AGING AND DISABILITY SERVICES ADMINISTRATION
Chapter 388-97 WAC
NURSING HOMES
SUBCHAPTER I
RESIDENT RIGHTS, CARE AND RELATED SERVICES, DEFINITIONS
WAC 388-97-005 Definitions.
"Abandonment" means action or inaction by an individual or
entity with a duty of care for a vulnerable adult that leaves the vulnerable
individual 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 with resulting physical harm, pain or mental anguish.
Further clarification of the definition of abuse, and
examples of types of behavior that constitute abuse are described in (2).
"Administrative hearing" is a formal hearing proceeding before a state administrative law judge that gives a licensee an opportunity to be heard in disputes about licensing actions, including the imposition of remedies, taken by the department.
"Administrative law judge (ALJ)" means an impartial decision-maker who presides over an administrative hearing. ALJs are employed by the Office of Administrative Hearings (OAH), which is a separate state agency. ALJs are not DSHS employees or DSHS representatives.
"Advanced registered nurse practitioner (ARNP)" means a registered nurse currently licensed in Washington under or successor laws.
*"Applicant" means an individual, partnership, corporation, or other legal entity seeking a license to operate a nursing home.
"ASHRAE" means the American Society of Heating, Refrigerating, and Air Conditioning Engineers, Inc.
"Attending physician" means the doctor responsible for a particular individual's total medical care.
"Berm" means a bank of earth piled against a wall.
"Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the resident's medical symptoms.
"Civil fine" isa civil monetary penalty assessed against a nursing home as authorized by Chapters 18.51 and 74.42 RCW. There are two types of civil fines, "per day" and "per instance".
- "Per day fine" means a fine imposed for each day that the a nursing home is out of compliance for a particular deficiency. Per day fines are assessed in accordance with WAC 388-97-660(1)
- "Per instance fine" means" a fine imposed for the occurance of a deficiency.
"Condition on a license" means that the department has imposed certain requirements on a license and the licensee cannot operate the nursing home unless the requirements are observed.
"Deficiency" is a nursing home?s failed practice, action or inaction that violates any or all of the following:
- Requirements of Chapters 18.51 or 74.42 RCW, or the requirements of this chapter; and
- In the case of a Medicare and Medicaid contractor, participation requirements under Title XVIII and XIX of the Social Security Act and federal Medicare and Medicaid regulations.
"Deficiency citation" or "cited deficiency" means written documentation by the department that describes a nursing home?s deficiency(ies; the requirement that the deficiency(ies) violates; and the reasons for the determination of noncompliance.
"Deficient facility practice" or "failed facility practice" means the nursing home action(s), error(s), or lack of action(s) that provide the basis for the deficiency.
"Dementia care" means a therapeutic modality or modalities designed specifically for the care of persons with dementia.
"Denial of payment for new admissions" is an action imposed on a nursing home (facility) by the department that prohibits payment for new Medicaid admissions to the nursing home after a specified date. Nursing homes certified to provide Medicare and Medicaid services may also be subjected to a denial of payment for new admissions by the federal Centers for Medicare and Medicaid Services.
"Department" means the state department of social and health services (DSHS).
"Department on-site monitoring" means an optional remedy of on-site visits to a nursing home by department staff according to department guidelines for the purpose of monitoring resident care or services or both.
"Dietitian" means a qualified dietitian. A qualified dietitian is one who is registered by the American Dietetic Association or certified by the state of Washington.
"Disclosure statement" means a signed statement by an individual in accordance with the requirements under RCW 43.43.834. The statement should include a disclosure of whether or not the individual was found by any court, state licensing board, disciplinary board, or protection proceeding to have neglected sexually abused, financially exploited, or physically abused any minor or adult individual.
"Drug" means a substance:
- Recognized as a drug in the official United
States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the
United States, Official National Formulary, or any supplement to any of them; or - Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease.
"Drug facility" means a room or area designed and equipped for drug storage and the preparation of drugs for administration.
"Emergency closure" is an order by thedepartment to immediately close a nursing home.
"Emergency transfer" is an order by the department to immediately transfer residents from a nursing home to safe settings.
"Entity" means any type of firm, partnership, corporation, company, association, or joint stock association, and the legal successor(s).
"Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any individual for his or her profit or advantage.
"Habilitative services" means the planned interventions and procedures which constitute a continuing and comprehensive effort to teach an individual previously undeveloped skills.
"Highest practicable physical, mental, and psychosocial well-being" means that the nursing home must provide each resident with the necessary individualized care and services to assist the resident to achievethe highest possible health, functional and independence level in accordance with the resident?s comprehensive assessment and plan of care. Care and services provided by the nursing home must be consistent with all requirements in this chapter, Chapters 74.42 and 18.51 RCW, and the resident?s informed choices. For Medicaid and Medicare residents, care and services must also be consistent with Title XVIII and XIX of the Social Security Act and federal Medicare and Medicaid regulations.
"Informal department review" is a dispute resolution process that provides an opportunity for the licensee or licensee?s agent to informally present information to a department representative about disputed, cited deficiencies. Refer to WAC 388-97-620.
**"Inspection" or "survey" means the process by which department staff evaluate the nursing home licensee?s compliance with applicable statutes and regulations.
"Intermediate care facility for the mentally retarded (ICF/MR)" means an institution certified under chapter 42 C.F.R., Part 483, Subpart I, and licensed under .
"License revocation" is an action taken by the department to cancel a nursing home license in accordance with RCW 18.51.060 and WAC 388-97-570.
"License suspension" is an action taken by the department to temporarily revoke a nursing home license in accordance with RCW 18.51.060 and this chapter.
"Licensed nursing home" means a nursing home licensed under chapter 18.51 RCW.
"Licensee" means an individual, partnership, corporation, or other legal entity licensed to operate a nursing home or a person subject to licensure as determined by the department. This does not include an employee of a licensee or person unless that employee is an owner of five percent or more of the licensed entity assets.
"Licensee?s agent"means the designated nursing home administrator, or an individual designated to perform managerial functions in the administrator?s absence.
"Licensed practical nurse" means an individual licensed under ;
"Mandated reporter" means 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.
"Misappropriation of resident property" means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money.
"NFPA" means National Fire Protection Association, Inc.
"Neglect": (1) For a nursing home licensed under , neglect means that an individual or entity with a duty of care for nursing home residents has: (a) By a pattern of conduct or inaction, failed to provide goods and services to maintain physical or mental health or to avoid or prevent physical or mental harm or pain; or (b) By an act or omission, demonstrated a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the resident's health, welfare, or safety. (2) For a skilled nursing facility or nursing facility, neglect also means a failure to provide the goods and services necessary to avoid physical harm, mental anguish, or mental illness.
"Noncompliance" means a state of being out of compliance with state and/or federal requirements for nursing homes/facilities.
"Nursing assistant" means a nursing assistant as defined under or successor laws.
"Nursing facility (NF)" or "Medicaid-certified nursing facility" means a nursing home that has been certified to provide nursing services to Medicaid recipients under Section 1919(a) of the Federal Social Security Act
"Nursing home" means any facility licensed to operate under .
"Plan of correction" is a nursing home?s written response to cited deficiencies that explains how it will correct the deficiencies and how it will prevent their reoccurrence".
"Officer" means an individual serving as an officer of a corporation.
"Owner of five percent or more of the assets of a nursing home" means:
- In the case of a sole proprietorship, the owner, or if owned as community property, the owner and owner?s spouse;
- In the case of a corporation, the owner of at least five percent of the capital stock of a corporation; or
- In the case of other types of business entities, the owner of a beneficial interest in at least five percent of the capital assets of an entity.
"Partner" means an individual in a partnership owning or operating a nursing home.
"Pharmacist" means an individual licensed by the Washington state board of pharmacy under .
"Pharmacy" means a place licensed under where the practice of pharmacy is conducted.
"Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, and which restricts freedom of movement or access to the resident's body.
"Physician's assistant (PA)" means a physician's assistant as defined under chapter 18.57A or 18.71A RCW or successor laws.
"Reasonable accommodation" and "reasonably accommodate" has the meaning given in federal and state anti-discrimination laws and regulations. For the purpose of this chapter:
- Reasonable accommodation means that the nursing
home must:
- Not impose admission criteria that excludes individuals unless the criteria is necessary for the provision of nursing home services;
- Make reasonable modification to its policies, practices or procedures if the modifications are necessary to accommodate the needs of the residentor a nursing home applicant;
- Provide additional aids and services to the resident and offer additional aids and services to a nursing home applicant.
- Reasonable accommodations are not required if:
- The resident or resident applicant presents a significant risk to the health or safety of others that cannot be eliminated bythe reasonable accommodation;
- The reasonable accommodations would fundamentally alter the nature of the services provided by the nursing home; or
- **The reasonable accommodations would cause an undue burden, meaning a significant financial or administrative burden.
"Receivership" is established by a court action and results in the removal of a nursing home's current licensee and the appointment of a substitute operator to temporarily operate the nursing home.
"Recurring deficiency" means a deficiency that was cited by the department,corrected by the nursing home, and then cited again within 15 months of the initial deficiency citation.
"Registered nurse" means an individual licensed under or successor laws. "Rehabilitative services" means the planned interventions and procedures which constitute a continuing and comprehensive effort to restore an individual to the individual's former functional and environmental status, or alternatively, to maintain or maximize remaining function. "Resident" generally means an individual residing in a nursing home, and if applicable, the surrogate decision maker. The term resident excludes outpatients and individuals receiving adult day or night care, or respite care. "Resident care unit" means a functionally separate unit including resident rooms, toilets, bathing facilities, and basic service facilities. "Respiratory isolation" is a technique or techniques instituted to prevent the transmission of pathogenic organisms by means of droplets and droplet nuclei coughed, sneezed, or breathed into the environment. "Siphon jet clinic service sink" means a plumbing fixture of adequate size and proper design for waste disposal with siphon jet or similar action sufficient to flush solid matter of at least two and one-eighth inches in diameter. "Skilled nursing facility (SNF)" or "Medicare-certified skilled nursing facility" means a nursing home that has been certified to provide nursing services to Medicare recipients under Section 1819(a) of the Federal Social Security Act.
