Inspections, Enforcement Remedies, and Appeals

WAC 388-78A-3140  Responsibilities during inspections.  The assisted living facility must:

  • Cooperate with the department during any on-site inspection or complaint investigation;
  • Provide requested records to the representatives of the de-partment; and
  • Ensure the assisted living facility administrator or the ad-ministrator’s designee is available during any inspection or complaint investigation to respond to questions or issues identified by department staff.

[Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3140, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3140, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3150  Statements of deficiencies.  The department will give the administrator or the administrator’s designee a written statement of deficiencies report specifying any violations of chapters 18.20, 70.129, or 74.34 RCW, this chapter, or any other applicable laws or rules that the department found during any inspection or complaint investigation.

[Statutory Authority: RCW 18.20.090, 2008 c 146, and chapter 18.20 RCW. WSR 09-01-079, § 388-78A-3150, filed 12/15/08, effective 5/1/09. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3150, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3152  Plan of correction—Required.  (1) The assisted living facility must comply with all applicable licensing laws and regulations at all times.

  • When the department finds the assisted living facility out of compliance with any licensing law or regulation the department will send the home an inspection report with an attestation of correction statement for each cited deficiency.
  • The assisted living facility must complete an attestation of correction for any inspection report as the department requires.
  • For purposes of this section an “attestation of correction statement” means a statement developed by the department and signed and dated by the home, that the home:

(a) Has or will correct each cited deficiency; and (b) Will maintain correction of each cited deficiency.

(5) The home must be able to show to the department, upon request, that, for each deficiency cited, the home has:

  • A plan of correction and maintaining correction;
  • Corrected or is correcting each deficiency; and(c) Maintained or is maintaining compliance.

(6) On each attestation of correction statement, the home must:

  • Give a date, approved by the department, showing when the ci-ted deficiency has been or will be corrected; and
  • By signature and date showing that the home has or will cor-rect, and maintain correction, of each deficiency.

(7) The home must return the inspection report, with completed attestation of correction statements, to the department within ten calendar days of receiving the report.

[Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3152, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090, 2008 c 146, and chapter 18.20 RCW. WSR 09-01-079, § 388-78A-3152, filed 12/15/08, effective 5/1/09.]

WAC 388-78A-3160  Authorized enforcement remedies.  (1) Whenever the circumstances in WAC 388-78A-3170(1) are present, the department may impose any enforcement remedies authorized by RCW 18.20.050(4), 18.20.185(7) and 18.20.190 on an assisted living facility, including:

  • Denying an assisted living facility license;
  • Suspending an assisted living facility license;
  • Revoking an assisted living facility license;
  • Refusing to renew an assisted living facility license;
  • Suspending admissions to an assisted living facility;
  • Suspending admissions to an assisted living facility of a specific category or categories of residents as related to cited problems;
  • Imposing conditions on the assisted living facility license; and/or
  • Imposing civil penalties of not more than one hundred dollars per day per violation.

(2) Notwithstanding subsection (1) of this section, the department may impose a civil penalty on an assisted living facility of up to three thousand dollars per day per violation for interference, coercion, discrimination and/or reprisal by an assisted living facility as set forth in RCW 18.20.185(7).

[Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3160, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3160, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3170  Circumstances that may result in enforcement remedies.  (1) The department is authorized to impose enforcement remedies described in WAC 388-78A-3160 if any person described in subsection (2) of this section is found by the department to have:

(a) A history of significant noncompliance with federal or state laws or regulations in providing care or services to frail elders, vulnerable adults or children, whether as a licensee, contractor, managerial employee or otherwise. Evidence of significant noncompliance may include, without limitation:

