AN
ACT Relating to background checks on persons in contact with vulnerable adults;
and amending RCW 43.43.832, 43.20A.710, 74.39A.050, 74.34.095, and 74.39A.095.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
43.43.832 and 1997 c 392 s 524 are each amended to read as follows:
(1)
The legislature finds that businesses and organizations providing services to
children, developmentally disabled persons, and vulnerable adults need adequate
information to determine which employees or licensees to hire or engage. The
legislature further finds that many developmentally disabled individuals and
vulnerable adults desire to hire their own employees directly and also need
adequate information to determine which employees or licensees to hire or
engage. Therefore, the Washington state patrol criminal identification system
shall disclose, upon the request of a business or organization as defined in
RCW 43.43.830, a developmentally disabled person, or a vulnerable adult as
defined in RCW 43.43.830 or his or her guardian, an applicant's record for
convictions of offenses against children or other persons, convictions for crimes
relating to financial exploitation, but only if the victim was a vulnerable
adult, adjudications of child abuse in a civil action, the issuance of a
protection order against the respondent under chapter 74.34 RCW, and
disciplinary board final decisions and any subsequent criminal charges
associated with the conduct that is the subject of the disciplinary board final
decision.
(2)
The legislature also finds that the state board of education may request of the
Washington state patrol criminal identification system information regarding a
certificate applicant's record for convictions under subsection (1) of this
section.
(3)
The legislature also finds that law enforcement agencies, the office of the
attorney general, prosecuting authorities, and the department of social and
health services may request this same information to aid in the investigation
and prosecution of child, developmentally disabled person, and vulnerable adult
abuse cases and to protect children and adults from further incidents of abuse.
(4)
The legislature further finds that the department of social and health services
must consider the information listed in subsection (1) of this section in the
following circumstances:
(a)
When considering persons for state ((positions directly responsible for the
care, supervision, or treatment of children, developmentally disabled persons,
or vulnerable adults)) employment in positions directly responsible for
the supervision, care, or treatment of children, vulnerable adults, or
individuals with mental illness or developmental disabilities;
(b)
When considering persons for state positions involving unsupervised access
to vulnerable adults to conduct comprehensive assessments, financial
eligibility determinations, licensing and certification activities,
investigations, surveys, or case management; or for state positions otherwise
required by federal law to meet employment standards;
(c)
When licensing agencies or facilities with individuals in positions directly
responsible for the care, supervision, or treatment of children,
developmentally disabled persons, or vulnerable adults, including but not
limited to agencies or facilities licensed under chapter 74.15 or 18.51 RCW;
(((c)))
(d) When contracting with individuals or businesses or organizations for
the care, supervision, case management, or treatment of children,
developmentally disabled persons, or vulnerable adults, including but not
limited to services contracted for under chapter 18.20, 18.48, 70.127, 70.128,
72.36, or 74.39A RCW or Title 71A RCW;
(e)
When individual providers are paid by the state or providers are paid by home
care agencies to provide in-home services involving unsupervised access to
persons with physical, mental, or developmental disabilities or mental illness,
or to vulnerable adults as defined in chapter 74.34 RCW, including but not
limited to services provided under chapter 74.39 or 74.39A RCW.
(5)
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 pending completion of the state background investigation.
Whenever a national criminal record check through the federal bureau of
investigation is required by state law, a person may be employed or engaged as
a volunteer or independent contractor on a conditional basis pending completion
of the national check. The Washington personnel resources board shall adopt
rules to accomplish the purposes of this subsection as it applies to state
employees.
(6)(a)
For purposes of facilitating timely access to criminal background information
and to reasonably minimize the number of requests made under this section,
recognizing that certain health care providers change employment frequently,
health care facilities may, upon request from another health care facility,
share copies of completed criminal background inquiry information.
(b)
Completed criminal background inquiry information may be shared by a willing
health care facility only if the following conditions are satisfied: The
licensed health care facility sharing the criminal background inquiry
information is reasonably known to be the person's most recent employer, no
more than twelve months has elapsed from the date the person was last employed
at a licensed health care facility to the date of their current employment
application, and the criminal background information is no more than two years
old.
(c)
If criminal background inquiry information is shared, the health care facility
employing the subject of the inquiry must require the applicant to sign a
disclosure statement indicating that there has been no conviction or finding as
described in RCW 43.43.842 since the completion date of the most recent
criminal background inquiry.
(d)
Any health care facility that knows or has reason to believe that an applicant
has or may have a disqualifying conviction or finding as described in RCW
43.43.842, subsequent to the completion date of their most recent criminal
background inquiry, shall be prohibited from relying on the applicant's
previous employer's criminal background inquiry information. A new criminal
background inquiry shall be requested pursuant to RCW 43.43.830 through
43.43.842.