"Social/therapeutic leave" means leave which is for the resident's social, emotional, or psychological well being; it does not include medical leave.
"Staff work station" means a location at which nursing and other staff perform charting and related activities throughout the day.
"Stop placement" or "Stop placement order" is an action taken by the department prohibiting nursing home admissions, readmissions, and transfers of patients into the nursing home from the outside.
Substantial compliance" means the nursing home has no deficiencies higher than Severity Level 1 as described in WAC 388-97-640, or for Medicare and Medicaid certified facility, no deficiencies higher than a scope and severity "A".
"Surrogate decision maker" means a resident representative or representatives as outlined in , and as authorized by RCW 7.70.065.
"Survey" means the same as "Inspection" as defined in this section.
"Temporary manager"means an individual or entity appointed by the department to oversee the operation of the nursing home to ensure the health and safety of its residents, pending correction of deficiencies or closure of the facility.
"Termination" means an action taken by:
- The department to cancel a nursing home's Medicaid certification and contract; or
- The Department of Health and Human Services Centers for Medicare and Medicaid Services to terminate a nursing home's provider agreement to provide services to Medicaid or Medicare recipients, or both.
"Toilet room" means a room containing at least one toilet fixture.
"Uncorrected deficiency" is a deficiency that has been cited by the department and that is not corrected by the licensee within a department-specified time.
"Violation" means the same as "Deficiency" as defined in this section.
"Volunteer" means an individual who is a regularly scheduled individual not receiving payment for services and having unsupervised access to a nursing home resident.
AMENDED SECTION
WAC 388-97-043 Transfer and discharge appeals for residents in Medicare or Medicaid certified facilities.
(1) A skilled nursing facility and a nursing facility that initiates transfer or discharge of any resident, regardless of payor status, must:
(a) Provide the required written notice of transfer or discharge to the resident and, if appropriate, to a family member or the resident's representative;
(b) Attach a department-designated hearing request form to the transfer or discharge notice;
(c) Inform the resident in writing, in a language and manner the resident can understand, that:
(i) An appeal request may be made any time up to ninety days from the date the resident receives the notice of transfer or discharge; and
(ii) Transfer or discharge will be suspended when an appeal request is received by the office of administrative hearings on or before the date the resident actually transfers or discharges;
(iii)The nursing home will assist the resident in requesting a hearing to appeal the transfer or discharge decision.
(2) A skilled nursing facility or nursing facility must suspend transfer or discharge pending the outcome of the appeal when the resident's appeal is received by the office of administrative hearings on or before the date of the transfer or discharge set forth in the written transfer or discharge notice, or before the resident is actually transferred or discharged.
(3) The resident is entitled to appeal the skilled nursing facility or nursing facility's
transfer or discharge decision. The appeals process is set forth in chapter 388?08 388-02 WAC and
this chapter. In such appeals, the following will apply:
(a) In the event of a conflict between a provision in this chapter and a provision in chapter 388--02 WAC, the provision in this chapter will prevail;
(b) The resident shall be the appellant and the skilled nursing facility or the nursing facility will be the respondent;
(c) The department must be notified of the appeal and may choose whether to participate in the proceedings. If the department chooses to participate, its role is to represent the state's interest in assuring that skilled nursing facility and nursing facility transfer and discharge actions comply substantively and procedurally with the law and with federal requirements necessary for federal funds;
(d) If a Medicare certified or Medicaid certified facility's decision to transfer or discharge a resident is not upheld, and the resident has been relocated, the resident has the right to readmission immediately upon the first available bed in a semi -private room if the resident requires and is eligible for the services provided by the nursing facility or skilled nursing facility.
AMENDED SECTION
WAC 388-97-07005 Notice of rights and services.
(1) The nursing home must inform 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, of his or her rights as a resident, including:
(a) All rules and regulations governing resident conduct and responsibilities during the stay in the nursing home;
(b) Advanced directives, and of any (facility)
nursing home policy or practice that might conflict with the
resident's advance directive if made;
(c) Advance notice or transfer requirements, consistent with;
(d) Advance notice of deposits and refunds, consistent with;
and (e) Items, services and activities available in the ((7) If a Medicare or Medicaid
resident dies, is hospitalized or transferred and does not return to the
nursing home, the nursing home must refund to the resident, to the individual
who made the payment on behalf of the resident, or Medicare or the Office of
Financial Recovery the amount of any third party payment received on behalf of
the resident for the same care or service. The refund must be made within
thirty days of the nursing home?s receipt of such payment Note:
This amendment reflects a
complex issue that requires further research. Therefore, we have elected
not to include the amendment in the NH rules at this time.
(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 . (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 ombudsman 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 applicants 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.
AMENDED SECTION
**WAC 388-97-07040 Examination of survey results.
(1) A resident has the right to examine the results of
the most recent survey of the nursing home conducted by federal and state
surveyors or inspectors, including a survey related to a complaint
investigation, and any (the) plan(s) of correction in effect with respect to the nursing
home (facility). (2) Upon receipt of any deficiency
citation report, T)the nursing home must publicly
post: (b) (a) A notice that the results of the
survey or complaint investigation are available and
the location of the deficiency citation reports; and
(a) (b) A copy of the most
recent full survey and complaint investigation deficiency citation report.
(3) If a plan of correction is required, the nursing home must post a copy of the survey, including the plan of correction as soon as it is completed.
(3) (4) The nursing home
must post a notice that results of the survey or complaint investigation, or
both, are available. A copy or copies of the deficiency citation report
from the most recent survey and complaint investigation, with including plans of correction when they have been
completed, and notices must be available for
examination in a place or places: (a) Readily accessible to residents, which
does not require staff intervention to access; and (b) In plain view of the
nursing home residents, individuals visiting those residents, and individuals
who inquire about placement in the facility.
(4) (5) When a report is
posted before the nursing home completes the plan of correction, the nursing
home may attach an accompanying notice that explains the purpose and status of
the plan of correction, and other relevant information.
AMENDED SECTION
WAC 388-97-07050 Access and visitation rights.
(1) The resident has the right and the nursing home must
provide immediate access to any resident by the following: (a) For Medicare and
Medicaid residents, (A) any representative of the secretary U.S. Department of Health and Human Services
(DHHS); (b) Any representative of the state; (c) The resident's personal
physician; (d) Any representative of the state long term care ombudsman
(established under section 307 (a)(12) of the Older American's Act of 1965); (e)
The agency responsible for the protection and advocacy system for
developmentally disabled individuals (established under part c of the
Developmental Disabilities Assistance and Bill of Rights Act); (f) The agency
responsible for the protection and advocacy system for mentally ill individuals
(established under the Protection and Advocacy for Mentally Ill Individuals
Act); (g) Subject to the resident's right to deny or withdraw consent at any
time, immediate family or other relatives of the resident; and (h) Subject to
reasonable restrictions and the resident's right to deny or withdraw consent at
any time, others who are visiting with the consent of the resident. (2) The
nursing home must provide reasonable access to any resident by any entity or
individual that provides health, social, legal, or other services to the
resident, subject to the resident's right to deny or withdraw consent at any
time. (3) The nursing home must allow representatives of the state ombudsman,
described in subsection (1)(d) of this section, to examine a resident's clinical
records with the permission of the resident or the resident's surrogate decision
maker, and consistent with state law. The ombudsman may also, under federal law,
access resident's records when the resident is incapacitated and has no
surrogate decision maker, and may access records over the objection of a
surrogate decision maker if access is authorized by the state ombudsman pursuant
to 42 C.F.R. U.S.C.
?3058g(b).
AMENDED SECTION
**WAC 388-97-076 Prevention of abuse.
(1) Each resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion. (2) The nursing home must develop and implement written policies and procedures that: (a) Prohibit abandonment, abuse, and neglect of residents, financial exploitation, and misappropriation of resident property; and (b) Require staff to report possible abuse, and other related incidents, as required by , and for skilled nursing facilities and nursing facilities 42 C.F.R. ?483.13. (3) The nursing home must not allow staff to: (a) Engage in verbal, mental, sexual, or physical abuse; (b) Use corporal punishment; (c) Involuntarily seclude, abandon, neglect, or financially exploit residents; or (d) Misappropriate resident property.
(4) The nursing home must not employ individuals who:
(a) Have been found to have (A)abused, neglected, exploited or abandoned a minor or
vulnerable adult, by a court of law or by a licensing authority; or
(b) Have (A)a finding of
abuse, neglect, exploitation or abandonment on any state registry, including the
nursing assistant registry; or
(c) Have been found to have (A)abused, nelected, or misappropriated resident
property by the department?s resident protection program. (5) The nursing home
must not employ individuals in positions that will provide them with the
opportunity for unsupervised access with vulnerable residents, if the
individuals have been found to have: (a) Been found to
have aAbused, neglected, exploited or abandoned
a minor or vulnerable adult, by a court of law or by a licensing authority; or
(c) Been found to have aAbused, neglected, or misappropriated resident
property by the department's resident protection program; or
(d) Are disqualified from employment under the requirements described in WAC 388-97-202.
