Effective Date of Rule: Thirty-one days after filing.
Purpose: The department is amending WAC 388-78A-2020 Definitions, to remove an erroneous second occurrence of the definition of the term "personal exploitation" that contains a typographical error.
Citation of Rules Affected by this Order: Amending WAC 388-78A-2020.
Adopted under notice filed as WSR 18-11-135 on May 23, 2018.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.
Date Adopted: August 22, 2018.
Katherine I. Vasquez
"Abandonment" means action or inaction by a person with a duty of care for a 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. 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. Abuse includes sexual abuse, mental abuse, physical abuse, and personal exploitation of a vulnerable adult, and improper use of restraint against a vulnerable adult, which have the following meanings:
(1) "Sexual abuse"
means any form of nonconsensual sexual conduct, including, but not limited to, unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse also includes any sexual conduct between a staff person, who is not also a resident or a 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.
(2) "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, or prodding.
(3) "Mental abuse" means a willful verbal or nonverbal action that threatens, humiliates, harasses, coerces, intimidates, isolates, unreasonably confines, or punishes a vulnerable adult. Mental abuse may include ridiculing, yelling, or swearing.
(4) "Personal 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.
(5) "Improper use of restraint" means the inappropriate use of chemical, physical, or mechanical restraints for convenience or discipline or in a manner that:
(a) Is inconsistent with federal or state licensing or certification requirements for facilities, hospitals, or programs authorized under chapter 71A.12
(b) Is not medically authorized; or
(c) Otherwise constitutes abuse under the section.
"Activities of daily living" means the following tasks related to basic personal care: Bathing; toileting; dressing; personal hygiene; mobility; transferring; and eating.
means an assisted living facility administrator who must be in active administrative charge of the assisted living facility 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.
"Adult day services" means care and services provided to a nonresident individual by the assisted living facility on the assisted living facility premises, for a period of time not to exceed ten continuous hours, and does not involve an overnight stay.
"Ambulatory" means capable of walking or traversing a normal path to safety without the physical assistance of another individual:
(1) "Nonambulatory" means unable to walk or traverse a normal path to safety without the physical assistance of another individual;
(2) "Semiambulatory" means physically and mentally capable of traversing a normal path to safety with the use of mobility aids, but unable to ascend or descend stairs without the physical assistance of another individual.
"Applicant" means a person, as defined in this section, that has submitted, or is in the process of submitting, an application for an assisted living facility license.
"Assisted living facility
" means any home or other institution, however named, that is advertised, announced, or maintained for the express or implied purpose of providing housing, basic services, and assuming general responsibility for the safety and well-being of the residents, and may also provide domiciliary care, consistent with this chapter to seven or more residents after July 1, 2000. However, an assisted living facility that is licensed for three to six residents prior to or on July 1, 2000, may maintain its assisted living facility license as long as it is continually licensed as an assisted living facility. "Assisted living facility" may also include persons associated with the assisted living facility to carry out its duties under this chapter. "Assisted living facility" does not include facilities certified as group training homes under RCW 71A.22.040
, nor any home, institution, or section that is otherwise licensed and regulated under state law that provides specifically for the licensing and regulation of that home, institution, or section. "Assisted living facility" also does not include independent senior housing, independent living units in continuing care retirement communities, or other similar living situations including those subsidized by the U.S. Department of Housing and Urban Development.
"Basic services" means housekeeping services, meals, nutritious snacks, laundry, and activities.
"Bathing fixture" means a bathtub, shower or sit-down shower.
"Bathroom" means a room containing at least one bathing fixture.
"Building code" means the building codes and standards adopted by the Washington state building code council.
"Caregiver" means anyone providing direct personal care to another person including, but not limited to: Cuing, reminding, or supervision of residents, on behalf of an assisted living facility, except volunteers who are directly supervised.
"Construction review services" means the office of construction review services within the Washington state department of health.
"Continuing care contract"
means, as stated in RCW 70.38.025
, a contract providing a person, for the duration of that person's life or for a term in excess of one year, shelter along with nursing, medical, health-related, or personal care services, which is conditioned upon the transfer of property, the payment of an entrance fee to the provider of such services, or the payment of periodic charges for the care and services involved. A continuing care contract is not excluded from this definition because the contract is mutually terminable or because shelter and services are not provided at the same location.
