SURVEY AND REGULATORY UPDATE
ASSISTED LIVING INSPECTION PROCESS: ENFORCEMENT REMEDIES
Residential Care Services (RCS) holds the authority to impose enforcement remedies on an assisted living licensee. While the entire list of remedies is listed in WAC 388-78A-3160, the most commonly used sanctions include:
  • Suspending admissions (commonly called “stop placement”)
  • This could include stopping all admissions or stopping admissions in a specific part of the building, or stopping admissions of specific types of residents.
  • Civil penalties (found in WAC 388-78A-3181)
  • Typically, fines are limited to $100/day per violation, but can be upward of $3,000/day per violation. $3,000/day per violation are also imposed for interference, coercion, discrimination, and/or reprisal by the assisted living facility.
  • A civil fine grid is included in WAC 388-78A-3183 and highlights monetary penalties commensurate with level of harm involved.
  • Conditions
  • Temporary expectations targeted at specific citations that entice prompt and systematic correction. Common examples include hiring a RN to evaluate and update the medication system and retrain all medication staff, or hiring a RN to evaluate and update the mandatory reporting policies and retrain all staff.

WAC 388-78A-3180 states that RCS staff “must impose an appropriate remedy” in the event the assisted living facility has:
  • A serious, recurring, or 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 who made a complaint or provided information to DSHS; or
  • Willfully interfered with the performance of an ombuds’ duties.

Per WAC 388-78A-3200 enforcement remedies can occur even on initial citations. As risk to residents increases, remedies escalate and are focused to prompt, quick and lasting correction in order to ensure residents are safe. The most severe sanction includes license revocation via summary suspension; while this is a rare occurrence, egregious risk and negative resident outcomes allow RCS the ability to impose such efforts.

Should your facility receive an enforcement remedy and disagree, you can request an informal dispute resolution (IDR) and an administrative hearing following the directions on the cover page of the Statement of Deficiencies.

If you have questions related to assisted living regulations, processes, training, or nursing, contact Vicki McNealley via email, or call her at (800) 562-6170 extension 107.
SKILLED NURSING: TRANSFER/DISCHARGE NOTICE REQUIREMENTS - NOTIFICATION OF THE OMBUDS
With the adoption of the Centers for Medicare & Medicaid Services (CMS) Requirements of Participation (RoP), several rules were written to address resident transfers and discharges in CFR 483.15, F622 through F626. While a number of the requirements mirror the Washington statute (RCW 70.129.110), there are some key additional requirements to ensure compliance. It is important to remember that these are federal requirements that pertain to nursing homes, they do not apply to assisted living facilities.
  • The facility may not transfer or discharge the resident while an appeal is pending, unless not doing so would endanger the health or safety of the resident or other individuals in the facility. The facility must document the danger that failure to transfer or discharge would pose.
  • The resident’s physician must document in the resident’s record when the transfer or discharge is necessary when identified and according to criteria outlined in the rule.
  • Information provided to the receiving provider must include a minimum of the outlined information in the rule.
  • Before a facility transfers or discharges a resident, the facility must notify the resident and the resident’s representative of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand. The facility must send a copy of the notice to a representative of the State LTC Ombuds.
  • If the information in the notice changes prior to the transfer/discharge, the facility must update the recipients of the notice as soon as practicable.
  • Orientation for transfer/discharge must be provided in a form and manner the resident can understand.

One of the most misunderstood requirements is that of notification to the State LTC Ombuds. The key to understanding this requirement lies in the CMS definitions of Facility Initiated Discharge and Resident Initiated Discharge. The RCS Dear Administrator Letter #2017-014 clarifies the definitions as well as clarification regarding the notice of transfer and discharge requirements related to Ombuds notification. More information can be found in the CMS S&C Memo here.
  • Facility-initiated transfer or discharge: A transfer or discharge to which the resident objects, did not originate through the resident’s verbal or written request, and/or is not in alignment with the resident’s stated goals for care and preferences.
  • Resident-initiated transfer or discharge: Means the resident or, if appropriate, the resident representative has provided verbal or written notice of intent to leave the facility (leaving the facility does not include the general expression of a desire to return home or the elopement of residents with cognitive impairment).

Sending an actual copy of the resident’s transfer or discharge notice to the State LTC Ombuds:
  • Applies to all facility-initiated discharges
  • Notice to the State LTC Ombuds is not required for resident-initiated transfers

According to the CFR 483.15(c)(3), F623 Guidance to Surveyors, when a resident is temporarily transferred on an emergency basis to an acute care facility, this type of transfer is considered to be a facility-initiated transfer and a notice of transfer must be provided to the resident and the resident representative as soon as practicable. Notice must also still be sent to the State Ombuds. According to CMS, emergency transfer notification may be done in the form of a list of residents transferred to the hospital on a routine basis, such as monthly or bi-monthly.

Discharge and transfer notification to the Washington State Ombuds can be made electronically via email to [email protected] or fax (253) 815-8173. Please remember to include the name of the facility with your notification to the Ombuds. With emergency transfer list notification, it is helpful to include the following information:
  • The name of the resident,
  • Where the resident was transferred,
  • The main reason or diagnosis they were transferred, and
  • If the resident has returned to the facility.

If you have questions or would like additional information, please contact Patricia L. Hunter, MSW, State LTC Ombudsman Program via telephone at (253) 838-6810 or email Elena Madrid or call her at (800) 562-6170, extension 105.
‌
303 Cleveland Avenue SE, Suite 206 | Tumwater, Washington 98501
Tel (800) 562-6170