AN
ACT Relating to providing for self-directed care of persons with disabilities;
amending RCW 74.39A.050 and 43.20A.710; adding new sections to chapter 74.39
RCW; adding a new section to chapter 74.34 RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. (1)
The legislature finds that certain aspects of health licensure laws have the
unintended consequence of limiting the right of persons with functional
disabilities to care for themselves in their own home, and of securing
assistance from other persons in performing routine health-related tasks that
persons without these disabilities customarily perform.
(2)
It is the intent of the legislature to clarify the right of adults with
functional disabilities to choose to self-direct their own health-related tasks
through personal aides, and to describe the circumstances under which
self-directed care may take place in the home setting. The legislature
declares that it is in the public interest to preserve the autonomy and dignity
of persons with functional disabilities to care for themselves in their own
homes, among the continuum of options for health care services where the
judgment and control over the care rests with the individual.
NEW
SECTION. Sec. 2. The
definitions in this section apply throughout sections 1 through 4 and 8 of this
act and RCW 43.190.060 unless the context clearly requires otherwise.
(1)
"Self-directed care" means the process in which an adult person, who
is prevented by a functional disability from performing a manual function
related to health care that an individual would otherwise perform for himself
or herself, chooses to direct and supervise a paid personal aide to perform
those tasks.
(2)
"Personal aide" means an individual, working privately or as an
individual provider under contract or agreement with the department of social
and health services, who acts at the direction of an adult person with a
functional disability living in his or her own home and provides that person
with health care services that a person without a functional disability can
perform.
NEW
SECTION. Sec. 3. (1)
An adult person with a functional disability living in his or her own home may
direct and supervise a paid personal aide in the performance of a health care
task.
(2)
The following requirements shall guide the provision of self-directed care
under this act:
(a)
Health care tasks are those medical, nursing, or home health services that
enable the person to maintain independence, personal hygiene, and safety in his
or her own home, and that are services that a person without a functional
disability would customarily and personally perform without the assistance of a
licensed health care provider.
(b)
The individual who chooses to self-direct a health care task is responsible for
initiating self-direction by informing the health care professional who has
ordered the treatment which involves that task of the individual's intent to
perform that task through self-direction.
(c)
When state funds are used to pay for self-directed tasks, a description of
those tasks will be included in the client's comprehensive assessment, and
subject to review with each annual reassessment.
(d)
When a licensed health care provider orders treatment involving a health care
task to be performed through self-directed care, the responsibility to
ascertain that the patient understands the treatment and will be able to follow
through on the self-directed care task is the same as it would be for a patient
who performs the health care task for himself or herself, and the licensed
health care provider incurs no additional liability when ordering a health care
task which is to be performed through self-directed care.
(e)
The role of the personal aide in self-directed care is limited to performing
the physical aspect of health care tasks under the direction of the person for
whom the tasks are being done. This shall not affect the ability of a personal
aide to provide other home care services, such as personal care or homemaker
services, which enable the client to remain at home.
(f)
The responsibility to initiate self-directed health care tasks, to possess the
necessary knowledge and training for those tasks, and to exercise judgment
regarding the manner of their performance rests and remains with the person who
has chosen to self-direct those tasks, including the decision to employ and
dismiss a personal aide.
NEW
SECTION. Sec. 4. Any
individual who, for compensation, serves as a personal aide provider under
contract or agreement with the department of social and health services, to a
person who self-directs his or her own care in his or her own home, shall register
with the department of social and health services.
Sec.
5. RCW
74.39A.050 and 1998 c 85 s 1 are each amended to read as follows:
The
department's system of quality improvement for long-term care services shall
use the following principles, consistent with applicable federal laws and
regulations:
(1)
The system shall be client-centered and promote privacy, independence, dignity,
choice, and a home or home-like environment for consumers consistent with
chapter 392, Laws of 1997.