(5) The nursing home must report any information
it has about an action taken by a court of law against an employee to the
department's complaint resolution unit and the appropriate department of health
licensing authority, if that action would disqualify the individual from
employment as described in . (6) The nursing home and mandatory reporters must ensure that all
allegations involving abandonment, abuse, neglect, financial exploitation, or
misappropriation of resident property, including injuries of unknown origin, are
reported immediately to the department, other applicable officials, and the
administrator of the facility. The nursing home must: (a) Ensure that the
reports are made through established procedures in accordance with state law
including , and guidelines developed by the department; and (b) Not have any
policy or procedure that interferes with the requirement of that employees and
other mandatory reporters file reports directly with the department, and with
law enforcement if they suspect sexual or physical assault has occurred. (7) The
nursing home must: (a) Have evidence that all alleged violations are thoroughly
investigated; (b) Prevent further potential abandonment, abuse, neglect,
financial exploitation, or misappropriation of resident property while the
investigation is in progress; and (c) Report the results of all investigations
to the administrator or his designated representative and to other officials in
accordance with state law and established procedures (including the state survey
and certification agency) within five working days of the incident, and if the
alleged violation is verified appropriate action must be taken.
(9) According to chapter 74.34 RCW and established nursing home guidelines, when an individual mandated reporter has:
(a) Reasonable cause to believe that an incident involves abandonment, abuse, neglect, financial exploitation, or misappropriation of resident property, the individual must immediately report the incident to the department?s Aging and Disability Services administration (AASA);
(b) Reason to suspect an incident is sexual or physical assault, the individual must immediately report the incident to law enforcement and the department?s Aging and Disability Services administration (AASA).
(10) Under RCW 74.34.053, it is:
(a) A gross misdemeanor for a mandated reporter knowingly to fail to report as required under this section; and
(b) A misdemeanor for a person to intentionally, maliciously, or in bad faith make a false report of alleged abandonment, abuse, financial exploitation, or neglect of a vulnerable adult.
AMENDED SECTION
WAC 388-97-160 General administration.
(1) The nursing home must be administered in a manner
that enables it to use its resources effectively and efficiently to attain or
maintain the highest practicable physical, mental, and psychosocial well being
of each resident. (2) The nursing home must: (a) Be licensed under ; (b) Operate
and provide services in compliance with: (i) All applicable federal, state and
local laws, regulations, and codes; (ii) Accepted professional standards and
principles that apply to professionals providing services in nursing homes; and
(c) Have a governing body or designated individuals functioning as a governing
body, that is legally responsible for establishing and implementing policies
regarding the management and operation of the nursing home. (3) The governing
body of the nursing home must appoint the administrator who: (a) Is licensed by
the state; (b) Is responsible for management of the nursing home (facility); (c) Keeps the licensee informed of
all surveys and notices of noncompliance; (d) Complies with all requirements of
, and all regulations put into effect under the chapter; (e) Is an onsite,
full-time individual in active administrative charge at the premises of only one
nursing home, a minimum of four days and an average of forty hours per week.
Exception: Onsite, full-time administrator with small resident populations or in
rural areas will be defined as an individual in active administrative charge at
the premises of only one nursing home: (i) A minimum of four days and an average
of twenty hours per week at facilities with one to thirty beds; or (ii) A
minimum of four days and an average of thirty hours per week at facilities with
thirty-one to forty-nine beds; and (4) The nursing home must identify deficient
practice and develop, implement and evaluate plans of action to correct
identified deficient practice.
(5) Nursing homes temporarily without an administrator may operate up to four continuous weeks under a responsible individual authorized to act as administrator designee. The nursing home administrator designee must be qualified by experience to assume designated duties and the nursing home must have a written agreement with a Washington State licensed nursing home administrator who must be available to consult with the designee.
(a) The nursing home may request from the department?s designated local AASA field office in writing, an extension of the four weeks by stating why an extension is needed, and giving theestimated date by which a full time, qualified nursing home administrator will be on-site.
(b) The department will determine whether to grant the request based on department review guidelines.
(6) The nursing home must employ on a full time, part
time or consultant basis those professionals necessary to carry out the
requirements of this chapter. (7) If the nursing home does not employ a
qualified professional individual to furnish a specific service to be provided
by the nursing home, the nursing home must: (a) Have that service furnished to residents by
an individual or agency outside the nursing home under a written arrangement or
agreement; and (b) Ensure the arrangement or agreement referred to in (a) of
this subsection specifies in writing that the nursing home assumes
responsibility for: (i) Obtaining services that meet professional standards and
principles that apply to professionals providing services in nursing homes; and
(ii) The timeliness of services. (8) The nursing home must: (a) Report to the
local law enforcement agency and the department any individual threatening
bodily harm or causing a disturbance which threatens any individual's welfare
and safety; (b) Identify, investigate, and report incidents involving residents,
according to established nursing home guidelines; and (c) Comply with "whistle
blower" rules as defined in . "Whistle
blower" means a resident or employee of a nursing home, or any
individual licensed under Title 18 RCW, who in good faith reports alleged
abandonment, abuse, neglect, financial exploitation, or misappropriation of
resident property to the department. (9) The department will: (c) (a) Investigate complaints, made to the department's toll
free number, according to established protocols.
(b) Take action against a nursing home that is found to have used retaliatory
treatment toward a resident or employee who has voiced grievances to nursing
home staff or administration, or lodged a good faith complaint with the
department; and (c)
Discourage "whistle blower" complaints made in bad faith; and
(c) Report to local law enforcement:
(i) Any mandated reporter that knowingly fails to report in accordance with WAC 388-97-076; and
(ii) Any person that intentionally, maliciously or in bad faith makes a false report of alleged abandonment, abuse, financial exploitation, or neglect of a vulnerable adult.
(9 10) Refer also to WAC
388-97-203 ? Retaliation.
AMENDED SECTION
WAC 388-97-162 Required notification and reporting.
(1) The nursing home and
mandatory reporters under are responsible for the
reporting and notification requirements found in this section and elsewhere in
this chapter. (2) (1)The nursing home and mandatory reporters, where applicable, must
immediately notify the department's Aging and Disability Services administration
(AASA) of: (a) Any allegations of resident abandonment, abuse, or neglect,
including substantial injuries of an unknown source, financial exploitation and
misappropriation of a resident's property; (b) Any unusual event, having an
actual or potential negative impact on residents, requiring the actual or
potential implementation of the nursing home's disaster plan. These unusual
events include but are not limited to those listed under (1)(a) through (k), and
could include the evacuation of all or part of the residents to another area of
the nursing home or to another address; and (c) Circumstances which threaten the
nursing home's ability to ensure continuation of services to residents. (2)
Mandated reporters must notify the department and law enforcement as directed in
WAC 388-97-076(9)(a) and (b), and according to established nursing home
guidelines.
(3) The nursing home must notify the department's AASA
of: (a) Physical plant changes, including but not limited to: (i) New
construction; (ii) Proposed resident area or room use change; (iii) Resident
room number changes; and (iv) Proposed bed banking; (b) Mechanical failure of
equipment important to the everyday functioning of the nursing home (facility), which cannot be repaired within a reasonable
time frame, such as an elevator; and (c) An actual or proposed change of
ownership (CHOW). (4) The nursing home must notify, in writing, the department's
AASA and each resident, of a loss of, or change in, the nursing home's
administrator or director of nursing services at the time the loss or change
occurs. (5) The nursing home licensee must notify the department?s
XXX in writing of any change in the name of the licensee, or of the
nursing home, at the time the change occurs. (6) If a licensee operates
in a building it does not own, the licensee must immediately notify the
department of the occurrence of any event of default under the terms of the
lease, or if it receives verbal or written notice that the lease agreement will
be terminated, or that the lease agreement will not be renewed.
(7) The nursing home must report any case or suspected case of a reportable disease to the appropriate department of health officer and must also notify the appropriate department(s) of other health and safety issues, according to state and local laws.
(8) The nursing home licensee must notify the department in writing of a nursing home?s voluntary closure, or voluntary termination of its Medicare or Medicaid contract, or both. The licensee must send this written notification sixty days before closure or contract termination, to the department?s designated local AASA office and to all residents and resident representatives. Relocation of residents must be in accordance with WAC 388-97-595(2).
AMNEDED SECTION
WAC 388-97-180 Clinical records.
(1) The nursing home must:
(a) Maintain clinical records on each resident in accordance with accepted professional standards and practices that are:
(i) Complete;
(ii) Accurately documented;
(iii) Readily accessible; and
(iv) Systematically organized.
(b) Safeguard clinical record information against alteration, loss, destruction, and unauthorized use; and
(c) Keep confidential all information contained in the resident's records, regardless of the form or storage method of the records,
except when release is required by:(i) Transfer to another health care institution;
(ii) Law;
(iii) Third party payment contract; or
(iv) The resident.
(2) The nursing home must ensure the clinical record of each resident includes at least the following:
(a) Resident identification and sociological data, including the name and address of the individual or individuals the resident designates as significant;
(b) Medical information required under ;
(c) Physician's orders;
(d) Assessments;
(e) Plans of care;
(f) Services provided;
(g) In the case of the Medicaid-certified nursing facility, records related to preadmission screening and resident review;
(h) Progress notes;
(i) Medications administered;
(j) Consents, authorizations, releases;
(k) Allergic responses;
(l) Laboratory, X-ray, and other findings;
m) Other records as appropriate.
(3) The nursing home must:
(a) Designate an individual responsible for the record system who:
(i) Has appropriate training and experience in clinical record management; or
(ii) Receives consultation from a qualified clinical record practitioner, such as a registered record administrator or accredited record technician.