  • Citations for violation of laws or regulations imposed by regulating entities;
  • Sanctions for violation of laws or regulations imposed by regulating entities;
  • Involuntary termination, cancellation, suspension, or non-renewal of a medicaid contract or medicare provider agreement, or any other agreement with a public agency for the care or treatment of children, frail elders or vulnerable adults;
  • Been denied a license or contract relating to the care of frail elders, vulnerable adults or children; or
  • Relinquished or failed to renew a license or contract relat-ing to care of frail elders, vulnerable adults or children following written notification of the licensing agency’s initiation of denial, suspension, cancellation or revocation of a license.
  • Failed to provide appropriate care to frail elders, vulnera-ble adults or children under a contract, or having such contract terminated or not renewed by the contracting agency due to such failure;
  • Failed or refused to comply with the requirements of chapter 18.20 RCW, applicable provisions of chapter 70.129 RCW or this chapter;
  • Retaliated against a staff person, resident or other individ-ual for:
  • Reporting suspected abuse, neglect, financial exploitation, or other alleged improprieties;
  • Providing information to the department during the course of an inspection of the assisted living facility; or
  • Providing information to the department during the course of a complaint investigation in the assisted living facility.
  • Operated a facility for the care of children or vulnerable adults without a current, valid license or under a defunct or revoked license;
  • Attempted to obtain a contract or license from the department by fraudulent means or by misrepresentation;
  • A conviction or pending charge for a crime that is not auto-matically disqualifying under chapter 388-113 WAC, but that:
  • Was committed on an assisted living facility premises; or knowingly permitted, aided or abetted an illegal act on an assisted living facility premises;
  • Involved the illegal use of drugs or the excessive use of alcohol; or
  • Is reasonably related to the competency of the person to operate an assisted living facility.
  • Abused, neglected or exploited a vulnerable adult;
  • Had a sanction or corrective or remedial action taken by fed-eral, state, county or municipal officials or safety officials related to the care or treatment of children or vulnerable adults;
  • Failed to report alleged abuse, neglect or exploitation of a vulnerable adult in violation of chapter 74.34 RCW;
  • Failed to exercise fiscal accountability and responsibility involving a resident, the department, public agencies, or the business community; or to have insufficient financial resources or unencumbered income to sustain the operation of the assisted living facility;
  • Knowingly or with reason to know, made false statements of material fact in the application for the license or the renewal of the license or any data attached thereto, or in any matter under investigation by the department;
  • Willfully prevented or interfered with or attempted to impede in any way any inspection or investigation by the department, or the work of any authorized representative of the department or the lawful enforcement of any provision of this chapter;
  • Refused to allow department representatives or agents to ex-amine any part of the licensed premises including the books, records and files required under this chapter;
  • Moved all residents out of the assisted living facility with-out the department’s approval and appears to be no longer operating as an assisted living facility; or
  • Demonstrated any other factors that give evidence the appli-cant lacks the appropriate character, suitability and competence to provide care or services to vulnerable adults.

(2) This section applies to any assisted living facility: (a) Applicant;

  • Partner, officer or director;
  • Manager or managerial employee; or(d) Majority owner of the applicant or licensee:
  • Who is involved in the management or operation of the assis-ted living facility;
  • Who may have direct access to assisted living facility resi-dents;
  • Who controls or supervises the provision of care or serv-ices to assisted living facility residents; or
  • Who exercises control over daily operations of the assisted living facility.

(3) For other circumstances resulting in discretionary enforcement remedies, see WAC 388-78A-3200.

[Statutory Authority: RCW 74.39A.056, chapter 18.20 RCW. WSR 14-14-031, § 388-78A-3170, filed 6/24/14, effective 7/25/14. Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3170, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3170, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3180  Required enforcement remedies.  The department must impose an appropriate remedy consistent with RCW 18.20.125 and as otherwise authorized by RCW 18.20.185 or 18.20.190 whenever the department finds an assisted living facility has:

  • A serious problem, a recurring problem, or an uncorrected problem;
  • Created a hazard that causes or is likely to cause death or serious harm to one or more residents;
  • Discriminated or retaliated in any manner against a resident, employee, or any other person because that person or any other person made a complaint or provided information to the department, the attorney general, a law enforcement agency, or the long-term care ombuds; or
  • Willfully interfered with the performance of official duties by a long-term care ombuds.

[Statutory Authority: Chapter 18.20 RCW. WSR 14-05-035, § 388-78A-3180, filed 2/12/14, effective 3/15/14; WSR 13-13-063, § 388-78A-3180, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3180, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3181  Remedies—Specific—Civil penalties.  (1) The department may impose civil penalties of at least one hundred dollars per day per violation.

