Aging & Long-Term Support Administration

WACs 388-71-0523, 388-71-0880, 388-71-0888, 388-71-0890, 388-71-0977 & 388-115-0523

The Department of Social and Health Services (department) is amending WAC sections 388-71-0523, 388-71-0880, 388-71-0888, 388-71-0890, 388-71-0977, and 388-115-0523. The purpose of these changes is to bring rules into compliance with Senate Bill 5811 (chapter 322, Laws of 2024). This rulemaking expands the definition of individual provider. Permanent rules are in process. The proposed rule hearing is scheduled for November 5, 2024. Permanent rules will supersede the emergency rule when adopted.

WAC 388-112A-0400

The purpose of the adoption is to amend the citation in subsection (2) pointing to WAC 388-112A-0010(3) which is incorrect and should be WAC 388-112A-0010(36), references in subsection (2)(a)(i) and (ii) dealing with alternative curriculum reference a submission date of June 30, 2018, (which is no longer needed), and numbers over ten in subsections (5) and (6) do not conform to the current rules on style which require them to be numerals.

Chapters 388-71 & 388-112A WAC

The purpose is to adopt amendments to the following sections WAC 388-71-0752, 388-71-1055, 388-112A-0090, 388-112A-0495, 388-112A-0610, 388-112A-0611, 388-112A-0612, 388-112A-1240, and 388-112A-1245 due to SB 5499, (chapter 123, Laws of 2023). The adopted amendments update training rules to recognize registered nurses licensed under chapter 18.80 RCW. This concerns the Multistate Nurse Licensure Compact.  

Chapter 388-106 WAC

The Department of Social and Health Services (DSHS- department) is proposing new rules to implement the establishment of a state-funded Guardianship and Conservatorship Assistance Program in alignment with the 2022 adoption of chapter 11.130 RCW by adding new sections in chapter 388-106 WAC. The department is adding new sections in chapter 388-106 WAC to support the establishment of the new Guardianship and Conservatorship Assistance program. These sections include WAC 388-106-2100 through 388-106-2165. The rules describe eligibility for the Guardianship and Conservatorship Assistance Program, the package of services provided for individuals who are referred by Acute Care Hospitals who have been found unable to consent to services due to a qualifying neuro-cognitive disorder, and the contractor payments for services. The rules will describe services, duration, and payments.

Chapter 388-106 WAC

The Department of Social and Health Services (department) is adopting new rules to implement provisions of Engrossed Second Substitute Senate Bill 5440, (chapter 453, laws of 2023). The department is adding new sections in 388-106 WAC to support the new civil transitions program created because of E2SSB 5440. These sections include WAC 388-106-2000 through WAC 388-106-2050. The adopted rules describe eligibility for the civil transitions program, and the package of services provided for individuals who are referred by Behavioral Health Administration who have been found incompetent to stand trial due to dementia, traumatic brain injury, or intellectual or developmental disability, and not functionally or financially eligible for long term services and supports. The rules describe services and duration.

WACs 388-71-0876, 388-71-0992, 388-112A-0081 & 388-112A-0613

WACs 388-71-0876, 388-71-0992, 388-112A-0081, and 388-112A-0613 were put in place for the sole purpose of extending training deadlines during the COVID-19 emergency. The extended deadlines for both training and continuing education have passed, and certification deadlines are now set through rule by the Department of Health. RCWs 74.39A.074(6)(a) and 74.39A.341(6)(a) require that the rules allowing extension of training deadlines be repealed when no longer necessary. The purpose is to remove the COVID-19 training and continuing education extension rules that are no longer necessary.

WACs 388-71-0523, 388-71-0880, 388-71-0888, 388-71-0890, 388-71-0977 & 388-115-0523

The Department of Social and Health Services (department) is amending WAC sections 388-71-0523, 388-71-0880, 388-71-0888, 388-71-0890, 388-71-0977, and 388-115-0523. The purpose of these changes is to bring rules into compliance with Senate Bill 5811 (chapter 322, Laws of 2024) passed during the 2024 legislative session. This rulemaking expands the definition of individual provider. Permanent rules are in process. 

WAC 388-106-0336

WAC 388-106-0336, What services may I receive under the residential support waiver? Adopting added amendments under the Community Stability Supports, under the Residential Support Waiver amendment WA.1086.R01.10. The amendments also include minor language changes for WAC consistency in service language.

Chapter 388-97 WAC

The department is adopting rules to identify the requirements in place during the COVID-19 pandemic in Washington state. The purpose of the rule change is to ensure consistent implementation and enforcement of rule requirements in effect during the COVID-19 pandemic in Washington state.

WAC 388-112A-0800

The purpose of amending WAC 388-112A-0800-What is residential care administrator training? is to align current rules with the statute. The rules do not specify a time limit for validity of adult family home administrator training certificates for the purpose of new adult family home applicants. The amended rule assures that training be reasonably current for new applicants and is in the best interests of adult family home residents. The rules on this subject are needed because the WAC and RCW 70.128.120 are conflicting due to the number of hours of training needed for required adult family home administrator training. This conflict is causing concerns during the adult family home application process.

Chapters 388-71, 388-112A & 388-115 WAC

The department is amending WAC sections 388-71-0523, 388-71-0836, 388-71-0837, 388-71-0839, 388-71-0875, 388-71-0880, 388-71-0888, 388-71-0893, 388-71-0975, 388-71-0977, 388-71-0980, 388-71-1001, 388-112A-0010, 388-112A-0110, 388-112A-0115, 388-115-0503, 388-115-0505, 388-115-0520, 388-115-0523, 388-115-0540, 388-115-05410, and repealing section 388-112A-0130 in response to and in compliance with E2SHB 1694 (chapter 424, Laws of 2023) passed during the 2023 legislative session. Other changes include the numerical representation, consistency, and inclusive language. Permanent rulemaking is in process. This emergency extension is necessary to keep the language in place until the CR-103P filed as WSR 24-05-003, will not be effective before the current emergency rules expire on March 7, 2024. When effective, the permanent rules filed as WSR 24-05-003 supersede this emergency.

Chapter 388-106 WAC

The department will be adopting new rules to implement the provisions of Engrossed Senate Bill 5440 (chapter 453, Laws of 2023). The Department of Social and Health Services (department) is adding new sections in chapter 388-106 WAC to support the new civil transitions program created as a result of ESB5440. These sections include WAC 388-106-2000 through 388-106-2050. The proposed rules describe eligibility for the civil transitions program, and the package of services provided for individuals who are referred by the Behavioral Health Administration who have been found not functionally and financially eligible for Long-Term Support Services due to a brain injury, intellectual, or developmental disability. The rules will describe services and the duration.

Chapters 388-71, 388-112A & 388-115 WAC

The Department of Social and Health Services (department) is amending WAC sections 388-71-0523, 388-71-0836, 388-71-0837, 388-71-0839, 388-71-0875, 388-71-0880, 388-71-0888, 388-71-0893, 388-71-0975, 388-71-0977, 388-71-0980, 388-71-1001, 388-112A-0010, 388-112A-0110, 388-112A-0115, 388-115-0503, 388-115-0505, 388-115-0520, 388-115-0523, 388-115-0540, 388-115-05410, and repealing section 388-112A-0130 in response to and in compliance with E2SHB 1694 (chapter 424, Laws of 2023) passed during the 2023 legislative session. The changes bring the rules into compliance with that law. Changes include the definition of “date of hire”, clarification on when the date of hire may be re-set, and additional family relationships related to long-term care worker training and continuing education requirements. Changes related to numerical representation, consistency, and inclusive language are also included. These rules are in place by emergency filing. When effective, this permanent adoption will supersede the emergency rules.

WACs 388-71-0906, 388-71-0911, 388-112A-0310 & 388-112A-0320

The purpose of the amendments is to remove HIV/AIDS training references used in the basic requirements training in WAC 388-71-0906, What topics must be taught in the core competencies of the 70-hour home care aide basic training?, 388-71-0911, What are the core competencies and learning objectives for the 70-hour home care aide basic training?, 388-112A-0310, What topics must be taught in the core competencies of the 70-hour home care aide training?, and 388-112A 0320, What are the core competencies and learning objectives for the 70-hour home care aide training? The HIV/AIDS training is no longer required per the repeal of RCW 70.24.270.

WAC 388-76-10060

This repeal of this rule is necessary because the training course required in the rule no longer meets the intended purpose. The subject matter of this training is covered in adult family home administrator training, which is required for adult family home (AFH) license applicants who have not already completed it. Currently, AFH license applicants must provide evidence of the orientation course with their license application. Timely registration and completion of the course has been a barrier to prospective AFH applicants, who must take the course at a local community college. Repealing this rule will enable applicants to submit their AFH license application sooner. This will decrease the amount of time it takes from the initiation of an application to submission. It will also reduce duplication of training content.

WACs 388-71-0876 & 388-112A-0081

This extension of emergency rules deals with WAC 388-71-0876, When must long-term care workers who were working or hired during the COVID-19 public health emergency complete training including required specialty training? and 388-112A-0081 When must long-term care workers who were working or hired during the COVID-19 public health emergency complete training including required specialty training? The department of social and health services (department) is requiring that long-term care workers (LTCWs) complete training and certification by certain dates in response to the COVID-19 public health emergency. The department divided the group of LTCWs into cohorts based on the employee’s date of hire or rehire. The rule requires each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically. The department is working in concert with the department of health and will defer to their emergency rules related to extending certification deadlines. Stakeholders have reported that the number of workers in multiple cohorts still needing training and certification far exceeds the number that can be trained and tested by the current deadlines. This will result in LTCW’s failing to complete the requirements in time and create risk to clients being able to access a qualified worker for provision of their personal care services. To prevent this, to avoid duplication and potential conflict of emergency rules, and to allow sufficient time for permanent rules to be in place, an additional emergency will be necessary. The current long term certification deadline for the last hire group is April 30, 2025. A CR 102 was filed under WSR 23-18-069 and a public hearing was held. Permanent rule making is in the process but will not be completed by the time the current emergency rule is set to expire.

Chapters 388-71, 388-112A & 388-115 WAC

The department is planning to amend WAC sections 388-71-0523, 388-71-0836, 388-71-0837, 388-71-0839, 388-71-0875, 388-71-0880, 388-71-0888, 388-71-0893, 388-71-0975, 388-71-0977, 388-71-0980, 388-71-1001, 388-112A-0010, 388-112A-0110, 388-112A-0115, 388-115-0503, 388-115-0505, 388-115-0520, 388-115-0523, 388-115-0540, and 388-115-05410, and repeal section 388-112A-0130 in response and in compliance to E2SHB 1694 (Chapter 424, Laws of 2023) dealing with training and certification requirements for individual providers and home care agency long-term care workers. The other changes include the numerical representation, consistency, and inclusive language. This is the second emergency rule, while proposed rules are in process. The department is proceeding with permanent rule adoption and has filed a CR-101 under 23-15-074 and a CR-102 proposal under WSR 23-23-043.

