1850-S2

1850-S2.E AMC CONF H3319.1

E2SHB 1850 - CONF REPT

By Conference Committee

Strike everything after the enacting clause and insert the following:

"PART I

NEW SECTION. Sec. 101. This act shall be known and may be cited as the Clara act.

NEW SECTION. Sec. 102. FINDINGS AND INTENT. The legislature finds and declares that the state's current fragmented categorical system for administering services to persons with disabilities and the elderly is not client and family-centered and has created significant organizational barriers to providing high quality, safe, and effective care and support. The present fragmented system results in uncoordinated enforcement of regulations designed to protect the health and safety of disabled persons, lacks accountability due to the absence of management information systems' client tracking data, and perpetuates difficulty in matching client needs and services to multiple categorical funding sources.

The legislature further finds that Washington's chronically functionally disabled population of all ages is growing at a rapid pace due to a population of the very old and increased incidence of disability due in large measure to technological improvements in acute care causing people to live longer. Further, to meet the significant and growing long-term care needs into the near future, rapid, fundamental changes must take place in the way we finance, organize, and provide long-term care services to the chronically functionally disabled.

The legislature further finds that the public demands that long‑term care services be safe, client and family-centered, and designed to encourage individual dignity, autonomy, and development of the fullest human potential at home or in other residential settings, whenever practicable.

NEW SECTION. Sec. 103. A new section is added to chapter 74.39A RCW to read as follows:

DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Adult family home" means a home licensed under chapter 70.128 RCW.

(2) "Adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.020.

(3) "Assisted living services" means services provided by a boarding home that has a contract with the department under RCW 74.39A.010 and the resident is housed in a private apartment-like unit.

(4) "Boarding home" means a facility licensed under chapter 18.20 RCW.

(5) "Cost-effective care" means care provided in a setting of an individual's choice that is necessary to promote the most appropriate level of physical, mental, and psychosocial well-being consistent with client choice, in an environment that is appropriate to the care and safety needs of the individual, and such care cannot be provided at a lower cost in any other setting. But this in no way precludes an individual from choosing a different residential setting to achieve his or her desired quality of life.

(6) "Department" means the department of social and health services.

(7) "Enhanced adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.010.

(8) "Functionally disabled person" is synonymous with chronic functionally disabled and means a person who because of a recognized chronic physical or mental condition or disease, including chemical dependency, is impaired to the extent of being dependent upon others for direct care, support, supervision, or monitoring to perform activities of daily living. "Activities of daily living", in this context, means self-care abilities related to personal care such as bathing, eating, using the toilet, dressing, and transfer. Instrumental activities of daily living may also be used to assess a person's functional abilities as they are related to the mental capacity to perform activities in the home and the community such as cooking, shopping, house cleaning, doing laundry, working, and managing personal finances.

(9) "Home and community services" means adult family homes, in-home services, and other services administered or provided by contract by the department directly or through contract with area agencies on aging or similar services provided by facilities and agencies licensed by the department.

(10) "Long-term care" is synonymous with chronic care and means care and supports delivered indefinitely, intermittently, or over a sustained time to persons of any age disabled by chronic mental or physical illness, disease, chemical dependency, or a medical condition that is permanent, not reversible or curable, or is long-lasting and severely limits their mental or physical capacity for self-care. The use of this definition is not intended to expand the scope of services, care, or assistance by any individuals, groups, residential care settings, or professions unless otherwise expressed by law.

(11) "Nursing home" means a facility licensed under chapter 18.51 RCW.

(12) "Secretary" means the secretary of social and health services.

(13) "Tribally licensed boarding home" means a boarding home licensed by a federally recognized Indian tribe which home provides services similar to boarding homes licensed under chapter 18.20 RCW.

NEW SECTION. Sec. 104. JOINT LEGISLATIVE COMMITTEE ON LONG-TERM CARE OVERSIGHT. (1) There is created a joint legislative committee on long-term care oversight. The committee shall consist of: (a) Four members of the senate appointed by the president of the senate, two of whom shall be members of the majority party and two of whom shall be members of the minority party; and (b) four members of the house of representatives, two of whom shall be members of the majority party and two of whom shall be members of the minority party.

(2) The committee shall elect a chair and vice-chair. The chair shall be a member of the senate in even-numbered years and a member of the house of representatives in odd-numbered years. The vice-chair shall be a member of the senate in odd-numbered years and a member of the house of representatives in even-numbered years.

(3) The committee shall:

(a) Review the need for reorganization and reform of long-term care administration and service delivery;

(b) Review all quality standards developed, revised, and enforced by the department;

(c) In cooperation with the department of social and health services, develop suggestions to simplify, reduce, or eliminate unnecessary rules, procedures, and burdensome paperwork that prove to be barriers to providing effective coordination or high quality direct services;

(d) Suggest methods of cost-efficiencies that can be used to reallocate funds to unmet needs in direct services;

(e) List all nonmeans tested programs and activities funded by the federal older Americans act and state funded senior citizens act or other such state funded programs and recommend how to integrate such services into existing long-term care programs for the functionally disabled;

(f) Suggest methods to establish a single point of entry for service eligibility and delivery for functionally disabled persons;

(g) Evaluate the need for long-term care training and review all long-term care training and education programs conducted by the department and suggest modifications to improve the training system;

(h) Describe current facilities and services that provide long-term care to all types of chronically disabled individuals in the state including Revised Code of Washington requirements, Washington Administrative Code rules, allowable occupancy, typical clientele, discharge practices, agency oversight, rates, eligibility requirements, entry process, social and health services and other services provided, staffing standards, and physical plant standards;

(i) Determine the extent to which the current long-term care system meets the health and safety needs of the state's long-term care population and is appropriate for the specific and identified needs of the residents in all settings;

(j) Assess the adequacy of the discharge and referral process in protecting the health and safety of long-term care clients;

(k) Determine the extent to which training and supervision of direct care staff are adequate to ensure safety and appropriate care;

(l) Identify opportunities for consolidation between categories of care; and

(m) Determine if payment rates are adequate to cover the varying costs of clients with different levels of need.

PART II

QUALITY STANDARDS AND COMPLAINT ENFORCEMENT

NEW SECTION. Sec. 201. A new section is added to chapter 70.124 RCW to read as follows:

(1) An employee who is a whistleblower and who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory action, has the remedies provided under chapter 49.60 RCW. RCW 4.24.500 through 4.24.520, providing certain protection to persons who communicate to government agencies, apply to complaints made under this section. The identity of a whistleblower who complains, in good faith, to the department about suspected abuse, neglect, financial exploitation, or abandonment by any person in a nursing home, state hospital, or adult family home may remain confidential if requested. The identity of the whistleblower shall subsequently remain confidential unless the department determines that the complaint was not made in good faith.

(2)(a) An attempt to discharge a resident from a nursing home, state hospital, adult family home, or any type of discriminatory treatment of a resident by whom, or upon whose behalf, a complaint substantiated by the department has been submitted to the department or any proceeding instituted under or related to this chapter within one year of the filing of the complaint or the institution of the action, raises a rebuttable presumption that the action was in retaliation for the filing of the complaint.

(b) The presumption is rebutted by credible evidence establishing the alleged retaliatory action was initiated prior to the complaint.

(c) The presumption is rebutted by a functional assessment conducted by the department that shows that the resident's needs cannot be met by the reasonable accommodations of the facility due to the increased needs of the resident.

(3) For the purposes of this section:

(a) "Whistleblower" means a resident or employee of a nursing home, state hospital, or adult family home, or any person licensed under Title 18 RCW, who in good faith reports alleged abuse, neglect, exploitation, or abandonment to the department or to a law enforcement agency;

(c) "Reasonable accommodation" by a facility to the needs of a prospective or current resident has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

(4) This section does not prohibit a nursing home, state hospital, or adult family home from exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. The protections provided to whistleblowers under this chapter shall not prevent a nursing home, state hospital, or adult family home from: (a) Terminating, suspending, or disciplining a whistleblower for other lawful purposes; or (b) for facilities with six or fewer residents, reducing the hours of employment or terminating employment as a result of the demonstrated inability to meet payroll requirements. The department shall determine if the facility cannot meet payroll in cases where a whistleblower has been terminated or had hours of employment reduced due to the inability of a facility to meet payroll.

(5) The department shall adopt rules to implement procedures for filing, investigation, and resolution of whistleblower complaints that are integrated with complaint procedures under this chapter.

(6) No frail elder or vulnerable person who relies upon and is being provided spiritual treatment in lieu of medical treatment in accordance with the tenets and practices of a well-recognized religious denomination shall for that reason alone be considered abandoned, abused, or neglected, nor shall anything in this chapter be construed to authorize, permit, or require medical treatment contrary to the stated or clearly implied objection of such a person.

(7) The department shall adopt rules designed to discourage whistleblower complaints made in bad faith or for retaliatory purposes.

NEW SECTION. Sec. 202. A new section is added to chapter 74.34 RCW to read as follows:

(1) An employee or contractor who is a whistleblower and who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory action, has the remedies provided under chapter 49.60 RCW. RCW 4.24.500 through 4.24.520, providing certain protection to persons who communicate to government agencies, apply to complaints made under this section. The identity of a whistleblower who complains, in good faith, to the department about suspected abuse, neglect, exploitation, or abandonment by any person in a boarding home licensed or required to be licensed pursuant to chapter 18.20 RCW or a veterans' home pursuant to chapter 72.36 RCW or care provided in a boarding home or a veterans' home by any person associated with a hospice, home care, or home health agency licensed under chapter 70.127 RCW or other in-home provider may remain confidential if requested. The identity of the whistleblower shall subsequently remain confidential unless the department determines that the complaint was not made in good faith.

