Regulations for Nursing Homes

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WAC 388-97-051 Resident rights.

(1) The nursing home must meet the resident rights requirements of this section and those in the rest of the chapter.

(2) The resident has a right to a dignified existence, self-determination, and communication with, and access to individuals and services inside and outside the nursing home.

(3) A nursing home must promote and protect the rights of each resident, including those with limited cognition or other barriers that limit the exercise of rights.

(4) The resident has the right to:

(a) Exercise his or her rights as a resident of the nursing home and as a citizen or resident of the United States. Refer to WAC 388-97-055;

(b) Be free of interference, coercion, discrimination, and reprisal from the nursing home in exercising his or her rights; and

(c) Not be asked or required to sign any contract or agreement that includes provisions to waive:

(i) Any resident right set forth in this chapter or in the applicable licensing or certification laws; or

(ii) Any potential liability for personal injury or losses of personal property.

(5) The nursing home must take steps to safeguard residents and their personal property from foreseeable risks of injury or loss.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-051, filed 2/24/00, effective 3/26/00.]

WAC 388-97-052 Free choice.

The resident has the right to:

(1) Choose a personal attending physician.

(2) Be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident’s well-being.

(3) Participate in planning care and treatment or changes in care and treatment.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-052, filed 2/24/00, effective 3/26/00.]

WAC 388-97-053 Statutes implemented in resident decision making, informed consent and advance directives. WAC 388-97-055, 388-97-060, and 388-97-065 implement the federal Patient Self-Determination Act and clarify requirements under chapters 11.94; 7.70; 70.122; 11.88; and 11.92 RCW.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-053, filed 2/24/00, effective 3/26/00.]


WAC 388-97-055 Resident decision making.

(1) At the time of admission, or not later than the completion of the initial comprehensive resident assessment, the nursing home must determine if the resident:

(a) Has appointed another individual to make his or her health care, financial, or other decisions;

(b) Has created any advance directive or other legal documents that will establish a surrogate decision maker in the future; and

(c) Is not making his or her own decisions, and identify who has the authority for surrogate decision making, and the scope of the surrogate decision maker’s authority.

(2) The nursing home must review the requirements of (1) of this section when the resident’s condition warrants the review or when there is a significant change in the resident’s condition.

(3) In fulfilling its duty to determine who, if anyone, is authorized to make decisions for the resident, the nursing home must:

(a) Obtain copies of the legal documents that establish the surrogate decision maker’s authority to act; and

(b) Document in the resident’s clinical record:

(i) The name, address, and telephone number of the individual who has legal authority for substitute decision making;

(ii) The type of decision making authority such individual has; and

(iii) Where copies of the legal documents are located at the facility.

(4) In accordance with state law or at the request of the resident, the resident’s surrogate decision maker is, in the case of:

(a) A capacitated resident, the individual authorized by the resident to make decisions on the resident’s behalf;

(b) A resident adjudicated by a court of law to be incapacitated, the court appointed guardian; and

(c) A resident who has been determined to be incapacitated, but is not adjudicated incapacitated established through:

(i) A legal document, such as a durable power of attorney for health care; or

(ii) Authority for substitute decision making granted by state law, including RCW 7.70.065.

(5) Determination of an individual’s incapacity must be a process according to state law not a medical diagnosis only and be based on:

(a) Demonstrated inability in decision making over time that creates a significant risk of personal harm;

(b) A court order; or

(c) The criteria contained in a legal document, such as durable power of attorney for health care.

(6) The nursing home must promote the resident’s right to exercise decision making and self-determination to the fullest extent possible, taking into consideration his or her ability to understand and respond. Therefore, the nursing home must presume that the resident is the resident’s own decision maker unless:

(a) A court has established a full guardianship of the individual;

(b) The capacitated resident has clearly and voluntarily appointed a surrogate decision maker;

(c) A surrogate is established by a legal document such as a durable power of attorney for health care; or

(d) The facility determines that the resident is an incapacitated individual according to RCW 11.88.010 and (5)(a) of this section.

(7) The nursing home must honor the exercise of the resident’s rights by the surrogate decision maker as long as the surrogate acts in accordance with this section and with state and federal law which govern his or her appointment.

(8) If a surrogate decision maker exercises a resident’s rights, the nursing home must take into consideration the resident’s ability to understand and respond and must:

(a) Inform the resident that a surrogate decision maker has been consulted;

(b) Provide the resident with the information and opportunity to participate in all decision making to the maximum extent possible; and

(c) Recognize that involvement of a surrogate decision maker does not lessen the nursing home’s duty to:

(i) Protect the resident’s rights; and

(ii) Comply with state and federal laws.

(9) The nursing home must:

(a) Regularly review any determination of incapacity based on (4)(b) and (c) of this section;

(b) Except for residents with a guardian, cease to rely upon the surrogate decision maker to exercise the resident’s rights, if the resident regains capacity, unless so designated by the resident or by court order; and

(c) In the case of a guardian notify the court of jurisdiction in writing if:

(i) The resident regains capacity;

(ii) The guardian is not respecting or promoting the resident’s rights;

(iii) The guardianship should be modified; or

(iv) A different guardian needs to be appointed.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-055, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-055, filed 9/15/94, effective 10/16/94.]