"Continuing care retirement community"
means, as stated in RCW 70.38.025
, an entity which provides shelter and services under continuing care contracts with its members and which sponsors or includes a health care facility or a health service.
"Contractor" means an agency or person who contracts with a licensee to provide resident care, services, or equipment.
"Crimes relating to financial exploitation"
means the same as "crimes relating to financial exploitation" as defined in RCW 43.43.830
"Department" means the Washington state department of social and health services.
means an individual certified under chapter 18.138
"Direct supervision" means oversight by a person on behalf of the assisted living facility who has met training requirements, demonstrated competency in core areas, or has been fully exempted from the training requirements, is on the premises, and is quickly and easily available to the caregiver.
"Document" means to record, with signature, title, date, and time:
(1) Information about medication administration, medication assistance or disposal, a nursing care procedure, accident, occurrence or change in resident condition that may affect the care or needs of a resident; and
(2) Processes, events, or activities that are required by law, rule, or policy.
"Domiciliary care" means:
(1) Assistance with activities of daily living provided by the assisted living facility either directly or indirectly;
(2) Health support services, if provided directly or indirectly by the assisted living facility; or
(3) Intermittent nursing services, if provided directly or indirectly by the assisted living facility.
means one or more of the department's responses to an assisted living facility's noncompliance with chapter 18.20
RCW and this chapter, as authorized by RCW 18.20.190
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
"Food service worker" means according to chapter 246-217 WAC, an individual who works (or intends to work) with or without pay in a food service establishment and handles unwrapped or unpackaged food or who may contribute to the transmission of infectious diseases through the nature of the individual's contact with food products or equipment and facilities. This does not include persons who simply assist residents with meals.
"General responsibility for the safety and well-being of the resident" means the provision of any one or more of the following:
(1) Prescribed general low sodium diets;
(2) Prescribed general diabetic diets;
(3) Prescribed mechanical soft foods;
(4) Emergency assistance;
(5) Monitoring of the resident;
(6) Arranging health care appointments with outside health care providers and reminding residents of such appointments as necessary;
(7) Coordinating health care services with outside health care providers consistent with WAC 388-78A-2350;
(8) Assisting the resident to obtain and maintain glasses, hearing aids, dentures, canes, crutches, walkers, wheelchairs, and assistive communication devices;
(9) Observation of the resident for changes in overall functioning;
(10) Blood pressure checks as scheduled;
(11) Responding appropriately when there are observable or reported changes in the resident's physical, mental, or emotional functioning;
(12) Medication assistance as permitted under RCW 69.41.085
and as described in RCW 69.41.010
and chapter 246-888 WAC.
"Harm" means a physical or mental or emotional injury or damage to a resident including those resulting from neglect or violations of a resident's rights.
"Health support services" means any of the following optional services:
(1) Blood glucose testing;
(2) Puree diets;
(3) Calorie controlled diabetic diets;
(4) Dementia care;
(5) Mental health care;
(6) Developmental disabilities care.
"Independent living unit" means:
(1) Independent senior housing;
(2) Independent living unit in a continuing care retirement community or other similar living environments;
(3) Assisted living facility unit where domiciliary services are not provided; or
(4) Assisted living facility unit where one or more items listed under "general responsibilities" are not provided.
"Independent senior housing" means an independent living unit occupied by an individual or individuals sixty or more years of age.
"Infectious" means capable of causing infection or disease by entrance of organisms into the body, which grow and multiply there, including, but not limited to, bacteria, viruses, protozoans, and fungi.
"Licensee" means a person, as defined in this section, to whom the department issues an assisted living facility license.
"Licensed resident bed capacity" means the resident occupancy level requested by a licensee and approved by the department. All residents receiving domiciliary care or the items or services listed under general responsibility for the safety and well-being of the resident as defined in this section count towards the licensed resident bed capacity. Adult day services clients do not count towards the licensed resident bed capacity.