(2)(a) An attempt to expel a resident from a boarding home or veterans' home, or any type of discriminatory treatment of a resident who is a consumer of hospice, home health, home care services, or other in-home services by whom, or upon whose behalf, a complaint substantiated by the department or the department of health has been submitted to the department or any proceeding instituted under or related to this chapter within one year of the filing of the complaint or the institution of the action, raises a rebuttable presumption that the action was in retaliation for the filing of the complaint.

(b) The presumption is rebutted by credible evidence establishing the alleged retaliatory action was initiated prior to the complaint.

(c) The presumption is rebutted by a functional assessment conducted by the department that shows that the resident or consumer's needs cannot be met by the reasonable accommodations of the facility due to the increased needs of the resident.

(3) For the purposes of this section:

(a) "Whistleblower" means a resident or a person with a mandatory duty to report under this chapter, or any person licensed under Title 18 RCW, who in good faith reports alleged abuse, neglect, exploitation, or abandonment to the department, or the department of health, or to a law enforcement agency;

(b) "Workplace reprisal or retaliatory action" means, but is not limited to: Denial of adequate staff to perform duties; frequent staff changes; frequent and undesirable office changes; refusal to assign meaningful work; unwarranted and unsubstantiated report of misconduct under Title 18 RCW; letters of reprimand or unsatisfactory performance evaluations; demotion; denial of employment; or a supervisor or superior encouraging coworkers to behave in a hostile manner toward the whistleblower. The protections provided to whistleblowers under this chapter shall not prevent a nursing home, state hospital, boarding home, or adult family home from: (i) Terminating, suspending, or disciplining a whistleblower for other lawful purposes; or (ii) for facilities licensed under chapter 70.128 RCW, reducing the hours of employment or terminating employment as a result of the demonstrated inability to meet payroll requirements. The department shall determine if the facility cannot meet payroll in cases in which a whistleblower has been terminated or had hours of employment reduced because of the inability of a facility to meet payroll; and

(4) This section does not prohibit a boarding home or veterans' home from exercising its authority to terminate, suspend, or discipline any employee who engages in workplace reprisal or retaliatory action against a whistleblower.

(5) The department shall adopt rules to implement procedures for filing, investigation, and resolution of whistleblower complaints that are integrated with complaint procedures under this chapter.

(7) The department, and the department of health for facilities, agencies, or individuals it regulates, shall adopt rules designed to discourage whistleblower complaints made in bad faith or for retaliatory purposes.

Sec. 203. RCW 70.129.010 and 1994 c 214 s 2 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of state government responsible for licensing the provider in question.

(2) "Facility" means a long-term care facility.

(3) "Long-term care facility" means a facility that is licensed or required to be licensed under chapter 18.20, 72.36, or 70.128 RCW.

(4) "Resident" means the individual receiving services in a long-term care facility, that resident's attorney in fact, guardian, or other legal representative acting within the scope of their authority.

(5) "Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body((~~[,]~~)), is used for discipline or convenience((~~[,]~~)), and not required to treat the resident's medical symptoms.

(6) "Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the resident's medical symptoms.

(7) "Representative" means a person appointed under RCW 7.70.065.

(8) "Reasonable accommodation" by a facility to the needs of a prospective or current resident has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

Sec. 204. RCW 70.129.030 and 1994 c 214 s 4 are each amended to read as follows:

(1) The facility must inform the resident both orally and in writing in a language that the resident understands of his or her rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. The notification must be made prior to or upon admission. Receipt of the information must be acknowledged in writing.

(2) The resident or his or her legal representative has the right:

(a) Upon an oral or written request, to access all records pertaining to himself or herself including clinical records within twenty-four hours; and

(b) After receipt of his or her records for inspection, to purchase at a cost not to exceed the community standard photocopies of the records or portions of them upon request and two working days' advance notice to the facility.

(3) The facility shall only admit or retain individuals whose needs it can safely and appropriately serve in the facility with appropriate available staff or through the provision of reasonable accommodations as required by state or federal law. Except in cases of emergency, facilities shall not admit an individual before obtaining a comprehensive assessment of the resident's needs and preferences, unless unavailable despite the best efforts of the facility and other interested parties. The assessment shall contain, within existing department funds, the following information: Recent medical history; necessary and prohibited medications; a medical professional's diagnosis; significant known behaviors or symptoms that may cause concern or require special care; mental illness except where protected by confidentiality laws; level of personal care needs; activities and service preferences; and preferences regarding issues important to the potential resident, such as food and daily routine. The facility must inform each resident in writing in a language the resident or his or her representative understands before((~~, or at the time of~~)) admission, and at least once every twenty-four months thereafter, of: (a) Services, items, and activities customarily available in the facility or arranged for by the facility; (b) charges for those services, items, and activities including charges for services, items, and activities not covered by the facility's per diem rate or applicable public benefit programs; and (c) the rules of facility operations required under RCW 70.129.140(2). Each resident and his or her representative must be informed in writing in advance of changes in the availability or the charges for services, items, or activities, or of changes in the facility's rules. Except in unusual circumstances, thirty days' advance notice must be given prior to the change. However, for facilities licensed for six or fewer residents, if there has been a substantial and continuing change in the resident's condition necessitating substantially greater or lesser services, items, or activities, then the charges for those services, items, or activities may be changed upon fourteen days advance written notice.

(4) The facility must furnish a written description of residents rights that includes:

(a) A description of the manner of protecting personal funds, under RCW 70.129.040;

(b) A posting of names, addresses, and telephone numbers of the state survey and certification agency, the state licensure office, the state ombudsmen program, and the protection and advocacy systems; and

(c) A statement that the resident may file a complaint with the appropriate state licensing agency concerning resident abuse, neglect, and misappropriation of resident property in the facility.

(5) Notification of changes.

(a) A facility must immediately consult with the resident's physician, and if known, make reasonable efforts to notify the resident's legal representative or an interested family member when there is:

(i) An accident involving the resident which requires or has the potential for requiring physician intervention;

(ii) A significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications).

(b) The facility must promptly notify the resident or the resident's representative shall make reasonable efforts to notify an interested family member, if known, when there is:

(i) A change in room or roommate assignment; or

(ii) A decision to transfer or discharge the resident from the facility.

(c) The facility must record and update the address and phone number of the resident's representative or interested family member, upon receipt of notice from them.

(6) This section applies to long-term care facilities covered under this chapter.

Sec. 205. RCW 70.129.110 and 1994 c 214 s 12 are each amended to read as follows:

(1) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless:

(a) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;

(b) The safety of individuals in the facility is endangered;

(d) The resident has failed to make the required payment for his or her stay; or

(e) The facility ceases to operate.

(2) All long-term care facilities shall fully disclose to potential residents or their legal representative the service capabilities of the facility prior to admission to the facility. If the care needs of the applicant who is medicaid eligible are in excess of the facility's service capabilities, the department shall identify other care settings or residential care options consistent with federal law.

(3) Before a long-term care facility transfers or discharges a resident, the facility must:

(a) First attempt through reasonable accommodations to avoid the transfer or discharge, unless agreed to by the resident;

(b) Notify the resident and representative and make a reasonable effort to notify, if known, an interested family member of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand;

((~~(b)~~)) (c) Record the reasons in the resident's record; and

((~~(c)~~)) (d) Include in the notice the items described in subsection ((~~(4)~~)) (5) of this section.

((~~(3)~~)) (4)(a) Except when specified in this subsection, the notice of transfer ((~~of [or]~~)) or discharge required under subsection ((~~(2)~~)) (3) of this section must be made by the facility at least thirty days before the resident is transferred or discharged.

(b) Notice may be made as soon as practicable before transfer or discharge when:

(i) The safety of individuals in the facility would be endangered;

(ii) The health of individuals in the facility would be endangered;

(iii) An immediate transfer or discharge is required by the resident's urgent medical needs; or

(iv) A resident has not resided in the facility for thirty days.

((~~(4)~~)) (5) The written notice specified in subsection ((~~(2)~~)) (3) of this section must include the following:

(a) The reason for transfer or discharge;

(b) The effective date of transfer or discharge;

(d) The name, address, and telephone number of the state long-term care ombudsman;

(e) For residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under part C of the developmental disabilities assistance and bill of rights act; and

(f) For residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the protection and advocacy for mentally ill individuals act.

((~~(5)~~)) (6) A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

((~~(6)~~)) (7) A resident discharged in violation of this section has the right to be readmitted immediately upon the first availability of a gender-appropriate bed in the facility.