(2) Fines up to one thousand dollars per day per violation may be issued under RCW 18.20.190 through June 30, 2019, and thereafter as follows:

  • Beginning July 1, 2019, through June 30, 2020, the civil pen-alties may not exceed two thousand dollars per day per violation; and
  • Beginning July 1, 2020, the civil penalties may not exceed three thousand dollars per day per violation.
  • Fines up to three thousand dollars may be issued under RCW 18.20.185 for willful interference with a representative of the longterm care ombuds.
  • Fines up to three thousand dollars may be issued under RCW 74.39A.060 for retaliation against a resident, employee, or any other person making a complaint, providing information to, or cooperating with, the ombuds, the department, the attorney general’s office, or a law enforcement agency.
  • Fines up to ten thousand dollars may be issued under RCW 18.20.190 for a current or former licensed provider who is operating an unlicensed home.
  • When the assisted living facility fails to pay a fine under this chapter when due, the department may, in addition to other remedies, withhold an amount equal to the fine plus interest, if any, from any contract payment due to the provider from the department.
  • Civil monetary penalties are due twenty-eight days after the assisted living facility or the owner or operator of an unlicensed assisted living facility is served with notice of the penalty unless the assisted living facility requests a hearing in compliance with chapter

34.05 RCW, RCW 43.20A.215, and this chapter. If the hearing is requested, the penalty becomes due ten days after a final decision affirming the assessed civil penalty. Thirty days after the department serves the assisted living facility with notice of the penalty, interest begins to accrue at a rate of one percent per month as authorized under RCW 43.20B.695.

  • All receipts from civil penalties imposed under this chapter must be deposited in the assisted living facility temporary management account created in RCW 18.20.430.

[Statutory Authority: RCW 18.20.090. WSR 20-09-108, § 388-78A-3181, filed 4/16/20, effective 5/17/20. Statutory Authority: Chapter 18.20 RCW. WSR 19-18-031, § 388-78A-3181, filed 8/29/19, effective 9/29/19.]

WAC 388-78A-3183  Remedies—Civil fine grid.  Effective May 17, 2020, the department will consider the guidance in the tiered sanction grid below when imposing civil fine remedies:

No Harm Minimal to Moderate Harm Severe Harm Imminent

Danger,

Immediate

Threat, or Both
Recurring/ Uncorrected Initial Recurring/ Uncorrected Initial Recurring/ Uncorrected Any Violation
Civil fine of at least one hundred dollars per violation. Civil fine up to two hundred and fifty dollars per violation per day. Civil fine up to five hundred dollars per violation per day. Civil fine up to seven hundred and fifty dollars per violation per day. Civil fine up to one thousand dollars per violation per day. Civil fine of one thousand dollars per violation per day.

Beginning July 1, 2019, the department will consider the guidance in the tiered sanction grid below when imposing civil fine remedies:

No Harm Minimal to Moderate Harm Severe Harm Imminent

Danger,

Immediate

Threat, or Both
Recurring/ Uncorrected Initial Recurring/ Uncorrected Initial Recurring/ Uncorrected Any Violation
Civil fine of at least one hundred dollars per violation. Civil fine up to two hundred and fifty dollars per violation or a daily civil fine of at least one hundred and twenty-five dollars per day. Civil fine up to five hundred dollars per violation or a daily civil fine of at least two hundred and fifty dollars per day. Civil fine up to one thousand dollars per violation or a daily civil fine of at least five hundred dollars per day. Civil fine up to one thousand five hundred dollars per violation or a daily civil fine of at least seven hundred and fifty dollars per day. Civil fine of two thousand dollars or daily civil fine of at least one thousand dollars per day.

