WSR 18-20-040
PERMANENT RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Aging and Long-Term Support Administration)
[Filed September 25, 2018, 2:31 p.m., effective October 26, 2018]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The department is amending sections in chapter 388-107 WAC to update the references to chapter 388-112 WAC contained throughout the chapter to the new chapter 388-112A WAC.
Citation of Rules Affected by this Order: Amending WAC 388-107-0001, 388-107-0250, 388-107-0630, 388-107-0650, 388-107-0690, and 388-107-1180.
Statutory Authority for Adoption: Chapter 70.97 RCW.
Adopted under notice filed as WSR 18-14-064 on June 29, 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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 6, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 6, Repealed 0.
Date Adopted: September 25, 2018.
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION(Amending WSR 16-14-078, filed 7/1/16, effective 8/1/16)
WAC 388-107-0001Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"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 resident. In instances of abuse of a resident 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 is also defined in RCW 74.34.020. Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a resident, which have the following meanings:
(1) "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 resident from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing;
(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, prodding, or the use of chemical restraints or physical restraints except as described in section 388-107-0420;
(3) "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 and a resident, whether or not it is consensual;
(4) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a resident causing the resident to act in a way that is inconsistent with relevant past behavior, or causing the resident to perform services for the benefit of another.
"Activities of daily living" means the following tasks related to basic personal care: Bathing; toileting; dressing; personal hygiene; mobility; transferring; and eating.
"Administrative hearing" is a formal hearing proceeding before a state administrative law judge that gives:
(1) A licensee an opportunity to be heard in disputes about licensing actions, including the imposition of remedies, taken by the department; or
(2) An individual an opportunity to appeal a finding of abandonment, abuse, neglect, financial exploitation of a resident, or misappropriation of a resident's funds.
"Administrator" means an enhanced services facility administrator who must be in active administrative charge of the enhanced services facility as required in this chapter. Unless exempt under RCW 18.88B.041, the administrator must complete long-term care worker training and home care aide certification.
"Advance directive," as used in this chapter, means any document indicating a resident's choice with regard to a specific service, treatment, medication or medical procedure option that may be implemented in the future such as power of attorney health care directive, limited or restricted treatment cardiopulmonary resuscitation (CPR), do not resuscitate (DNR), and organ tissue donation.
"Aggressive behavior" means actions by the individual that constitute a threat to the individual's health and safety or the health and safety of others in the environment.
"Antipsychotic medications" means that class of medications primarily used to treat serious manifestations of mental illness associated with thought disorders, which includes but is not limited to atypical antipsychotic medications.
"Applicant" means the individual or entity, as defined in this section that has submitted, or is in the process of submitting, an application for an enhanced services facility license.
"Capacity" means the maximum amount an enhanced services facility can serve is sixteen residents.
"Caregiver" means the same as "long-term care worker" as defined in RCW 74.39A.009, as follows: "Long-term care workers" include all persons who provide paid, hands-on personal care services for the elderly or persons with disabilities, including but not limited to individual providers of home care services, direct care workers employed by home care agencies, providers of home care agencies to persons with developmental disabilities under Title 71A RCW, all direct care workers in state-licensed enhanced services facilities, assisted living facilities, and adult family homes, respite care providers, direct care workers employed by community residential service businesses, and any other direct care worker providing home or community-based services to the elderly or persons with functional disabilities or developmental disabilities.
"Challenging behavior" means a persistent pattern of behaviors that inhibit the individual's functioning in public places, in the facility and integration within the community, or uncontrolled symptoms of a physical or mental condition. These behaviors may have been present for long periods of time or have manifested as an acute onset.
"Chemical dependency" means alcoholism, medication addiction, or dependence on alcohol and one or more other psychoactive chemicals, as the context requires and as those terms are defined in chapter 70.96A RCW.
"Chemical dependency professional" means a person certified as a chemical dependency professional by the department of health under chapter 18.205 RCW.
"Deficiency" means an enhanced services facility's practice, action, or inaction that violates any or all of the requirements of chapter 70.97 RCW or this chapter.
"Department" means the department of social and health services.
"Direct supervision" means oversight by a person on behalf of the enhanced services 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.
"Enhanced services facility" or "ESF" means a facility licensed under chapter 70.97 RCW that provides treatment and services to persons for whom acute inpatient treatment is not medically necessary and who have been determined by the department to be inappropriate for placement in other licensed facilities due to the complex needs that result in behavioral and security issues. For the purposes of this chapter, an enhanced services facility is not an evaluation and treatment facility certified under chapter 71.05 RCW.
"Facility" means an enhanced services facility.
"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).
"Holding technique" means using the least amount of force necessary to manually hold all or part of a person's body in a way that restricts the person's free movement; also includes any approved controlling maneuvers identified in the person-centered service plan. Examples include holds taught in approved training for deescalation techniques and control of self-harm or aggressive behavior. This definition does not apply to briefly holding, without force, a person in order to calm the person, or holding a person's hand to escort the person safely from one area to another.
"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.
"Inspection" means the process by which department staff evaluates the enhanced services facility licensee's compliance with applicable statutes and regulations.
