) The resident assessment indicates that a chemical restraint is necessary to treat the resident's medical symptoms;
(c) In situations when a psychopharmacological drug is used for a resident, the home must ensure that the:
(i) Drug is prescribed by a physician or health care professional with prescriptive authority;
(ii) Resident's negotiated care plan includes strategies and modifications of the environment and staff behavior to address the symptoms for which the medication is prescribed;
(iii) Changes in medication only occur when the prescriber decides it is medically necessary; and
(iv) Resident has given informed consent for its use)).
AMENDATORY SECTION (Amending WSR 10-03-064, filed 1/15/10, effective 2/15/10)
WAC 388-76-10685 Bedrooms.
The adult family home must:
(1) Ensure each resident's bedroom is an outside room, which allows entrance of natural light;
(2) Ensure window and door screens:
(a) Do not hinder emergency escape; and
(b) Prevent entrance of flies and other insects.
(3) Ensure each resident, including those using mobility aids such as wheelchairs and walkers has direct, unrestricted, and free access from the bedroom through doors, hallways and corridors to common use areas and other rooms used for care and services including bathrooms;
(4) Make separate bedrooms available for each sex;
(5) Make reasonable efforts to accommodate residents wanting to share the room;
(6) Provide each bedroom with a minimum usable floor space as required in WAC 388-76-10690.
(7) Give each resident the opportunity to have a lock on their door if they chose to unless having a locked door would be unsafe for the resident and this is documented in the resident's negotiated careplan.
(8) Ensure each bedroom has a closet or a wardrobe, armoire or reasonable facsimile thereof. Neither the closet nor wardrobe/armoire floor space will be considered a part of the room's usable square footage. The home must not remove a closet in order to provide additional floor space.
(((8))) (9) Ensure no more than two residents to a bedroom;
(((9))) (10) Unless the resident chooses to provide their own furniture and bedding, the home must provide each resident a bed thirty-six inches or more wide with:
(a) A clean, comfortable mattress;
(b) A waterproof cover for use when needed or requested by the resident;
(c) Clean sheets and pillow cases;
(d) Adequate clean blankets to meet the needs of each resident; and
(e) Clean pillows.
(((10))) (11) Not use the upper bunk of double-deck beds for a resident's bed;
(((11))) (12) Provide a call bell or intercom system if the provider, entity representative, resident manager or caregiver bedroom is not within hearing distance of each resident bedroom and the system is required by the department;
(((12))) (13) Ensure that members of the household, other than residents, do not share bedrooms with residents; and
(((13))) (14) Ensure a resident does not share a bedroom with a person under eighteen years of age, unless the person is the resident's own child.
REPEALER
The following sections of the Washington Administrative Code are repealed:
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