WAC 388-97-060 Informed consent.

(1) The nursing home must ensure that the informed consent process is followed with:

(a) The resident to the maximum extent possible, taking into consideration his or her ability to understand and respond; and

(b) The surrogate decision maker when the resident is determined to be incapacitated as established through the provision of a legal document such as durable power of attorney for health care, a court proceeding, or as authorized by state law, including RCW 7.70.065. The surrogate decision maker must:

(i) First determine if the resident would consent or refuse the proposed or alternative treatment;

(ii) Discuss determination of consent or refusal with the resident whenever possible; and

(iii) When a determination of the resident’s consent or refusal of treatment cannot be made, make the decision in the best interest of the resident.

(2) The informed consent process must include, in words and language that the resident, or if applicable the resident’s surrogate decision maker, understands, a description of:

(a) The nature and character of the proposed treatment;

(b) The anticipated results of the proposed treatment;

(c) The recognized possible alternative forms of treatment;

(d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment and in the recognized possible alternative forms of treatment including nontreatment; and

(e) The right of the resident to choose not to be informed.

(3) To ensure informed consent or refusal by a resident, or if applicable the resident’s surrogate decision maker, regarding plan or care options, the nursing home must:

(a) Provide the informed consent process to the resident in a neutral manner and in a language, words, and manner the resident can understand;

(b) Inform the resident of the right to consent to or refuse care and service options at the time of resident assessment and plan of care development (see WAC 388-97-085 and 388-97-090) and with condition changes, as necessary to ensure that the resident’s wishes are known;

(c) Inform the resident at the time of initial plan of care decisions and periodically of the right to change his or her mind about an earlier consent or refusal decision;

(d) Ensure that evidence of informed consent or refusal is consistent with WAC 388-97-085 and 388-97-090; and

(e) Where appropriate, include evidence of resident’s choice not to be informed as required in subsections (2) and (3) of this section.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-060, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-060, filed 9/15/94, effective 10/16/94.]


WAC 388-97-065 Advance directives.

(1) “Advance directive” as used in this chapter means any document indicating a resident’s choice with regard to a specific service, treatment, medication or medical procedure option that may be implemented in the future such as power of attorney, health care directive, limited or restricted treatment cardiopulmonary resuscitation (CPR), do not resuscitate (DNR), and organ tissue donation.

(2) The nursing home must carry out the provisions of this section in accordance with the applicable provisions of WAC 388-97-055 and 388-97-060, and with state law.

(3) The nursing home must:

(a) Document in the clinical record whether or not the resident has an advance directive;

(b) Not request or require the resident to have any advance directives and not condition the provision of care or otherwise discriminate against a resident on the basis of whether or not the resident has executed an advance directive;

(c) In a language and words the resident understands, inform the resident in writing and orally at the time of admission, and thereafter as necessary to ensure the resident’s right to make informed choices, about:

(i) The right to make health care decisions, including the right to change his or her mind regarding previous decisions;

(ii) Nursing home policies and procedures concerning implementation of advance directives, including how the nursing home implements emergency responses; and

(d) Review and update as needed the resident advance directive information:

(i) At the resident’s request;

(ii) When the resident’s condition warrants review; and

(iii) When there is a significant change in the resident’s condition.

(4) When the nursing home becomes aware that a resident’s health care directive is in conflict with facility practices and policies which are consistent with state and federal law, the nursing home must:

(a) Inform the resident of the existence of any nursing home practice or policy which would preclude implementing the health care directive;

(b) Provide the resident with written policies and procedures that explain under what circumstances a resident’s health care directive will or will not be implemented by the nursing home;

(c) Meet with the resident to discuss the conflict; and

(d) Determine, in light of the conflicting practice or policy, whether the resident chooses to remain at the nursing home:

(i) If the resident chooses to remain in the nursing home, develop with the resident a plan in accordance with chapter 70.122 RCW to implement the resident’s wishes. The nursing home may need to actively participate in ensuring the execution of the plan, including moving the resident at the time of implementation to a care setting that will implement the resident’s wishes. Attach the plan to the resident’s directive in the resident’s clinical record; or

(ii) If, after recognizing the conflict between the resident’s wishes and nursing home practice or policy the resident chooses to seek other long-term care services, or another physician who will implement the directive, the nursing home must assist the resident in locating other appropriate services.

(5) If a terminally ill resident, in accordance with state law, wishes to die at home, the nursing home must:

(a) Use the informed consent process as described in WAC 388-97-060, and explain to the resident the risks associated with discharge; and

(b) Discharge the resident as soon as reasonably possible.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-065, filed 2/24/00, effective 3/26/00; 94-19-041 (Order 3782), § 388-97-065, filed 9/15/94, effective 10/16/94.]

WAC 388-97-07005 Notice of rights and services.