"License suspension" is an action taken by the department to temporarily revoke an enhanced services facility license in accordance with RCW 70.97.120 and this chapter.
"Licensee" means the individual or entity, as defined in this chapter, to whom the department issues the enhanced services facility license.
"Licensed physician" means a person licensed to practice medicine or osteopathic medicine and surgery in the state of Washington.
"Likelihood of serious harm" means a substantial risk that:
(1) Physical harm will be inflicted by an individual upon his or her own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on oneself;
(2) Physical harm will be inflicted by an individual upon another, as evidenced by behavior that has caused such harm or that places another person or persons in reasonable fear of sustaining such harm; or
(3) Physical harm will be inflicted by an individual upon the property of others, as evidenced by behavior that has caused substantial loss or damage to the property of others.
"Long-term care worker" as defined in RCW 74.39A.009, has the same meaning as the term "caregiver."
"Management agreement" means a written, executed agreement between the licensee and the manager regarding the provision of certain services on behalf of the licensee.
"Mandated reporter":
(1) Is an employee of the department, law enforcement officer, social worker, professional school personnel, individual provider, an employee of a facility, an operator of a facility, an 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 RCW; and
(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; chapter 70.97 RCW, Enhanced services facility or any other facility licensed by the department.
"Medically fragile" means a chronic and complex physical condition which results in prolonged dependency on specialized medical care that requires frequent daily skilled nursing interventions. If these medically necessary interventions are interrupted or denied, the resident may experience irreversible damage or death. Examples of specialized medical care and treatment for medically fragile residents include but are not limited to: IV therapies requiring monitoring of vital signs and dose titration dependent on lab values; wound care requiring external vacuum or other mechanical devices for debridement; complicated wound care requiring other specialized or extensive interventions and treatment; ventilator or other respiratory device dependence and monitoring; dependence on licensed staff for complex respiratory support; and peritoneal or hemodialysis (on-site).
"Medication administration" means the direct application of a prescribed medication whether by injection, inhalation, ingestion, or other means, to the body of the resident by an individual legally authorized to do so.
"Medication service" means any service provided either directly or indirectly by an enhanced services facility related to medication administration medication assistance, or resident self-administration of medication.
"Mental disorder" means any organic, mental, or emotional impairment that has substantial adverse effects on an individual's cognitive or volitional functions.
"Mental health professional" means a psychiatrist, psychologist, psychiatric nurse, licensed mental health counselor, licensed mental health counselor-associate, licensed marriage and family therapist, licensed marriage and family therapist-associate, licensed independent clinical social worker, licensed independent clinical social worker-associate, licensed advanced social worker, or licensed advanced social worker-associate and such other mental health professionals as may be defined by rules adopted by the secretary under the authority of chapter 71.05 RCW.
"Misappropriation of resident property" means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money.
"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 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.
"Permanent restraining order" means a restraining order 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 (e.g. 5 years), after which it expires.
"Prescriber" means a health care practitioner authorized by Washington state law to prescribe medications.
"Professional person" means a mental health professional and also means a physician, registered nurse, and such others as may be defined in rules adopted by the secretary pursuant to the provisions of this chapter.
"Psychopharmacologic medications" means a class of prescription medications that affect the mind, emotions, and behavior, including but not limited to antipsychotics, antianxiety medication, and antidepressants.
"Reasonable accommodation" and "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 enhanced services facility must:
(a) Not impose an admission criterion that excludes individuals unless the criterion is necessary for the provision of enhanced services 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 enhanced services facility; or
(c) The reasonable accommodations would cause an undue burden, meaning a significant financial or administrative burden.
"RCW" means Revised Code of Washington.
"Records" means:
(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.
"Registration records" include all the records of the department, regional support networks, treatment facilities, and other persons providing services to the department, county departments, or facilities which identify individuals who are receiving or who at any time have received services for mental illness.
"Resident" means a person admitted to an enhanced services facility.
"Resident's representative" means:
(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 shall not be affiliated with the licensee, enhanced services facility, or management company, unless the affiliated person is a family member of the resident; or
(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 enhanced services facility and to receive information from the enhanced services facility if there is no legal representative. The resident's representative may not be affiliated with the licensee, enhanced services facility, or management company, unless the affiliated person is a family member of the resident. The resident's representative under this subsection shall not have authority to act on behalf of the resident once the resident is no longer competent. The resident's competence shall be determined using the criteria in RCW 11.88.010 (1)(e).
"Secretary" means the secretary of the department or the secretary's designee.
"Significant change" means:
(1) A deterioration in a resident's physical, mental, or psychosocial condition that has caused or is likely to cause clinical complications or life-threatening conditions; or
(2) An improvement in the resident's physical, mental, or psychosocial condition that may make the resident eligible for discharge or for treatment in a less intensive or less secure setting.
"Significant medication error" includes any failure to administer or receive a medication according to an authorized health care provider's order, or according to the manufacturer's directions for nonprescription medications, that results in an error involving the wrong medication, wrong dose, wrong patient, wrong time, wrong rate, wrong preparation, or wrong route of administration.
"Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.
"Staff" or "staff person" means any person who:
(1) Is employed or used by an enhanced services facility, directly or by contract, to provide care and services to any resident.