(b) Make all records available to authorized representatives of the department for review and duplication as necessary; and
(c) Maintain the following:
(i) A master resident index having a reference for each resident including the health record number, if applicable; full name; date of birth; admission dates; and discharge dates; and
(ii) A chronological census register, including all admissions, discharge, deaths and transfers, and noting the receiving facility. The nursing home must ensure the register includes discharges for social leave and transfers to other treatment facilities in excess of twenty-four hours.
(4) The nursing home must ensure the clinical record of each resident
(a) Is documented and authenticated accurately, promptly and legibly by individuals giving the order, making the observation, performing the examination, assessment, treatment or providing the care and services. "Authenticated" means the authorization of a written entry in a record by signature, including the first initial and last name and title, or a unique identifier allowing identification of the responsible individual; and:
(i) Documents from other health care facilities that are clearly identified as being authenticated at that facility will be considered authenticated at the receiving facility; and
(ii) The original or a durable, legible, direct copy of each document will be accepted.
(b) Contains appropriate information for a deceased resident including:
(i) The time and date of death;
(ii) Apparent cause of death;
(iii) Notification of the physician and appropriate resident representative; and
(iv) The disposition of the body and personal effects.
(5) In cases where the nursing home maintains records by computer rather than hard copy, the nursing home must:
(a) Have in place safeguards to prevent unauthorized access; and
(b) Provide for reconstruction of information.
(6) The nursing home licensee must:
(a) Retain health records for the time period required in :
(i) For a period of no less than eight years following the most recent discharge of the resident; except
(ii) That the records of minors must be retained for no less than three years following the attainment of age eighteen years, or ten years following their most recent discharge, whichever is longer.
(b) In the event of a change of ownership, provide for the orderly transfer of clinical records to the new licensee; and
***(c) In the event a nursing home ceases operation, make arrangements prior to cessation, as approved by the department, for preservation of the clinical records. The nursing home licensee must provide a plan for preservation of clinical records to the department?s designated local AASA office no later than seven days after the date of notice of nursing home closure as required by WAC 388-97-162(8) unless an alternate date has been approved by the department.
AMENDED SECTION
WAC 388-97-202 Criminal history disclosure and background inquiries.
(1) Except as provided in this section, a nursing home must not employ any individual, directly or by contract, or accept as a volunteer or student, any individual who may have regularly scheduled unsupervised access to residents if the individual:
(a) Has been convicted of a "crime against children and other persons" as defined in , unless the individual has been convicted of one of the five crimes listed below and the required number of years has passed between the most recent conviction and the date of the application for employment:
(i) Simple assault, assault in the fourth degree, or the same offense as it may hereafter be renamed, and three or more years have passed;
(ii) Prostitution, or the same offense as it may hereafter be renamed, and three or more years have passed;
(iii) Theft in the second degree, or the same offense as it may hereafter be renamed, and five or more years have passed;
(iv) Theft in the third degree, or the same offense as it may hereafter be renamed, and three or more years have passed; or
(v) Forgery, or the same offense as forgery may hereafter be renamed, and five or more years have passed.
(b) Has been convicted of crimes relating to financial exploitation as defined under ;
(c) Has been found, by a court of law, to have abused, neglected, exploited, or abandoned a minor or vulnerable adult in criminal, dependency or domestic relations proceeding. A "vulnerable adult" is defined in ;
(d) Was subject to an order of protection under for abandonment, abuse, neglect, or financial exploitation of a vulnerable adult, or misappropriation of resident property; or
(e) Has been found to have neglected, exploited, or abandoned a minor or vulnerable adult by a disciplining authority, including the state department of health, or by the department's resident protection program.
(2) A nursing home may conditionally employ an individual pending a background inquiry provided the nursing home requests the inquiry within seventy-two hours of the conditional employment.
(3) A nursing home licensed under must make a background inquiry request to one of the following:
(a) The Washington state patrol;
(b) The department;
(c) The most recent employer licensed under chapters 18.51, 18.20, and 70.128 RCW provided termination of that employment was within twelve months of the current employment application and provided the inquiry was completed by the department or the Washington state patrol within the two years of the current date of application; or
(d) A nurse pool agency licensed under , or hereafter renamed, provided the background inquiry was completed by the Washington state patrol within two years before the current date of employment in the nursing home; and
(e) A nursing home may not rely on a criminal background inquiry from a former employer, including a nursing pool, if the nursing home knows or has reason to know that the applicant has, or may have, a disqualifying conviction or finding.
(4) Nursing homes must:
(a) Request a background inquiry of any individual employed, directly or by contract, or accepted as a volunteer or student; and
(b) Notify appropriate licensing or certification agency of any individual resigning or terminated as a result of having a conviction record.
(5) Before a nursing home employs any individual, directly or by contract, or accepts any individual as a volunteer or student, a nursing home must:
(a) Inform the individual that the (facility) nursing home must make a background inquiry
and require the individual to sign a disclosure statement, under penalty of
perjury and in accordance with RCW 43.43.834 authorizing
the inquiry; or
(b) Inform the individual that he or she may make a request for a copy of a completed background inquiry of this section; and
(c) Require the individual to sign a statement authorizing the nursing home, the department, and the Washington state patrol to make a background inquiry; and
(d) Verbally inform the individual of the background inquiry results within seventy-two hours of receipt.
(6) The nursing home must establish procedures ensuring that:
(a) The individual is verbally informed of the background inquiry results within seventy-two hours of receipt;
(b) All disclosure statements and background inquiry responses and all copies are maintained in a confidential and secure manner;
(c) Disclosure statements and background inquiry responses are used for employment purposes only;
(d) Disclosure statements and background inquiry responses are not disclosed to any individual except:
(i) The individual about whom the nursing home made the disclosure or background inquiry;
(ii) Authorized state employees including the department's licensure and certification staff, resident protection program staff and background inquiry unit staff;
(iii) Authorized federal employees including those from
the Department of Health and Human Services, Health Care
Financing Administration; Centers for Medicare and Medicaid Services;
(iv) The Washington state patrol auditor; and
(v) Potential employers licensed under chapters 18.51, 18.20, and 70.128 RCW who are making a request as provided for under subsection (3) of this section; and
(e) A record of findings be retained by the (facility) nursing home for twelve months beyond the
date of employment termination.
[Statutory Authority: and . 00-06-028, ? 388-97-202, filed 2/24/00, effective 3/26/00.]
NEW SECTION
WAC 388-97-203 Retaliation or discrimination prohibited.
1) The licensee or the licensee?s agent must not discriminate or retaliate in any manner against a resident or employee in its nursing home who has initiated or participated in any action or proceeding authorized under nursing home licensing law. Examples of such participation include, but are not limited to the following:
a) The resident, or someone acting on behalf of the resident, or the employee
i) Made a complaint, including a whistleblower complaint, to the department, the department of health, the long-term care ombudsman, or law enforcement;
ii) Provided information to the department, the department of health, the long-term care ombudsman, or law enforcement; or
iii) Testified in a proceeding related to the nursing home or its staff.
2) For purposes of this chapter, "retaliation" or "discrimination" against a resident means an act including, but not limited to:
(a) Verbal or physical harassment or abuse;
(b) Any attempt to expel the resident from the facility;
(c) Non-medically indicated social, dietary, or mobility restriction(s);
(d) Lessening of the level of care when not medically appropriate; or
(e) Non-voluntary relocation within a nursing home without appropriate medical, psychosocial, or nursing justification;
(f) Neglect or negligent treatment;
(g) Withholding privileges; or
(h) Infringement on a resident?s rights described in chapter 74.42 RCW, WAC 388-97-051, and also, for Medicaid and Medicare certified nursing homes, in federal laws and regulations.
3) For purposes of this chapter, "retaliation" or "discrimination" against an employee means an act including, but not limited to:
(a) Harassment;
(b) Unwarranted firing;
(c) Unwarranted demotion;
(d) Unjustified disciplinary action;
(e) Non-voluntary reassignment or rescheduling;
(f) Denial of adequate staff to perform duties;
(g) Frequent staff changes;
(h) Frequent and undesirable office changes;
(i) Refusal to assign meaningful work;
(j) Unwarranted and unsubstantiated report of misconduct under Title 18 RCW;
(k) Unsubstantiated letters of reprimand;
(l) Unsubstantiated unsatisfactory performance evaluations;
(l) Denial of employment;
(m) A supervisor or superior encouraging coworkers to behave in a hostile manner toward the whistleblower; or
(n) Workplace reprisal or retaliatory action as defined in RCW 74.34.180(3)(b).
(4) For purposes of this chapter, a "whistleblower" is a resident or employee who in good faith reports alleged abandonment, abuse, financial exploitation, or neglect to the department, the department of health, or to a law enforcement agency in accordance with RCW 74.180(3)(a).
(5) If, within one year of the complaint by or on behalf of a resident, the resident is involuntarily discharged from the nursing home, or is subjected to any type of discriminatory treatment, there will be a presumption that the action was in retaliation for the filing of the complaint. Under these circumstances, the nursing home will have the burden of establishing that the action was not retaliatory, in accordance with RCW 18.51.220 and RCW 74.34.180(2).
AMENDED SECTION
WAC 388-97-205 Laundry services.
(1) The nursing home must meet the requirements of , and:
(a) Launder (facility)
nursing home linens on the premises; or
(b) Contract with a laundry capable of meeting quality standards, infection control, and turn-around time requirements; and
(c) Make provision for laundering of residents' personal clothing.
(2) For residents' personal clothing, the nursing home:
(a)Must have a system in place to ensure that personal clothing is not damaged or lost during handling and laundering; and
(b) May use department
approved a chemical disinfectionant in lieu of
the hot water disinfection provided that the nursing
home:
(i) Uses the product according to the manufacturer?s instructions; and
(ii) Has readily available, current documentation from the manufacturer that supports the claim that the product is effective as a laundry disinfectant and such documentation is based on scientific studies or other rational data. "Disinfectant" means a germicide that inactivates virtually all recognized pathogenic microorganisms (but not necessarily all microbial forms, such as bacterial spores) on inanimate objects.