WACs 388-106-1800, 388-106-1805, 388-106-1810, 388-106-1815, 388-106-1820, 388-106-1825, 388-106-1830, 388-106-1835, 388-106-1840, 388-106-1845, 388-106-1850 & 388-106-1855

The department is adopting new sections in chapter 388-106 WAC describing Long-Term Services and Supports (LTSS) Presumptive Eligibility (PE) and functional eligibility criteria for clients who are discharging from acute care hospitals or diverting from community psychiatric facilities into an in-home setting with home and community-based services. 

WACs 388-97-1081, 388-97-1082 & 388-97-1091

The Department is amending the rules listed below to ensure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. The department is proposing adopting new sections to implement section 6 of ESHB 1120 (Chapter 203, Laws of 2021). The statute directs the department to adopt rules to grant exceptions to requirements in RCW 74.42.360(2) through (4), waive penalties, and suspend oversight activities for nursing homes. The emergency rule has been effective retroactively to the end date of the Governor’s proclamation 20-18, which had suspended these rules.

WAC 388-96-918

Legislature provided funding for wage equity for certain nursing facility providers and directed DSHS to make rule on verifying the spending and recouping unspent funds.

Elizabeth Pashley (360) 995-2807

Peter Graham (360) 725-2499

WACs 388-106-0010 & 388-106-0130

The department amended sections WAC 388-106-0010 “What definitions apply to this chapter?” and 388-106-0130 “How does the department determine the number of hours I may receive for in-home care?” Most changes are a result of the department’s efforts to modernize the Comprehensive Assessment and Reporting Evaluation (CARE) assessment tool. The amendments are consistent with updates made to the CARE tool. The changes were intended to be a part of WSR 20-23-124 and went through the majority of the rule-making review process, but had to be withdrawn in order to prioritize other rule-making priorities. There have been no changes that affect how the department determines eligibility or benefit level using the CARE tool. In addition, in WAC 388-106-0010, “Turning and repositioning program”, “Passive range of motion”, “Active range of motion”, and “Bowel program” definitions are being added. A couple of definitions that are no longer relevant are being removed. In WAC 388-106-0130, section (6)(d) indicating “home health aide” is being removed because it has not been a service available in the COPES waiver since 2017 (Public notice filed as WSR 16-15-065). Section (6)(c) is being removed because it is being added to 388-106-0010, “Informal support” (3) definition in this rule-making effort. Other updates to terminology were made due to CARE Modernization.

WACs 388-71-0523, 388-71-0836, 388-71-0837, 388-71-0838, 388-71-0839, 388-71-0875, 388-71-0880, 388-71-0888, 388-71-0893, 388-71-0975, 388-71-0977, 388-71-0980, 388-71-1001, 388-112A-0010, 388-112A-0110, 388-112A-0115, 388-112A-0130, 388-115-0503, 388-115-0505, 388-115-0520, 388-115-0523, 388-115-0540, and 388-115-05410

The department is amending sections of chapters 388-71, 388-112A, and 388-115 WAC in response to and in compliance with E2SHB 1694 passed during the 2023 legislative session. Changes included the definition of “date of hire”, clarification on when the date of hire may be re-set, and additional family relationships related to long-term care worker training and continuing education requirements. Changes related to numerical representation, consistency, and inclusive language are also included. Emergency rules are necessary because there is insufficient time to put permanent rules in place before the changes in law go into effect on July 23, 2023. Permanent rules are also in process.
 

WACs 388-71-0876 & 388-112A-0081

WAC 388-71-0876 When must long-term care workers who were working or hired during the COVID-19 public health emergency complete training including required specialty training?, 388-112A-0081 When must long-term care workers who were working or hired during the COVID-19 public health emergency complete training including required specialty training? The Department of Social and Health Services (department) is requiring that Long-term care workers (LTCWs) complete training and certification by certain dates in response to the COVID-19 public health emergency. The department divided the group of LTCWs into cohorts based on the employee’s date of hire or rehire. The rule requires each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically. Stakeholders have reported that the number of workers in multiple cohorts still needing training and certification far exceeds the number that can be trained and tested by the current deadlines. This will result in LTCW’s failing to complete the requirements in time and create risk to clients being able to access a qualified worker for provision of their personal care services. To prevent this, and to avoid duplication and potential conflict of emergency rules, the department is working in concert with the Department of Health and will defer to their emergency rules related to extending certification deadlines. The current long-term certification deadline for the last hire group is March 28, 2024. Permanent rule making is in the process, the department filed a CR 101 under WSR 23-11-075. This emergency rule supersedes the emergency rule filed as WSR 23-09-052.

Chapter 388-112B WAC

This new chapter 388-112B WAC for Behavioral Health Workers, Facility Based Workers, Geriatric Behavioral Health Worker Training and Curriculum Requirements sets competencies and standards to be used by nursing home facilities. The new WAC chapter creates the curriculum required by RCW 74.39A.078 and set rules for approval of the curriculum by the department. House Bill 1548 was codified as RCW 74.39A.078. This law requires the Department of Social and Health Services to adopt rules to establish minimum competencies and standards for the approval of curricula for facility-based workers serving persons with behavioral health needs and geriatric behavioral health needs. The curricula must include at least 30 hours of training specific to the diagnosis, care, and crisis management of residents with a mental health disorder, traumatic brain injury, or dementia. The curricula must be outcome-based, and the effectiveness measured by demonstrated competency in the core specialty areas using a competency test.
 

WACs 388-106-1900 & 388-106-1915

The Department of Social and Health Services amended WAC 388-106-1900 What definitions apply to Medicaid Alternative Care (MAC) and Tailored Support for Older Adults (TSOA) services? and 388-106-1915 What services may I receive in MAC and TSOA? The rules clarify definition language, add additional services which are included in the 1115 Medicaid Transformation Waiver Renewal, as well as adding clarifying, and updating language.

WACs 388-76-10350, 388-76-10351, 388-78A-2100, 388-78A-2101, 388-107-0080, and 388-107-0081

Amending WAC 388-76-10350 Assessment—Updates required, 388-78A-2100 Ongoing assessments, 388-107-0080 Ongoing comprehensive assessments, and adding new rules 388-76-10351, 388-78A-2101, and 388-107-0081 to codify the timeline and requirements established under emergency rules in effect during the COVID-19 public health emergency.

WACs 388-71-0992 & 388-112A-0613

WAC 388-71-0992 When must continuing education be completed when public health emergency waivers are lifted, and what continuing education credit is granted to long-term care workers employed during the pandemic? and 388-112A-0613 When must continuing education be completed when public health emergency waivers are lifted, and what continuing education credit is granted to long-term care workers employed during the pandemic? The department of social and health services (department) is providing extended time for Long-term Care Workers to complete continuing education requirements in response to the COVID-19 public health emergency. The department will be granting 12 hours of on-the-job training continuing education. A set deadline of 120 days after the end of the gubernatorial waivers to complete any other continuing education that may have become due while the waivers were in place. In response to community partner concerns, the department is extending the deadline until August 31, 2023, to allow more time to complete continuing education requirements. This emergency rule will extend the emergency filed as WSR 23-06-023. The department has filed a CR 101 under WSR 23-11-075 to begin the permanent process.

WACs 388-106-0270 & 388-106-0274

The department adopted amended sections to WAC 388-106-0270(5) "What services are available under community first choice (CFC)?" and 388-106-0274(1) and (3) "Are there limits to the assistive technology I may receive?". The purpose of the amended language provided clarification to our stakeholders on what CFC assistive technology is, the examples of CFC assistive technology, the examples of items that are not covered as CFC assistive technology, and what a treating professional providing a written recommendation should know about the assistive technology item. The rules also addressed the process when individuals request the assistive technology. The adopted amendments assist case managers, and CFC clients in understanding program requirements.

WACs 388-76-10000, 388-76-10004, 388-76-10030, 388-76-10031, 388-76-10032, 388-76-10055, 388-76-10175, 388-76-10191, 388-76-10192, 388-76-10193, 388-76-10780, 388-76-11050 & 388-76-11055

This rulemaking is necessary to incorporate ESHB 1023, 2020 Regular Session, into the rules. This passed legislation allows certain adult family home providers to increase their capacity from six residents to eight. This rulemaking is also intended to address challenges that the adult family home industry is facing related to complying with the liability insurance requirements in the current rules, and to clarify use, implementation, and enforcement of management agreements. New rules were developed to create a process for adult family home providers to request an exemption to rule. This was requested during the stakeholder meetings.

WACs 388-97-1081, 388-97-1082 & 388-97-1091

The Department is amending the rules listed to ensure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. The department is proposing adopting new sections to implement section 6 of ESHB 1120 (Chapter 203, Laws of 2021). The statute directs the department to adopt rules to grant exceptions to requirements in RCW 74.42.360(2) through (4), waive penalties, and suspend oversight activities for nursing homes. The emergency rules have been in effect retroactively to the end date of the Governor’s proclamation 20-18, which had suspended these rules. The department has filed CR 101 under WSR 21-14-049. The threat of COVID-19 to our most vulnerable populations is significant, especially for those receiving long-term care services in their homes and congregate settings, such as long-term care facilities. Current nursing home rules require large nonessential community providers to have a registered nurse on duty directly supervising resident care 24 hours per day, seven days per week; and to provide a minimum of 3.4 hours of direct care for each resident every day. These rules are necessary to instruct and inform nursing homes on the process the department will use to prioritize and resume oversight of minimum staffing standards, bringing all service providers back into compliance with statutory requirements by October 27, 2023. The emergency rules are necessary to maintain the suspension of requirements related to nursing home minimum staffing standards consistent with ESHB 1120 and allow the department to adopt permanent rules to maintain the suspension for the duration required under the statute.

WACs 388-71-0876 & 388-112A-0081

The Department of Social and Health Services (department) is requiring that Long-term Care Workers (LTCWs) complete training and certification by certain dates in response to the COVID-19 public health emergency. The department divided the group of LTCWs into cohorts based on the employee’s date of hire or rehire. The rule requires each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically. The department is extending the deadlines to allow more time to complete training and certification. Permanent rule making is in the rule development phase of the permanent process. Long-term Care Workers hired or rehired during the COVID-19 public health emergency are required to complete certain training and certification requirements within specific deadlines. Stakeholders have reported that the number of workers in multiple cohorts still needing training and certification far exceeds the number that can be trained by the current deadline. This will result in LTCW’s failing to complete the requirements in time and create risk to clients being able to access a qualified workers for provision of their personal care services. To prevent this, the Department is extending the training and certification deadlines. These changes must take effect before the current emergency rule expires because there is a group of workers who will suddenly be out of compliance and unable to work if they have not completed training by the current deadlines. For that reason, getting new dates in place is critical. This emergency rule supersedes the emergency rule filed as WSR 23-04-055.