(1) The nursing home must inform the resident, before admission, or at the time of admission in the case of an emergency, and as changes occur during the resident’s stay, both orally and in writing and in language and words that the resident understands, of his or her rights as a resident, including:

(a) All rules and regulations governing resident conduct and responsibilities during the stay in the nursing home;

(b) Advanced directives, and of any facility policy or practice that might conflict with the resident’s advance directive if made;

(c) Advance notice or transfer requirements, consistent with RCW 70.129.150;

(d) Advance notice of deposits and refunds, consistent with RCW 70.129.150; and

(e) Items, services and activities available in the facility and of charges for those services, including any charges for services not covered under Medicare or Medicaid or by the facility’s per diem rate.

(2) The resident has the right:

(a) Upon an oral or written request, to access all records pertaining to the resident including clinical records within twenty-four hours for Medicare certified and Medicaid certified facilities, and according to chapter 70.02 RCW; and

(b) After receipt of his or her records for inspection, to purchase at a cost not to exceed twenty-five cents a page, photocopies of the records or any portions of them upon request and two working days advance notice to the nursing home. For the purposes of this chapter, “working days” means Monday through Friday, except for legal holidays.

(3) The resident has the right to:

(a) Be fully informed in words and language that he or she can understand of his or her total health status, including, but not limited to, his or her medical condition;

(b) Accept or refuse treatment; and

(c) Refuse to participate in experimental research.

(4) The Medicare certified and Medicaid certified facility must inform each resident:

(a) Who is entitled to Medicaid benefits, in writing, prior to the time of admission to the nursing facility or, when the resident becomes eligible for Medicaid of the items, services and activities:

(i) That are included in nursing facility services under the Medicaid state plan and for which the resident may not be charged; and

(ii) That the facility offers and for which the resident may be charged, and the amount of charges for those services;

(b) That deposits and prepayment cannot be solicited or accepted from Medicare or Medicaid eligible residents; and

(c) That minimum stay requirements cannot be imposed on Medicare or Medicaid eligible residents.

(5) The nursing home must, except for emergencies, inform each resident in writing, thirty days in advance before changes are made to the availability or charges for items, services or activities specified in section (4)(a)(i) and (ii), or before changes to the facility rules.

(6) The private pay resident has the right to the following, regarding fee disclosure-deposits:

(a) Prior to admission, a nursing home that requires payment of an admission fee, deposit, or a minimum stay fee, by or on behalf of an individual seeking admission to the facility, must provide the individual:

(i) Full disclosure in writing:

(A) Of the nursing home’s schedule of charges for items, services, and activities provided by the facility; and

(B) Of what portion of the deposits, admissions fees, or minimum stay fee will be refunded to the resident if the resident leaves the facility.

(ii) The amount of any admission fees, deposits, or minimum stay fees.

(b) If a resident dies or is hospitalized or is transferred and does not return to the facility, the nursing home:

(i) Must refund any deposit or charges already paid, less the facility’s per diem rate, for the days the resident actually resided or reserved or retained a bed in the facility, regardless of any minimum stay or discharge notice requirements; except that

(ii) The facility may retain an additional amount to cover its reasonable, actual expenses incurred as a result of a private pay resident’s move, not to exceed five days per diem charges, unless the resident has given advance notice in compliance with the admission agreement.

(c) The nursing home must refund any and all refunds due the resident within thirty days from the resident’s date of discharge from the facility; and

(d) Where the nursing home requires the execution of an admission contract by or on behalf of an individual seeking admission to the facility, the terms of the contract must be consistent with the requirements of this section.

(7) The nursing home must furnish a written description of legal rights which includes:

(a) A description of the manner of protecting personal funds, under WAC 388-97-07015.

(b) In the case of a nursing facility only, a description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment which determines the extent of a couple’s nonexempt resources at the time of institutionalization and attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse’s medical care in his or her process of spending down to Medicaid eligibility levels;

(c) A posting of names, addresses, and telephone numbers of all relevant state client advocacy groups such as the state survey and certification agency, the state licensure office, the state ombudsman program, the protection and advocacy network, and the Medicaid fraud control unit; and

(d) A statement that the resident may file a complaint with the state survey and certification agency concerning resident abandonment, abuse, neglect, financial exploitation, and misappropriation of resident property in the nursing home.

(8) The nursing home must:

(a) Inform each resident of the name, and specialty of the physician responsible for his or her care; and

(b) Provide a way for each resident to contact his or her physician.

(9) The skilled nursing facility and nursing facility must prominently display in the facility written information, and provide to residents and applicants for admission oral and written information, about how to apply for and use Medicare and Medicaid benefits, and how to receive refunds for previous payments covered by such benefits.

(10) The written information provided by the nursing home pursuant to this section, and the terms of any admission contract executed between the nursing home and an individual seeking admission to the nursing home, must be consistent with the requirements of chapters 74.42 and 18.51 RCW and, in addition, for facilities certified under Medicare or Medicaid, with the applicable federal requirements.

[Statutory Authority: RCW 18.51.070 and 74.42.620. 00-06-028, § 388-97-07005, filed 2/24/00, effective 3/26/00.]

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