(e)
Health care facilities that share criminal background inquiry information shall
be immune from any claim of defamation, invasion of privacy, negligence, or any
other claim in connection with any dissemination of this information in
accordance with this subsection.
(f)
Health care facilities shall transmit and receive the criminal background
inquiry information in a manner that reasonably protects the subject's rights
to privacy and confidentiality.
(g)
For the purposes of this subsection, "health care facility" means a
nursing home licensed under chapter 18.51 RCW, a boarding home licensed under
chapter 18.20 RCW, or an adult family home licensed under chapter 70.128 RCW.
(7)
If a federal bureau of investigation check is required in addition to the state
background check by the department of social and health services, an applicant
who is not disqualified based on the results of the state background check
shall be eligible for a one hundred twenty day provisional approval to hire,
pending the outcome of the federal bureau of investigation check. The
department may extend the provisional approval until receipt of the federal
bureau of investigation check. If the federal bureau of investigation check
disqualifies an applicant, the department shall notify the requestor that the
provisional approval to hire is withdrawn and the applicant may be terminated.
Sec.
2. RCW
43.20A.710 and 1999 c 336 s 7 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, vulnerable adults,
or individuals with mental illness or developmental disabilities; ((and))
(b)
Persons being considered for state employment in positions involving
unsupervised access to vulnerable adults to conduct comprehensive assessments,
financial eligibility determinations, licensing and certification activities,
investigations, surveys, or case management; or for state positions otherwise
required by federal law to meet employment standards;
(c)
Individual providers who are paid by the state ((for)) and providers
who are paid by home care agencies to provide in-home services ((and
hired by individuals)) involving unsupervised access to persons with
physical ((disabilities)), mental, or developmental disabilities((,))
or mental illness, or ((mental impairment)) to vulnerable
adults as defined in chapter 74.34 RCW, including but not limited to
services provided under chapter 74.39 or 74.39A RCW; and
(d)
Individuals or businesses or organizations for the care, supervision, case
management, or treatment of children, developmentally disabled persons, or
vulnerable adults, including but not limited to services contracted for under
chapter 18.20, 18.48, 70.127, 70.128, 72.36, or 74.39A RCW or Title 71A 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)
An individual provider or home care agency provider who has resided in the
state less than three years before applying for employment involving
unsupervised access to a vulnerable adult as defined in chapter 74.34 RCW must
be fingerprinted for the purpose of investigating conviction records both
through the Washington state patrol and the federal bureau of investigation.
This subsection applies only with respect to the provision of in-home services
funded by medicaid personal care under RCW 74.09.520, community options program
entry system waiver services under RCW 74.39A.030, or chore services under RCW
74.39A.110. However, this subsection does not supersede RCW 74.15.030(2)(b).
(4)
An individual provider or home care agency provider hired to provide in-home
care for and having unsupervised access to a vulnerable adult as defined in
chapter 74.34 RCW must have no conviction for a disqualifying crime under RCW
43.43.830 and 43.43.842. An individual or home care agency provider must also
have no conviction for a crime relating to drugs as defined in RCW 43.43.830.
This subsection applies only with respect to the provision of in-home services
funded by medicaid personal care under RCW 74.09.520, community options program
entry system waiver services under RCW 74.39A.030, or chore services under RCW
74.39A.110.
(5)
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))
persons hiring them or to their legal guardians, if any, for their
determination of the character, suitability, and competence of the applicants.
If ((an individual)) the person 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)) having unsupervised access to
persons with physical, mental, or developmental disabilities or mental illness,
or to vulnerable adults as defined in chapter 74.34 RCW, then the secretary
shall deny payment for any subsequent services rendered by the disqualified
individual provider.
(((4)))
(6) Criminal justice agencies shall provide the secretary such
information as they may have and that the secretary may require for such
purpose.
Sec.
3. RCW
74.39A.050 and 1999 c 336 s 5 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)))
(10) 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)))
(11) Under existing funds the department shall establish internally a
quality improvement standards committee to monitor the development of standards
and to suggest modifications.
(((13)))
(12) 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.
Sec.
4. RCW
74.34.095 and 1999 c 176 s 17 are each amended to read as follows:
(1)
The following information is confidential and not subject to disclosure, except
as provided in this section:
(a)
A report of abandonment, abuse, financial exploitation, or neglect made under
this chapter;
(b)
The identity of the person making the report; and
(c)
All files, reports, records, communications, and working papers used or
developed in the investigation or provision of protective services.