WACs 388-97-0120 & 388-97-0140

The department is amending WAC 388-97-0120 and 388-97-0140 to waive and suspend the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal of the nursing home transfer or discharge decision. The continued federal public health emergency related to the COVID-19 pandemic continues to require more rapid transfers and discharges than the rule permits. This emergency rule waives the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal hearing and improves resident safety by allowing faster grouping of COVID-19 positive residents in one facility, or grouping asymptomatic residents together. This helps expedite infection control processes, and maximizes the availability of nursing home beds. This amendment will align with federal rules.

EMERGENCY ADOPTION
WSR 23-07-108
Effective Date: March 22, 2023

*WITHDRAWN*

WACs 388-71-0992 & 388-112A-0613

The Department of Social and Health Services (department) is providing an extended time for Long-term Care Workers to complete continuing education requirements in response to the COVID-19 public health emergency. The department will be granting 12 hours of on-the-job training continuing education. A set deadline of 120 days after the end of the gubernatorial waivers to complete any other continuing education that may become due while the waivers were in place. Long-term Care Workers hired or rehired during the COVID-19 public health emergency are required to complete 12 hours of continuing education annually by their birthdate. Stakeholders have reported that there are a significant number of workers still needing to complete continuing education hours that came due while the pandemic waivers were in place. This is affecting workers’ ability to meet requirements for current renewal cycles because hours must be applied to the older renewal cycles first. This will result in long-term care workers being out of compliance and create risks to clients being able to access qualified workers for provision of their personal care services. In response to community partner concerns, the department is extending the deadline until August 31, 2023, to allow more time to complete continuing education requirements.

WACs 388-97-1081, 388-97-1082 & 388-97-1091

The Department is amending the rules listed to ensure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. The department is proposing adopting new sections to implement section 6 of ESHB 1120 (Chapter 203, Laws of 2021). The statute directs the department to adopt rules to grant exceptions to requirements in RCW 74.42.360(2) through (4), waive penalties, and suspend oversight activities for nursing homes. The emergency rule will be effective retroactively to October 27, 2022, the end date of the Governor’s proclamation 20-18, which had suspended RCW 74.42.360(3) and WAC 388-97-1080(3).

WACs 388-76-10350, 388-78A-2100 & 388-107-0080

The department is extending the amendment of the rules listed below. Because of the ongoing COVID-19 public health emergency, on January 18, 2022, Home and Community Services (HCS) temporarily suspended conducting ongoing assessments for HCS clients living in adult family homes, assisted living facilities, and enhanced services facilities. The intent of this suspension is to allow HCS staff to focus on conducting assessments for patients staying in hospitals to facilitate their discharge to long-term care facilities and improve the current surge capacity in hospitals. This emergency rule continues to suspend the regulatory requirement for these facilities to complete assessments for HCS clients while the HCS assessors are not available. The Centers for Medicare and Medicaid Services (CMS) approved this flexibility for Medicaid beneficiaries needing specific Long-Term Care Services and Supports whose assessments meet the requirements under 42 CFR 441.720. This emergency rule was put in place at a time when many hospitals in this state were at or over capacity, leading them to re-direct patients who are needing emergency care and delaying procedures that are necessary but non-emergent. This put the health of all residents of Washington at risk if they were not able to get the care they needed at their local hospital. By temporarily suspending assessment requirements for residents living in adult family homes, assisted living facilities, and enhanced services facilities, HCS was able to focus personnel resources on assessing patients in hospitals, which facilitated admissions to long-term care facilities and increased the bed availability in hospitals. HCS is continuing to use the extended timelines in this rule to address hospital capacity surges as they arise and to focus on significant change assessments.

WACs 388-71-0876 & 388-112A-0081

WAC 388-71-0876 When must long-term care workers who were working or hired during the COVID-19 public health emergency complete training including required specialty training? WAC 388-112A-0081 When must long-term care workers who were working or hired during COVID-19 public health emergency complete training including required specialty training? The Department of Social and Health Services (department) is requiring that Long-term Care Workers (LTCWs) complete training and certification by certain dates in response to the COVID-19 public health emergency. The department divided the group of LTCWs into cohorts based on the employee’s date of hire or rehire. The rule requires each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically. The department is extending the deadlines to allow more time to complete training and certification. This emergency rule supersedes the emergency rule filed as WSR 22-22-043.

WACs 388-97-1915 & 388-97-1975

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and care for residents during the COVID-19 outbreak. This rulemaking extends emergency rules filed consecutively since April 13, 2020, to maintain compliance with blanket waivers issued by the Centers for Medicare and Medicaid Services (CMS). The amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to delay the requirement by 30 days the requirement to complete Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home under WAC 388-97-1915 and WAC 388-97-1975.

WAC 388-107-0630

This rulemaking is necessary to ensure WAC 388-107-0630 is consistent with the requirements of chapter 388-112A WAC for training and home care aide certification, to support the health and safety of residents in this setting, and to benefit enhanced services facilities business owners. During the COVID-19 pandemic, this rule was suspended to allow enhanced services facilities to hire home care aids who could not meet the training requirements of chapter 388-112A WAC, which was suspended under Governor Proclamation 20-10. The department has since adopted rules to address the backlog of home care aides needing training and/or testing for certification caused by the COVID-19 pandemic. The training rules allow additional time for home care aides to be trained and certified by requiring them to complete training requirements by certain dates based on their initial hire date. This amendment to WAC 388-107-0630 will align enhanced services facilities requirements with the newly adopted requirements in chapter 388-112A WAC.

WACs 388-71-05833; 388-71-05834; 388-71-0837; 388-71-0839; 388-71-0841; 388-71-0846; 388-71-0850; 388-71-0855; 388-71-0860; 388-71-0875; 388-71-0906; 388-71-0911; 388-71-0916; 388-71-0921; 388-71-0931; 388-71-0932; 388-71-0936; 388-71-0941; 388-71-0946; 388-71-0951; 388-71-0958, 388-71-0961; 388-71-0962; 388-71-0970; 388-71-0971; 388-71-0973; 388-71-0980; 388-71-0985; 388-71-0990; 388-71-0991; 388-71-1001; 388-71-1006; 388-71-1021; 388-71-1026; 388-71-1031; 388-71-1045; 388-71-1050; 388-71-1051; 388-71-1055; 388-71-1060; 388-71-1064; 388-71-1067; 388-71-1068; 388-71-1069; 388-71-1076; 388-71-1083; 388-71-1091; 388-71-1096; 388-71-1106; 388-71-1111; 388-71-1120; 388-71-1125; 388-71-1130; 388-112A-0105; 388-112A-0110; 388-112A-0115; 388-112A-0118; 388-112A-0120; 388-112A-0125; 388-112A-0130; 388-112A-0200; 388-112A-0210; 388-112A-0220; 388-112A-0240; 388-112A-0310; 388-112A-0320; 388-112A-0330; 388-112A-0350; 388-112A-0480; 388-112A-0520; 388-112A-0530; 388-112A-0540; 388-112A-0550; 388-112A-0560; 388-112A-0580; 388-112A-0585; 388-112A-0610; 388-112A-0611; 388-112A-0612; 388-112A-0620; 388-112A-0840; 388-112A-0920; 388-112A-0940; 388-112A-0950; 388-112A-1010; 388-112A-1020; 388-112A-1230; 388-112A-1240; 388-112A-1250; 388-112A-1270; 388-112A-1285; 388-112A-1292; 388-112A-1300; and 388-112A-1310 and various subheadings in both chapters.

Training requirements for all long-term care workers are regulated by the same policies. Long-term care workers who work in home environments are regulated under chapter 388-71 WAC, while workers in assisted living facilities, enhanced services facilities, and adult family homes are regulated under chapter 388-112A WAC. As the result of many years of amendments and additions to rules that were not done in concert between the two chapters, the language between chapter 388-71 and 388-112A WAC has diverged resulting in significant differences. These differences cause unnecessary confusion. The modifications contained in this proposal will not change policy or practice, but will reconcile the differences, update language, and create more current and uniform policies for long-term care workers. Amendments fall under the following categories: Changing numbers over 10 to numbers rather than words, adding rules to chapter 388-71 WAC that are already in place in 388-112A but should be in both training sections, moving rules to new, more logical locations, clarifying language suggested by stakeholders, making wording between chapters more consistent, gender equity changes, consolidating several redundant rules into a single rule, changing “70-hour long-term care basic training” to “70-hour home care aide basic training”, correction of typographical and other unintended errors, and anticipation of a future Department of Health rule change related to training and the date of hire.
Effective Date: January 9, 2023

WACs 388-06-0020, 388-06-0030, 388-06-0500, 388-06-0510, 388-06-0525, 388-06-0530, 388-06-0535, 388-06-0540, and 388-06-0550

WACs 388-06-0030, 388-06-0500, 388-06-0510, 388-06-0525, 388-06-0530 (amended); 388-06-0520, 388-06-0535, 388-06-0540 (repealed); 388-06-0550 (new) sections in chapter 388-06 WAC One Hundred and Twenty-Day Provisional Hire-Pending FBI Background Check Results. The department’s purpose for rule making under chapter 203, Laws of 2021 is to allow a long-term care worker, or service provider to work on a conditional basis pending the completion of a background check. The long-term care worker or service provider may have unsupervised access to vulnerable adults pending the results of a fingerprint-based background check required under RCW 43.43.837 and RCW 74.39A.056.

WACs 388-97-0120 & 388-97-0140

The department is amending WAC 388-97-0140 and 388-97-0120 to waive and suspend the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal of the nursing home transfer or discharge decision. The COVID-19 pandemic continues to require more rapid transfers and discharges than the rule permits. This emergency rule waives the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal hearing and improves resident safety by allowing faster grouping of COVID-19 positive residents in one facility, or grouping asymptomatic residents together. This helps expedite infection control processes, and maximizes the availability of nursing home beds. This amendment will align with federal rules.

WACs 388-101-3130 and 388-101-31301

The purpose of these adopted rules is to amend WAC 388-101-3130, Certification evaluation and add a new section WAC 388-101-31301, Certification evaluation timelines, as necessary to prioritize and resume certification evaluations of service providers which were suspended during the declared emergency relating to the COVID-19 pandemic.    Upon the effective date, this CR-103P supersedes the CR-103E filed as WSR 22-22-060.

WAC 388-107-0630

This rulemaking is necessary to ensure WAC 388-107-0630 is consistent with the requirements of chapter 388-112A WAC for training and home care aide certification, to support the health and safety of residents in this setting, and to benefit enhanced services facilities business owners. This amendment to WAC 388-107-0630 will align enhanced services facilities requirements with the newly adopted requirements in chapter 388-112A WAC.

