Washington State’s system for regulating assisted living facilities has been substantially in place for over a decade and provides valuable protections for assisted living residents.   This policy brief explains the Washington system and shares lessons for advocates.ASSISTED LIVING CONSUMER ALLIANCE

The Washington State Model of

 Assisted Living Regulation

Policy Paper of the Assisted Living Consumer Alliance

Authored by Nina A. Kohn, Assistant Professor, Syracuse University College of Law

I.       An Overview of the Washington Model

Washington State’s system for regulating assisted living facilities (ALFs) consists of a handful of separate statutes and regulations. There are two core types of regulations: 

(1)     provisions governing the licensure of boarding homes set forth

          in Revised Code of Washington (RCW) § 18.20 and

          Washington Administrative Code (WAC) § 388-78A, and

          (2)     provisions in RCW § 70.129 setting forth resident rights. 

Originally enacted in 1994, RCW § 70.129 was designed to extend the federally protected rights of nursing home residents to residents of veterans' homes and boarding homes. 

The Washington State system is guided by two underlying principles:  (1) that resident rights be meaningful, and (2) that ALFs provide reasonable accommodation of residents’ changing needs and preferences.  These are given teeth by a meaningful system of enforcement.

          A.      Meaningful Rights

Resident rights in Washington State are meaningful in three key ways.  First, they are extensive and specific.   For example:

(1)     Residents are given a variety of protections designed to ensure that

          facilities can meet their needs.  A facility may not accept or retain a

resident whose care needs cannot be met with reasonable accommodation.  Therefore, meaningful assessment of a resident’s health and social needs is required prior to admission, a full assessment is required shortly after admission, and follow-up assessments are required annually.   Similarly, facilities must monitor residents’ conditions to identify significant changes in residents’ physical, emotional, and mental functioning and then evaluate such changes to determine if intervention is needed.   

(2)     Residents are also given a variety of rights to ensure that they receive the

minimum services generally expected of an ALF.  All facilities must provide, among other things, activities, housekeeping, laundry, and meals.  Similarly, all ALFs must have sufficient staff to “furnish the services and care needed by each resident consistent with the resident’s negotiated service agreement.”   

(3)     Residents also have significant protection from eviction.  Unless the

          Resident has failed to make payments or the facility closes, a facility may

not transfer or discharge a resident unless it is necessary for the resident's welfare and her needs cannot be met within the facility, or the health or safety of others is endangered.  In addition, the resident is entitled to detailed notice and discharge planning prior to eviction.  

(4)     In addition, to ensure that residents can make informed choices

          about their care and housing, residents and potential rights are entitled to

detailed disclosure.  A facility must inform the resident both orally and in writing – and in a language she understands – of her rights and all rules and regulations governing resident conduct and responsibilities prior to or upon admission.

Second, resident rights are meaningful in that they are not easily waived.  Washington prohibits facilities from requiring or requesting residents to waive their rights under RCW § 70.129.   The “or request” portion of this prohibition was added within the last few years at the urging of State Ombudsmen.

Third, facilities have an affirmative duty to “promote and protect” residents’ exercise of their rights under RCW § 70.129.   While it is hard to say to what extent this allocation of responsibility affects behavior, it sends a clear message about the intended nature of residents’ rights and about the value that the State places on residents’ rights.    

          B.      Accommodation

The second key theme underlying the Washington State model is accommodation of residents’ changing needs and preferences. 

By statute, a resident has the right to “reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered.”   Similarly, in language also paralleling the federal regulations protecting nursing home residents, Washington law states that a “facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality.”  See RCW § 70.129.140.

This general right is reiterated as to a variety of specifics including the right to make choices about activities, schedules, dress, care planning and treatment, and other personally significant aspects of everyday life.

Perhaps most importantly, before an ALF transfers or discharges a resident, the facility must attempt to make reasonable accommodations that would avoid the discharge or transfer unless the resident agrees otherwise.  This includes allowing a resident to arrange to receive on-site care and services from qualified outside providers subject to the “reasonable limitations” of the facility.

          C.      Meaningful enforcement

The enforcement provisions which are part of Washington State’s system for regulating ALFs help its legal protections become a reality for residents.  ALFs are subject to regular inspections by the Washington State Department of Social and Health Services, and complaints against ALFs are also investigated by the Department.  ALFs must be given a written statement of any deficiencies found during inspections or complaint investigations and, in return, must provide the Department with a plan of correction for each deficiency.  However, an ALF found to be in violation of State law cannot necessarily avoid penalties merely by correcting the problem.  The Department is authorized to pursue enforcement remedies not only for uncorrected problems, but also immediately upon finding a serious or recurring problem.  See WAC § 388-78A-3180. 

II.      Lessons for Advocates

Washington State’s system for regulating ALFs has been substantially in place for over a decade.  Washington’s experience reveals three important lessons:  (1) the need for constant vigilance, (2) the value of independent enforcement, and (3) the danger of avoiding the use of the term “assisted living” in otherwise robust state regulatory systems.

          A.      Constant Vigilance

The Washington State experience indicates passage of a “good” assisted living bill is not the end.  Washington State consumer advocates have found that unanticipated problems may arise and that consumer advocates need to be ready and willing to bring such problems to the attention of state lawmakers.  In addition, the Washington State experience indicates that to the extent that assisted living industry is opposed to the regulations or aspects of them, it may lobby to loosen resident protections.  Again, consumer advocates need to be ready and able to explain the value of such protections and to work to maintain them.

          B.      Independent Enforcement

The Washington State experience demonstrates there is significant value in having entity independent of the government which is invested in shoring up the regulations and ensuring their enforcement.   Washington State has this.  In 1988, the State’s legislature passed a statute mandating that its ombudsmen program be run by a private, non-profit organization.  According to the statute, the prior location of the program – the department of social and health services – “brought into serious question” the ability of the office to effectively investigate and resolve resident complaints.  Consistent with this intent, the resulting independence of the Ombudsmen program has allowed it to enforce regulations and lobby for legislative action – or inaction – in a manner and to a degree that an agency contained within the government would likely find difficult.

          C.      Reference to “Assisted Living”

The Washington State experience also suggests that, consumer advocates should try to make sure that in states which provide robust protections for residents, those protections specifically state that they apply to “assisted living facilities” instead of using only broader or more traditional terms like “adult homes” or “boarding homes.”  Washington State laws generally do not use the term “assisted living” – this has provided an entree for providers to argue that the laws should not apply to them.

III.    Summary

While not perfect, the Washington State system of regulating ALFs provides many vulnerable Washingtonians with critical protections and is a useful model for other states looking to protect the civil rights and safety of assisted living residents.