(2)
Information considered confidential may be disclosed only for a purpose
consistent with this chapter or as authorized by chapter 18.20, 18.51, or
74.39A RCW, or as authorized by the long-term care ombudsman programs under
federal law or state law, chapter 43.190 RCW.
(3)
A court or presiding officer in an administrative proceeding may order
disclosure of confidential information only if the court, or presiding
officer in an administrative proceeding, determines that disclosure is
essential to the administration of justice and will not endanger the life or
safety of the vulnerable adult or individual who made the report. The court or
presiding officer in an administrative hearing may place restrictions on such
disclosure as the court or presiding officer deems proper.
Sec.
5. RCW
74.39A.095 and 1999 c 175 s 3 are each amended to read as follows:
(1)
In carrying out case management responsibilities established under RCW
74.39A.090 for consumers who are receiving services under the medicaid personal
care, community options programs entry system or chore services program through
an individual provider, each area agency on aging shall provide adequate
oversight of the care being provided to consumers receiving services under this
section. Such oversight shall include, but is not limited to:
(a)
Verification that the individual provider has met any training requirements
established by the department;
(b)
Verification of a sample of worker time sheets;
(c)
Home visits or telephone contacts sufficient to ensure that the plan of care is
being appropriately implemented;
(d)
Reassessment and reauthorization of services;
(e)
Monitoring of individual provider performance; and
(f)
Conducting criminal background checks or verifying that criminal background
checks have been conducted.
(2)
The area agency on aging case manager shall work with each consumer to develop
a plan of care under this section that identifies and ensures coordination of
health and long-term care services that meet the consumer's needs. In
developing the plan, they shall utilize, and modify as needed, any
comprehensive community service plan developed by the department as provided in
RCW 74.39A.040. The plan of care shall include, at a minimum:
(a)
The name and telephone number of the consumer's area agency on aging case
manager, and a statement as to how the case manager can be contacted about any
concerns related to the consumer's well-being or the adequacy of care provided;
(b)
The name and telephone numbers of the consumer's primary health care provider,
and other health or long-term care providers with whom the consumer has
frequent contacts;
(c)
A clear description of the roles and responsibilities of the area agency on
aging case manager and the consumer receiving services under this section;
(d)
The duties and tasks to be performed by the area agency on aging case manager
and the consumer receiving services under this section;
(e)
The type of in-home services authorized, and the number of hours of services to
be provided;
(f)
The terms of compensation of the individual provider;
(g)
A statement that the individual provider has the ability and willingness to
carry out his or her responsibilities relative to the plan of care; and
(h)(i)
Except as provided in (h)(ii) of this subsection, a clear statement indicating
that a consumer receiving services under this section has the right to waive
any of the case management services offered by the area agency on aging under
this section, and a clear indication of whether the consumer has, in fact, waived
any of these services.
(ii)
The consumer's right to waive case management services does not include the
right to waive reassessment or reauthorization of services, or verification
that services are being provided in accordance with the plan of care.
(3)
Each area agency on aging shall retain a record of each waiver of services
included in a plan of care under this section.
(4)
Each consumer has the right to direct and participate in the development of
their plan of care to the maximum practicable extent of their abilities and
desires, and to be provided with the time and support necessary to facilitate
that participation.
(5)
A copy of the plan of care must be distributed to the consumer's primary care
provider, individual provider, and other relevant providers with whom the
consumer has frequent contact, as authorized by the consumer.
(6)
The consumer's plan of care shall be an attachment to the contract between the
department, or their designee, and the individual provider.
(7)
If the department or area agency on aging case manager finds that an
individual provider's inadequate performance or inability to deliver quality
care is jeopardizing the health, safety, or well-being of a consumer receiving
service under this section, the department or the area agency on aging may take
action to terminate the contract between the department and the individual
provider. If the department or the area agency on aging has a reasonable, good
faith belief that the health, safety, or well-being of a consumer is in
imminent jeopardy, the department or area agency on aging may summarily suspend
the contract pending a fair hearing. The consumer may request a fair hearing
to contest the planned action of the case manager, as provided in chapter 34.05
RCW. The department may by rule adopt guidelines for implementing this
subsection.
(8) The department or area agency on aging may reject a
request by ((an [a])) a consumer receiving services under this
section to have a family member or other person serve as his or her individual
provider if the case manager has a reasonable, good faith belief that the
family member or other person will be unable to appropriately meet the
care needs of the consumer. The consumer may request a fair hearing to contest
the decision of the case manager, as provided in chapter 34.05 RCW. The
department may by rule adopt guidelines for implementing this subsection.