WAC 388-101-3130

The department is extending the amendment of the rule listed below to assure Certified Community Residential Services and Supports (CCRSS) providers are not significantly impeded from providing services and support to clients during the COVID-19 pandemic. Governor Inslee’s proclamation 20-18 and subsequent extensions identified that the pandemic has resulted in disruptions of long-term care systems, including the ability to safely conduct inspections. The governor’s proclamations included the suspension of licensing inspections for all long-term care settings with the exception of CCRSS settings. Current rule states the department may conduct an on-site certification evaluation for each service provider at any time, but at least once every two years. The amendment lengthens the amount of time to complete certification evaluations that are currently suspended for consistency and safety across all programs regulated by the department. The amendment will allow the department additional time to complete certification evaluations when it is safe and practical to do so. In addition, under the rule development phase of rulemaking, the department recently concluded discussions with stakeholders about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to the COVID-19 pandemic is necessary. The department previously filed the CR-101, and CR-102, and is continuing in the process of permanent rulemaking. In the meantime, the department is extending the emergency rule under RCW 34.05.350.

WAC 388-71-0876 and 388-112A-0081

WAC 388-71-0876 When must long-term care workers who were working or hired during the COVID-19 public health emergency complete training, including required specialty training? and 388-112A-0081 When must long-term care workers who were working or hired during the COVID-19 public health emergency complete training, including required specialty training? The Department and Social and Health Services (department) is requiring that Long-Term Care Workers (LTCWs) complete training and certification by certain dates in response to the COVID-19 public health emergency. The department divided the group of LTCWs into cohorts based on the employee’s date of hire or rehire. The rule requires each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically. The department is extending the deadline of the first cohort by folding them into the second cohort deadline.

WAC 388-06-0030, 388-06-0500, 388-06-0510, 388-06-0520, 388-06-0525, 388-06-0530, 388-06-0535, 388-06-0540 & 388-06-0550

The Department of Social and Health Services (department) was granted rulemaking in ESHB 1120 (chapter 203, Laws of 2021) rulemaking authority to reinstate the fingerprinting requirement for providers that were temporarily suspended by the Governor’s Proclamation due to the Public Health Emergency. The proposal also amends other rules in chapter 388-06 WAC to ensure there is consistency with one another and do not conflict with current background check rules in chapter 388-113 WAC Disqualifying Crimes and Negative Actions.

WACs 388-76-10350, 388-78A-2100 & 388-107-0080

The department is extending the amendment of the rules listed below. Because of the ongoing COVID-19 public health emergency, on January 18, 2022, Home and Community Services (HCS) temporarily suspended conducting ongoing assessments for HCS clients living in adult family homes, assisted living facilities, and enhanced services facilities. This suspension allows HCS staff to focus on conducting assessments for patients staying in hospitals to facilitate their discharge to long-term care facilities and improve the current surge capacity in hospitals. This emergency rule suspends the regulatory requirement for these facilities to complete assessments for HCS clients while the HCS assessors are not available. The Centers for Medicare and Medicaid Services (CMS) approved this flexibility for Medicaid beneficiaries needing specific Long-Term Care Services and Supports whose assessments meet the requirements under 42 CFR 441.720.

Chapters 388-71 and 388-113 WAC 

The intent of these rules is for the department to adopt, repeal, and amend sections in chapter 388-71 WAC Home and Community Services Programs and chapter 388-113 WAC Disqualifying Crimes and Negative Actions, because of the implementation and passage of Senate Bill 6199 in 2018 (chapter 278, Laws of 2018 Consumer Directed Employment (CDE) Program—Individual Providers), and the change from Individual Providers contracted with the department to Individual Providers employed by the CDE. The former rules were no longer applicable because all IPs have been hired by the CDE.

WACs 388-97-1915 and 1975

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. This rulemaking extends emergency rules filed consecutively since April 13, 2020, to maintain compliance with blanket waivers issued by the Centers for Medicare and Medicaid Services (CMS). The amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic until such time as the CMS reinstates their rules. The federal rules were amended to delay the requirement by 30 days to complete Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home under WAC 388-97-1915 and WAC 388-97-1975. The department also filed a CR-101 under WSR 21-11-062 and is continuing discussions about adding rules that explain the circumstances and time periods under which suspension of rules was necessary due to COVID.

WACs 388-106-1400, -1405, -1422, -1455, -1458, -1475

The intent of these rule changes is to amend New Freedom WACs that have not been updated since 2013. The department is updating language that will enable participants on the New Freedom program to receive covered goods and services timelier, to clarify goods and service items that cannot be purchased under the New Freedom program, and other minor language updates.

WACs 388-106-1900, -1905, -1910, -1915,-1931, -1932, -1945, & -1950

The department is amending the rules above due to changes in qualifications for TCARE assessments, to indicate changes made to TCARE screening and assessment process, to modify the TCARE screening measures, to indicate changes in the screening scores due to the changed screening measures, and to indicate changes made to the GetCare screening questions and scores for step three services.

WACs 388-76-10912, 388-78A-3141, 388-97-4361, 388-107-1421

The purpose of these rules is to implement sections of ESHB 1120 (Chapter 203, Laws of 2021) that direct the department to adopt rules to reestablish inspection timelines for nursing homes, assisted living facilities, adult family homes, and enhanced services facilities.

WACs 388-97-0120, -0140

The department is amending WAC 388-97-0140 and 388-97-0120 to waive and suspend the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal of the nursing home transfer or discharge decision. The COVID-19 pandemic continues to require more rapid transfers and discharges than the rule permits. This emergency rule waives the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal hearing, and improves resident safety by allowing faster grouping of COVID-19 positive residents in one facility, or grouping asymptomatic residents together. This helps expedite infection control processes, and maximizes the availability of nursing home beds. This amendment will align with federal rules.

WAC 388-101-3130

The department is extending the amendment of the rule listed below to assure Certified Community Residential Services and Supports (CCRSS) providers are not significantly impeded from providing services and support to clients during the COVID-19 pandemic. Governor Inslee’s proclamation 20-18 and subsequent extensions identified that the pandemic has resulted in disruptions of long-term care systems, including the ability to safely conduct inspections. The governor’s proclamations included the suspension of licensing inspections for all long-term care settings with the exception of CCRSS settings. Current rule states the department may conduct an on-site certification evaluation for each service provider at any time, but at least once every two years. The amendment lengthens the amount of time to complete certification evaluations that are currently suspended for consistency and safety across all programs regulated by the department. The amendment will allow the department additional time to complete certification evaluations when it is safe and practical to do so. In addition, under the rule development phase of rule-making, the department is in discussions with stakeholders about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary. The department previously filed the CR-101 under WSR 20-24-092 and is continuing the process of permanent rule-making. In addition, under the rule development phase of rule-making, the department is in discussions with stakeholders about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary. In the meantime, the department is extending the emergency rule under RCW 34.05.350.

WACs 388-06-0030, 388-06-0500, 388-06-0510, 388-06-0525, 388-06-0530 (amended); 388-06-0030, 388-06-0500, 388-06-0510, 388-06-0525, 388-06-0530 (repealed); 388-06-0550 (new).

The department was granted rule making authority in SHB 1120 and is extending emergency rules that reinstate the fingerprinting requirement for providers that was temporarily suspended by the governor’s proclamation due to the Public Health Emergency (PHE). The proposal also amends other rules in Chapter 388-06 WAC to ensure they are consistent with one another and do not conflict with current background check rules in chapter 388-113 WAC. While the Governor’s proclamation is still in place that temporarily waived fingerprinting, to start preparing for the end of the PHE. DSHS filed a CR-101 under WSR 22-07-064. As the PHE continues, the department is continuing to monitor capacity issues for providers who need to complete fingerprinting, working with stakeholders, and coordinating with other state agencies on rule content prior to the filing of the proposed rule notice (CR-102). To continue this work the department needs an extension of the emergency rule.

WACs 388-76-10350, 388-78A-2100, 388-107-0080

The department is extending the amendment of the rules listed below. Because of the ongoing COVID-19 public health emergency, on January 18, 2022, Home and Community Services (HCS) temporarily suspended conducting ongoing assessments for HCS clients living in adult family homes, assisted living facilities, and enhanced services facilities. The intent of this suspension is to allow HCS staff to focus on conducting assessments for patients staying in hospitals to facilitate their discharge to long-term care facilities and improve the current surge capacity in hospitals. This is a subsequent emergency rule filing and suspends the regulatory requirement for these facilities to complete assessments for HCS clients while the HCS assessors are not available. The Centers for Medicare and Medicaid Services (CMS) approved this flexibility for Medicaid beneficiaries needing specific Long-Term Care Services and Supports whose assessments meet the requirements under 42 CFR 441.720.  

WACs 388-103-0001, -0210

The purpose of this rule is to implement changes to chapter 74.34 RCW in response to the passing of Engrossed Second Substitute House Bill 1320 in 2021, as well as clarifying the implementation of 42 U.S.C. Sec. 1396r (g)(1)(D) and Sec. 1395i-3 (g)(1)(D).

Chapters 388-71 WAC & 388-112A WAC

The department is adding two new sections in chapter 388-71 WAC and 388-112A. The intent is to respond to the backlog of long-term care workers needing training and/or testing for certification caused by the COVID-19 pandemic. These rules will allow additional time for long-term care workers to be trained and certified by requiring them to complete training requirements by certain dates based on. Workers are also credited with continuing education hours for on-the-job training during the COVID-19 emergency, and deadlines for completing continuing education are also extended.

If the timelines for training, certification, and continuing education are not extended, the inability of long-term care workers to access training, certification, and continuing education during the COVID-19 public health emergency will result in a shortage of long-term care workers which will directly affect public access to quality long-term care services.

WAC 388-97-1740, -2400 

Emergency RESCINDED under WSR 22-12-059

On January 26, 2022, the department filed emergency rules under WSR 22-04-038 to suspend requirements in WACs 388-97-1740, Disaster and emergency preparedness, 388-97-1760, Quality assessment and assurance, and 388-97-2400, Resident rooms. The filing was an extension of emergency rules filed consecutively since June 23, 2020, to maintain compliance with blanket waivers issued by the Centers for Medicare and Medicaid Services (CMS) to assure nursing homes are not significantly impeded from caring for residents during the COVID-19 pandemic.

Effective May 7, 2022, CMS rescinded the blanket waiver related to quality assessment and assurance requirements, but continued the federal waivers related to fire drills and windows in each resident room. This rule filing cancels and supersedes the emergency rules filed as WSR 22-04-038, reimplements the requirements related to quality assessment and assurance under WAC 388-97-1760 for consistency with CMS reimplementation of these requirements, and extends the amendment of the disaster preparedness rule and resident room rule listed below to continue to align Washington state nursing home rules with federal rules that are suspended or amended under the CMS blanket waiver. Specifically, the following amendments continue to be suspended under this rule filing:

1) The federal rules suspended fire drills to reduce grouping of staff and/or residents that might increase the likelihood of transmitting COVID-19. Current state rules require periodic fire drills. This emergency removes the state requirement to have fire drills, but continues to require staff training on the fire plan.