"Long-term care worker"
" means the same as "long-term care workers" is defined in RCW 74.39A.009
"Majority owner" means any person that owns:
(1) More than fifty percent interest;
(2) If no one person owns more than fifty percent interest, the largest interest portion; or
(3) If more than one person owns equal largest interest portions, then all persons owning those equal largest interest portions.
"Manager" means a person, as defined in this section, that provides management services on behalf of a licensee.
"Management agreement" means a written, executed agreement between a licensee and manager regarding the provision of certain services on behalf of the licensee.
(1) Is an employee of the department, law enforcement officer, social worker, professional school personnel, individual provider, employee of a facility, operator of a facility, employee of a social service, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agency, county coroner or medical examiner, Christian Science practitioner, or health care provider subject to chapter 18.130
(2) For the purpose of the definition of mandated reporter, "facility" means a residence licensed or required to be licensed under chapter 18.20
RCW (assisted living facility), 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.
"Maximum facility capacity" means the maximum number of individuals that the assisted living facility may serve at any one time, as determined by the department.
(1) The maximum facility capacity includes all residents, respite care residents, and adult day services clients.
(2) The maximum facility capacity is equal to the lesser of:
(a) The sum of the number of approved bed spaces for all resident rooms (total number of approved bed spaces), except as specified in subsection (3) of this section;
(b) Twice the seating capacity of the dining area(s) consistent with WAC 388-78A-2300 (1)(h);
(c) The number of residents permitted by calculating the ratios of toilets, sinks, and bathing fixtures to residents consistent with WAC 388-78A-3030;
(d) For assisted living facilities licensed on or before December 31, 1988, the total day room area in square feet divided by ten square feet, consistent with WAC 388-78A-3050; or
(e) For assisted living facilities licensed after December 31, 1988, the total day room area in square feet divided by twenty square feet, consistent with WAC 388-78A-3050.
(3) For the purposes of providing adult day services consistent with WAC 388-78A-2360, one additional adult day services client may be served, beyond the total number of approved bed spaces, for each additional sixty square feet of day room area greater than the area produced by multiplying the total number of approved bed spaces by twenty square feet, provided that:
(a) There is at least one toilet and one hand washing sink accessible to adult day services clients for every eight adult day services clients or fraction thereof;
(b) The total number of residents and adult day services clients does not exceed twice the seating capacity of the dining area(s) consistent with WAC 388-78A-2300 (1)(h); and
(c) The adult day services program area(s) and building do not exceed the occupancy load as determined by the local building official or state fire marshal.
"Medication administration" means the direct application of a prescribed medication whether by injection, inhalation, ingestion, or other means, to the resident's body by an individual legally authorized to do so.
"Medication assistance" means assistance with self-administration of medication rendered by a nonpractitioner to a resident of an assisted living facility in accordance with chapter 246-888 WAC.
"Medication organizer" means a container with separate compartments for storing oral medications organized in daily doses.
"Medication service" means any service provided either directly or indirectly by an assisted living facility related to medication administration, medication administration provided through nurse delegation, medication assistance, or resident self-administration of medication.
(1) A pattern of conduct or inaction resulting in the failure to provide the goods and services that maintain physical or mental health of a resident, or that fails to avoid or prevent physical or mental harm or pain to a resident; or
(2) An act or omission by a person or entity with a duty of care that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the resident's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.42.100
"Nonresident individual" means an individual who resides in independent senior housing, independent living units in continuing care retirement communities, other similar living environment, or an unlicensed room located within an assisted living facility. A nonresident individual must not receive from the assisted living facility:
(1) Domiciliary care directly or indirectly; or
(2) Items or services listed in the definition of "general responsibility for the safety and well-being of the resident," except as allowed under WAC 388-78A-2032 or when the person is receiving adult day services.
means any individual who is not a practitioner as defined in WAC 388-78A-2020 and chapter 69.41
means an individual currently licensed under chapter 18.79
RCW as either a:
(1) Licensed practical nurse (LPN); or
(2) Registered nurse (RN).
"Over-the-counter (OTC) medication" means any medication that may be legally purchased without a prescriptive order, including, but not limited to, aspirin, antacids, vitamins, minerals, or herbal preparations.
