WSR 20-11-043
(Aging and Long-Term Support Administration)
[Filed May 15, 2020, 4:18 p.m., effective May 15, 2020, 4:18 p.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: The department is amending the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow nursing facilities to provide clinical records to residents and resident representatives in ten working days instead of two working days. Current state rules specify clinical records be accessible to residents and their representatives for review within twenty-four hours and copies must be provided within two working days. The amendment lengthens the time nursing homes have to provide the resident access to, or copies of, the requested clinical record from two to ten days. The amendment does not permit the nursing facility to deny the resident access to records.
Citation of Rules Affected by this Order: Amending WAC 388-97-0300.
Statutory Authority for Adoption: RCW 74.42.620.
Other Authority: Chapter 74.34 RCW.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: The threat of COVID-19 to our most vulnerable populations is significant, especially for those receiving long-term care services in their homes and congregate settings, such as long-term care facilities. Current nursing home rules ensure residents have the right to access and review their clinical record. Currently, access to the record must be provided within twenty-four hours and if the resident or resident representative requests a copy of the record, it must be provided within two working days. The amendment would lengthen the time nursing homes have to provide the resident access to, or copies of the requested clinical record. The amendment does not permit the nursing facility to deny the resident access to records. This amendment provides flexibility for nursing homes to prioritize direct care over non-direct care tasks while maintaining the resident's right to access their records.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, 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 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 0, Amended 1, Repealed 0.
Date Adopted: May 13, 2020.
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION(Amending WSR 14-12-040, filed 5/29/14, effective 6/29/14)
WAC 388-97-0300Notice of rights and services.
(1) The nursing home must provide the resident, before admission, or at the time of admission in the case of an emergency, and as changes occur during the resident's stay, both orally and in writing and in language and words that the resident understands, with the following information:
(a) All rules and regulations governing resident conduct, resident's rights and responsibilities during the stay in the nursing home;
(b) Advanced directives, and of any nursing home policy or practice that might conflict with the resident's advance directive if made;
(c) Advance notice of transfer requirements, consistent with RCW 70.129.110;
(d) Advance notice of deposits and refunds, consistent with RCW 70.129.150; and
(e) Items, services and activities available in the nursing home and of charges for those services, including any charges for services not covered under medicare or medicaid or by the home's per diem rate.
(2) The resident has the right((:
(a) Upon an oral or written request, to access all records pertaining to the resident including clinical records within twenty-four hours; and
(b) After receipt of his or her records for inspection,)) to purchase at a cost not to exceed twenty-five cents a page, photocopies of the records or any portions of them upon request and ((two))ten working days advance notice to the nursing home. For the purposes of this chapter, "working days" means Monday through Friday, except for legal holidays.
(3) The resident has the right to:
(a) Be fully informed in words and language that he or she can understand of his or her total health status, including, but not limited to, his or her medical condition;
(b) Accept or refuse treatment; and
(c) Refuse to participate in experimental research.
(4) The nursing home must inform each resident:
(a) Who is entitled to medicaid benefits, in writing, prior to the time of admission to the nursing facility or, when the resident becomes eligible for medicaid of the items, services and activities:
(i) That are included in nursing facility services under the medicaid state plan and for which the resident may not be charged; and
(ii) That the nursing home offers and for which the resident may be charged, and the amount of charges for those services.
(b) That deposits, admission fees and prepayment of charges cannot be solicited or accepted from medicare or medicaid eligible residents; and
(c) That minimum stay requirements cannot be imposed on medicare or medicaid eligible residents.
(5) The nursing home must, except for emergencies, inform each resident in writing, thirty days in advance before changes are made to the availability or charges for items, services or activities specified in section (4)(a)(i) and (ii), or before changes to the nursing home rules.
(6) The private pay resident has the right to the following, regarding fee disclosure-deposits:
(a) Prior to admission, a nursing home that requires payment of an admission fee, deposit, or a minimum stay fee, by or on behalf of an individual seeking admission to the nursing home, must provide the individual:
(i) Full disclosure in writing in a language the potential resident or his or her representative understands:
(A) Of the nursing home's schedule of charges for items, services, and activities provided by the nursing home; and
(B) Of what portion of the deposits, admissions fees, prepaid charges or minimum stay fee will be refunded to the resident if the resident leaves the nursing home.
(ii) The amount of any admission fees, deposits, or minimum stay fees.
(iii) If the nursing home does not provide these disclosures, the nursing home must not keep deposits, admission fees, prepaid charges or minimum stay fees.
(b) If a resident dies or is hospitalized or is transferred and does not return to the nursing home, the nursing home:
(i) Must refund any deposit or charges already paid, less the home's per diem rate, for the days the resident actually resided or reserved or retained a bed in the nursing home, regardless of any minimum stay or discharge notice requirements; except that
(ii) The nursing home may retain an additional amount to cover its reasonable, actual expenses incurred as a result of a private pay resident's move, not to exceed five days per diem charges, unless the resident has given advance notice in compliance with the admission agreement.
(c) The nursing home must refund any and all refunds due the resident within thirty days from the resident's date of discharge from the nursing home; and
(d) Where the nursing home requires the execution of an admission contract by or on behalf of an individual seeking admission to the nursing home, the terms of the contract must be consistent with the requirements of this section.
(7) The nursing home must furnish a written description of legal rights which includes:
(a) A description of the manner of protecting personal funds, under WAC 388-97-0340;
(b) In the case of a nursing facility only, a description of the requirements and procedures for establishing eligibility for medicaid, including the right to request an assessment which determines the extent of a couple's nonexempt resources at the time of institutionalization and attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in his or her process of spending down to medicaid eligibility levels;
(c) A posting of names, addresses, and telephone numbers of all relevant state client advocacy groups such as the state survey and certification agency, the state licensure office, the state ombuds program, the protection and advocacy network, and the medicaid fraud control unit; and
(d) A statement that the resident may file a complaint with the state survey and certification agency concerning resident abandonment, abuse, neglect, financial exploitation, and misappropriation of resident property in the nursing home.
(8) The nursing home must:
(a) Inform each resident of the name, and specialty of the physician responsible for his or her care; and
(b) Provide a way for each resident to contact his or her physician.
(9) The skilled nursing facility and nursing facility must prominently display in the facility written information, and provide to residents and individuals applying for admission oral and written information, about how to apply for and use medicare and medicaid benefits, and how to receive refunds for previous payments covered by such benefits.
(10) The written information provided by the nursing home pursuant to this section, and the terms of any admission contract executed between the nursing home and an individual seeking admission to the nursing home, must be consistent with the requirements of chapters 74.42 and 18.51 RCW and, in addition, for facilities certified under medicare or medicaid, with the applicable federal requirements.