Sec. 206. RCW 70.129.150 and 1994 c 214 s 16 are each amended to read as follows:

(1) Prior to admission, all long-term care facilities or nursing facilities licensed under chapter 18.51 RCW that require payment of an admissions fee, deposit, or a minimum stay fee, by or on behalf of a person seeking ((~~admissions [admission]~~)) admission to the long-term care facility or nursing facility, shall provide the resident, or his or her representative, full disclosure in writing ((~~of the long-term care facility or nursing facility's schedule of charges for items and services provided by the facility and~~)) in a language the resident or his or her representative understands, a statement of the amount of any admissions fees, deposits, prepaid charges, or minimum stay fees. The facility shall also disclose to the person, or his or her representative, the facility's advance notice or transfer requirements, prior to admission. In addition, the long-term care facility or nursing facility shall also fully disclose in writing prior to admission what portion of the deposits, admissions fees, prepaid charges, or minimum stay fees will be refunded to the resident or his or her representative if the resident leaves the long-term care facility or nursing facility. Receipt of the disclosures required under this subsection must be acknowledged in writing. If the facility does not provide these disclosures, the deposits, admissions fees, prepaid charges, or minimum stay fees may not be kept by the facility. If a resident((~~, during the first thirty days of residence,~~)) dies or is hospitalized or is transferred to another facility for more appropriate care and does not return to the original facility, the facility shall refund any deposit or charges already paid less the facility's per diem rate for the days the resident actually resided or reserved or retained a bed in the facility notwithstanding any minimum stay policy or discharge notice requirements, except that the facility may retain an additional amount to cover its reasonable, actual expenses incurred as a result of a private-pay resident's move, not to exceed five days' per diem charges, unless the resident has given advance notice in compliance with the admission agreement. All long-term care facilities or nursing facilities covered under this section are required to refund any and all refunds due the resident or ((~~their~~)) his or her representative within thirty days from the resident's date of discharge from the facility. Nothing in this section applies to provisions in contracts negotiated between a nursing facility or long-term care facility and a certified health plan, health or disability insurer, health maintenance organization, managed care organization, or similar entities.

(2) Where a long-term care facility or nursing facility requires the execution of an admission contract by or on behalf of an individual seeking admission to the facility, the terms of the contract shall be consistent with the requirements of this section, and the terms of an admission contract by a long-term care facility shall be consistent with the requirements of this chapter.

Sec. 207. RCW 74.39A.030 and 1995 1st sp.s. c 18 s 2 are each amended to read as follows:

(1) To the extent of available funding, the department shall expand cost-effective options for home and community services for consumers for whom the state participates in the cost of their care.

(2) In expanding home and community services, the department shall: (a) Take full advantage of federal funding available under Title XVIII and Title XIX of the federal social security act, including home health, adult day care, waiver options, and state plan services; and (b) be authorized to use funds available under its community options program entry system waiver granted under section 1915(c) of the federal social security act to expand the availability of in-home, adult residential care, adult family homes, enhanced adult residential care, and assisted living services. By June 30, 1997, the department shall undertake to reduce the nursing home medicaid census by at least one thousand six hundred by assisting individuals who would otherwise require nursing facility services to obtain services of their choice, including assisted living services, enhanced adult residential care, and other home and community services. The department shall make reasonable efforts to contract for at least one hundred eighty state clients who would otherwise be served in nursing facilities or in assisted living to instead be served in enhanced adult residential care settings by June 30, 1999. If a resident, or his or her legal representative, objects to a discharge decision initiated by the department, the resident shall not be discharged if the resident has been assessed and determined to require nursing facility services. In contracting with nursing homes and boarding homes for enhanced adult residential care placements, neither the department nor the department of health shall ((~~not~~)) require, by contract or through other means, structural modifications to existing building construction.

(3)(a) The department shall by rule establish payment rates for home and community services that support the provision of cost-effective care. In contracting with licensed boarding homes for providing additional enhanced adult residential care services for up to one hundred eighty clients pursuant to subsection (2)(b) of this section, the payment rate shall be established at no less than thirty-five and no greater than forty percent of the average state-wide nursing facility medicaid payment rate.

(b) The department may authorize an enhanced adult residential care rate for nursing homes that temporarily or permanently convert their bed use for the purpose of providing enhanced adult residential care under chapter 70.38 RCW, when the department determines that payment of an enhanced rate is cost-effective and necessary to foster expansion of contracted enhanced adult residential care services. As an incentive for nursing homes to permanently convert a portion of its nursing home bed capacity for the purpose of providing enhanced adult residential care, the department may authorize a supplemental add-on to the enhanced adult residential care rate.

(c) The department may authorize a supplemental assisted living services or an enhanced adult residential care services rate for up to four years for facilities that convert from nursing home use and do not retain rights to the converted nursing home beds under chapter 70.38 RCW, if the department determines that payment of a supplemental rate is cost-effective and necessary to foster expansion of contracted assisted living or enhanced adult residential care services.

Sec. 208. RCW 74.39A.040 and 1995 1st sp.s. c 18 s 6 are each amended to read as follows:

The department shall work in partnership with hospitals, who choose to participate, in assisting patients and their families to find long-term care services of their choice according to subsections (1) through (4) of this section. The department shall not delay hospital discharges but shall assist and support the activities of hospital discharge planners. The department also shall coordinate with home health and hospice agencies whenever appropriate. The role of the department is to assist the hospital and to assist patients and their families in making informed choices by providing information regarding home and community options to individuals who are hospitalized and likely to need long-term care.

(1) To the extent of available funds, the department shall assess individuals who:

(a) Are medicaid clients, medicaid applicants, or eligible for both medicare and medicaid; and

(b) Apply or are likely to apply for admission to a nursing facility.

(2) For individuals who are reasonably expected to become medicaid recipients within one hundred eighty days of admission to a nursing facility, the department shall, to the extent of available funds, offer an assessment and information regarding appropriate in-home and community services.

(3) When the department finds, based on assessment, that the individual prefers and could live appropriately and cost-effectively at home or in some other community-based setting, the department shall:

(a) Advise the individual that an in-home or other community service is appropriate;

(b) Develop, with the individual or the individual's representative, a comprehensive community service plan;

(c) Inform the individual regarding the availability of services that could meet the applicant's needs as set forth in the community service plan and explain the cost to the applicant of the available in-home and community services relative to nursing facility care; and

(d) Discuss and evaluate the need for on-going involvement with the individual or the individual's representative.

(4) When the department finds, based on assessment, that the individual prefers and needs nursing facility care, the department shall:

(a) Advise the individual that nursing facility care is appropriate and inform the individual of the available nursing facility vacancies;

(b) If appropriate, advise the individual that the stay in the nursing facility may be short term; and

(5) All hospitals who choose to not participate with the department according to subsections (1) through (4) of this section shall provide their own hospital long-term care discharge services for patients needing long-term care information or services. The hospital shall advise the individual regarding its recommended discharge placement for individuals requiring posthospital care and shall, consistent with the individual's expressed preferences and in accordance with his or her care needs, identify services, including known costs, available in the community and shall develop with the individual and his or her legal representative a comprehensive community service plan, if in-home or other community service is appropriate and preferred.

Sec. 209. RCW 74.39A.050 and 1995 1st sp.s. c 18 s 12 are each amended to read as follows:

The department's system of quality improvement for long-term care services shall ((~~be guided by~~)) use the following principles, consistent with applicable federal laws and regulations:

(1) The system shall be ((~~consumer~~)) client-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for consumers consistent with chapter . . ., Laws of 1997 (this act).

(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) ((~~Providers generally should be assisted in addressing identified problems initially through consultation and technical assistance.~~)) Prompt and specific enforcement remedies shall also be ((~~available~~)) 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 ((~~that have been~~)) 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) Under existing funds the department shall establish internally a quality improvement standards committee to monitor the development of standards and to suggest modifications.

(10) 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 and accept some or all of the curriculum modules hour for hour towards meeting the requirements for a nursing assistant certificate as defined in chapter 18.88A RCW. 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.

Sec. 210. RCW 74.39A.060 and 1995 1st sp.s. c 18 s 13 are each amended to read as follows:

(1) The aging and adult services administration of the department shall establish and maintain a toll-free telephone number for receiving complaints regarding a facility that the administration licenses or with which it contracts for long-term care services.

(2) All facilities that are licensed by, or that contract with the aging and adult services administration to provide chronic long-term care services shall post in a place and manner clearly visible to residents and visitors the department's toll-free complaint telephone number and the toll-free number and program description of the long-term care ombudsman as provided by RCW 43.190.050.

(3) The aging and adult services administration shall investigate complaints if the subject of the complaint is within its authority unless the department determines that: (a) The complaint is intended to willfully harass a licensee or employee of the licensee; or (b) there is no reasonable basis for investigation; or (c) corrective action has been taken as determined by the ombudsman or the department.

(4) The aging and adult services administration shall refer complaints to appropriate state agencies, law enforcement agencies, the attorney general, the long-term care ombudsman, or other entities if the department lacks authority to investigate or if its investigation reveals that a follow-up referral to one or more of these entities is appropriate.

(5) The department shall adopt rules that include the following complaint investigation protocols:

(a) Upon receipt of a complaint, the department shall make a preliminary review of the complaint, assess the severity of the complaint, and assign an appropriate response time. Complaints involving imminent danger to the health, safety, or well-being of a resident must be responded to within two days. When appropriate, the department shall make an on-site investigation within a reasonable time after receipt of the complaint or otherwise ensure that complaints are responded to.

(b) The complainant must be: Promptly contacted by the department, unless anonymous or unavailable despite several attempts by the department, and informed of the right to discuss the alleged violations with the inspector and to provide other information the complainant believes will assist the inspector; informed of the department's course of action; and informed of the right to receive a written copy of the investigation report.

(c) In conducting the investigation, the department shall interview the complainant, unless anonymous, and shall use its best efforts to interview the resident or residents allegedly harmed by the violations, and, in addition to facility staff, any available independent sources of relevant information, including if appropriate the family members of the resident.