Beginning July 1, 2020, the department will consider the guidance in the tiered sanction grid below when imposing civil fine remedies:

No Harm Minimal to Moderate Harm Severe Harm Imminent

Danger,

Immediate

Threat, or Both
Recurring/ Uncorrected Initial Recurring/ Uncorrected Initial Recurring/ Uncorrected Any Violation
Civil fine of at least one hundred dollars per violation. Civil fine up to five hundred dollars per violation or a daily civil fine of at least two hundred and fifty dollars per day. Civil fine up to one thousand dollars per violation or a daily civil fine of at least five hundred dollars per day. Civil fine up to two thousand dollars per violation or a daily civil fine of at least one thousand dollars per day. Civil fine up to three thousand dollars per violation or a daily civil fine of at least one thousand five hundred dollars per day. Civil fine of three thousand dollars or daily civil fine of at least one thousand dollars per day.

For the purpose of this section, the following definitions of harm apply:

  • “Minimal” means violations that result in little to no negative outcome or little or no potential harm for a resident.
  • “Moderate” means violations that result in negative outcome and actual or potential harm for a resident.
  • “Severe” means violations that either result in one or more negative outcomes and significant actual harm to residents that does not constitute imminent danger, or there is a reasonable predictability of recurring actions, practices, situations, or incidents with potential for causing significant harm to a resident, or both.
  • “Imminent danger” or “immediate threat” means serious physical harm to or death of a resident has occurred, or there is a serious threat to the resident’s life, health, or safety.

[Statutory Authority: RCW 18.20.090. WSR 20-09-108, § 388-78A-3183, filed 4/16/20, effective 5/17/20. Statutory Authority: Chapter 18.20 RCW. WSR 19-18-031, § 388-78A-3183, filed 8/29/19, effective 9/29/19.]

WAC 388-78A-3190  Denial, suspension, revocation, or nonrenewal of license statutorily required.  (1) The department must deny, suspend, revoke, or refuse to renew an assisted living facility license if any person described in subsection (2) of this section is found by the department to have:

  • A court has issued a permanent restraining order or order of protection, either active or expired, against the person that was based upon abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult;
  • The individual is a registered sex offender;
  • The individual is on a registry based upon a final finding of abuse, neglect or financial exploitation of a vulnerable adult, unless the finding was made by adult protective services prior to October 2003;
  • A founded finding of abuse or neglect of a child was made against the person, unless the finding was made by child protective services prior to October 1, 1998;
  • The individual was found in any dependency action to have sexually assaulted or exploited any child or to have physically abused any child;
  • The individual was found by a court in a domestic relations proceeding under Title 26 RCW, or under any comparable state or federal law, to have sexually abused or exploited any child or to have physically abused any child;
  • The person has had a contract or license denied, terminated, revoked, or suspended due to abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult; or
  • The person has relinquished a license or terminated a con-tract because an agency was taking an action against the individual related to alleged abuse, neglect, financial exploitation or mistreatment of a child or vulnerable adult.

(2) This section applies to any assisted living facility: (a) Applicant;

  • Partner, officer or director;
  • Manager or managerial employee; or(d) Owner of five percent or more of the applicant:
  • Who is involved in the operation of the assisted living fa-cility; or
  • Who controls or supervises the provision of care or services to the assisted living facility residents; or
  • Who exercises control over daily operations.

[Statutory Authority: RCW 74.39A.056, chapter 18.20 RCW. WSR 14-14-031, § 388-78A-3190, filed 6/24/14, effective 7/25/14. Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3190, filed 6/18/13, effective 7/19/13. Statutory Authority: Chapters 18.20 and 74.39A RCW. WSR 10-16-085, § 388-78A-3190, filed 7/30/10, effective 1/1/11. Statutory Authority: Chapter 18.20 RCW. WSR 10-03-066, § 388-78A-3190, filed 1/15/10, effective 2/15/10. Statutory Authority: RCW 18.20.090. WSR 06-01-047, § 388-78A-3190, filed 12/15/05, effective 1/15/06. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3190, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3200  Progression of enforcement remedies.  (1) When the department cites an assisted living facility for an initial problem that does not represent a recurring problem, serious problem or uncorrected problem, and that results in minimal or moderate harm that is limited in scope, the department may:

  • Require a plan of correction from the assisted living facili-ty;
  • Impose conditions on the assisted living facility license; and/or
  • Impose a civil penalty.