[Statutory Authority: and . 00-06-028, ? 388-97-205, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), ? 388-97-205, filed 9/15/94, effective 10/16/94.]
AMENDED SECTION
WAC 388-97-260 Pre-admission screening and resident review (PASRR) determination and appeal rights.
(1) The resident has the right to choose to remain in the nursing facility and receive specialized services if:
(a) He or she has continuously resided in a nursing facility since October 1, 1987; and
(b) The department determined, in 1990, that the resident required specialized services for a serious mental illness or developmental disability but did not require nursing facility services.
(2) In the event that residents chose to remain in the nursing facility as outlined in subsection (1) above, the department, or designee, will clarify the effect on eligibility for Medicaid services under the state plan if the resident chooses to leave the facility, including its effect on readmission to the facility.
(3) A nursing facility applicant or resident who has been adversely impacted by a PASRR determination may appeal the department's determination of:
(a) Not in need of nursing facility care as defined under ;
(b) Not in need of specialized services as defined under ; or
(c) Need for specialized services as defined under .
(4) The nursing facility must assist the applicant or resident, as needed, in requesting a hearing to appeal the department's PASRR determination.
(5) If the department's PASRR determination requires that a resident be transferred or discharged, the department will:
(a) Provide the required notice of transfer or discharge to the resident, the resident's surrogate decision maker, and if appropriate, a family member or the resident's representative thirty days or more before the date of transfer or discharge;
(b) Attach a hearing request form to the transfer or discharge notice;
(c) Inform the resident, in writing in a language and manner the resident can understand, that:
(i) An appeal request may be made any time up to ninety days from the date the resident receives the notice of transfer or discharge;
(ii) Transfer or discharge will be suspended when an appeal request is received by the office of administrative hearings on or before the date of transfer or discharge set forth in the written transfer or discharge notice; and
(iii) The resident will be ineligible for Medicaid nursing facility payment:
(A) Thirty days after the receipt of written notice of transfer or discharge; or
(B) If the resident appeals under subsection (1)(a) of this section, thirty days after the final order is entered upholding the department's decision to transfer or discharge a resident.
(6) The department's home and community services may pay for the resident's nursing facility services after the time specified in subsection (3)(c)(iii) of this section, if the department determines that a location appropriate to the resident's medical and other needs is not available.
(7) The department will:
(a) Send a copy of the transfer/discharge notice to the resident's attending physician, the nursing facility and, where appropriate, a family member or the resident's representative;
(b) Suspend transfer or discharge:
(i) If the office of administrative hearings receives an appeal on or before the date set for transfer or discharge or before the resident is actually transferred or discharged; and
(ii) Until the office of appeals makes a determination; and
(c) Provide assistance to the resident for relocation necessitated by the department's PASRR determination.
(8) Resident appeals of PASRR determinations will be in accordance with 42 C.F.R. ?431 Subpart E, , chapter 388?02 WAC and the procedures defined in this section. In the event of a conflict between a provision in this chapter and a provision in , chapter 388?02 WAC the provision in this chapter will prevail.
AMENDED SECTION
WAC 388-97-285
Intermediate care facilities for the mentally retarded (ICF/MR).
(1) An ICF/MR nursing
facilities must meet the requirements of 42 C.F.R. ?483. Subpart I and the requirements of this subchapter
except that in an ICF/MR nursing facility:
(a) There must be at least one registered nurse or licensed practical nurse on duty eight hours per day, and additional licensed staff on any shift if indicated.
(2)(a) and (3)(a) and (b) do not apply to ICF/MR nursing facilities; and
(b) A medical director is not required.
(2) Staff from the division of developmental disabilities will approve of social/therapeutic leave for individuals who reside in ICF/MR nursing facilities.
[Statutory Authority: and . 00-06-028, ? 388-97-285, filed 2/24/00, effective 3/26/00.]
AMENDED SECTION
WAC 388-97-35040 Ambulation route on a dementia care unit in a new building or addition.
The nursing home must ensure that the dementia care un it unit has a continuous ambulation route which may
include outdoor ambulation areas and allows the resident to return to the
resident's starting point without reversing direction.
AMENDED SECTION
WAC 388-97-565 Department review of nursing home license renewals.
(1) All renewal license applications must be reviewed by the department under this chapter.
(2) The department will not begin review of an incomplete license renewal application.
(3) The proposed current
licensee must respond to any department request for additional information
within five working days.
(4) When the application is determined to be complete, the department will review:
(a) The information contained in the application;
(b) Actions against the license (i.e., revocation, suspension, refusal to renew, etc.);
(c) All criminal convictions, and relevant civil or administrative actions or findings including, but not limited to, findings under 42 C.F.R. ?488.335, disciplinary findings, and findings of abuse, neglect, exploitation, or abandonment; and
(d) Other relevant information.
(5) The department will notify the current licensee of the results of the review.
[Statutory Authority: and . 00-06-028, ? 388-97-565, filed 2/24/00, effective 3/26/00.]
AMENDED SECTION
WAC 388-97-570Reasons for denial, suspension, modification, revocation of, or refusal to renew a nursing home license.
(1) The department may deny, suspend, revoke, or refuse
to renew a nursing home license and/or assess civil monetary penalties when the
department finds (if) the proposed or current
licensee, or any partner, officer, director, managing employee, owner of five
percent or more of the proposed or current licensee of the nursing home, owner
of five percent or more of the assets of the nursing home, proposed or current
licensee?s agent, or employee or individual providing nursing home care or
services has:
(a) Failed or refused to (Not) comply(ied) with
the:
(i) R(r)equirements
established by chapters 18.51, 74.42, or 74.46 RCW and regulations adopted under
these chapters; or
(ii) Medicaid requirements of Title XIX of the Social Security Act and Medicaid regulations;
(b) A history of significant noncompliance with federal or state regulations in providing nursing home care;
(c) No credit history or a poor credit history;
(d) Engaged in the illegal use of drugs or the excessive use of alcohol or been convicted of "crimes relating to drugs" as defined in RCW 43.43.830;
(e) Unlawfully operated a nursing home, or long term care facility as defined in RCW 70.129.010, without a license or under a revoked or suspended license;
(f) Previously held a license to operate a hospital or any facility for the care of children or vulnerable adults, and that license has been revoked, or suspended, or the licensee did not seek renewal of the license following written notification of the licensing agency?s initiation of revocation or suspension of the license;
(g) Obtained or attempted to obtain a license by fraudulent means or misrepresentation;
(h) Permitted, aided, or abetted the commission of any illegal act on the nursing home premises;
(i) Been convicted of a felony, other than a felony that is a "crime against children or other persons," or a "crime relating to financial exploitation" as defined in RCW 43.43.830, if the crime reasonably relates to the competency of the individual to own or operate a nursing home;
(i) (j) Failed to:(meet financial obligations as the obligations fall due in
the normal course of business)
(i) (p)Provide any
authorization, documentation, or information the department requires in order to
verify information contained in the application; or
(ii) Meet financial obligations as the obligations fall due in the normal course of business;
(iii) (v)Verify additional
information the department determines relevant to the application;
(iv) Report patient abuse or neglect in violation of chapter 70.124 RCW; or
(v) Pay a civil fine the department assesses under this chapter within ten days after assessment becomes final;
(k) Been certified pursuant to RCW 74.20A.320 as a person who is not in compliance with a child support order (license suspension only);
(l) Knowingly or with reason to know makes a false statement of a material fact in the application for a license, in attached data, or in matters under department investigation;
(m) Refused to allow department representatives or agents to inspect required books, records, and files or portions of the nursing home premises;
(n) Willfully prevented, interfered with, or attempted to impede the work of authorized department representatives in the:
(i) Lawful enforcement of provisions under this chapter or chapter 74.42 RCW; or
(ii) Preservation of evidence of violations of provisions under this chapter or chapter 74.42 RCW;
(o) Retaliated against a resident or employee participating in proceedings specified under RCW 18.51.220; or
(p) Discriminated against Medicaid recipients as prohibited under RCW 74.42.055.
(2) In determining whether there is a history of significant noncompliance with federal or state regulations under subsection (1)(b), the department may, at a minimum, consider:
(a) Whether the violation resulted in a significant harm or a serious and immediate threat to the health, safety, or welfare of any resident;
(b) Whether the proposed or current licensee promptly investigated the circumstances surrounding any violation and took steps to correct and prevent a recurrence of a violation;
(c) The history of surveys and complaint investigation findings and any resulting enforcement actions;
(d) Repeated failure to comply with regulations;
(e) Inability to attain compliance with cited deficiencies within a reasonable period of time; and
(f) The number of violations relative to the number of facilities the proposed or current licensee, or any partner, officer, director, managing employee, or owner of five percent or more of the proposed or current licensee of the nursing home, owner of five percent or more of the assets of the nursing home, proposed or current licensee?s agent, or employee or individual providing nursing home care or services has been affiliated with in the past ten years.