(d) Substantiated complaints involving harm to a resident, if an applicable law or regulation has been violated, shall be subject to one or more of the actions provided in RCW 74.39A.080 or 70.128.160. Whenever appropriate, the department shall also give consultation and technical assistance to the provider.

(e) In the best practices of total quality management and continuous quality improvement, after a department finding of a violation that is serious, recurring, or uncorrected following a previous citation, the department shall make an on-site revisit of the facility to ensure correction of the violation, except for license or contract suspensions or revocations.

(f) Substantiated complaints of neglect, abuse, exploitation, or abandonment of residents, or suspected criminal violations, shall also be referred by the department to the appropriate law enforcement agencies, the attorney general, and appropriate professional disciplining authority.

(6) The department may ((~~not~~)) provide the substance of the complaint to the licensee or contractor before the completion of the investigation by the department unless such disclosure would reveal the identity of a complainant, witness, or resident who chooses to remain anonymous. Neither the substance of the complaint provided to the licensee or contractor nor any copy of the complaint or related report published, released, or made otherwise available shall disclose, or reasonably lead to the disclosure of, the name, title, or identity of any complainant, or other person mentioned in the complaint, except that the name of the provider and the name or names of any officer, employee, or agent of the department conducting the investigation shall be disclosed after the investigation has been closed and the complaint has been substantiated. The department may disclose the identity of the complainant if such disclosure is requested in writing by the complainant. Nothing in this subsection shall be construed to interfere with the obligation of the long-term care ombudsman program or department staff to monitor the department's licensing, contract, and complaint investigation files for long-term care facilities.

((~~(6)~~)) (7) The resident has the right to be free of interference, coercion, discrimination, and reprisal from a facility in exercising his or her rights, including the right to voice grievances about treatment furnished or not furnished. A facility that provides long-term care services shall not discriminate or retaliate in any manner against a resident, employee, or any other person on the basis or for the reason that such resident or any other person made a complaint to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, provided information, or otherwise cooperated with the investigation of such a complaint. Any attempt to discharge a resident against the resident's wishes, or any type of retaliatory treatment of a resident by whom or upon whose behalf a complaint substantiated by the department has been made to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, within one year of the filing of the complaint, raises a rebuttable presumption that such action was in retaliation for the filing of the complaint. "Retaliatory treatment" means, but is not limited to, monitoring a resident's phone, mail, or visits; involuntary seclusion or isolation; transferring a resident to a different room unless requested or based upon legitimate management reasons; withholding or threatening to withhold food or treatment unless authorized by a terminally ill resident or his or her representative pursuant to law; or persistently delaying responses to a resident's request for service or assistance. A facility that provides long-term care services shall not willfully interfere with the performance of official duties by a long-term care ombudsman. The department shall sanction and may impose a civil penalty of not more than three thousand dollars for a violation of this subsection ((~~and require the facility to mitigate any damages incurred by the resident~~)).

Sec. 211. RCW 70.129.105 and 1994 c 214 s 17 are each amended to read as follows:

No long-term care facility or nursing facility licensed under chapter 18.51 RCW shall require or request residents to sign waivers of potential liability for losses of personal property or injury, or to sign waivers of residents' rights set forth in this chapter or in the applicable licensing or certification laws.

Sec. 212. RCW 74.42.030 and 1979 ex.s. c 211 s 3 are each amended to read as follows:

Each resident or guardian or legal representative, if any, shall be fully informed and receive in writing, in a language the resident or his or her representative understands, the following information:

(1) The resident's rights and responsibilities in the facility;

(2) Rules governing resident conduct;

(3) Services, items, and activities available in the facility; and

(4) Charges for services, items, and activities, including those not included in the facility's basic daily rate or not paid by medicaid.

The facility shall provide this information before admission, or at the time of admission in case of emergency, and as changes occur during the resident's stay. The resident and his or her representative must be informed in writing in advance of changes in the availability or charges for services, items, or activities, or of changes in the facility's rules. Except in unusual circumstances, thirty days' advance notice must be given prior to the change. The resident or legal guardian or representative shall acknowledge in writing receipt of this information ((~~and any changes in the information~~)).

The written information provided by the facility pursuant to this section, and the terms of any admission contract executed between the facility and an individual seeking admission to the facility, must be consistent with the requirements of this chapter and chapter 18.51 RCW and, for facilities certified under medicaid or medicare, with the applicable federal requirements.

NEW SECTION. Sec. 213. A new section is added to chapter 18.20 RCW 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 resident-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for residents consistent with chapter 70.129 RCW.

(2) The goal of the system is continuous quality improvement with the focus on resident satisfaction and outcomes for residents. This includes that when conducting licensing inspections, the department shall interview an appropriate percentage of residents, family members, and advocates in addition to interviewing appropriate staff.

(3) Facilities should be supported in their efforts to improve quality and address identified problems initially through training, consultation, and technical assistance.

(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 resident complaints and a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to facilities.

(6) Prompt and specific enforcement remedies shall also be implemented without delay, consistent with RCW 18.20.190, for facilities 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 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, the licensee, administrator, and their staff 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 adults. Employees may be provisionally hired pending the results of the background check if they have been given three positive references.

(8) The department shall promote the development of a training system that is practical and relevant to the needs of residents and staff. To improve access to training, especially for rural communities, the training system may include, but is not limited to, the use of satellite technology distance learning that is coordinated through community colleges or other appropriate organizations.

(9) No licensee, administrator, or staff, or prospective licensee, administrator, or staff, with a stipulated finding of fact, conclusion of law, and agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into the 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.

NEW SECTION. Sec. 214. A new section is added to chapter 18.20 RCW to read as follows:

(1) The department shall establish and maintain a toll-free telephone number for receiving complaints regarding a facility that the department licenses.

(2) All facilities that are licensed under this chapter shall post in a place and manner clearly visible to residents and visitors the department's toll-free complaint telephone number and the toll-free number and program description of the long-term care ombudsman as provided by RCW 43.190.050.

(3) The department shall investigate complaints if the subject of the complaint is within its authority unless the department determines that: (a) The complaint is intended to willfully harass a licensee or employee of the licensee; or (b) there is no reasonable basis for investigation; or (c) corrective action has been taken as determined by the ombudsman or the department.

(4) The department shall refer complaints to appropriate state agencies, law enforcement agencies, the attorney general, the long-term care ombudsman, or other entities if the department lacks authority to investigate or if its investigation reveals that a follow-up referral to one or more of these entities is appropriate.

(5) The department shall adopt rules that include the following complaint investigation protocols:

(b) The complainant must be: Promptly contacted by the department, unless anonymous or unavailable despite several attempts by the department, and informed of the right to discuss alleged violations with the inspector and to provide other information the complainant believes will assist the inspector; informed of the department's course of action; and informed of the right to receive a written copy of the investigation report.

(d) Substantiated complaints involving harm to a resident, if an applicable law or regulation has been violated, shall be subject to one or more of the actions provided in RCW 18.20.190. Whenever appropriate, the department shall also give consultation and technical assistance to the facility.

(e) In the best practices of total quality management and continuous quality improvement, after a department finding of a violation that is serious, recurring, or uncorrected following a previous citation, the department shall make an on-site revisit of the facility to ensure correction of the violation. This subsection does not prevent the department from enforcing license suspensions or revocations.

(6) The department may provide the substance of the complaint to the licensee before the completion of the investigation by the department unless such disclosure would reveal the identity of a complainant, witness, or resident who chooses to remain anonymous. Neither the substance of the complaint provided to the licensee or contractor nor any copy of the complaint or related report published, released, or made otherwise available shall disclose, or reasonably lead to the disclosure of, the name, title, or identity of any complainant, or other person mentioned in the complaint, except that the name of the provider and the name or names of any officer, employee, or agent of the department conducting the investigation shall be disclosed after the investigation has been closed and the complaint has been substantiated. The department may disclose the identity of the complainant if such disclosure is requested in writing by the complainant. Nothing in this subsection shall be construed to interfere with the obligation of the long-term care ombudsman program to monitor the department's licensing, contract, and complaint investigation files for long-term care facilities.

(7) The resident has the right to be free of interference, coercion, discrimination, and reprisal from a facility in exercising his or her rights, including the right to voice grievances about treatment furnished or not furnished. A facility licensed under this chapter shall not discriminate or retaliate in any manner against a resident, employee, or any other person on the basis or for the reason that such resident or any other person made a complaint to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, provided information, or otherwise cooperated with the investigation of such a complaint. Any attempt to discharge a resident against the resident's wishes, or any type of retaliatory treatment of a resident by whom or upon whose behalf a complaint substantiated by the department has been made to the department, the attorney general, law enforcement agencies, or the long-term care ombudsman, within one year of the filing of the complaint, raises a rebuttable presumption that such action was in retaliation for the filing of the complaint. "Retaliatory treatment" means, but is not limited to, monitoring a resident's phone, mail, or visits; involuntary seclusion or isolation; transferring a resident to a different room unless requested or based upon legitimate management reasons; withholding or threatening to withhold food or treatment unless authorized by a terminally ill resident or his or her representative pursuant to law; or persistently delaying responses to a resident's request for service or assistance. A facility licensed under this chapter shall not willfully interfere with the performance of official duties by a long-term care ombudsman. The department shall sanction and may impose a civil penalty of not more than three thousand dollars for a violation of this subsection.