(2) Staff must meet all of the requirements of chapter ((388-112))388-112A WAC.
"Stop placement" or "stop placement order" is an action taken by the department prohibiting enhanced services facility admissions, readmissions, and transfers of patients into the enhanced services facility from the outside.
"Temporary restraining order" means restraining order or order of protection that expired without a hearing, was terminated following an initial hearing, or was terminated by stipulation of the parties in lieu of an initial hearing.
"Treatment" means the broad range of emergency, detoxification, residential, inpatient, and outpatient services and care, including diagnostic evaluation, mental health or chemical dependency education and counseling, medical, physical therapy, restorative nursing, psychiatric, psychological, and social service care, vocational rehabilitation, and career counseling.
"Violation" means the same as "deficiency" as defined in this section.
"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 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, including any enhanced services 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.
(7) Who self-directs his or her own care and receives services from a personal aide under chapter 74.39 RCW.
(8) For the purposes of requesting and receiving background checks pursuant to RCW 43.43.832, it shall also include adults of any age who lack the functional, mental, or physical ability to care for themselves.
"WAC" means Washington Administrative Code.
AMENDATORY SECTION(Amending WSR 14-19-071, filed 9/12/14, effective 10/13/14)
WAC 388-107-0250Staffing credentials and qualifications.
(1) The enhanced services facility must ensure the staffing ratios are met with the following credentialed staff, who are in good professional standing:
(a) Registered nurse;
(b) Licensed practical nurse;
(c) Nursing assistant certified or certified home care aide; and
(d) Mental health professional.
(2) The enhanced services facility must ensure that any caregiver, excluding professional licensed nursing staff:
(a) Must be at least 18 years of age;
(b) Has successfully completed a department-approved certified nursing assistant training program; or
(c) Meets the long-term worker training and certification requirements as described in chapter ((388-112))388-112A WAC.
AMENDATORY SECTION(Amending WSR 14-19-071, filed 9/12/14, effective 10/13/14)
WAC 388-107-0630Training and home care aide certification requirements.
(1) Under RCW 18.88B.041 and chapter 246-980 WAC, certain individuals 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.
(2) Continuing education requirements are outlined in chapter ((388-112))388-112A WAC; registered nurses and licensed practical nurses are exempt from the long-term care worker continuing education requirement.
(3) The enhanced services facility must ensure staff persons meet training requirements in effect on the date hired, including requirements described in chapter ((388-112))388-112A WAC, unless exempt under RCW 18.88B.041.
(4) The enhanced services facility must ensure all enhanced services facility administrators, or their designees, and caregivers who are not exempt under subsection (1) of this section meet the long-term care worker training requirements of chapter ((388-112))388-112A WAC, including but not limited to:
(a) Orientation and safety;
(b) Basic training;
(c) Specialty for dementia and, mental illness and/or developmental disabilities when serving residents with any of those primary special needs;
(d) Cardiopulmonary resuscitation and first aid; and
(e) Continuing education.
(5) The enhanced services facility must ensure that all staff receives appropriate training and orientation to perform their specific job duties and responsibilities.
(6) The enhanced services facility must ensure the following staff obtains home care aide certification, unless exempt under WAC 246-980-070:
(a) All long-term care workers, within two hundred days of hire;
(b) All enhanced services facility applicants, before licensure;
(c) All enhanced services facility administrators within two hundred days of hire, and
(d) Any other staff who will provide direct care and services to residents.
AMENDATORY SECTION(Amending WSR 14-19-071, filed 9/12/14, effective 10/13/14)
WAC 388-107-0650Specialized training.
(1) The enhanced services facility must ensure all staff who have any interaction with the residents successfully complete the mental health and dementia specialized trainings, consistent with chapter ((388-112))388-112A WAC, prior to working in the enhanced services facility.
(2) The facility must ensure all staff who have interaction with the residents complete any other specialty trainings to meet the needs of the residents being served, such as developmental disabilities.
AMENDATORY SECTION(Amending WSR 14-19-071, filed 9/12/14, effective 10/13/14)
WAC 388-107-0690Facility-based trainers.
If the enhanced services facility provides continuing education, in-service education or quarterly staff education, the educators must be approved by the department prior to educational intervention, in accordance with chapter ((388-112))388-112A WAC.
AMENDATORY SECTION(Amending WSR 14-19-071, filed 9/12/14, effective 10/13/14)
WAC 388-107-1180Administrator qualifications—General.
The licensee must appoint an administrator who:
(1) Is at least twenty-one years old;
(2) Has a bachelor's degree in social sciences, social services, human services, behavioral sciences, or an allied medical field;
(3) Meets the training requirements under chapter ((388-112))388-112A WAC and has specialized training in the provision of the care and services required for vulnerable adults with dementia, mental health and behavioral issues;
(4) Has at least one year of full-time experience working with vulnerable populations with complex personal care and behavioral needs;
(5) Knows and understands how to apply Washington state statutes and administrative rules related to the operation of a long-term care facility; and
(6) Is qualified to perform the administrator's responsibilities specified in WAC 388-107-1190.