(2) The department may take any of the actions specified in subsection (1) of this section and/or impose a stop-placement or limited stop-placement on an assisted living facility when:

  • There is a reasonable probability, at the time the stop-placement or limited stop-placement is imposed, at least a moderate degree of harm will occur or recur as a result of a single problem or by a combination of problems; and
  • The threatening problem is more than an isolated event or oc-currence.

(3) The department may take any of the actions specified in subsections (1) and (2) of this section and/or summarily suspend an assisted living facility’s license when:

  • There is an imminent threat that a serious degree of harm may occur to residents as a result of a single problem or a combination of problems; and
  • The threatening problem is more than an isolated event or oc-currence.

(4) The department may take any of the actions specified in subsections (1), (2) and (3) of this section and/or revoke an assisted living facility’s license when:

  • The department has cause to summarily suspend the assisted living facility’s license;
  • There is a current problem with the assisted living facility and the assisted living facility has a history of having enforcement remedies imposed by the department;
  • There is a current problem with the assisted living facility and the assisted living facility has a history of noncompliance representing problems that were at least moderate in nature and moderate in scope;
  • The assisted living facility has moved all residents out of the assisted living facility without the department’s approval and is no longer operating as an assisted living facility; or
  • There is a serious current problem, which may not warrant a summary suspension, with the assisted living facility that does not have a history of noncompliance. Examples of the types of serious current problems that may warrant license revocation include, but are not limited to:
  • The licensee has been found or convicted by a court of compe-tent jurisdiction to have engaged in fraudulent activity; or
  • The licensee is experiencing significant financial problems resulting in poor care or jeopardizing the care and services that can be provided to residents, and possible business failure; or

(f) The assisted living facility fails to cooperate with the department during any inspection or complaint investigation.

[Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3200, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065,

  • 388-78A-3200, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3210  Informal dispute resolution.  The assisted living facility has a right to an informal dispute resolution meeting according to department procedure and consistent with RCW 18.20.195. The assisted living facility must make a request for an informal dispute resolution meeting in writing within ten days of the receipt of the written notice of deficiency.

[Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3210, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3210, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3220  Appeal rights.  (1) An applicant or assisted living facility:

  • May contest an enforcement remedy imposed by the department pursuant to RCW 18.20.190 according to the provisions of chapter 34.05 RCW and chapters 10-08 and 388-02 WAC;
  • Must file any request for an adjudicative proceeding with the office of administrative hearings at the mailing address specified in the notice of imposition of an enforcement remedy within twenty-eight days of receiving the notice.

(2) Orders of the department imposing licensing suspension, stopplacement, or conditions for continuation of a license are effective immediately upon notice and shall continue pending any hearing.

[Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3220, filed 6/18/13, effective 7/19/13. Statutory Authority: RCW 18.20.090. WSR 06-01-047, § 388-78A-3220, filed 12/15/05, effective 1/15/06. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065, § 388-78A-3220, filed 7/30/04, effective 9/1/04.]

WAC 388-78A-3230  Fees.  The assisted living facility must:

  • Submit an annual per bed license fee based on the licensed bed capacity and as established in the state’s biennial omnibus appropriation act and any amendment or addition made to that act;
  • Submit an additional late fee in the amount of ten dollars per day from the license renewal date until the date of mailing the fee, as evidenced by the postmark; and
  • Submit to construction review services a fee for the review of the construction documents per the review fee schedule that is based on the project cost.

[Statutory Authority: Chapter 18.20 RCW. WSR 13-13-063, § 388-78A-3230, filed 6/18/13, effective 7/19/13; WSR 12-01-003, § 388-78A-3230, filed 12/7/11, effective 1/7/12. Statutory Authority: RCW 18.20.050 and 2010 c 37 § 206 (19)(a). WSR 10-21-036, § 388-78A-3230, filed 10/12/10, effective 10/29/10. Statutory Authority: RCW 18.20.090 (2004 c 142 § 19) and chapter 18.20 RCW. WSR 04-16-065,

  • 388-78A-3230, filed 7/30/04, effective 9/1/04.]