(3) The department must deny, suspend, revoke, or refuse to renew a proposed or current licensee?s nursing home license if the proposed or current licensee or any partner, officer, director, managing employee, or owner of five percent or more of the proposed or current licensee of the nursing home, owner of five percent or more of the assets of the nursing home, proposed or current licensee?s agent, or employee or individual providing nursing home care or services has been:
(a) Convicted of a "crime against children or other persons" as defined under RCW 43.43.830;
(b) Convicted of a "crime relating to financial exploitation" as defined under RCW 43.43.830;
(c) Found by a court in a protection proceeding under chapter 74.34 RCW, or any comparable state or federal law, to have abused or financially exploited a vulnerable adult;
(d) Found in any final decision issued by a disciplinary board to have sexually or physically abused or exploited any minor or an individual with a developmental disability or to have abused or financially exploited any vulnerable adult;
(e) Found in any dependency action to have sexually assaulted or exploited any minor or to have physically abused any minor;
(f) Found by a court in a domestic relations proceeding under Title 26 RCW, or any comparable state or federal law, to have sexually abused or exploited any minor or to have physically abused any minor; or
(g) Found to have abused, neglected, or mistreated residents or misappropriated their property, and that finding has been entered on a nursing assistant registry.
[Statutory Authority: RCW 18.51.054, 18.51.060, 18.51.070, 43.20A.205, 74.42.580, 74.42.620, and 74.46.790]
AMENDED SECTION
WAC 388-97-575 Appeal of the department's licensing decision.
(1) A proposed or current licensee contesting a
department licensing decision must file a written request for an adjudicative proceeding administrative hearing within
twenty days of receipt of the decision. The appeals process and
requirements are set forth in WAC 388-97-625.
(2) Adjudicative
proceedings Administrative hearings will be governed by the Administrative
Procedure Act (), ,
43.20A.205, WAC 388-97-730, and chapters 388-08
388-02 and 388-97 WAC. If any provision in this chapter conflicts
with chapter 388-02 WAC, the provision of this
chapter will govern.
[Statutory Authority: and . 00-06-028, ? 388-97-575, filed 2/24/00, effective 3/26/00.]
AMENDED SECTION
WAC 388-97-580 Management agreements.
(1) If the responsibilities given to the manager by the management agreement are so extensive that the licensee is relieved of responsibility for the daily operations of the facility, then the department must determine that a change of ownership has occurred.
(2) The proposed licensee or the current licensee must notify the residents and their representatives sixty days before entering into a management agreement. A "management agreement", as used in this section, means a written, executed agreement between the licensee and another individualor entity to provide services. A "manager", asused in this section means the individual or entity providing services under a management agreement.
(3) The department must receive a written management agreement, including an organizational chart showing the relationship between the proposed or current licensee, management company, and all related organizations:
(a) Sixty days before the proposed change of ownership date as part of the initial license application or any change of ownership;
(b) Sixty days before the effective date when submitted by the current licensee; or
(c) Thirty days before the effective date of any amendment to an existing management agreement.
(4) Management agreements, at minimum must:
(a) Create a principal/agent relationship between the licensee and the manager;
(b) Describe the responsibilities of the licensee and manager, including items, services, and activities to be provided;
(c) Require the licensee?s governing body, board of directors, or similar authority to appoint the facility administrator;
(d) Provide for maintenance and retention of all records as applicable according to rules and regulations;
(e) Allow unlimited access by the department to documentation and records according to applicable laws or regulations;
(f) Require the licensee to participate in monthly oversight meetings and quarterly on-site visits to the facility;
(g) Require the manager to immediately send copies of surveys and notices of non-compliance to the licensee;
(h) State that the licensee is responsible for ensuring all licenses, certifications, and accreditations are obtained and maintained;
(i) State that the manager and licensee will review the
management agreement annually and notify the department of changes according to
applicable rule and regulations; and
(j) Acknowledge that the licensee is the party
responsible for meeting state and federal licensing and certification
requirements;.
(k) Require the licensee to maintain ultimate control over personnel issues relating to the operation of the nursing home and care of the residents, including but not limited to, staffing plans, orientation, and training;
(l) Require resident trust funds to remain theresponsibility of the licensee; and
(m) State that the manager will not represent itself or give the appearance it is thelicensee.
(5) Upon receipt of a proposed management agreement, the department may require:
(a) The licensee or manager to provide additional information or clarification;
(b) Any changes necessary to:
(i) Bring the management agreement into compliance with this section; and
(ii) Ensure that the licensee has not been relieved of the responsibility for the daily operations of the facility; and
(c) More frequent contact between the licensee and manager under subsection (4)(f).
(6) The department may monitor the licensee's and manager's compliance with the terms of the management agreement and take any action deemed appropriate.
[Statutory Authority: RCW 18.51.070, 74.42.620 and 74.46.280.]
AMENDED SECTION
WAC388-97-585Change of ownership.
(1) A change of ownership occurs when there is a substitution, elimination, or withdrawal of the operator or operating entity responsible for the daily operational decisions of the nursing home, or a substitution of control of such operating entity. "Control", as used in this section, means the possession, directly or indirectly, of the power to direct the management, operation, and policies of the licensee, whether through ownership, voting control, by agreement, by contract or otherwise. Events which constitute a change of ownership include, but are not limited to, the following:
(a) The form of legal organization of the licensee is changed (e.g., a sole proprietor forms a partnership or corporation);
(b) The licensee transfers ownership of the nursing home business enterprise to another party regardless of whether ownership of some or all of the real property and/or personal property assets of the facility is also transferred;
(c) Dissolution or consolidation of the entity;, or
(d) Mmerger if
unless the licensee does
not survives the merger and there is not a
change in control of the licensee;
(ed) If,
during any continuous twenty-four month period, fifty percent or more of the
entity is transferred, whether by a single transaction or multiple transactions,
to:
(i) A different party (e.g., new or former shareholders); or
(ii) An individual or entity that had less than a five percent ownership interest in the nursing home at the time of the first transaction; or
(fe) Any other
event or combination of events that the department determines
results in a:
(i) substitution, elimination, or withdrawal of the operator or operating entity; or
(ii)substitution of control of the
operator or the operating entity responsible for the
daily operational decisions of the nursing home.
(2) Ownership does not change when the following, without more, occur:
(a) A party contracts with the licensee to manage the nursing home enterprise as the licensee's agent, (i.e., as provided in WAC 388-97-580); or
(b) The real property or personal property assets of the nursing home are sold or leased, or a lease of the real property or personal property assets is terminated, as long as there is not a substitution or substitution of control of the operator or operating entity.
(3) When a change of ownership is contemplated, the current licensee must notify the department and all residents and their representatives at least sixty days prior to the proposed date of transfer. The notice must be in writing and contain the following information:
(a) Name of the current licensee and proposed licensee;
(b) Name and address of the nursing home being transferred; and
(c) Date of proposed transfer.
(4) The proposed licensee must comply with license application requirements. The operation or ownership of a nursing home must not be transferred until the proposed licensee has been issued a license to operate the nursing home.
[Statutory Authority: RCW 18.51.070, 18.51.530, 74.42.620]
AMENDED SECTION
WAC 388-97-595 Relocation of residents.
(1) In the event of license revocation or suspension, decertification, or other emergency closures the department must:
(a) Notify residents and, when appropriate, resident representatives of the action; and
(b) Assist with residents' relocation and specify possible alternative living choices and locations.
(2) When a resident's relocation occurs due to a nursing
home's voluntary closure, or voluntary termination of its Medicare and/or Medicaid contract or both,: the nursing home must:
(a) The nursing home
must:
(i) Send written notification,
sixty days before closure or contract termination, to Notify the department
's designated local office and to all residents and resident representatives in
accordance with WAC 388-97-162(8); and
(ii) (b) Provide appropriate
discharge planning and coordination for all residents. (3) The department
may provide residents assistance with relocation.
SUBCHAPTER IV
TABLE OF CONTENTS
WAC 388-97-
-05 -Inspections and deficiency citation report- NEW SECTION
-610 -Plan of correction- NEW SECTION
-615 -Acceptable and unacceptable plan of correction- NEW SECTION
-620 -Informal department review- NEW SECTION
-625 -Notice and hearing rights- NEW SECTION
-630 -Remedies- NEW SECTION
-635 -Criteria for optional remedies- NEW SECTION
-640 -Severity and scope of deficiencies- NEW SECTION
-645 -Separate deficiencies- NEW SECTION
-650 -Stop placement- NEW SECTION
-655 -Amount of civil fine- NEW SECTION
-660 -Civil fine accrual and due dates- NEW SECTION
-665 -Civil penalty fund- NEW SECTION
-670 -Temporary management- NEW SECTION
-675 -Receivership- NEW SECTION
-680 -Temporary managers receivers ? application- NEW SECTION
-685 -Temporary managers and receivers Consideration before appointment- NEW SECTION
-690 -Duties and powers of temporary manager and receiver- NEW SECTION
-695 -Termination of temporary management and receivership- NEW SECTION
SUBCHAPTER IV
NURSING HOME LICENSURE PROGRAM ADMINISTRATION
NEW SECTION
WAC 388-97-605 Inspections and deficiency citation report
(1) The department may inspect licensednursing homes at any time in orderto determine compliance with the requirements of Chapters 18.51 or 74.42 RCW and this chapter. Types of state inspections in nursing homes include pre-occupancy, licensing, revisit, and complaint investigation. In the case of a Medicaid or Medicare contractor, or both, the department may also inspect Medicare and Medicaid certified nursing homesto determine compliance with the requirements of Title XVIII and/or XIX of the Social Security Act and federal Medicare and Medicaidregulations.
(2) The departmentwill provide to the nursing home written documentation [notice] of thenursing home?s deficiency(ies), the requirement that the deficiency(ies) violates, and the reasons for the determination of noncompliance with the requirements. (RCW 18.51.091)
(3) The department may revisit the nursing home to confirm that corrections of deficiencies has been made. Revisits will be in accordance with:
(a) Chapter 74.39A.060(5)(e);
(b) In the case of an Medicare or Medicaid contractor, or both, the requirements of Title XVIII or XIX, or both of the Social Security Act and federal Medicare and Medicaid regulations; and
(c) On the department?s discretion.
