WSR 19-17-065
(Aging and Long-Term Support Administration)
[Filed August 20, 2019, 9:14 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 19-03-150.
Title of Rule and Other Identifying Information: The department is proposing to create WAC 388-76-10401 Home and community-based setting requirements. This new section requires homes to comply with federal home and community-based services requirements.
Hearing Location(s): On September 24, 2019, at 10:00 a.m., at Office Building 2, Department of Social and Health Services (DSHS) Headquarters, 1115 Washington, Olympia, WA 98504. Public parking at 11th and Jefferson. A map is available at
Date of Intended Adoption: Not earlier than September 25, 2019.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, email, fax 360-664-6185, by 5:00 p.m., September 24, 2019.
Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, phone 360-664-6092, fax 360-664-6185, TTY 711 relay service, email, by September 10, 2019.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal incorporates the federal requirements for home and community-based settings. This will help adult family home providers understand their obligations and improve their ability to comply with them. The proposal will also ensure that residents are receiving care in a homelike setting and reducing their dependence on institutions or isolating settings. These regulations improve quality of life in adult family homes by giving residents greater opportunities to make decisions about their lives and care.
Reasons Supporting Proposal: DSHS has a funding waiver from Centers for Medicaid and Medicare Services through the home and community-based settings program. As part of our agreement for this waiver, we must adopt this rule. Failure to do so could result in the loss of the waiver and the funding source, which would result in fewer homes, fewer beds, and fewer people to regulate this setting. This proposal benefits residents, adult family home providers, and the department.
Statutory Authority for Adoption: RCW 70.128.040, 70.128.060.
Statute Being Implemented: None.
Rule is necessary because of federal law, 42 C.F.R. § 441.530.
Name of Proponent: DSHS, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Libby Wagner, 20425 72nd Avenue South, Kent, WA 98032, 253-234-6061.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. The proposed rule is exempt under RCW 34.05.328 (5)(b)(iii), rules adopting or incorporating by reference without material change federal statutes or regulations.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.061 because this rule making is being adopted solely to conform and/or comply with federal statute or regulations. Citation of the specific federal statute or regulation and description of the consequences to the state if the rule is not adopted: 42 C.F.R. § 441.530. These regulations apply to home and community-based settings, which include adult family homes. Without the proposed rule, our adult family home program would be out of compliance with medicaid rules.
August 14, 2019
Katherine I. Vasquez
Rules Coordinator
WAC 388-76-10401Home and community-based setting requirements.
(1) The home must ensure that the following conditions are present for each resident:
(a) Privacy in each resident's bedroom, including lockable doors when chosen, with only the resident or residents who live in the room and appropriate staff having the key;
(b) Choice of roommates;
(c) Freedom to decorate and furnish their room within the terms of the notice of rights and service agreement;
(d) Freedom and support to control their own schedule;
(e) Access to food and water at any time; and
(f) Having visitors at any time, although nothing in this section requires an adult family home to provide a visitor with food or a place to sleep.
(2) When conditions under subsection (1) of this section cannot be met, the home must ensure the following elements are in place before implementing a modification:
(a) The specific assessed need for the modification is identified in the resident's assessment and negotiated care plan;
(b) The resident's negotiated care plan documents less intrusive methods and interventions that were tried prior to the modification but did not work;
(c) The details of the modification are clearly described in the resident's assessment and negotiated care plan, including how the modification addresses the resident's specific assessed need;
(d) The modification is agreed to by the resident or the resident's legal representative; and
(e) The modification must not cause the resident harm.
(3) All modifications must be reviewed annually with the assessment and negotiated care plan, and evidence of its effectiveness or lack thereof must be documented in both.
(4) Any modification must be discontinued if there is no longer a need for it or it is no longer effective.