2) The federal rules requiring a window in each resident room were waived to permit use of space not normally used for resident care to be utilized as a resident room. Current state rules require each resident room have a transparent glass window located on an exterior wall, with additional size and location requirements for new construction. This emergency rule removes the state requirement to have a window in each resident room.

The department filed a CR-101 under WSR 20-21-034 and is continuing discussions with stakeholders about adopting rules that explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

EMERGENCY ADOPTION
WSR 22-11-088
Effective Date: May 18, 2022

The emergency adoption was RESCINDED under WSR 22-12-059

WAC 388-97-1915, -1975

The department filed emergency rules on April 11, 2022, under WSR 22-09-014 to suspend WAC 388-97-0920, Right to Participate in Resident Groups; and delay by 30 days the requirement to complete Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home under WAC 388-97-1915 and -1975. This was an extension of emergency rules consecutively filed since April 13, 2020, to maintain compliance with blanket waivers issued by the Centers for Medicare and Medicaid Services (CMS) to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak.

Effective May 7, 2022, CMS rescinded the blanket waiver related to the resident right to participate in resident groups, but continued the federal waiver of PASRR requirements. This rule filing cancels and supersedes the emergency rules filed as WSR 22-09-014, reimplements the requirements related to the resident right to participate in resident groups under WAC 388-97-0920 for consistency with CMS reimplementation of these requirements, and extends the amendment of the PASRR rules listed below to continue to align Washington state nursing home rules with federal rules that are suspended or amended under the CMS blanket waiver.

The department filed a CR-101 under WSR 21-11-062 and is continuing discussions about adding rules that explain the circumstances and time periods under which suspension of rules was necessary due to COVID.

WAC 388-76-10455

The department is amending WAC 388-76-10455 to allow Adult Family Home providers the authority to administer epinephrine to residents in their care who have an assessed condition requiring administration of epinephrine. When individuals with severe allergies causing anaphylaxis are prescribed epinephrine, the Adult Family Home must be able to administer the medication to residents who require assistance. Current rule requires medication administration be performed by a “practitioner,” by nurse delegation or by a family member or legally appointed resident representative. Adult Family Home providers do not meet the definition of “practitioner” and the task cannot be nurse-delegated. Due to the emergency nature of the medication, family or others outside the Adult Family Home cannot administer the medication timely.

WAC 388-112A-1245

The department is amending WAC 388-112A-1245, What are the requirements and minimum qualifications for high school instructors and programs that offer core basic, population specific, nurse delegation, and specialty trainings? to rephrase subsection (f). The change adds clarity, does not alter the intent or context of the rule, and will not affect any existing rule.

WAC 88-71-0873, 388-71-0836, 388-71-8070, 388-112A-0010, 388-112A-0030, 388-112A-0305

The department is adding two new sections and amending four sections in chapter 388-71 WAC, Home and Community Services and Programs, and chapter 388-112A WAC, Residential Long-Term Care Services Training.

RCW 18.20.270 (9) stipulates that “the coordinated system of long-term care training and education must include the use of innovative types of learning strategies such as internet resources, videotapes, and distance learning using satellite technology coordinated through community colleges or other entities, as defined by the department.”

Under gubernatorial suspension of training rules and coordinated efforts to expand opportunities for remote training during the COVID-19 pandemic, DSHS contracted with a DSHS approved training company to conduct a pilot basic training program in which skills would be taught, demonstrated, reinforced, and remediated remotely.

These rules will set standards for remote skills training and update current definitions and basic training rules to allow for virtual classroom and remote skills training. The effect will be to expand opportunities for long-term care worker training statewide, especially in remote areas.

WAC 388-97-0920, -1915, -1975

The department is extending the amendment of the rules listed above to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to delay the requirement by 30 days for a Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home. Federal rules also amended requirements that ensure residents can meet in groups. These rules also establish the right of residents to participate in resident groups. The department filed a CR 101 preproposal under WSR 21-11-062 to begin the permanent process. Under the rule development phase of the rule-making process, the department is in discussions about adding language to the rules that explains the circumstances and time periods under which suspension of rules due to COVID was necessary.

WAC 388-71-0876, 388-71-0992, 388-112A-0081, 388-112A-0613

The department is requiring Long-term Care Workers to complete training requirements by certain dates that would potentially be before the suspension of the training requirements ends. The Department is dividing the group of LTCWs who are working now and started within 120 days of when the suspension went into place in early 2020, into cohorts based on length of time working. The rule would then require each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically. This emergency filing cancels and supersedes the emergency filed as WSR 22-04-008 on January 21, 2022. Long-term Care Workers are required to complete certain training requirements within specific deadlines. The passage of Engrossed Substitute House Bill 1120 during the 2021 Legislative Session, the suspension of training requirements deadlines will end when the public health emergency ends or if the Governor or the Legislature acts. DSHS anticipates that the end of the suspension of LTCW training requirements would create a sudden surge in demand for training that would likely exceed capacity of training entities and result in LTCW’s failing to complete the requirements in time.

WAC 388-97-0300

The emergency adoption was RESCINDED under WSR 22-11-011A

The department is extending the amendment of the rule listed above to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 epidemic. These amendments align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow nursing facilities to provide clinical records to residents and resident representatives in ten working days instead of two working days. Current state rules specify clinical records be accessible to residents and their representatives for review within 24 hours and copies must be provided within two working days. The amendment lengthens the time nursing homes have to provide the resident access to, or copies of the requested clinical record from two to ten days. The amendment does not permit the nursing facility to deny the resident access to records. The department filed a CR 101 preproposal under WSR 20-19-009. In addition, under the rule development phase of rule making, the department continues discussions with interested parties about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

EMERGENCY ADOPTION
WSR 22-08-068
Effective Date: April 7, 2022

The emergency adoption was RESCINDED under WSR 22-11-011A

WAC 388-97-0120, -0140

The department is amending WAC 388-97-0140 and 388-97-0120 to waive and suspend the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal of the nursing home transfer or discharge decision. The COVID-19 pandemic continues to require more rapid transfers and discharges than the rule permits. This emergency rule waives the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal hearing, and improves resident safety by allowing faster grouping of COVID-19 positive residents in one facility, or grouping asymptomatic residents together. This helps expedite infection control processes, and maximizes the availability of nursing home beds. This amendment will align with federal rules. The department filed a CR 101 preproposal under WSR 22-08-060 to begin the permanent process.

WAC 388-97-1260

The department is extending the amendment of the rule listed above to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow physicians to delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist. Current state rules specify physicians must perform some tasks. The amendment will permit delegation of those tasks as long as the task is within the scope of practice of the delegate, and the delegate works under the supervision of the physician. The department filed a preproposal CR 101 under WSR 20-17-133. In addition, under the rule development phase of rulemaking, the department continues with discussions about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

WAC 388-101-3130

The department is extending the amendment of the rule listed above to assure Certified Community Residential Services and Supports (CCRSS) providers are not significantly impeded from providing services and support to clients during the COVID-19 pandemic. Governor Inslee’s proclamation 20-18 and subsequent extensions identified that the pandemic resulted in disruptions of long-term care systems, including the ability to safely conduct inspections. The governor’s proclamations included the suspension of licensing inspections for all long-term care settings with the exception of CCRSS settings. Current rule states the department may conduct an on-site certification evaluation for each service provider at any time, but at least once every two years. The amendment lengthens the amount of time to complete certification evaluations that are currently suspended for consistency and safety across all programs regulated by the department. The amendment will allow the department additional time to complete certification evaluations when it is safe and practical to do so. The department filed a CR-101 under WSR 20-24-092 and is continuing the process of permanent rule-making. In addition, under the rule development phase of rule-making, the department is in discussions with stakeholders about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary. In the meantime, the department is extending the emergency rule under RCW 34.05.350.
 

WACs 388-76-10290(1); WACs 388-78A-2480(1), and -2485(1); WACs 388-101D-0650(1) and -0660(3) and WAC 388-107-0460(1); WACs 388-76-10265 and -10285; WAC 388-78A-2484; and WAC 388-107-0490 

The department is extending the suspension of the rules listed above to ensure long-term care facilities and providers are not significantly impeded during the hiring process due to an inability to access required tuberculosis (TB) testing as a result of the COVID-19 epidemic. Clinics providing TB testing continue to be short of staff and have limited availability throughout the state. These clinics are unable to provide the TB testing required as a part of the hiring process in many long-term care programs. These emergency rules will help increase the number of long-term care workers necessary to provide essential services for some of Washington’s most vulnerable residents.

388-71-0503

The department is amending WAC 388-71-0503, What definitions apply to WAC 388-71-0500 through WAC 388-71-05640? to rephrase the order of definitions to put them in alphabetical order. The change does not alter the intent or context of the rule and will not affect any existing rules.

WAC 388-96-107

The department is amending existing rules affecting specific programs as a result of the health crisis created by the coronavirus.

WAC 388-06-0550, WACs 388-06-0030, 388-06-0500, 388-06-0510, 388-06-0525, 388-06-0530, 388-06-0520, 388-06-0535, 388-06-0540

The Department was granted rule making authority in SHB 1120 and is therefore proposing emergency rules to reinstate the fingerprinting requirement for providers that was temporarily suspended by the governor’s proclamation due to the Public Health Emergency. The proposal also amends other rules in Chapter 388-06 to ensure they are consistent with one another and do not conflict with current background check rules in WAC chapter 388-113.

WAC 388-76-10350, 388-78A-2100,  388-107-0080

The department is amending the WACs above because on January 18, 2022, due to the ongoing COVID-19 public health emergency, Home and Community Services (HCS) temporarily suspended conducting ongoing assessments for HCS clients living in adult family homes, assisted living facilities, and enhanced services facilities. The intent of this suspension is to allow HCS staff to focus on conducting assessments for patients staying in hospitals, which will facilitate their discharge to long-term care facilities and improve the current surge capacity in hospitals. This emergency rule suspends the regulatory requirement for these facilities to complete assessments for HCS clients while the HCS assessors are not available. The Centers for Medicare and Medicaid Services (CMS) approved this flexibility for Medicaid beneficiaries needing specific Long-Term Care Services and Supports whose assessments meet the requirements under 42 CFR 441.720. The emergency rule will be effective retroactively to match the suspension effective date by HCS.

WAC 388-101-3000 and 388-101-3020

The department's Aging and Long-Term Support Administration (ALTSA) is amending WAC 388-101-3000, Definitions, to clarify that the definitions apply throughout chapter 388-101 WAC and chapter 388-101D WAC and to update the definition of abuse to reflect recent statutory changes; ALTSA is amending WAC 388-101-3020, Compliance, to make changes to promote the safety and well-being of Certified Community Residential Services and Supports (CCRSS) clients.
 

