Appeal Of DSHS Denial Of Petition For Rulemaking To Amend Rules To Ensure Discharge Protection For Residents In All Licensed Long-Term Care Settings
December 29, 2022 | Policy
A fair and equitable government agency looks for legally supportable ways to further its mission to protect vulnerable populations rather than erring on the side of doing nothing, especially
when there is little to no legal risk. Here, the Department of Social and Health Services (“Department”) is avoiding doing what it agrees is an equitable way to protect the most vulnerable citizens in Washington State—long-term care facility residents facing involuntary discharge from their homes.
In 1994, the Washington State legislature extended federal rights for nursing home residents to home and community-based settings, such as assisted living facilities. These rights
include discharge notice protections and administrative hearing rights. Yet, despite this unequivocal grant of important rights to all long-term care residents, the Department never promulgated rules setting out these rights as it did for nursing home residents. Without rules, vulnerable residents who are told they must leave their homes are not aware of these important
protections granted in statute. Therefore, a coalition of 12 Petitioners representing a broad spectrum of long-term care residents—who need rules to clarify the discharge protections
guaranteed in statute—filed a rulemaking petition and memorandum in support (“Petition”). Despite the clear intent of the State legislature and multiple final decisions from the Board of Appeals for the Health Care Authority (HCA) confirming the legal right to these discharge protections, the Department denied the Petition claiming that “it goes beyond the scope of resident
rights granted in statute.” Governor Inslee now has the power to overturn this erroneous decision and to model mission driven public policy by granting this petition for rulemaking. Pursuant to RCW 34.05.330, the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law and the Washington State Long Term Care Ombudsman Program, et al. (“Petitioners”) submit this appeal of the denial issued by the Department on November 30, 2022 (“Denial Letter”) of the Petition.