"Person" means any individual, firm, partnership, corporation, company, association, joint stock association or any other legal or commercial entity.
means an individual licensed under chapter 18.57
(("Personal 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 consistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.))
includes a licensed physician, osteopathic physician, podiatric physician, pharmacist, licensed practical nurse, registered nurse, advanced registered nurse practitioner, dentist, and physician assistant. Refer to chapter 69.41
RCW for a complete listing of practitioners.
"Prescribed medication" means any medication (legend drug, controlled substance, and over-the-counter) that is prescribed by an authorized practitioner.
"Prescriber" means a health care practitioner authorized by Washington state law to prescribe drugs.
"Problem" means a violation of any WAC or RCW applicable to the operation of an assisted living facility:
(1) "Recurring problem"
means, for all purposes other than those described in RCW 18.20.400
, that the department has cited the assisted living facility for a violation of WAC or RCW and the circumstances of either (a) or (b) of this subsection are present. If the previous violation in (a) or (b) of this subsection was pursuant to WAC or RCW that has changed at the time of the new violation, citation to the equivalent current WAC or RCW section is sufficient. When there is a change in licensees between the first and the second or third citations, the new licensee must accept, and the department will consider, the prior licensee's compliance and enforcement record as part of the new licensee's compliance record at that assisted living facility if any person affiliated with the new licensee was affiliated with the prior licensee at the same assisted living facility. A person is considered affiliated with the licensee if the person is an applicant for the assisted living facility license, or is listed on the license application as a partner, officer, director, or majority owner of the applicant.
(a) The department previously imposed an enforcement remedy for a violation of the same section of WAC or RCW for substantially the same problem following any type of inspection within the preceding thirty-six months.
(b) The department previously cited a violation under the same section of WAC or RCW for substantially the same problem following any type of inspection on two occasions within the preceding thirty-six months.
(2) "Serious problem" means that there has been a violation of a WAC or RCW and:
(a) The resident was significantly harmed; or
(b) It is likely that the resident will be significantly harmed or die.
(3) "Uncorrected problem" means the department has cited a violation of WAC or RCW following any type of inspection and the violation remains uncorrected at the time the department makes a subsequent inspection for the specific purpose of verifying whether such violation has been corrected. When there is a change in licensee, the new licensee is responsible for correcting any remaining violations that may exist, including complying with any plan of correction in effect immediately prior to the change in licensee.
"Prospective resident" means an individual who seeks admission to a licensed assisted living facility and has completed and signed an application for admission, or the individual's legal representative or designated representative, if any, completed and signed the application on their behalf.
"Reasonable accommodation" or "reasonably accommodate" have the meaning given in federal and state antidiscrimination laws and regulations which include, but are not limited to, the following:
(1) Reasonable accommodation means that the assisted living facility must:
(a) Not impose admission criteria that excludes individuals unless the criteria is necessary for the provision of assisted living facility services;
(b) Make reasonable modification to its policies, practices or procedures if the modifications are necessary to accommodate the needs of the resident;
(c) Provide additional aids and services to the resident.
(2) Reasonable accommodations are not required if:
(a) The resident or individual applying for admission presents a significant risk to the health or safety of others that cannot be eliminated by the reasonable accommodation;
(b) The reasonable accommodations would fundamentally alter the nature of the services provided by the assisted living facility; or
(c) The reasonable accommodations would cause an undue burden, meaning a significant financial or administrative burden.
"RCW" means Revised Code of Washington.
(1) "Active records" means the current, relevant documentation regarding residents necessary to provide care and services to residents; or
(2) "Inactive records" means historical documentation regarding the provision of care and services to residents that is no longer relevant to the current delivery of services and has been thinned from the active record.
"Resident" means an individual who:
(1) Chooses to reside in an assisted living facility, including an individual receiving respite care;
(2) Is not related by blood or marriage to the operator of the assisted living facility;
(3) Receives basic services; and
(4) Receives one or more of the services listed in the definition of "general responsibility for the safety and well-being of the resident," and may receive domiciliary care or respite care provided directly, or indirectly, by the assisted living facility. Whereas, a nonresident individual may receive services that are permitted under WAC 388-78A-2032.
