SENATE BILL REPORT

SB 5338

As Reported by Senate Committee On:

Human Services, Reentry & Rehabilitation, February 5, 2019

Title: An act relating to the protection of vulnerable adults.

Brief Description: Concerning the protection of vulnerable adults.

Sponsors: Senators Darneille, Rivers, Conway, Keiser, Van De Wege and Kuderer; by request of Department of Social and Health Services.

Brief History:

Committee Activity: Human Services, Reentry & Rehabilitation: 1/30/19, 2/05/19 [DPS-WM].

Majority Report: That Substitute Senate Bill No. 5338 be substituted therefor, and the substitute bill do pass and be referred to Committee on Ways & Means.

Signed by Senators Darneille, Chair; Nguyen, Vice Chair; Walsh, Ranking Member; Cleveland, O'Ban, Wilson, C. and Zeiger.

Staff: Kevin Black (786-7747)

Background: DSHS investigates the abandonment, abuse, financial exploitation, neglect, or self-neglect of vulnerable adults. Statutes require DSHS to maintain a vulnerable adult registry containing persons subject to substantiated findings of abandonment, abuse, exploitation, or neglect of a vulnerable adult, and prohibit the hiring of persons who appear in the registry or are subject to other similar reports.

A vulnerable adult includes a person who is:

• sixty years of age or older and has the functional, mental, or physical inability to care for themself;

• found incapacitated, meaning the individual is at significant risk of personal harm based upon a demonstrated inability to care for themself;

• a person with a developmental disability;

• admitted to any facility;

• receiving services from a home health, hospice, or home care agency;

• receiving services from an individual provider; or

• self-directing their own care and receiving services from a personal aide.

Summary of Bill: The bill as referred to committee not considered.

Summary of Bill (First Substitute): Definitions relating to the civil standard for abandonment, abuse, financial exploitation, neglect, or self-neglect of a vulnerable adult are modified as follows:

• the level of intent required for a finding of abuse is reduced from willful to intentional, knowing, or reckless;

• reckless is defined to mean disregard of a substantial risk that an action is likely to inflict injury;

• it is specified accidents and reasonable acts to protect a person from risk are not abuse or improper use of restraint;

• facilities are defined to include enhanced services facilities but not include facilities licensed or certified by the Department of Health;

• mandated reporters are expended to include employees of the Department of Children, Youth, and Families (DCYF), the operator of a residential services and support agency, or employees of any facility certified by DSHS; and

• additional definitions are provided for terms including intentional, knowing, reckless, misappropriation of resident property, provider, and vulnerable adult registry.

Records shared between DSHS, DCYF, and law enforcement related to findings of abandonment, abuse, financial exploitation, and neglect of vulnerable adults must not become subject to public disclosure or further disseminated except as authorized by law. Disclosures are authorized to the Office of the Developmental Disabilities Ombuds program.

DSHS is prohibited from disclosing information relating to a specifically named vulnerable adult if:

• the information relates to a report having been received and an unannounced investigation in response to the report has not been initiated;

• disclosure may compromise investigation by a law enforcement agency, disciplinary authority, DSHS, or DCYF;

• disclosure of information may endanger any person, based on reasonable belief; or

• the requester is the alleged perpetrator.

Quality assurance reviews by DSHS are protected from discovery or use in a civil or administrative proceeding including all the views and opinions of employees who participate in the reviews and the written documents they generate.

DSHS must develop, by rule, a process to remove individuals from its vulnerable adult registry allowing a person to petition, in writing, for removal after three years have elapsed, provided the person is not subject to a finding:

• they sexually abused a vulnerable adult;

• they caused a vulnerable adult to suffer great bodily harm or death;

• they financially exploited a vulnerable adult with a value exceeding $5,000; or

• the abuse involved a lethal weapon.

The person applying to have their record removed must not have a conviction for a disqualifying crime, multiple findings in the registry, or multiple victims. DSHS must maintain records of persons who are removed from the registry, which must be exempt from public disclosure. Documents related to applications for the removal of persons from the registry are protected from discovery in any civil or administrative action against DSHS.

DSHS may access reports and records of autopsies and postmortems for the purpose of investigating the abuse of vulnerable adults. A cross reference is added advising a vulnerable adult who is the victim of stalking of their right to apply for a stalking protection order.

EFFECT OF CHANGES MADE BY HUMAN SERVICES, REENTRY & REHABILITATION COMMITTEE (First Substitute):

• Amends the definition of reckless as it pertains to abuse of a vulnerable adult to mean disregard of a substantial risk that an action is likely to inflict injury.

• Adds a cross reference advising vulnerable adults who are the victims of stalking of their right to apply for a stalking protection order.

Appropriation: None.

Fiscal Note: Available.

Creates Committee/Commission/Task Force that includes Legislative members: No.

Effective Date: Ninety days after adjournment of session in which bill is passed.

Staff Summary of Public Testimony on Proposed Substitute: The committee recommended a different version of the bill than what was heard. PRO: This bill creates new opportunities for people now on a permanent registry that precludes their participation in DSHS functions and services in the community. Someone who wants to volunteer in a school or day care center may be precluded because of something that happened long ago, and was followed by work and change. One young man could not visit his mother in an adult family home because of the other vulnerable people there, even though his infraction was decades earlier. This allows people to move forward. We want to provide additional protections and assure we can operate at the highest levels of efficiency and quality. We worked extensively with stakeholders over the interim to improve last year's bill. We chose widely recognized definitions that exclude accidental or protective activities. We are still working on language. A number of findings have been overturned in administrative hearings based on lack of specific intent to harm. There are 7000 people on the abuse registry with a range of severity. The only tool is a lifetime ban. An amendment to the definition of facility cleans up an error from a 2018 bill that expanded our responsibilities. The registry is important, but we support having a path to get off the registry. There is a work shortage for persons with developmental disabilities and this is a way to address that problem. It affects parents of persons with developmental disabilities who want to be involved with their children's care. This will help the Ombuds get needed information from Adult Protective Services.

OTHER: Please amend the bill to include language protecting vulnerable adults from stalking and harassment. My son was stalked by a predator and the judge denied a vulnerable adult protection order because we were unable to prove abuse, abandonment, financial exploitation, or neglect.

Persons Testifying: PRO: Senator Jeannie Darneille, Prime Sponsor; Bea Rector, DSHS; Noah Seidel, Office of Developmental Disabilities Ombuds. OTHER: Cheryl Felak, citizen.

Persons Signed In To Testify But Not Testifying: No one.