(4) The licensee or licensee?s agent must:
(a) Ensure that department staff have access to the nursing home residents, staff and all resident records, and
(b) Not willfully interfere or fail to cooperate with department staff in the performance of official duties. Examples of willful interference or failure to cooperate include, but are not limited to, not allowing department staff to talk to residents or staff in private or not allowing department staff access to resident records.
NEW SECTION
WAC 388-97-610 Plan of correction
(1) The licensee or licensee?s agent must, within 10 calendar days of notification of the cited deficiencies prepare, sign, date and provide to the department a detailed written plan of correction. Such plan of correction will provide notification to the department of the date by which the nursing home will complete the correction of cited deficiencies.
(2) A plan of correction is not required for deficiencies at a Severity Level 1/Isolated Scope as described in WAC 388-97-640, unless specifically requested by the department.
(3) In the case of actual or imminent threat to resident health or safety/immediate jeopardy (Severity Level 4 as described in WAC 388-97-640), the department may require the licensee or licensee?s agent to submit a document alleging that the imminent threat has been removedwithin a time frame specified by the department. The documentmust specify the steps the nursing home has taken or will take to correct the imminent harm. An allegation that the imminent harm has beenremoved does not substitute for the plan of correction as required by subsection (1) of this section but it willbecomeapart of the completed plan of correction.
NEW SECTION
WAC 388-97-615 Acceptable and unacceptable plans of correction.
(1) To be acceptable, a plan of correction must:
(a) Address how corrective action will be accomplished for those residents found to have been affected by the deficient practice;
(b) Address how the nursing home will identify other residents having the potential to be affected by the same deficient practice;
(c) Address what measures will be put into place or systemic changes made to ensure that the deficient practice will not recur;
(d) Indicate how the nursing home plans to monitor its performance to make sure that solutions are sustained, including how the plan of correction will be integrated into the nursing home?s quality assurance system;
(e) Give the title of the person who is responsible for assuring lasting correction; and
(f) Give the date by which the correction will be made.
(2).The department will review the nursing home?s plan of correction to determine whether it is acceptable.
(3) When deficiencies involve nursing home alterations, physical plant plan development, construction review, or other circumstances where extended time to complete correction may be required, the designated local AASA field office or other department designee may accept a plan of correction as evidence of substantial compliance. Under thesecircumstances:
(a) The plan of correction must includethe steps that the nursing home needs to take, the time schedule for completion of the steps, and concrete evidence that the plan will be carried out as scheduled; and
(b) The nursing home must submit progress reports and/or updated plans to the department inaccordance with a schedule specified by department.
(c) The department?s acceptance of a plan of correction is solely at the department?s discretion and does not rule out the imposition of optional remedies.
NEW SECTION
WAC 388-97-620 Informal department review.
(1) For Medicare or Medicaid certifiednursing homes, the informal department review process described in this section is the only opportunity for the nursing home to disputethe federal deficiency citation report, unless a federal sanction is imposed.
(2) The nursing home licensee has the right to an informal department review of disputed state orfederal citations, or both.
(3) A licensee must make a writtenrequest for an informal department reviewwithin ten days of receipt of the department?s written deficiency citation(s). The request must be directed to the designated local AASA office and must identify the deficiencies that are being disputed.
(4) At the informal department review, the licensee or licensee?s agent may provide documentation and verbal explanations related to the disputedfederal or state deficiencies, or both.
(5) When modifications or deletions are made to the disputed federal or state deficiency citations, or both:the licensee or licensee?s agent must modify or delete the relevant portions of the plan of correction within 5 days of receipt of the modified or deleted deficiency(ies). The licensee or licensee?s agent may request from the department a clean copy of the revised deficiency report.
(6) If the licensee or licensee?s agent is unwilling to provide the modified plan of correction, the department may impose a per day civil fine for failure to return the modified deficiency citation report to the department in accordance with this subsection.
NEW SECTION
WAC 388-97-625 Notice and appeal rights.
(1) The notification and hearing rights in this section apply to any appealable action taken by the department under Chapters 18.51, 74.42 and 74.39A RCW. Notification and appeals requirements for resident protection program findings are described in WAC 388-97-077.
(2) The following actions may be appealed:
(a) Imposition of a penalty under RCW 18.51.060 or 74.42.580;
(b) An action against the nursing home, or a denial of a license under RCW 18.51.054, 18.51.067 or 74.39A.050; or
(c) Deficiencies cited on the state survey report, if such hearing is required.
(3) The appeal process will be governed by the Administrative Procedure Act (chapter 34.05 RCW), RCW 18.51.065, RCW 74.42.580, chapter 388-02 WAC and this chapter. If any provision in this chapter conflicts with chapter 388-02 WAC, the provision of this chapter will govern.
(4) The purpose of an administrative hearing will be to review actions taken by the department under Chapters 18.51, 74.42 or 74.39A, and under this chapter.
(5) The applicant, licensee or licensee?s agent must file a request for an administrative hearing with the Office of Administrative Hearings within twenty days of receipt of written notification of the department?s action. Further information about administrative hearings is available in Chapter 388-02 and at the Office of Administrative Hearing (OAH) website: www.oah.wa.gov.
(6) If a licensee or licensee?s agent requests an informal department review, the request for a administrative hearing to contest deficiencies cited on the state deficiency report, may be delayed until receipt of the department?s decision on the informal department review. The licensee or licensee?s agent must file the appeal of the state deficiency citation report with the Office of Administrative Hearings within twenty days of its receipt of a letter containing the informal review decision. The letter notifying the licensee of the informal review decision will include a notice of the right to request an administrative hearing.
(7) Orders of the department imposing a stop placement, license suspension, emergency closure emergency transfer of residents, temporary management or conditions on a license are effective immediately upon verbal or written notice and shall remain in effect until they are rescinded by the department or through the state administrative appeals process.
NEW SECTION
WAC 388-97-630 Remedies
Mandatory Remedies
(1) In accordance with RCW 18.51.060(5)(a), the department shall impose astop placement orderwhenthe department determines thatthe nursing home is not in substantial compliance and cited deficiency(ies):
(a) Jeopardize the health and safety of the residents; or
(b) Seriously limit the nursing home?s capacity to provide adequate care.
(2) When required by RCW 18.51.060(3), the department shall deny payment to a nursing home that is certified to provide Medicaidservices, but not certified to provide Medicare service, for any Medicaid-eligible individual admitted to the nursing home. Nursing homes that are certified to provide both Medicare and Medicaid services may be subject to a federal denial of payment for new admissions, in accordance with federal law.
(3) The department shall deny, suspend, revoke or refuse to renew a proposed or currentlicensee?snursing home licensein accordance with WAC 388-97 ?570(3).
Optional Remedies
(4) When the department determines that a licensee has failed or refused to comply with the requirements under chapter 18.51 or 74.42 RCW and this chapter; or a Medicaid contractor has failed or refused to comply with Medicaid requirements of Title XIX of the Social Security Act and Medicare and Medicaid regulations, the department may impose any or all of the following optional remedies:
(a) Stop placement;
(b) Immediate closure of a nursing home, emergency transfer of residents or both;
(c) Civil fines;
(d) Appoint temporary management;
(e) Petition the court for appointment of a receiver in accordance with RCW 18.51.410;
(f) License denial, revocation, suspension or non-renewal;
(g) Denial of payment for new Medicaid admissions;
(h) Termination of theMedicaid provider agreement (contract);
(i) Department on-site monitoring as defined under WAC 388-97-005; and
(j) Reasonable conditions on a license as authorizedby RCW 74.39A. Examples of conditions on a license include but are not limited to training related to the deficiency(ies); consultation in order to write an acceptable plan of correction; demonstration of ability to meet financial obligations necessary to continue operation.
(5) Reasons for licensing actions under WAC 388-97-570(1) are described in WAC 388-97-570.
NEW SECTION
WAC 388-97-635 Criteria for imposing optional remedies.
(1) The criteria set forth in this section implement the requirementsunder RCW 18.51.060(8). The criteria do not replace the standards for imposition of mandatory remedies under RCW 18.51.060(3) and (5), for the imposition of mandatory remedies in accordance with WAC 388-97-630(1), (2) and (3).
(2) The department shall consider the imposition of one or more optional remedy(ies) when the nursing home has:
(a) A history of being unable to sustain compliance;
(b) One or more deficiencies on one inspection at Severity Level 3 or higher as described in WAC 388-97-640;
(c) Been unable to provide an acceptable plan of correction after receiving assistance from the department about necessary revisions;
(d) One or more deficiencies cited under General Administration and/or Nursing Services;
(e) One or more deficiencies related to retaliation against a resident or an employee for whistleblower activity under RCW 18.51.220; RCW 74.34.180; or RCW 74.39A.060 and WAC 388-97-203; or
(f) One or more deficiencies related to discrimination against a Medicare or Medicaid client under RCW 74.42.055, and Titles XVIII and XIX of the Social Security Act and Medicare and Medicaid regulations.
(3) The department, at its sole discretion, may consider other relevant factors when determining what optional remedy or remedies to impose in particular circumstances.
(4) When the department makes the decision to impose an optional remedy or remedies, the department will select more severe penalties for nursing homes that have deficiency(ies) that are Severity Level 3 or higher as described in WAC 388-97-640, and
(a) Uncorrected upon revisit;
(b) Recurring (repeated);
(c) Pervasive; or
(d) Present a threat to the health, safety, or welfare of the residents.
(5) The department will consider the severity and scope of cited deficiencies in accordance with WAC 388-97-640 when selecting optional remedy(ies). Such consideration will not limit the department?s discretion to impose a remedy for a deficiency at a low level severity and scope.