PERMANENT ADOPTION   

WSR 22-06-008 Effective date: March 21, 2022

WACs 388-78A -2524(1); 388-78A-2525(1), and 388-78A-2526(1)

The department is extending the amendment of the rules listed below and making the suspension retroactive to August 13, 2021 to assure Assisted Living Facilities are not significantly impeded during the hiring process due to an administrator’s inability to obtain a certificate of completion of a recognized administrator training as referenced in WAC 388-78A-2521. This will help to increase the number of long-term care administrators necessary to provide essential services to some of Washington’s most vulnerable adults during the outbreak of COVID-19 and will address the gap in suspended requirements from the expiration of the last emergency rules filed under WSR 21-09-046. The current rules require administrator training prior to assuming administrator duties or within six months of beginning duties for administrators meeting additional educational requirements. Currently, applicants for Assisted Living Facility administrator positions are unable to obtain the required training.

This rule making is necessary to establish a timeframe when the portions of the rules were suspended during the COVID-19 pandemic, and assisted living facilities were not required to comply with the suspended portions of the rules.

Virtual trainings have been developed and implemented for the assisted living facility administrators. Although the available capacity for these trainings has increased, they are limited to semi-annual offerings. Additional time is needed to facilitate additional courses to serve the backlog of applicants requesting this training.

WACs 388-97-1740, 1760, 2400

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 epidemic. These amendments align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. 1) The federal rules related to quality assurance activities were amended to narrow the scope of the quality assurance program to reviewing and taking action on adverse events and infection control. Current state rules require the nursing facility to identify issues that may adversely affect residents, including resident input from grievances. The state amendment continues to require quality assurance activities, but mandatory review in quality assurance would be limited to adverse events and infection control. 2) The federal rules suspended fire drills to reduce grouping of staff and/or residents that might increase the likelihood of transmitting COVID-19. Current state rules require periodic fire drills. The state amendment removes the requirement to have fire drills, but continues to require staff training on the fire plan. 3)  The federal rules requiring a window in each resident room were waived to permit use of space not normally used for resident care to be utilized as a resident room. Current state rules require each resident room have a transparent glass window located on an exterior wall, with additional size and location requirements for new construction. The state amendment removes the requirement to have a window in each resident room.

WACs 388-71-0876, 0992, 388-112A-0081, 0613

The department is requiring long-term care workers (LTCW) to complete training requirements by certain dates that would potentially be before the suspension of the training requirements ends. The department is dividing the group of LTCWs who are working now and started within 120 days of when the suspension went into place in early 2020, into cohorts based on length of time working. The rule would then require each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically.

WAC 388-97-0920, 1915, 1975

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to delay the requirement by 30 days for a Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home. Federal rules also amended requirements that ensure residents can meet in groups. These rules also establish the right of residents to participate in resident groups. Under the rule development phase of the rule-making process, the department is in discussions about adding language to the rules that explains the circumstances and time periods under which suspension of rules due to COVID was necessary.

WAC 388-97-0120, 0140

The department is amending WAC 388-97-0140 and 388-97-0120 to waive and suspend the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal of the nursing home transfer or discharge decision. The COVID-19 pandemic continues to require more rapid transfers and discharges than the rule permits. This emergency rule waives the requirement for nursing homes to suspend certain transfers and discharges pending the outcome of a resident appeal hearing, and improves resident safety by allowing faster grouping of COVID-19 positive residents in one facility, or grouping asymptomatic residents together. This helps expedite infection control processes, and maximizes the availability of nursing home beds. This amendment will align with federal rules. This WSR cancels and supersedes the emergency filed as WSR 21-24-069.

WAC 388-97-0300

The department is extending the amendment of the rule listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 epidemic. These amendments align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow nursing facilities to provide clinical records to residents and resident representatives in ten working days instead of two working days. Current state rules specify clinical records be accessible to residents and their representatives for review within 24 hours and copies must be provided within two working days. The amendment lengthens the time nursing homes have to provide the resident access to, or copies of the requested clinical record from two to ten days. The amendment does not permit the nursing facility to deny the resident access to records. The department filed a CR 101 preproposal under WSR 20-19-009. In addition, under the rule development phase of rulemaking, the department continues discussions with interested parties about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

EMERGENCY ADOPTION
WSR 22-01-057
Effective Date: December 15, 2021

WAC 388-97-0140

The department is amending WAC 388-97-0140 to waive and suspend the requirement for nursing homes to suspend transfers and discharges pending the outcome of a resident appeal of the nursing home transfer or discharge decision. The COVID-19 pandemic continues to require more rapid transfers and discharges than the rule permits. This emergency rule waives the requirement for nursing homes to suspend transfers and discharges pending the outcome of a resident appeal hearing, and improves resident safety by allowing faster grouping of COVID-19 positive residents in one facility, or grouping asymptomatic residents together. This helps expedite infection control processes, and maximizes the availability of nursing home beds.

WAC 388-97-1260

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow physicians to delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist. Current state rules specify physicians must perform some tasks. The amendment will permit delegation of those tasks as long as the task is within the scope of practice of the delegate, and the delegate works under the supervision of the physician.  The department filed a preproposal CR 101 under WSR 20-17-133. In addition, under the rule development phase of rulemaking, the department continues with discussions about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

WAC 388-101-3130

The department is extending the amendment of the rule listed below to assure Certified Community Residential Services and Supports (CCRSS) providers are not significantly impeded from providing services and support to clients during the COVID-19 pandemic. Governor Inslee’s proclamation 20-18 and subsequent extensions identified that the pandemic has resulted in disruptions of long-term care systems, including the ability to safely conduct inspections. The governor’s proclamations included the suspension of licensing inspections for all long-term care settings with the exception of CCRSS settings. Current rule states the department may conduct an on-site certification evaluation for each service provider at any time, but at least once every two years. The amendment lengthens the amount of time to complete certification evaluations that are currently suspended for consistency and safety across all programs regulated by the department. The amendment will allow the department additional time to complete certification evaluations when it is safe and practical to do so. The department filed a CR-101 under WSR 20-24-092 and is continuing the process of permanent rule-making. In addition, under the rule development phase of rule-making, the department is in discussions with stakeholders about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary. In the meantime, the department is extending the emergency rule under RCW 34.05.350.

WACs 388-97-0001 and 1090

The purpose of these adopted rules is to amend WAC 388-97-0001, Definitions; WAC 388-97-1090, Direct Care Hours; and other related rules as is required to implement EHB 1564 (Chapter 301, Laws of 2019).
 

Chapters 388-76, 78, 101D, 107 WAC

The department is extending the suspension of the rules listed below to ensure long-term care facilities and providers are not significantly impeded during the hiring process due to an inability to access required tuberculosis (TB) testing as a result of the COVID-19 epidemic. Clinics providing TB testing continue to be short of staff and have limited availability throughout the state. These clinics are unable to provide the TB testing required as a part of the hiring process in many long-term care programs. This circumstance is expected to exacerbate demand for long-term care workers when the pandemic has already significantly reduced the availability of long-term care workers in the state. These emergency rules will help increase the number of long-term care workers necessary to provide essential services for some of Washington’s most vulnerable residents.
 

WAC 388-113-0020

The department is amending WAC 388-113-0020, Which criminal convictions and pending charges automatically disqualify an individual from having unsupervised access to adult or minors who are receiving services in a program under chapters 388-71, 388-101, 388-106, 388-76, 388-78A, 388-97, 388-825, and 388-107 WAC?” The department is implementing changes to WAC 388-113-0020 related to the passage of Substitute House Bill 1411 passed in the 2021 Legislative Session. The effective date of the bill was July 25, 2021.

WACs 388-97-1740, 1760, 2400

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 epidemic. These amendments align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. 1) The federal rules related to quality assurance activities were amended to narrow the scope of the quality assurance program to reviewing and taking action on adverse events and infection control. Current state rules require the nursing facility to identify issues that may adversely affect residents, including resident input from grievances. The state amendment continues to require quality assurance activities, but mandatory review in quality assurance would be limited to adverse events and infection control. 2) The federal rules suspended fire drills to reduce grouping of staff and/or residents that might increase the likelihood of transmitting COVID-19. Current state rules require periodic fire drills. The state amendment removes the requirement to have fire drills, but continues to require staff training on the fire plan. 3)  The federal rules requiring a window in each resident room were waived to permit use of space not normally used for resident care to be utilized as a resident room. Current state rules require each resident room have a transparent glass window located on an exterior wall, with additional size and location requirements for new construction. The state amendment removes the requirement to have a window in each resident room.

WAC 388-106-0275

The department is amending WAC 388-106-0275 to enable budgetary flexibilities related to funding availability that may not exceed twenty-five hundred dollars per discharge for items and services, and to clarify items that may not be purchased under this rule.

Chapters 388-71, 112A WAC

The department is requiring Long-term Care Workers to complete training requirements by certain dates that would potentially be before the suspension of the training requirements ends. The department is dividing the group of LTCWs who are working now and started within 120 days of when the suspension went into place in early 2020, into cohorts based on length of time working. The rule would then require each cohort to complete the requirements by deadlines in rule with the “oldest” LTCWs having the first deadline and then working through the groups chronologically. The department is also providing twelve hours of continuing education credit for on-the-job learning related COVID-19 protocols for workers employed during specific dates in the pandemic emergency.

WAC 388-106-0250

The department is amending WAC 388-106-0250 to ensure that Roads to Community Living eligibility aligns with the federal Money Follows the Person (MFP) demonstration eligibility criteria. The Consolidated Appropriations Act of 2021, Section 204, outlines an extension of MFP Rebalancing Demonstration and changes the institutional residency period requirement, striking the 90-day institutional eligibility period and inserting a 60-day institutional period. It also generalizes the settings where MFP participants may receive services striking through the qualified community setting with four of less unrelated individuals and inserting home and community-based setting.

Chapters 388-71, 106, 113, 115 WAC

The department is amending, repealing and creating new sections in chapters 388-71 WAC, 388-106 WAC, and 388-113 WAC, and creating a new chapter 388-115 WAC, Consumer Directed Employer (CDE), as a reference for the individual providers employed by the CDE. The purpose for making changes is to clarify and consolidate rules related to background checks, disqualifying convictions, and negative actions, and character, competence and suitability (CC&S) determinations for Home and Community Services, Residential Care Services, and the Developmental Disabilities Administration (DDA). These changes will provide better clarity and understanding for the public and contracted entities, reduce the amount of WAC language across programs, and help preserve the health and safety of our clients. Other provisions related to long-term care worker qualifications, and a client’s choice of provider will also be clarified and consolidated.

WACs 388-97-0920, 1915, 1975

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to delay the requirement by 30 days for a Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home. Federal rules also amended requirements that ensure residents can meet in groups. These rules also establish the right of residents to participate in resident groups. Under the rule development phase of the rule-making process, the department is in discussions about adding language to the rules that explains the circumstances and time periods under which suspension of rules due to COVID was necessary.