NEW SECTION. Sec. 215. Within existing funds, the long-term care ombudsman shall conduct a follow-up review of the department of health's licensing inspections and complaint investigations of boarding homes and of the department of social and health services' monitoring of boarding homes with contracts under chapter 74.39A RCW. The review must include, but is not limited to, an examination of the enforcement of resident rights and care standards in boarding homes, the timeliness of complaint investigations, and compliance by the departments with the standards set forth in this act. The long-term care ombudsman shall consult with the departments of health and social and health services, long-term care facility organizations, resident groups, and senior and disabled citizen organizations and report to appropriate committees of the house of representatives and the senate concerning its review of the departments' enforcement activities and any applicable recommendations by January 5, 1998.

Sec. 216. RCW 74.42.450 and 1995 1st sp.s. c 18 s 64 are each amended to read as follows:

(1) The facility shall admit as residents only those individuals whose needs can be met by:

(a) The facility;

(b) The facility cooperating with community resources; or

(2) The facility shall transfer a resident to a hospital or other appropriate facility when a change occurs in the resident's physical or mental condition that requires care or service that the facility cannot provide. The resident, the resident's guardian, if any, the resident's next of kin, the attending physician, and the department shall be consulted at least fifteen days before a transfer or discharge unless the resident is transferred under emergency circumstances. The department shall use casework services or other means to insure that adequate arrangements are made to meet the resident's needs.

(3) A resident shall be transferred or discharged only for medical reasons, the resident's welfare or request, the welfare of other residents, or nonpayment. A resident may not be discharged for nonpayment if the discharge would be prohibited by the medicaid program.

(4) If a resident chooses to remain in the nursing facility, the department shall respect that choice, provided that if the resident is a medicaid recipient, the resident continues to require a nursing facility level of care.

(5) If the department determines that a resident no longer requires a nursing facility level of care, the resident shall not be discharged from the nursing facility until at least thirty days after written notice is given to the resident, the resident's surrogate decision maker and, if appropriate, a family member or the resident's representative. A form for requesting a hearing to appeal the discharge decision shall be attached to the written notice. The written notice shall include at least the following:

(a) The reason for the discharge;

(b) A statement that the resident has the right to appeal the discharge; and

(6) If the resident appeals a department discharge decision, the resident shall not be discharged without the resident's consent until at least thirty days after a final order is entered upholding the decision to discharge the resident.

(7) Before the facility transfers or discharges a resident, the facility must first attempt through reasonable accommodations to avoid the transfer or discharge unless the transfer or discharge is agreed to by the resident. The facility shall admit or retain only individuals whose needs it can safely and appropriately serve in the facility with available staff or through the provision of reasonable accommodations required by state or federal law. "Reasonable accommodations" has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

PART III

ESTATE RECOVERY CONSUMER DISCLOSURE

NEW SECTION. Sec. 301. A new section is added to chapter 43.20B RCW to read as follows:

(1) It is the intent of the legislature to ensure that needy individuals have access to basic long-term care without requiring them to sell their homes. In the face of rising medical costs and limited funding for social welfare programs, however, the state's medicaid and state-funded long-term care programs have placed an increasing financial burden on the state. By balancing the interests of individuals with immediate and future unmet medical care needs, surviving spouses and dependent children, adult nondependent children, more distant heirs, and the state, the estate recovery provisions of RCW 43.20B.080 and 74.39A.170 provide an equitable and reasonable method of easing the state's financial burden while ensuring the continued viability of the medicaid and state-funded long-term care programs.

(2) It is further the intent of the legislature to confirm that chapter 21, Laws of 1994, effective July 1, 1994, repealed and substantially reenacted the state's medicaid estate recovery laws and did not eliminate the department's authority to recover the cost of medical assistance paid prior to October 1, 1993, from the estates of deceased recipients regardless of whether they received benefits before, on, or after July 1, 1994.

Sec. 302. RCW 43.20B.080 and 1995 1st sp.s. c 18 s 67 are each amended to read as follows:

(1) The department shall file liens, seek adjustment, or otherwise effect recovery for medical assistance correctly paid on behalf of an individual ((~~as required by this chapter and~~)) consistent with 42 U.S.C. Sec. 1396p.

(2) Liens may be adjusted by foreclosure in accordance with chapter 61.12 RCW.

(3) In the case of an individual who was fifty-five years of age or older when the individual received medical assistance, the department shall seek adjustment or recovery from the individual's estate, and from nonprobate assets of the individual as defined by RCW 11.02.005 ((~~except property passing through a community property agreement~~)), but only for medical assistance consisting of nursing facility services, home and community-based services, other services that the department determines to be appropriate, and related hospital and prescription drug services. Recovery from the individual's estate, including foreclosure of liens imposed under this section, shall be undertaken as soon as practicable, consistent with ((~~the requirements of~~)) 42 U.S.C. Sec. 1396p.

(4) The department shall apply the medical assistance estate recovery law as it existed on the date that benefits were received when calculating an estate's liability to reimburse the department for those benefits.

(5)(a) The department shall establish procedures consistent with standards established by the federal department of health and human services and pursuant to 42 U.S.C. Sec. 1396p to waive recovery when such recovery would work an undue hardship.

(b) Recovery of medical assistance from a recipient's estate shall not include property made exempt from claims by federal law or treaty, including exemption for tribal artifacts that may be held by individual Native Americans.

((~~(5)~~)) (6) A lien authorized under subsections (1) through (5) of this section relates back to attach to any real property that the decedent had an ownership interest in immediately before death and is effective as of that date.

(7) The department is authorized to adopt rules to effect recovery under this section. The department may adopt by rule later enactments of the federal laws referenced in this section.

(8) The office of financial management shall review the cost and feasibility of the department of social and health services collecting the client copayment for long-term care consistent with the terms and conditions of RCW 74.39A.120, and the cost impact to community providers under the current system for collecting the client's copayment in addition to the amount charged to the client for estate recovery, and report to the legislature by December 12, 1997.

Sec. 303. RCW 74.34.010 and 1995 1st sp.s. c 18 s 82 are each amended to read as follows:

The legislature finds that frail elders and vulnerable adults may be subjected to abuse, neglect, exploitation, or abandonment. The legislature finds that there are a number of adults sixty years of age or older who lack the ability to perform or obtain those services necessary to maintain or establish their well-being. The legislature finds that many frail elders and vulnerable adults have health problems that place them in a dependent position. The legislature further finds that a significant number of frail elders and vulnerable adults have mental and verbal limitations that leave them vulnerable and incapable of asking for help and protection.

It is the intent of the legislature to prevent or remedy the abuse, neglect, exploitation, or abandonment of persons sixty years of age or older who have a functional, mental, or physical inability to care for or protect themselves.

It is the intent of the legislature to assist frail elders and vulnerable adults by providing these persons with the protection of the courts and with the least-restrictive services, such as home care, and by preventing or reducing inappropriate institutional care. The legislature finds that it is in the interests of the public health, safety, and welfare of the people of the state to provide a procedure for identifying these vulnerable persons and providing the services and remedies necessary for their well-being.

It is further the intent of the legislature that the cost of protective services rendered to a frail elder or vulnerable adult under this chapter that are paid with state funds only not be subject to recovery from the recipient or the recipient's estate, whether by lien, adjustment, or any other means of recovery, regardless of the income or assets of the recipient of the services. In making this exemption the legislature recognizes that receipt of such services is voluntary and incentives to decline services or delay permission must be kept to a minimum. There may be a need to act or intervene quickly to protect the assets, health, or well-being of a frail elder or vulnerable adult; to prevent or halt the exploitation, neglect, abandonment, or abuse of the person or assets of a frail elder or vulnerable adult; or to prevent or limit inappropriate placement or retention in an institution providing long-term care. The delivery of such services is less likely to be impeded, and consent to such services will be more readily obtained, if the cost of these services is not subject to recovery. The legislature recognizes that there will be a cost in not seeking financial recovery for such services, but that this cost may be offset by preventing costly and inappropriate institutional placement.

NEW SECTION. Sec. 304. A new section is added to chapter 74.34 RCW to read as follows:

The cost of benefits and services provided to a frail elder or vulnerable adult under this chapter with state funds only does not constitute an obligation or lien and is not recoverable from the recipient of the services or from the recipient's estate, whether by lien, adjustment, or any other means of recovery.

Sec. 305. RCW 74.39A.170 and 1995 1st sp.s. c 18 s 56 are each amended to read as follows:

(1) All payments made in state-funded long-term care shall be recoverable as if they were medical assistance payments subject to recovery under 42 U.S.C. Sec. 1396p and chapter 43.20B RCW((~~, but~~)) without regard to the recipient's age, except the cost of state-funded adult protective services provided under chapter 74.34 RCW to frail elders and vulnerable adults.

(2) In determining eligibility for state-funded long-term care services programs, except for protective services provided to frail elders and vulnerable adults, the department shall impose the same rules with respect to the transfer of assets for less than fair market value as are imposed under 42 U.S.C. 1396p with respect to nursing home and home and community services.

(3) It is the responsibility of the department to fully disclose in advance verbally and in writing, in easy to understand language, the terms and conditions of estate recovery. The disclosure must include billing and recovery and copayment procedures to all persons offered long‑term care services subject to recovery of payments.

(4) It is the intent of the legislature that the department collect, to the extent possible, all costs associated with the individual provider program including, but not limited to, training, taxes, and fringe benefits.

