WSR 26-09-129

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Home and Community Living Administration)

[Filed April 21, 2026, 1:39 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 25-12-025.

Title of Rule and Other Identifying Information: The proposal adds and amends sections in chapter 388-78A WAC, Assisted living facility rules, related to E2SSB 5337, chapter 187, Laws of 2025, Assisted living facilities (ALF) memory care services.

Hearing Location(s): On June 23, 2026, at 10:00 a.m., virtually via Teams or call in. See the department of social and health services (DSHS) website at https://www.dshs.wa.gov/sesa/rpau/proposed-rules-and-public-hearings for the most current information.

Date of Intended Adoption: No earlier than June 24, 2026.

Submit Written Comments to: Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, email DSHSRPAURulesCoordinator@dshs.wa.gov, beginning noon on April 22, 2026, by 5:00 p.m. on June 23, 2026.

Assistance for Persons with Disabilities: Contact Shelley Tencza, rules consultant, phone 360-664-6036, TTY 711 relay service, email shelley.tencza@dshs.wa.gov, by 5:00 p.m. on June 9, 2026.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The amendments and new sections will incorporate the requirements of E2SSB 5337, chapter 187, Laws of 2025, Memory care certification, creating a certification process for ALFs providing memory care services in a memory care facility or memory care unit, and providing minor changes and clarifications to other sections of the chapter 388-78A WAC, Assisted living facility rules.

Proposed changes to the ALF chapter for operators of memory care facilities or memory care units adds new sections for certification requirements, implementation of certification for licensed ALFs, certified memory care disclosure, the evaluation of certification, and the addition of the Consumer Protection Act for memory care.

The proposal includes changes to existing rule to include definitions for dementia; memory care facility or memory care unit; and memory care services; resident characteristics allowing for dementia services to be provided in a nonrestricted egress ALF; semi-annual ongoing assessments for residents receiving memory care services; daily activities; health support services to include memory care services; physical environment requirements; caregiver availability 24 hours per day, including caregivers physically present 24 hours a day in cottages or buildings; caregivers completing six hours of continuing education related to dementia; policies and procedures to address residents who wander or go missing; and how consultive services will be obtained and utilized for residents with behavioral challenges.

The proposal also includes changes to existing rules related to developing an emergency plan addressing residents with dementia, extreme heat and cold in the emergency and disaster preparedness plan, a licensee's responsibility to post the certification certificate, how an ALF will apply for certification, what the department can review during a certification application, the annual renewal process for certification, and how an ALF with a certification completes a change of ownership. The proposed rules also provide enforcement remedies for ALFs providing memory care services without being certified; continued use of terminology, such as memory care or specialized dementia care without certification; and the ability to suspend or revoke a certification.

The proposal has minor changes to existing rules to update reporting abuse and neglect, and reporting fires and incidents to reflect the DSHS organizational changes, including updating names, and included the option to report online; corrects a rule reference in sewage and liquid waste disposal; changes an "or" to "and" in resident unit rule; updates toilet rooms and bathrooms; roll in shower to current building code regulations; and updates laundry rule to allow for hot water temperatures or chemical sanitizer.

Reasons Supporting Proposal: Rule making is needed to comply with E2SSB 5337, chapter 187, Laws of 2025, establishing a certification process for ALFs providing memory care services.

Statutory Authority for Adoption: RCW 18.20.090 and 18.20.550.

Statute Being Implemented: RCW 18.20.020, 18.20.190, 18.20.320, 18.20.525, 18.20.540, and 18.20.550.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: DSHS, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Tamara Tredo, P.O. Box 45600, Olympia, WA 98504-5600, 360-999-0237.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Tamara Tredo, P.O. Box 45600, Olympia, WA 98504-5600, phone 360-999-0237, TTY 711 relay service, email RCSPolicy@dshs.wa.gov.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule; rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect; and rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit.

Scope of exemption for rule proposal:

Is partially exempt:

Explanation of partial exemptions:

The proposed rule does impose more-than-minor costs on businesses.

When analyzing the impact of the proposed rules, DSHS took the number of licensed beds (38,379), divided by the number of licensed ALFs (557), resulting in a median number of 69 licensed beds. Ten percent of six facilities with the lowest licensed bed count combined provided a median number of nine licensed beds and 10 percent of six facilities with the highest licensed bed count combined provided a median number of 202 licensed beds. Using the lowest 10 percent of nine beds as the calculation for a small business, DSHS determined some of the rules may have a disproportionate impact on small businesses in the areas of ongoing assessments, activities, general memory care design, updates to the emergency and disaster preparedness plan, and fees. Larger ALFs are better able to absorb the cost of the proposed rules resulting in a lower cost of implementation for these facilities.

The proposed rule-making project is required by statute. DSHS worked with a group of interested parties to develop the proposed rules to mitigate the cost of the developed rules. Approximately 114 ALFs have the medicaid special dementia contract and are already required to implement many of the proposed rules as part of the requirements to maintain their contract.

The legislative bill implementing the certified memory care services was signed in May 2025 and licensed ALFs are aware of the requirements provided in chapter 18.20 RCW. Implementation of the statutes does not begin until July 1, 2026. ALFs have had sufficient time to review the statutes and decide if they will complete the certification process and continue to provide memory care services or if they will determine they want to reduce their memory care population and not complete the certification process.

The public may obtain a copy of the small business economic impact statement or the detailed cost calculations by contacting Tamara Tredo, P.O. Box 45600, Olympia, WA 98504, phone 360-999-0237, TTY 711 relay service, email tamara.tredo@dshs.wa.gov.

April 20, 2026

Katherine I. Vasquez

Rules Coordinator