(2)
The goal of the system is continuous quality improvement with the focus on
consumer satisfaction and outcomes for consumers. This includes that when conducting
licensing inspections, the department shall interview an appropriate percentage
of residents, family members, resident managers, and advocates in addition to
interviewing providers and staff.
(3)
Providers should be supported in their efforts to improve quality and address
identified problems initially through training, consultation, technical
assistance, and case management.
(4)
The emphasis should be on problem prevention both in monitoring and in
screening potential providers of service.
(5)
Monitoring should be outcome based and responsive to consumer complaints and a
clear set of health, quality of care, and safety standards that are easily
understandable and have been made available to providers.
(6)
Prompt and specific enforcement remedies shall also be implemented without
delay, pursuant to RCW 74.39A.080, RCW 70.128.160, chapter 18.51 RCW, or
chapter 74.42 RCW, for providers found to have delivered care or failed to
deliver care resulting in problems that are serious, recurring, or uncorrected,
or that create a hazard that is causing or likely to cause death or serious
harm to one or more residents. These enforcement remedies may also include,
when appropriate, reasonable conditions on a contract or license. In the
selection of remedies, the safety, health, and well-being of residents shall be
of paramount importance.
(7)
To the extent funding is available, all long-term care staff directly
responsible for the care, supervision, or treatment of vulnerable persons
should be screened through background checks in a uniform and timely manner to
ensure that they do not have a criminal history that would disqualify them from
working with vulnerable persons. Whenever a state conviction record check is
required by state law, persons may be employed or engaged as volunteers or
independent contractors on a conditional basis according to law and rules
adopted by the department.
(8)
No provider or staff, or prospective provider or staff, with a stipulated
finding of fact, conclusion of law, an agreed order, or finding of fact,
conclusion of law, or final order issued by a disciplining authority, a court
of law, or entered into a state registry finding him or her guilty of abuse,
neglect, exploitation, or abandonment of a minor or a vulnerable adult as
defined in chapter 74.34 RCW shall be employed in the care of and have
unsupervised access to vulnerable adults.
(9)
The department shall establish, by rule, a state registry which contains
identifying information about personal care aides identified under this chapter
who have substantiated findings of abuse, neglect, financial exploitation, or
abandonment of a vulnerable adult as defined in RCW 74.34.020. The rule must
include disclosure, disposition of findings, notification, findings of fact,
appeal rights, and fair hearing requirements. The department shall disclose,
upon request, substantiated findings of abuse, neglect, financial exploitation,
or abandonment to any person so requesting this information.
(10)
The department shall by rule develop training requirements for individual
providers and home care agency providers. The department shall deny payment to
an individual provider or a home care provider who does not complete the
training requirement within the time limit specified by the department by rule.
(11)
The department shall establish, by rule, training, background checks, and other
quality assurance requirements for personal aides who provide in-home services
funded by medicaid personal care as described in RCW 74.09.520, community options
program entry system waiver services as described in RCW 74.39A.030, or chore
services as described in RCW 74.39A.110 that are equivalent to requirements for
individual providers.
(12)
Under existing funds the department shall establish internally a quality
improvement standards committee to monitor the development of standards and to
suggest modifications.
(((10)))
(13) Within existing funds, the department shall design, develop, and
implement a long-term care training program that is flexible, relevant, and
qualifies towards the requirements for a nursing assistant certificate as
established under chapter 18.88A RCW. This subsection does not require
completion of the nursing assistant certificate training program by providers
or their staff. The long-term care teaching curriculum must consist of a
fundamental module, or modules, and a range of other available relevant
training modules that provide the caregiver with appropriate options that
assist in meeting the resident's care needs. Some of the training modules may
include, but are not limited to, specific training on the special care needs of
persons with developmental disabilities, dementia, mental illness, and the care
needs of the elderly. No less than one training module must be dedicated to
workplace violence prevention. The nursing care quality assurance commission
shall work together with the department to develop the curriculum modules. The
nursing care quality assurance commission shall direct the nursing assistant
training programs to accept some or all of the skills and competencies from the
curriculum modules towards meeting the requirements for a nursing assistant
certificate as defined in chapter 18.88A RCW. A process may be developed to
test persons completing modules from a caregiver's class to verify that they
have the transferable skills and competencies for entry into a nursing
assistant training program. The department may review whether facilities can
develop their own related long-term care training programs. The department may
develop a review process for determining what previous experience and training
may be used to waive some or all of the mandatory training. The department of
social and health services and the nursing care quality assurance commission
shall work together to develop an implementation plan by December 12, 1998.