By November 15, 1997, the secretary shall identify and report to the legislature:

(a) The costs of identifying or tracking direct and indirect costs associated with the individual provider program, including any necessary changes to the department's information systems; and

(b) Any federal or state laws limiting the department's ability to recover direct or indirect costs of the individual provider program from the estate.

(5) To the extent funds are available and in compliance with federal law, the department is responsible for also notifying the client, or his or her advocate, quarterly of the types of services used, charges for services, credit amount of copayment, and the difference (debt) that will be charged against the estate.

PART IV

ADULT FAMILY HOMES

Sec. 401. RCW 70.128.175 and 1995 1st sp.s. c 18 s 29 are each amended to read as follows:

(1) Unless the context clearly requires otherwise, these definitions shall apply throughout this section and RCW 35.63.140, 35A.63.149, 36.70.755, 35.22.680, and 36.32.560:

(a) "Adult family home" means a regular family abode ((of)) in which a person or persons ((~~providing~~)) provides personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to the person or persons providing the services.

(b) "Residential care facility" means a facility that cares for at least five, but not more than fifteen functionally disabled persons, that is not licensed pursuant to chapter 70.128 RCW.

(2) An adult family home shall be considered a residential use of property for zoning and public and private utility rate purposes. Adult family homes shall be a permitted use in all areas zoned for residential or commercial purposes, including areas zoned for single family dwellings.

NEW SECTION. Sec. 402. The department of social and health services shall implement a limited moratorium on the authorization of adult family home licenses until December 12, 1997, or until the secretary has determined that all adult family home and group home safety and quality of care standards have been reviewed by the department, determined by the secretary to reasonably protect the life, safety, and health of residents, and has notified all adult family home and group home operators of the standards of care or any modifications to the existing standards. This limited moratorium shall in no way prevent a person eligible to receive services from receiving the same or equivalent chronic long‑term care services. In the event of a need for such services, the department shall develop a process for determining the availability of chronic long‑term care residential services on a case‑by‑case basis to determine if an adult family home license should be granted to accommodate the needs of a particular geographical or ethnic community. The department may review the cost and feasibility of creating an adult family home advisory committee. The secretary shall make the final determination on individual case licensure until December 12, 1997, or until the moratorium has been removed and determine if an adult family home advisory committee should be developed.

NEW SECTION. Sec. 403. The department of social and health services is authorized to adopt rules, including emergency rules, for implementing the provisions of section 402 of this act.

PART V

MISCELLANEOUS PROVISIONS

NEW SECTION. Sec. 501. The department of health in cooperation with the department of social and health services may develop a plan for implementing a pilot program for accrediting boarding homes licensed under RCW 18.20.020 with a recognized national nongovernmental accreditation organization or an organization with experience in developing and implementing accreditation programs in at least two states. The pilot plan, if funded, shall be developed with the input of residents, provider representatives, and other vested interest groups. If funded, the plan shall review the overall feasibility of implementation, cost or savings to the department of health, impact on client health and safety, and financial and other impacts to the boarding industry. If funded, the pilot boarding home accreditation plan shall be presented to the appropriate committees of the house of representatives and the senate by January 5, 1998.

NEW SECTION. Sec. 502. The department of community, trade, and economic development, in collaboration with the organizations designated by state or federal law to provide protection and advocacy and ombuds services for older Americans and people with disabilities using publicly funded long-term care residential services, may conduct a study, make recommendations, and draft legislation necessary to implement changes that will result in a single coordinating umbrella for ombuds and advocacy services that maximizes efficiency, minimizes duplication, and allows for specialization in target populations such as developmental disabilities, older Americans, and mental illness, and assures that the providers of ombuds services have sufficient expertise and experience with target populations and the systems that serve them. The study, if funded, shall include review of all relevant federal and state laws and regulations, including but not limited to the older Americans act, 42 U.S.C. 3001 as amended, the developmental disabilities assistance and bill of rights act as amended, 42 U.S.C. 6000, the protection and advocacy for persons with mental illness act as amended, 42 U.S.C. 10801, the rehabilitation act of 1973 as amended, 29 U.S.C. 701, the long-term care ombudsman statute chapter 43.190 RCW, developmental disabilities statute, Title 71A RCW, and the community mental health services regulations, chapter 275-57 WAC. If funded, the study shall identify the gaps in current ombuds and advocacy services, and develop a cost assessment for implementation of a comprehensive umbrella of ombuds and advocacy services. If funded, the department of community, trade, and economic development shall report to the appropriate committees of the house of representatives and the senate by January 10, 1998.

NEW SECTION. Sec. 503. The department of social and health services may review the cost and feasibility of implementing developmental disabilities certification standards for community residential alternatives to ensure that services are adequate for the health, safety, care, treatment, and support of persons with developmental disabilities. The community residential alternatives shall include, but not be limited to, entities that contract or directly provide services with the division of developmental disabilities such as group homes, agency alternative living, intensive and other tenant support services, adult family homes, or boarding homes. Certification standards shall review at a minimum the following areas. Administrative and financial capabilities of the provider, health and safety practices, the opportunities for the individuals served by the programs to have power and choice in their lives, opportunities to develop friendships and relationships, and opportunities to develop self-respect and to gain respect from others, to participate in the community, and to gain independent living skills. If the review is funded, the department shall also recommend whether adult family homes that choose to provide services only to persons with developmental disabilities should receive special certification or licensure apart from or in place of the existing adult family home license. The review may also recommend the type and amount of provider training necessary to appropriately support persons with developmental disabilities in community residential alternatives. The department may include the assistance of other departments, vested interest groups, and family members in the development of recommendations. If funded, the department shall report to the appropriate committees of the house of representatives and the senate by January 30, 1998.

NEW SECTION. Sec. 504. Any section or provision of this act that may be susceptible to more than one construction shall be interpreted in favor of the construction most likely to comply with federal laws entitling this state to receive federal funds for the various programs of the department of health or the department of social and health services. If any section of this act is found to be in conflict with federal requirements that are a prescribed condition of the allocation of federal funds to the state, or to any departments or agencies thereof, the conflicting part is declared to be inoperative solely to the extent of the conflict. The rules issued under this act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the state.

NEW SECTION. Sec. 505. A new section is added to chapter 43.70 RCW to read as follows:

The department of health shall implement a nursing home resident protection program in cooperation with the department of social and health services and disciplining authorities and according to guidelines established by the federal health care financing administration. The department of social and health services shall retain authority to review and investigate all allegations of nursing home resident neglect, abuse, and misappropriation of resident property. If the department of social and health services makes a preliminary determination, based upon credible evidence and an investigation by the department, that a licensed, certified, or registered health care provider listed in RCW 18.130.040 and used by the nursing home to provide services to a resident, except for a certified or registered nursing assistant, has neglected or abused a resident or misappropriated a resident's property, the department of social and health services shall immediately refer its determination regarding the individual to the appropriate disciplining authority, as defined in chapter 18.130 RCW. The disciplining authority shall pursue administrative adjudicatory or disciplinary proceedings according to federal timelines and requirements, and consistent with the administrative procedure act, chapter 34.05 RCW. The secretary of social and health services shall be consulted in the consideration of any complaint referred to the secretary of health and the other disciplining authorities. If the disciplining authority fails to comply with the applicable requirements of federal law, jurisdiction on the individual case shall revert to the secretary of social and health services. The secretary of social and health services and the secretary of health shall enter into an interagency agreement to implement the provisions of this section. A finding of fact, stipulated finding of fact, agreed order, or final order issued by the disciplining authority that finds the individual health care provider guilty of neglect, abuse, or misappropriation of resident property shall be promptly reported to the department of social and health services. The disciplining authority shall not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual.

NEW SECTION. Sec. 506. A new section is added to chapter 18.51 RCW to read as follows:

The department of social and health services shall implement a nursing home resident protection program in cooperation with the department of health and disciplining authorities and according to guidelines established by the federal health care financing administration. The department of social and health services shall conduct a timely review and investigation of all credible allegations of nursing home resident neglect, abuse, and misappropriation of resident property. If the department of social and health services makes a preliminary determination, based upon credible evidence and an investigation by the department, that a licensed, certified, or registered health care provider listed in RCW 18.130.040 and used by the nursing home to provide services to a resident, except for a certified or registered nursing assistant, has neglected or abused a resident or misappropriated a resident's property, the department of social and health services shall immediately refer its determination regarding the individual to the department of health or disciplining authority, as defined in RCW 18.130.020. The disciplining authority, and not the department of social and health services for individuals referred to the disciplining authority, shall pursue administrative adjudicatory or disciplinary proceedings according to federal timelines and requirements, and consistent with the administrative procedure act, chapter 34.05 RCW. Other individuals used by a nursing home, including certified and registered nursing assistants, with a preliminary determination of neglect, abuse, or misappropriation of resident property shall receive notice and the right to an administrative fair hearing from the department of social and health services according to federal timelines and requirements, and consistent with the administrative procedure act, chapter 34.05 RCW. An individual with a finding of fact, stipulated finding of fact, agreed order, or final order issued by the department of social and health services that finds the individual guilty of neglect, abuse, or misappropriation of resident property shall not be employed in the care of and have unsupervised access to vulnerable adults, as defined in chapter 74.34 RCW. The department shall not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual. Upon receipt from the disciplining authority of a finding of fact, stipulated finding of fact, agreed order, or final order that finds the individual health care provider guilty of neglect, abuse, or misappropriation of resident property, the department of social and health services shall report this information to the nursing home where the incident occurred, the long-term care facility where the individual works, if different, and other entities serving vulnerable adults upon request by the entity.