WACs 388-97-1380, 1580

The department is extending the rules listed below to assure nursing homes are not obstructed from offering the COVID-19 vaccine to residents and staff because of clinical interference from required tuberculosis (TB) testing. Current state rules specify that nursing homes administer TB testing to residents and staff within three days of employment or admission, unless the person is excluded from testing under the rules. The amendment permits the nursing home to defer TB testing if the person is in the process of receiving the COVID-19 vaccine, or if receiving the vaccine is of greater benefit and less risk than performing TB testing before administering the vaccine. The amendment does not permit the nursing facility to defer TB testing for reasons other than the COVID-19 vaccine and requires the nursing home to complete the TB testing as soon as the COVID-19 vaccine recommendations permit. The rules also require screening for signs and symptoms of TB for those persons who are deferring TB testing.  The department filed a CR 101 preproposal under WSR 21-11-061. In addition, under the rule development phase of permanent rule making, the department is in discussions about adding or amending rule language to adopt permanently the deferral of TB testing until COVID-19 vaccination is completed if deemed appropriate.

WAC 388-112A-1245

The department is adding a new section in chapter 388-112A WAC, Residential Long-Term Care Services Training, to establish minimum qualifications for high school teachers with certain endorsements and experience to teach long-term care worker basic training to high school students. Providing training at the high school level represents the Aging and Long-Term Support Administration’s ongoing commitment to increase the long-term care workforce to fully serve the growing population of individuals who require those services in Washington state. Since most high school teachers do not come from a long-term care work environment, different minimum qualifications need to be established for those instructors.

WAC 388-97-0300

The department is extending the amendment of WAC 388-97-0300 to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 epidemic. These amendments align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow nursing facilities to provide clinical records to residents and resident representatives in ten working days instead of two working days. Current state rules specify clinical records be accessible to residents and their representatives for review within 24 hours and copies must be provided within two working days. The amendment lengthens the time nursing homes have to provide the resident access to, or copies of the requested clinical record from two to ten days. The amendment does not permit the nursing facility to deny the resident access to records. The department filed a CR 101 under WSR 20-19-009. In addition, under the rule development phase of rule making, the department continues discussions with interested parties about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

WAC 388-97-1260

The department is extending the amendment of WAC 388-97-1260 to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow physicians to delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist. Current state rules specify physicians must perform some tasks. The amendment will permit delegation of those tasks as long as the task is within the scope of practice of the delegate, and the delegate works under the supervision of the physician.  The department filed a preproposal CR 101 under WSR 20-17-133 and has continued to maintain the language under emergency filing. In addition, under the rule development phase of rule-making, the department continues with discussions about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

WAC 388-113-0020

To implement changes related to the passage of Substitute House Bill 1411 which adds time limitations to certain crimes which were previously permanently disqualifying: Assault 2, Assault 3, Delivery of marijuana, Extortion 2, Theft 1, and Robbery 2; to add a provision which removes the automatic disqualification, allowing for a Character Competence and Suitability review, for a crime listed which is accompanied by a court issued Certificate of Restoration of Opportunity (CROP); and to remove Domestic Violence (felonies only) from the list of automatically disqualifying crimes because by law this is an aggravator added to another crime, not a stand-alone crime.

WAC 388-101-3130

The department is extending the amendment of the rule listed below to assure Certified Community Residential Services and Supports (CCRSS) providers are not significantly impeded from providing services and support to clients during the COVID-19 pandemic. Governor Inslee’s proclamation 20-18 and subsequent extensions identified that the pandemic has resulted in disruptions of long-term care systems, including the ability to safely conduct inspections. The governor’s proclamations included the suspension of licensing inspections for all long-term care settings with the exception of CCRSS settings. Current rule states the department may conduct an on-site certification evaluation for each service provider at any time, but at least once every two years. The amendment lengthens the amount of time to complete certification evaluations that are currently suspended for consistency and safety across all programs regulated by the department. The amendment will allow the department additional time to complete certification evaluations when it is safe and practical to do so. In addition, under the rule development phase of rule-making, the department is in discussions with stakeholders about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary. The department previously filed the CR-101 and is continuing in the process of permanent rule-making. In the meantime, the department is extending the emergency rule under RCW 34.05.350.

EMERGENCY ADOPTION
WSR 21-16-038
Effective Date: July 30, 2021

Chapters 388-76, 78, 101D, 107 WAC

The department is extending the suspension of the rules listed below to ensure long-term care facilities and providers are not significantly impeded during the hiring process due to an inability to access required tuberculosis (TB) testing as a result of the COVID-19 epidemic. Clinics providing TB testing continue to be short of staff and have limited availability throughout the state. These clinics are unable to provide the TB testing required as a part of the hiring process in many long-term care programs. This circumstance is expected to exacerbate demand for long-term care workers when the pandemic has already significantly reduced the availability of long-term care workers in the state. These emergency rules help increase the number of long-term care workers necessary to provide essential services for some of Washington’s most vulnerable residents.

WAC 388-97-1740, 1760, 2400

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic.

WAC 388-78A-2360, 2371

The purpose of these adopted rules is to amend WAC 388-78A-2371, Investigations, in response to public comments. After the rule was adopted in 2019, the department evaluated the rule and agreed the effect of the new rule was broader than was intended. This amendment revises the rule to meet its intended purpose. WAC 388-78A-2360, Adult Day Services, is updated to correct a cross-reference to WAC 388-78A-2371.

Chapter 388-103 WAC

The purpose of the proposal is to create a new WAC chapter containing all DSHS Adult Protective Services (APS) regulatory subject matter. The effect of this change is to ensure that it is clear that APS is a division within ALTSA, and to ensure that it is clear what division is responsible for the chapter. In addition, the purpose of the proposal is to adapt and respond to the Crosswhite decision where a previous APS WAC definition was found to exceed the agency’s statutory authority. The anticipated effect of this proposal is to adapt the commonly understood meaning of “willful” observed in Crosswhite. A further proposal is to memorialize a petition process for CNAs. The effects of this are to create a process for CNAs to petition APS for their removal from the CNA registry regarding an instance of neglect. Finally, other purposes of this proposal are to clarify meanings, update grammar, and improve consistency within APS WAC and also between APS WAC and other WAC. The effect would be having WAC that is clearer, easier to understand, and consistent with other chapters of DSHS WAC.

WAC 388-112A-0105 and 0550

The department is proposing to amend WAC 388-112A-0105 and WAC 388-112A-0550 to change an outdated WAC reference from WAC 246-980-070 to WAC 246-980-025.

Chapter 388-76 WAC

The purpose of these adopted rules is to update requirements that are obsolete or require clarification. The department worked with internal and external stakeholders to identify rules that have been in place for a number of years and that are ambiguous or difficult to implement or enforce. The Department of Social and Health Services (DSHS) adopted changes to clarify rules that could have multiple interpretations, to respond to new or updated technology, and to improve resident safety. Because some of the requirements in the sections outlining resident rights are closely related to the federal regulations under the Home and Community Based Settings program, DSHS adapted the language to more closely align with those requirements. Similarly, Adult Family Homes must meet the requirements of chapter 388-76 WAC and chapter 51-51 WAC, State Building Code Adoption, and Amendment of the 2018 Edition of the International Residential Code. For easier use, some of the adopted changes in chapter 388-76 WAC incorporate parts of the International Residential Code as adopted by the Washington State Building Code Council.

WAC 388-106-0665

The department is amending WAC 388-106-0665, How are volunteers qualified to provide volunteer services? to change an outdated WAC reference from 388-71-0105 to WAC 388-103-0001.

WACs 388-97-1380, 1580

The department is amending the rules listed below to assure nursing homes are not obstructed from offering the COVID-19 vaccine to residents and staff because of clinical interference from required tuberculosis (TB) testing. Current state rules specify that nursing homes administer TB testing to residents and staff within three days of employment or admission, unless the person is excluded from testing under the rules. The amendment permits the nursing home to defer TB testing if the person is in the process of receiving the COVID-19 vaccine, or if receiving the vaccine is of greater benefit and less risk than performing TB testing before administering the vaccine. The amendment does not permit the nursing facility to defer TB testing for reasons other than the COVID-19 vaccine, and requires the nursing home to complete the TB testing as soon as the COVID-19 vaccine recommendations permit. The rules also require screening for signs and symptoms of TB for those persons who are deferring TB testing.

Chapter 388-97 WAC

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to delay the requirement by 30 days for a Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home. Federal rules also amended requirements that ensure residents can meet in groups. These rules also establish the right of residents to participate in resident groups.

WAC 388-97-0300

The department is extending the amendment of the rule listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow nursing facilities to provide clinical records to residents and resident representatives in ten working days instead of two working days. Current state rules specify clinical records be accessible to residents and their representatives for review within 24 hours and copies must be provided within two working days. The amendment lengthens the time nursing homes have to provide the resident access to, or copies of the requested clinical record from two to ten days. The amendment does not permit the nursing facility to deny the resident access to records.

WAC 388-97-1260

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow physicians to delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist. Current state rules specify physicians must perform some tasks. The amendment will permit delegation of those tasks as long as the task is within the scope of practice of the delegate, and the delegate works under the supervision of the physician. 

WAC 388-78A-2524, 2525, 2526

The department is extending the amendment of the rules listed below to assure Assisted Living Facilities are not significantly impeded during the hiring process due to an administrator’s inability to obtain a certificate of completion of a recognized administrator training as referenced in WAC 388-78A-2521. This will help to increase the number of long-term care administrators necessary to provide essential services to some of Washington’s most vulnerable adults during the outbreak of COVID-19. The current rules require administrator training prior to assuming administrator duties or within six months of beginning duties for administrators meeting additional educational requirements. Currently, applicants for Assisted Living Facility administrator positions are unable to obtain the required training.

Chapter 388-97 WAC

 The department is extending the amendment of the rules WAC 388-97-0120, 0920, 1000, 1020, 1915, 1975 to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to remove the timelines for completing and transmitting resident assessments, and to delay the requirement by 30 days for a Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home. Federal rules also amended care-planning timelines, discharge and transfer notice requirements, and requirements that ensure residents can meet in groups. The rules identified below currently require a PASRR screen prior to admission, have timelines for completion of the comprehensive resident assessment and care plan, and have timelines for the transmission of the resident assessment. These rules also establish the right of residents to participate in resident groups and require specific notice and time requirements before a resident discharge or transfer can occur.

WAC 388-101-3130

The department is extending the amendment of the rule listed below to assure Certified Community Residential Services and Supports (CCRSS) service providers are not significantly impeded from providing services and support to clients during the COVID-19 pandemic. Governor Inslee’s proclamation 20-18 and subsequent extensions identified that the pandemic has resulted in disruptions of long-term care systems, including the ability to safely conduct inspections. The governor’s proclamations included the suspension of licensing inspections for all long-term care settings with the exception of CCRSS settings. Current rule states the department may conduct an on-site certification evaluation for each service provider at any time, but at least once every two years. The amendment lengthens the amount of time to complete certification evaluations that are currently suspended for consistency and safety across all programs regulated by the department. The amendment will allow the department additional time to complete certification evaluations when it is safe and practical to do so.  In addition, under the rule development phase of rule-making, the department is in discussions with stakeholders about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

WAC 388-106-0050

In light of the public health emergency, the Centers for Medicare and Medicaid Services waived rules requiring in-person assessments. In addition, this change clarifies instances in which the in-person interviews are not required. Therefore, the department is amending WAC 388-106-0050, What is an assessment?