"Resident's representative" means one of the following:
(1) The legal representative who is the person or persons identified in RCW 7.70.065
and who may act on behalf of the resident pursuant to the scope of their legal authority. The legal representative must not be affiliated with the licensee, assisted living facility, or management company, unless the affiliated person is a family member of the resident.
(2) If there is no legal representative, a person designated voluntarily by a competent resident in writing, to act in the resident's behalf concerning the care and services provided by the assisted living facility and to receive information from the assisted living facility if there is no legal representative. The resident's representative must not be affiliated with the licensee, assisted living facility, or management company, unless the affiliated person is a family member of the resident. The resident's representative under this subsection must not have authority to act on behalf of the resident once the resident is no longer competent. The resident's competence must be determined using the criteria in RCW 11.88.010
"Respite care" means short-term care for any period in excess of twenty-four continuous hours for a resident to temporarily relieve the family or other caregiver of providing that care.
"Restraint" means any method or device used to prevent or limit free body movement, including, but not limited to:
(1) Confinement, unless agreed to as provided in WAC 388-78A-2370;
(2) "Chemical restraint" means the administration of any drug to manage a vulnerable adult's behavior in a way that reduces the safety risk to the vulnerable adult or others, has the temporary effect of restricting the vulnerable adult's freedom of movement, and is not standard treatment for the vulnerable adult's medical or psychiatric condition.
(3) "Mechanical restraint" means any device attached or adjacent to the vulnerable adult's body that they cannot easily remove and restricts freedom of movement or normal access to the vulnerable adult's body. "Mechanical restraint" does not include the use of devices, materials, or equipment that are:
(a) Medically authorized, as required, and;
(b) Used in a manner that is consistent with federal or state licensing or certification requirements for facilities, hospitals, or programs authorized under chapter 71A.12
(4) "Physical restraint" means the application of physical force without the use of any device, for the purpose of restraining the free movement of a vulnerable adult's body. "Physical restraint" does not include:
(a) Briefly holding without undue force a vulnerable adult in order to calm or comfort the vulnerable adult; or
(b) Holding a vulnerable adult's hand to safely escort the vulnerable adult from one area to another.
"Room" means a space set apart by floor to ceiling partitions on all sides with all openings provided with doors or windows.
(1) "Sleeping room" means a room where a resident is customarily expected to sleep and contains a resident's bed.
(2) "Resident living room" means the common space in a resident unit that is not a sleeping room, bathroom, or closet.
"Significant change" means a change in the resident's physical, mental, or psychosocial status that causes either life-threatening conditions or clinical complications.
"Special needs" means a developmental disability, mental illness, or dementia.
"Staff person" means any assisted living facility employee, temporary employee, or contractor, whether employed or retained by the licensee or any management company or volunteer.
"State fire marshal" means the director of fire protection under the direction of the chief of the Washington state patrol.
"Toilet" means a disposal apparatus used for urination and defecation fitted with a seat and flushing device.
"Volunteer" means an individual who interacts with residents without reimbursement.
"Vulnerable adult" includes a person:
(1) Sixty years of age or older who has the functional, mental, or physical inability to care for themselves;
(2) Found incapacitated under chapter 11.88
(3) Who has a developmental disability as defined under RCW 71A.10.020
(4) Admitted to any facility, including any assisted living facility;
(5) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127
(6) Receiving services from an individual provider; or
(7) For the purposes of requesting and receiving background checks pursuant to RCW 43.43.832
, includes a person who is an adult of any age who lacks the functional, mental, or physical ability to care for themselves.
"WAC" means Washington Administrative Code.
"Wellness program" means an educational program provided by the assisted living facility. It is a proactive and preventative approach to assist residents and nonresident individuals in achieving optimal levels of health, social, and emotional functioning. A wellness program does not include medical care or interventions.
"Willful" means the deliberate, or nonaccidental action or inaction by an alleged perpetrator that the alleged perpetrator knows or reasonably should have known could cause a negative outcome, including harm, injury, pain, or anguish.
means the Washington Industrial Safety and Health Act, chapter 49.17
RCW administered by the Washington state department of labor and industries.