NEW SECTION. Sec. 507. A new section is added to chapter 9A.42 RCW to read as follows:

The legislature finds that there is a significant need to protect children and dependent persons, including frail elder and vulnerable adults, from abuse and neglect by their parents, by persons entrusted with their physical custody, or by persons employed to provide them with the basic necessities of life. The legislature further finds that such abuse and neglect often takes the forms of either withholding from them the basic necessities of life, including food, water, shelter, clothing, and health care, or abandoning them, or both. Therefore, it is the intent of the legislature that criminal penalties be imposed on those guilty of such abuse or neglect. It is the intent of the legislature that a person who, in good faith, is furnished Christian Science treatment by a duly accredited Christian Science practitioner in lieu of medical care is not considered deprived of medically necessary health care or abandoned. Prosecutions under this chapter shall be consistent with the rules of evidence, including hearsay, under law.

Sec. 508. RCW 9A.42.010 and 1996 c 302 s 1 are each amended to read as follows:

As used in this chapter:

(1) "Basic necessities of life" means food, water, shelter, clothing, and medically necessary health care, including but not limited to health-related treatment or activities, hygiene, oxygen, and medication.

(2)(a) "Bodily injury" means physical pain or injury, illness, or an impairment of physical condition;

(b) "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part;

(c) "Great bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily part or organ.

(3) "Child" means a person under eighteen years of age.

(4) "Dependent person" means a person who, because of physical or mental disability, or because of extreme advanced age, is dependent upon another person to provide the basic necessities of life. A resident of a nursing home, as defined in RCW 18.51.010, a resident of an adult family home, as defined in RCW 70.128.010, and a frail elder or vulnerable adult, as defined in RCW 74.34.020(8), is presumed to be a dependent person for purposes of this chapter.

(5) "Employed" means hired by a dependent person, another person acting on behalf of a dependent person, or by an organization or governmental entity, to provide to a dependent person any of the basic necessities of life. A person may be "employed" regardless of whether the person is paid for the services or, if paid, regardless of who pays for the person's services.

(6) "Parent" has its ordinary meaning and also includes a guardian and the authorized agent of a parent or guardian.

(7) "Abandons" means leaving a child or other dependent person without the means or ability to obtain one or more of the basic necessities of life.

Sec. 509. RCW 9A.42.050 and 1986 c 250 s 5 are each amended to read as follows:

In any prosecution for criminal mistreatment, it shall be a defense that the withholding of the basic necessities of life is due to financial inability only if the person charged has made a reasonable effort to obtain adequate assistance. This defense is available to a person employed to provide the basic necessities of life only when the agreed-upon payment has not been made.

Sec. 510. RCW 9A.42.020 and 1986 c 250 s 2 are each amended to read as follows:

(1) A parent of a child ((or)), the person entrusted with the physical custody of a child or dependent person, or a person employed to provide to the child or dependent person the basic necessities of life is guilty of criminal mistreatment in the first degree if he or she recklessly, as defined in RCW 9A.08.010, causes great bodily harm to a child or dependent person by withholding any of the basic necessities of life.

(2) Criminal mistreatment in the first degree is a class B felony.

Sec. 511. RCW 9A.42.030 and 1986 c 250 s 3 are each amended to read as follows:

(1) A parent of a child ((or)), the person entrusted with the physical custody of a child or dependent person, or a person employed to provide to the child or dependent person the basic necessities of life is guilty of criminal mistreatment in the second degree if he or she recklessly, as defined in RCW 9A.08.010, either (a) creates an imminent and substantial risk of death or great bodily harm, or (b) causes substantial bodily harm by withholding any of the basic necessities of life.

(2) Criminal mistreatment in the second degree is a class C felony.

NEW SECTION. Sec. 512. A new section is added to chapter 9A.42 RCW to read as follows:

RCW 9A.42.020 and 9A.42.030 do not apply when a terminally ill person or his or her designee requests palliative care and the person receives palliative care from a licensed home health agency, hospice agency, nursing home, or hospital who is providing care under the medical direction of a physician.

Sec. 513. RCW 9A.44.010 and 1994 c 271 s 302 are each amended to read as follows:

As used in this chapter:

(1) "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

(2) "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.

(3) "Married" means one who is legally married to another, but does not include a person who is living separate and apart from his or her spouse and who has filed in an appropriate court for legal separation or for dissolution of his or her marriage.

(4) "Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause.

(5) "Physically helpless" means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(6) "Forcible compulsion" means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

(7) "Consent" means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.

(8) "Significant relationship" means a situation in which the perpetrator is:

(a) A person who undertakes the responsibility, professionally or voluntarily, to provide education, health, welfare, or organized recreational activities principally for minors; ((or))

(b) A person who in the course of his or her employment supervises minors; or

(c) A person who provides welfare, health or residential assistance, personal care, or organized recreational activities to frail elders or vulnerable adults, including a provider, employee, temporary employee, volunteer, or independent contractor who supplies services to long-term care facilities licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW, but not including a consensual sexual partner.

(9) "Abuse of a supervisory position" means a direct or indirect threat or promise to use authority to the detriment or benefit of a minor.

(10) "Developmentally disabled," for purposes of RCW 9A.44.050(1)(c) and 9A.44.100(1)(c), means a person with a developmental disability as defined in RCW 71A.10.020.

(11) "Person with supervisory authority," for purposes of RCW 9A.44.050(1) (c) or (e) and 9A.44.100(1) (c) or (e), means any proprietor or employee of any public or private care or treatment facility who directly supervises developmentally disabled, mentally disordered, or chemically dependent persons at the facility.

(12) "Mentally disordered person" for the purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person with a "mental disorder" as defined in RCW 71.05.020(2).

(13) "Chemically dependent person" for purposes of RCW 9A.44.050(1)(e) and 9A.44.100(1)(e) means a person who is "chemically dependent" as defined in RCW 70.96A.020(4).

(14) "Health care provider" for purposes of RCW 9A.44.050 and 9A.44.100 means a person who is, holds himself or herself out to be, or provides services as if he or she were: (a) A member of a health care profession under chapter 18.130 RCW; or (b) registered or certified under chapter 18.19 RCW, regardless of whether the health care provider is licensed, certified, or registered by the state.

(15) "Treatment" for purposes of RCW 9A.44.050 and 9A.44.100 means the active delivery of professional services by a health care provider which the health care provider holds himself or herself out to be qualified to provide.

(16) "Frail elder or vulnerable adult" means a person sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself. "Frail elder or vulnerable adult" also includes a person found incapacitated under chapter 11.88 RCW, a person over eighteen years of age who has a developmental disability under chapter 71A.10 RCW, a person admitted to a long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and a person receiving services from a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW.

Sec. 514. RCW 9A.44.050 and 1993 c 477 s 2 are each amended to read as follows:

(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:

(a) By forcible compulsion;

(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated;

(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual intercourse with the knowledge that the sexual intercourse was not for the purpose of treatment; ((or))

(e) When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or

(f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.

(2) Rape in the second degree is a class A felony.

Sec. 515. RCW 9A.44.100 and 1993 c 477 s 3 are each amended to read as follows:

(1) A person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

(a) By forcible compulsion; ((or))

(b) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless;

(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual contact with the knowledge that the sexual contact was not for the purpose of treatment; ((or))

(f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who has a significant relationship with the victim.

(2) Indecent liberties is a class B felony.

Sec. 516. RCW 18.130.040 and 1996 c 200 s 32 and 1996 c 81 s 5 are each reenacted and amended to read as follows:

(1) This chapter applies only to the secretary and the boards and commissions having jurisdiction in relation to the professions licensed under the chapters specified in this section. This chapter does not apply to any business or profession not licensed under the chapters specified in this section.

(2)(a) The secretary has authority under this chapter in relation to the following professions:

(i) Dispensing opticians licensed under chapter 18.34 RCW;

(ii) Naturopaths licensed under chapter 18.36A RCW;

(iii) Midwives licensed under chapter 18.50 RCW;

(iv) Ocularists licensed under chapter 18.55 RCW;

(v) Massage operators and businesses licensed under chapter 18.108 RCW;

(vi) Dental hygienists licensed under chapter 18.29 RCW;

(vii) Acupuncturists licensed under chapter 18.06 RCW;

(viii) Radiologic technologists certified and X-ray technicians registered under chapter 18.84 RCW;

(ix) Respiratory care practitioners certified under chapter 18.89 RCW;

(x) Persons registered or certified under chapter 18.19 RCW;

(xi) Persons registered as nursing pool operators under chapter 18.52C RCW;

(xii) Nursing assistants registered or certified under chapter ((~~18.79~~)) 18.88A RCW;

(xiii) Health care assistants certified under chapter 18.135 RCW;

(xiv) Dietitians and nutritionists certified under chapter 18.138 RCW;

(xv) Sex offender treatment providers certified under chapter 18.155 RCW;

(xvi) Persons licensed and certified under chapter 18.73 RCW or RCW 18.71.205;

(xvii) Persons registered as adult family home providers and resident managers under RCW 18.48.020; and

(xviii) Denturists licensed under chapter 18.30 RCW.