Chapters 388-76, 78A, 101D, 107 WAC

The department is extending the emergency rules listed below to assure long-term care programs are not significantly impeded during the hiring process due to inability to access the tuberculosis (TB) testing required as a part of the hiring process. This will help to increase the number of long-term care workers necessary to provide essential services to some of Washington’s most vulnerable adults during the outbreak of COVID-19.  The situation continues that currently clinics providing TB testing are short of staff and have limited availability throughout the state. These clinics are unable to provide the TB testing required as a part of the hiring process in many long-term care programs. This circumstance is expected to exacerbate demand for long-term care workers when the pandemic has already significantly reduced the availability of long-term care workers in the state.

WAC 388-97-107

The continuing disproportionate impact of COVID-19 on Nursing Facilities has put a strain on the staffing availability at these facilities. Because staff time is required to complete and file a Nursing Facility Medicaid Cost Report, the department is extending the period of time during which a facility may request a 2020 cost report deadline extension. Specifically, as currently written the WAC requires a request be received 10 days before the due date of a cost report. The department will, due to the COVID-19 pandemic, allow extension requests to be filed through close of business on the due date of the cost report. The department is amending WAC 388-96-107 - Requests for extensions in response to this need.

WAC 388-106-0050

In light of the public health emergency, the Centers for Medicare and Medicaid Services waived rules requiring in-person assessments. In addition, this change clarifies instances in which in-person interviews are not required. Therefore, the department is amending WAC 388-106-0050, What is an assessment?

WAC 388-97-1740, 1760, 2400

The department is extending the amendment of WAC 388-97-1740, 1760, and 2400 to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic.

WAC 388-76-10695, 10730

The department is amending WAC 388-76-10695 and WAC 388-76-10730 to update an adoption by reference in chapter 388-76 WAC. This is a technical correction after WAC 51-51-0325 was moved to WAC 51-51-0330 in July, 2020. -This is a numbering change only. There is no policy change associated with this update.

WAC 388-112A-0010, 1292, 1294

The department is amending chapter 388-112A WAC “Residential Long-Term Care Services Training” by adding a new definition for “Expanded Specialty Training” to WAC 388-112A-0010. The department is also creating WAC 388-112A-1292, a new section added to set minimum qualifications for community instructors to teach expanded specialty trainings, and WAC 388-112A-1294, a new section added to set minimum qualifications for facility training program instructors to teach expanded specialty trainings. These changes are necessary to clarify instructor qualifications and requirements for the additional specialty courses required by RCW 70.128.060 (8).

Chapter 388-71, 106 WAC

The department is amending WAC 388-106-0010, 388-106-0130, 388-106-0055, 388-71-0515, 388-71-0516 to eliminate shared benefit as a status and as a basis to reduce a client’s monthly benefit for in-home personal care, and to require a written agreement for a family or household Individual Provider to be assessed as a source of informal support. These rule changes eliminate adjustments to base hours, add-on hours, or any other in-home personal care services benefit that a client would otherwise receive because the paid provider shares in the benefit of an instrumental activity of daily living (IADL) provided to the client by the provider, and on the basis that two or more clients in a multi-client household benefit from the same IADL task(s) being performed. Any current rule that uses the phrase “shared benefit” or a similar phrase is being amended to remove the phrase and the definition of “informal support” is being amended.

WAC 388-97-1380, 1580

The department is amending the rules listed below to assure nursing homes are not obstructed from offering the COVID-19 vaccine to residents and staff because of clinical interference from required tuberculosis (TB) testing. Current state rules specify that nursing homes administer TB testing to residents and staff within three days of employment or admission, unless the person is excluded from testing under the rules. The amendment permits the nursing home to defer TB testing if the person is in the process of receiving the COVID-19 vaccine, or if receiving the vaccine is of greater benefit and less risk than performing TB testing before administering the vaccine. The amendment does not permit the nursing facility to defer TB testing for reasons other than the COVID-19 vaccine, and requires the nursing home to complete the TB testing as soon as the COVID-19 vaccine recommendations permit. The rules also require screening for signs and symptoms of TB for those persons who are deferring TB testing.  

WAC 388-97-0300

The department is extending the amendment of the rule listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow nursing facilities to provide clinical records to residents and resident representatives in ten working days instead of two working days. Current state rules specify clinical records be accessible to residents and their representatives for review within 24 hours and copies must be provided within two working days. The amendment lengthens the time nursing homes have to provide the resident access to, or copies of the requested clinical record from two to ten days. The amendment does not permit the nursing facility to deny the resident access to records. The department filed a CR-101 Preproposal Statement of Inquiry on September 3, 2020 as WSR 20-19-009 to begin the permanent rulemaking process. In addition, under the rule development phase of rule-making, the department is in discussions about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID-19 is necessary.

WAC 388-97-1260

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that were suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to allow physicians to delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist. Current state rules specify physicians must perform some tasks. The amendment will permit delegation of those tasks as long as the task is within the scope of practice of the delegate, and the delegate works under the supervision of the physician. The department filed a CR-101 Preproposal Statement of Inquiry as WSR 20-17-133 on August 18, 2020 to begin the permanent rulemaking process. In addition, under the rule development phase of rule-making, the department is in discussions about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

WAC 388-78A-2524, 2525, 2526

The department is extending the amendment of the rules listed below to assure Assisted Living Facilities are not significantly impeded during the hiring process due to an administrator’s inability to obtain a certificate of completion of a recognized administrator training as referenced in WAC 388-78A-2521. This will help to increase the number of long-term care administrators necessary to provide essential services to some of Washington’s most vulnerable adults during the outbreak of COVID-19. The current rules require administrator training prior to assuming administrator duties or within six months of beginning duties for administrators meeting additional educational requirements. Currently, applicants for Assisted Living Facility administrator positions are unable to obtain the required training.

Chapter 388-97 WAC

The department is extending the amendment of the rules listed below to assure nursing homes are not significantly impeded from admitting and caring for residents during the COVID-19 outbreak. These amendments will continue to align state nursing home rules with federal rules that are suspended or amended to help facilitate care during the COVID-19 pandemic. The federal rules were amended to remove the timelines for completing and transmitting resident assessments, and to delay the requirement by 30 days for a Preadmission Screening and Resident Review (PASRR) screening prior to admission to a nursing home. Federal rules also amended care-planning timelines, discharge and transfer notice requirements, and requirements that ensure residents can meet in groups. The rules identified below currently require a PASRR screen prior to admission, have timelines for completion of the comprehensive resident assessment and care plan, and have timelines for the transmission of the resident assessment. These rules also establish the right of residents to participate in resident groups and require specific notice and time requirements before a resident discharge or transfer can occur. The department filed a CR-101 Preproposal Statement of Inquiry as WSR 20-17-005 on August 5, 2020 to begin the permanent rulemaking process. In addition, under the rule development phase of rule-making, the department is in discussions about adding language to the rules to explain the circumstances and time periods under which suspension of rules due to COVID is necessary.

WAC 388-71-0975

The department is amending WAC 388-71-0975, Who is required to obtain certification as a home care aide, and when?, to clarify how to interpret the long term care worker qualifications and requirements in statute and rule that have specific time periods for compliance when there has been a period of time in which the underlying requirements were suspended and waived in whole or part by emergency proclamation by the Governor.

WAC 388-101-3130

The department is extending the amendment of the rule listed below to assure Certified Community Residential Services and Supports (CCRSS) service providers are not significantly impeded from providing services and support to clients during the COVID-19 pandemic. Governor Inslee’s proclamation 20-18 and subsequent extensions identified that the pandemic has resulted in disruptions to long-term care systems, including the ability to conduct inspections safely. The governor’s proclamations included the suspension of licensing inspections for all long-term care settings with the exception of CCRSS settings. Current rules state the department may conduct an on-site certification evaluation for each service provider at any time, but at least once every two years. The amendment lengthens the amount of time to complete certification evaluations that are currently suspended for consistency and safety across all programs regulated by the department. The amendment will allow the department additional time to complete certification evaluations when it is safe and practical to do so.

Chapters 388-76, 78A, 101D, 107 WAC

The department is extending the emergency rules listed below to assure long-term care programs are not significantly impeded during the hiring process due to inability to access the tuberculosis (TB) testing required as a part of the hiring process. This will help to increase the number of long-term care workers necessary to provide essential services to some of Washington’s most vulnerable adults during the outbreak of COVID-19.  The situation continues that currently clinics providing TB testing are short of staff and have limited availability throughout the state. These clinics are unable to provide the TB testing required as a part of the hiring process in many long-term care programs. This circumstance is expected to exacerbate demand for long-term care workers when the pandemic has already significantly reduced the availability of long-term care workers in the state. The department filed a CR-101 Preproposal Statement of Inquiry as WSR 20-16-069 on July 29, 2020 to begin the permanent rulemaking process. In addition, under the rule development phase of rule-making, the department is in discussions about adding language to the regulations to account for the timeline in which COVID led to the suspension of rules.

Chapters 388-76, 78A, 101D, 107 WAC

The department is extending the emergency rules listed below to assure long-term care programs are not significantly impeded during the hiring process due to inability to access the tuberculosis (TB) testing required as a part of the hiring process. This will help to increase the number of long-term care workers necessary to provide essential services to some of Washington’s most vulnerable adults during the outbreak of COVID-19.  The situation continues that currently clinics providing TB testing are short of staff and have limited availability throughout the state. These clinics are unable to provide the TB testing required as a part of the hiring process in many long-term care programs. This circumstance is expected to exacerbate demand for long-term care workers when the pandemic has already significantly reduced the availability of long term care workers in the state. The department filed a CR-101 Preproposal Statement of Inquiry as WSR 20-16-069 on July 29, 2020 to begin the permanent rulemaking process.   

Chapter 388-76, 78A, 101D, and 107 WAC

The department is temporarily repealing or amending the rules listed below to assure long-term care programs are not significantly impeded during the hiring process due to inability to access the tuberculosis (TB) testing required as a part of the hiring process. This will help to increase the number of long-term care workers available to provide essential services to some of Washington’s most vulnerable adults during the outbreak of COVID-19.  Currently, clinics providing TB testing are short of staff and are only providing critical and emergent medical services. These clinics are unable to provide the TB testing required as a part of the hiring process in many long-term care programs. This circumstance is expected to exacerbate demand for long-term care workers when the pandemic has already significantly reduced the availability of long-term care workers in the state in recent weeks.