NEW
SECTION. Sec. 6. A
new section is added to chapter 74.34 RCW to read as follows:
For
the purposes of this chapter, the term "vulnerable adult" includes
persons receiving services from any individual who for compensation serves as a
personal aide to a person who self-directs his or her own care in his or her
home under this act.
Sec.
7. RCW
43.20A.710 and 1997 c 392 s 525 are each amended to read as follows:
(1)
The secretary shall investigate the conviction records, pending charges or
disciplinary board final decisions of:
(a)
Persons being considered for state employment in positions directly responsible
for the supervision, care, or treatment of children or individuals with mental
illness or developmental disabilities; and
(b)
Individual providers who are paid by the state for in-home services and hired
by individuals with physical disabilities, developmental disabilities, mental
illness, or mental impairment, including but not limited to services provided
under chapter 74.39A RCW.
(2)
The investigation may include an examination of state and national criminal
identification data. The secretary shall use the information solely for the
purpose of determining the character, suitability, and competence of these
applicants.
(3)
The secretary shall provide the results of the state background check on
individual providers to the individuals with physical disabilities,
developmental disabilities, mental illness, or mental impairment or to their
legal guardians, if any, for their determination of the character, suitability,
and competence of the applicants. If an individual elects to hire or retain an
individual provider after receiving notice from the department that the
applicant has a conviction for an offense that would disqualify the applicant
from employment with the department, then the secretary ((may)) shall
deny payment for any subsequent services rendered by the disqualified
individual provider.
(4)
Criminal justice agencies shall provide the secretary such information as they
may have and that the secretary may require for such purpose.
NEW
SECTION. Sec. 8. A
personal aide, in the performance of a health care task, who is directed and
supervised by a person with a functional disability in his or her own home, is
exempt from any legal requirement to qualify and be credentialed by the
department of health as a health care provider under Title 18 RCW to the extent
of the responsibilities provided and health care tasks performed under this act.
NEW
SECTION. Sec. 9. (1)
To the extent that funds are appropriated for this purpose, the University of
Washington school of nursing shall study the implementation of this act as it
relates to self-directed care performed for persons receiving services through
department of social and health services' programs, and submit a report to the
legislature by November 1, 2001, to include findings as well as any
recommendations for improvements to this act. If there are not sufficient
numbers of consumers who have elected self-directed care in order for the study
to be completed by November 1, 2001, the study deadline shall be extended as
necessary, but not to exceed one year.
(2)
The study shall be performed in consultation with the governor's committee on
disability issues and employment, and the departments of health and social and
health services. The report shall include data, to the extent reasonably
available, on the following:
(a)
Consumer satisfaction with self-directed care, including consumer perception of
the degree of autonomy, self-determination, and choice afforded;
(b)
Service quality and consumer safety, as determined by consumers and
quantifiable outcomes such as rate of hospitalization or other facility
placement;
(c)
Number of personal aides who have been found to have abused or neglected
consumers;
(d)
Consumer outcomes in emergency situations such as abandonment, abuse, neglect,
or exploitation by personal aide; and
(e)
Whether coercion is a factor in consumers requesting self-directed care, or
with personal aides performing self-directed care tasks.
NEW SECTION. Sec. 10.
Sections 2 through 4 and 8 of this act are each added to chapter 74.39 RCW.