NEW SECTION
WAC 388-97-640 Severity and scope of deficiencies.
(1) "Severity of a deficiency" means the seriousness of the deficiency. Factors the department will consider when determining the severity of a deficiency may include, but are not limited to:
(a) Whether harm to the resident has occurred, or could occur;
(b) The impact of the actual or potential harm on the resident; and
(c) The degree to which the nursing home failed to meet the resident?s highest practicable physical, mental, and psychosocial well being as defined in WAC 388-97-005.
(2) Severity Levels
Severity Level 4 ? Imminent Harm or Immediate Jeopardy.
Level 4 means that a resident(s)?s health or safety is imminently threatened immediately jeopardized as a result of deficient nursing home practice. This level includes actual harmor potential harm, or both, to resident(s)? health or safety that has had or could have a severe negative outcome or critical impact on resident?s well being, including death or severe injury. Severity Level 4 requires immediate corrective action to protect the health and safety of resident(s).
Severity Level 3 ? Actual Harm
Level 3 means that actual harm has occurred to resident(s) as the result of deficient nursing home practice.
(i) "Serious harm" is harm that results in a negative outcome that significantly compromises the resident(s)? ability to maintain and/or reach the highest practicable physical, mental and psychosocial well being. Serious harm does not constitute imminent danger/immediate jeopardy (Severity Level 4).
(ii) "Moderate harm" is harm that results in a negative outcome that more than slightly but less than significantly compromises the resident(s)? ability to maintain and/or reach the highest practicable physical, mental and psychosocial well being.
(iii) "Minimal harm" is harm that results in a negative outcome that to a small degree compromises the resident?s ability to maintain and/or reach the highest practicable physical, mental well being.
Severity Level 2 ? Potential for Harm
Level 2, "Potential for harm" means that if the deficient nursing home practice is not corrected, resident(s) may suffer actual harm.
Severity Level 1 ? No Harm
Level 1 means a deficient nursing home practice that does not compromise the resident(s)? ability to maintain or reach, or both, the highest practicable physical, mental and psychosocial well being. Deficiencies at LEVEL 1 are those that have no direct or discernable negative impact on the resident. Examples include certain structure deficiencies, physical environment deficiencies and process deficiencies when there is no impact on a resident or residents.
(3)"Scope of a deficiency" means the frequency, incidence, or extent of the occurrence of the deficiency.
(4) Scope Categories
(a) "Isolated or Limited scope" means a relatively few number of residents have been affected or have the potential to be affected, by the deficient nursing homepractice.
(b) "Moderate or Pattern scope" scope means more than an isolated and less than a widespread number of residents have been affected, or have the potential to be affected by the deficient nursing home practice.
(c) "Widespread" or "Systemic scope" means most or all of the residents are affected or have the potential to be affected, by the deficient nursing homepractice.
(5) Determination of scope will be made by the department using its sole discretion. Factors the department will consider may include:
(a) Size of the nursing home;
(b) Size of the sample;
(c) Number and location of affected residents;
(d) Whether the deficiency applies to all or a subset of the residents;
(e) Other factors relevant to the particular circumstances.
NEW SECTION
WAC 388-97-645 Separate deficiencies
(1) Each deficiency cited by the department for noncompliance with a statute or regulation is a separate deficiency subject to the assessment of a separate remedy.
(2) Each day upon which the same deficiency occurs is a separate deficiency subject to the assessment of a separate remedy.
NEW SECTION
WAC 388-97-650/750 Stop placement
(1) The department shall impose a stop placement order when required by RCW 18.51.060(5) and WAC 388-97-650 and may impose a stop placement order as an optional remedy in accordance with WAC 388-97-630(4) and -735. The department?s stop placement order becomes effective upon verbal or written notice.
(2) The nursing homehas the right to an informal department review to refute the federal or state deficiencies, or both, cited as the basis for the stop placement and must request such review in accordance with WAC 388-97-615(3).
(3) The department will not delay or suspend a stop placement order because the nursing home requests an administrativehearing or informal department review.
(4) The stop placement order must remain in effect until:
(a) The department terminates the stop placement order; or
(b) The stop placement order is terminated by a final agency order following appeal conducted in accordance with chapter 34.05 RCW.
(5) The department must terminate the stop placement when:
(a) The nursing homestates in writing that the deficiencies necessitating the stop placement action have been corrected; and
(b) Within fifteen days of the nursing home?s notification, department staff confirm that:
(i) The deficiencies that necessitated the stop placement action have been corrected; and
(ii) The nursing home exhibits the capacity to maintain correction of deficiencies.
(6) After lifting the stop placement, the department may continue to perform on site monitoring to verify that the nursing home has maintained correction of deficiencies.
(7) While a stop placement order is in effect, the department may approve a readmission to the nursing home from the hospital in accordance with RCW 18.51.060(5)(b) and department guidelines for readmission decisions.
NEW SECTION
WAC 388-97-655 Amount of civil fine.
(1) Except as otherwise provided in statute, the range for a:
(a) Per day civil fine is $50 to $3,000; and
(b) Per instance civil fine is $1,000 to $3,000.
(2) In the event of continued noncompliance, nothing in this section shall prevent the department from increasing a civil fine up to the maximum amountallowed by law.
NEW SECTION
WAC 388-97-660 Civil fine accrual and due dates.
(1) Accrual of a per day civil fine starts with the firstdate the department verifies that the nursing home is, or was, first out of compliance, and ends on the date that the department finds that the nursing home has corrected the deficiency that was the basis for the civil fine.
(2) A per instance fine may be assessed for a deficiency, regardless of whether or not the deficiency existed at the time the department first identified it.
(3) Civil fines(s) become due twenty days after the nursing home is notified of thecivil fine(s), unless the nursing home requests an administrative hearing. If a hearing is requested, the fine becomes due twenty days after:
(a) A hearing decision ordering payment of the fine(s) becomes final in accordance with WAC chapter 388-02;
(b) The appeal is withdrawn;
(c) An agreed settlement and order of dismissal is entered; or
(d) An order of dismissal is entered.
[Interest will be part of agreed settlement.]
(4) Interest on a civil fine starts accruing 30 days after the nursing home is notified in writing of the fine unless the nursing home has requested a hearing. If a hearing has not been requested and payment has not been received within 30 days after the nursing home is notified of the fine, interest will begin to accrue on the balance at the rate of one percent per month.
(5) When a nursing home fails to pay a civil fine when due under this chapter, the department may:
(a) Withhold an amount equal to the fine plus interest, if any, from the nursing home?s Medicaid payment;
(b) Impose an additional fine; or
(c) Suspend the nursing home license under WAC388-97-570(j)(5). Such license suspension shall continue until the fine is paid.
NEW SECTION
WAC 388-97-665 Civil penalty fund.
(1) The department must deposit civil penalties collected under chapter 18.51 or 74.42 RCW into a special fund administered by the department to be applied to the protection of the health or property of residents of nursing homes found to be deficient.
(2) The funds shall be administered by the department according to department procedures. Uses of the fund include, but are not limited to,
(a) Payment for the costs of relocation of residents to other facilities;
(b) Payment to maintain operation of a nursing home pending correction of deficiencies or closure; and
(c) Reimbursement of residents for personal funds or property lost when the resident?s personal funds or property cannot be recovered from the nursing home or third party insurer.
WAC 388-97-670 Temporary Management.
(1) When the department appoints a temporary manager, the department must order the licensee to:
(a) Cease operating the nursing home; and
(b) Immediately turn over to the temporary manager possession and control of the nursing home including, but not limited to, all patient care records, financial records, and other records necessary for continued operation of the nursing home while temporary management is in effect.
(2) The temporary manager will have authority to temporarily relocate some or all residents if the:
(a) Temporary manager determines the resident?s health, security, or welfare is jeopardized; and
(b) Department concurs with the temporary manager?s determination that relocation is necessary.
(3) The department?s authority to order temporary management is discretionary in all cases.
NEW SECTION
WAC 388-97-675 Receivership.
(1) Receivership is authorized under RCW 18.51.400-.520 and the following regulations.
(2) After receivership is established, the department may recommend to the court that all residents be relocated and the nursing home closed when:
(a) Problems exist in the physical condition of the premises which cannot be corrected in an economically prudent manner; or
(b) The department determines the former operator or owner:
(i) Is unwilling or unable to manage the nursing home in a manner ensuring residents? health, safety, and welfare; and
(ii) Has not entered into an enforcable agreement to sell the nursing home within three months of the court?s decision to grant receivership.
NEW SECTION
WAC 388-97-680 Temporary managers and receivers ? Application.
(1) The department may recruit individuals, partnerships, corporations and other entities interested in serving as a temporary manager or receiver of a nursing home.
(2) Individuals, partnerships, corporations, or other entities interested in being appointed as a temporary manager or receiver shall complete and submit to the department the required application on department forms.
(3) Individuals, partnerships, corporations, or other entities with experience in providing long-term health care and a history of satisfactory nursing home operation may submit an application to the department at any time. Applicants will be subject to the criteria established for licensees found in WAC 388-97-570, except the department may waive the requirement that it have at least sixty days to review the application.
(4) The department must not appoint or recommend the appointment of a person (including partnership, corporation or other entity) to be a temporary manager or receiver if that person:
(a) Is the licensee, administrator, or partner, officer, director, managing employee, or owner of five percent or more of the licensee of the nursing home subject to temporary management or receivership;
(b) Is affiliated with the nursing home subject to temporary management or receivership; or
(c) Has owned or operated a nursing home ordered into temporary management or receivership in any state.
NEW SECTION
WAC 388-97-685 Temporary managers and receivers ?Considerations before appointment.
(1) The department?s authority to appoint a temporary manager or to recommend a