(b) The boards and commissions having authority under this chapter are as follows:

(i) The podiatric medical board as established in chapter 18.22 RCW;

(ii) The chiropractic quality assurance commission as established in chapter 18.25 RCW;

(iii) The dental quality assurance commission as established in chapter 18.32 RCW;

(iv) The board of hearing and speech as established in chapter 18.35 RCW;

(v) The board of examiners for nursing home administrators as established in chapter 18.52 RCW;

(vi) The optometry board as established in chapter 18.54 RCW governing licenses issued under chapter 18.53 RCW;

(vii) The board of osteopathic medicine and surgery as established in chapter 18.57 RCW governing licenses issued under chapters 18.57 and 18.57A RCW;

(viii) The board of pharmacy as established in chapter 18.64 RCW governing licenses issued under chapters 18.64 and 18.64A RCW;

(ix) The medical quality assurance commission as established in chapter 18.71 RCW governing licenses and registrations issued under chapters 18.71 and 18.71A RCW;

(x) The board of physical therapy as established in chapter 18.74 RCW;

(xi) The board of occupational therapy practice as established in chapter 18.59 RCW;

(xii) The nursing care quality assurance commission as established in chapter 18.79 RCW governing licenses issued under that chapter;

(xiii) The examining board of psychology and its disciplinary committee as established in chapter 18.83 RCW; and

(xiv) The veterinary board of governors as established in chapter 18.92 RCW.

(3) In addition to the authority to discipline license holders, the disciplining authority has the authority to grant or deny licenses based on the conditions and criteria established in this chapter and the chapters specified in subsection (2) of this section. This chapter also governs any investigation, hearing, or proceeding relating to denial of licensure or issuance of a license conditioned on the applicant's compliance with an order entered pursuant to RCW 18.130.160 by the disciplining authority.

(4) All disciplining authorities shall adopt procedures to ensure substantially consistent application of this chapter, the Uniform Disciplinary Act, among the disciplining authorities listed in subsection (2) of this section.

Sec. 517. RCW 18.130.200 and 1986 c 259 s 12 are each amended to read as follows:

A person who attempts to obtain ((or)), obtains, or attempts to maintain a license by willful misrepresentation or fraudulent representation is guilty of a gross misdemeanor.

Sec. 518. RCW 43.43.842 and 1992 c 104 s 1 are each amended to read as follows:

(1)(a) The secretary of social and health services and the secretary of health shall adopt additional requirements for the licensure or relicensure of agencies ((or)), facilities ((~~which~~)), and licensed individuals who provide care and treatment to vulnerable adults. These additional requirements shall ensure that any person associated with a licensed agency or facility having ((~~direct contact~~)) unsupervised access with a vulnerable adult shall not have been: ((~~(a)~~)) (i) Convicted of a crime against persons as defined in RCW 43.43.830, except as provided in this section; ((~~(b)~~)) (ii) convicted of crimes relating to financial exploitation as defined in RCW 43.43.830, except as provided in this section; ((~~(c)~~)) (iii) found in any disciplinary board final decision to have abused a vulnerable adult under RCW 43.43.830; or ((~~(d)~~)) (iv) the subject in a protective proceeding under chapter 74.34 RCW.

(b) A person associated with a licensed agency or facility who has unsupervised access with a vulnerable adult shall make the disclosures specified in RCW 43.43.834(2). The person shall make the disclosures in writing, sign, and swear to the contents under penalty of perjury. The person shall, in the disclosures, specify all crimes against children or other persons, and all crimes relating to financial exploitation as defined in RCW 43.43.830, committed by the person.

(2) The rules adopted under this section shall permit the licensee to consider the criminal history of an applicant for employment in a licensed facility when the applicant has one or more convictions for a past offense and:

(a) The offense was simple assault, assault in the fourth degree, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(b) The offense was prostitution, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(c) The offense was theft in the third degree, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(d) The offense was theft in the second degree, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment;

(e) The offense was forgery, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment.

The offenses set forth in (a) through (e) of this subsection do not automatically disqualify an applicant from employment by a licensee. Nothing in this section may be construed to require the employment of any person against a licensee's judgment.

In consultation with law enforcement personnel, the secretary of social and health services and the secretary of health shall investigate the conviction record and the protection proceeding record information under this chapter ((~~43.43 RCW~~)) of each agency or facility and its staff under their respective jurisdictions seeking licensure or relicensure. An individual responding to a criminal background inquiry request from his or her employer or potential employer shall disclose the information about his or her criminal history under penalty of perjury. The secretaries shall use the information solely for the purpose of determining eligibility for licensure or relicensure. Criminal justice agencies shall provide the secretaries such information as they may have and that the secretaries may require for such purpose.

Sec. 519. RCW 70.124.020 and 1996 c 178 s 24 are each amended to read as follows:

Unless the context requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Court" means the superior court of the state of Washington.

(2) "Law enforcement agency" means the police department, the director of public safety, or the office of the sheriff.

(3) "Practitioner of the healing arts" or "practitioner" means a person licensed by this state to practice podiatric medicine and surgery, optometry, pharmacy, physical therapy, chiropractic, nursing, dentistry, osteopathic medicine and surgery, or medicine and surgery. The term "practitioner" shall include a nurses aide, a nursing home administrator licensed under chapter 18.52 RCW, and a duly accredited Christian Science practitioner: PROVIDED, HOWEVER, That a nursing home patient who is being furnished Christian Science treatment by a duly accredited Christian Science practitioner shall not be considered, for that reason alone, a neglected patient for the purposes of this chapter.

(4) "Department" means the state department of social and health services.

(5) "Nursing home" has the meaning prescribed by RCW 18.51.010.

(6) "Social worker" means anyone engaged in a professional capacity during the regular course of employment in encouraging or promoting the health, welfare, support, or education of nursing home patients, or providing social services to nursing home patients, whether in an individual capacity or as an employee or agent of any public or private organization or institution.

(7) "Psychologist" means any person licensed to practice psychology under chapter 18.83 RCW, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

(8) "Pharmacist" means any registered pharmacist under chapter 18.64 RCW, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

(9) "Abuse or neglect" or "patient abuse or neglect" means the nonaccidental physical injury or condition, sexual abuse, or negligent treatment of a nursing home or state hospital patient under circumstances which indicate that the patient's health, welfare, ((~~and~~)) or safety is harmed thereby.

(10) "Negligent treatment" means an act or omission which evinces a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the patient's health, welfare, ((~~and~~)) or safety.

(11) "State hospital" means any hospital operated and maintained by the state for the care of the mentally ill under chapter 72.23 RCW.

Sec. 520. RCW 70.124.040 and 1981 c 174 s 4 are each amended to read as follows:

(1) Where a report is ((~~deemed warranted~~)) required under RCW 70.124.030, an immediate oral report shall be made by telephone or otherwise to either a law enforcement agency or to the department and, upon request, shall be followed by a report in writing. The reports shall contain the following information, if known:

(a) The name and address of the person making the report;

(b) The name and address of the nursing home or state hospital patient;

(d) The nature and extent of the injury or injuries;

(e) The nature and extent of the neglect;

(f) The nature and extent of the sexual abuse;

(g) Any evidence of previous injuries, including their nature and extent; and

(h) Any other information which may be helpful in establishing the cause of the patient's death, injury, or injuries, and the identity of the perpetrator or perpetrators.

(2) Each law enforcement agency receiving such a report shall, in addition to taking the action required by RCW 70.124.050, immediately relay the report to the department, and to other law enforcement agencies, including the medicaid fraud control unit of the office of the attorney general, as appropriate. For any report it receives, the department shall likewise take the required action and in addition relay the report to the appropriate law enforcement agency or agencies. The appropriate law enforcement agency or agencies shall receive immediate notification when the department, upon receipt of such report, has reasonable cause to believe that a criminal act has been committed.

Sec. 521. RCW 70.124.070 and 1979 ex.s. c 228 s 7 are each amended to read as follows:

A person who is required to make or to cause to be made a report pursuant to RCW 70.124.030 or 70.124.040 and who knowingly fails to make such report or fails to cause such report to be made is guilty of a gross misdemeanor.

NEW SECTION. Sec. 522. A new section is added to chapter 74.34 RCW to read as follows:

A person who is required to make or cause to be made a report under RCW 74.34.030 or 74.34.040 and who knowingly fails to make the report or fails to cause the report to be made is guilty of a gross misdemeanor.

Sec. 523. RCW 74.34.020 and 1995 1st sp.s. c 18 s 84 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Abandonment" means action or inaction by a person or entity with a duty of care for a frail elder or a vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.

(2) "Abuse" means a nonaccidental act of physical or mental mistreatment or injury, or sexual mistreatment, which harms a person through action or inaction by another individual.

(3) "Consent" means express written consent granted after the person has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary.

(4) "Department" means the department of social and health services.

(5) "Exploitation" means the illegal or improper use of a frail elder or vulnerable adult or that person's income or resources, including trust funds, for another person's profit or advantage.

(6) "Neglect" means a pattern of conduct or inaction by a person or entity with a duty of care for a frail elder or vulnerable adult that results in the deprivation of care necessary to maintain the vulnerable person's physical or mental health.

(7) "Secretary" means the secretary of social and health services.

(8) "Frail elder or vulnerable adult" means a person sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself. "Frail elder or vulnerable adult" shall include persons found incapacitated under chapter 11.88 RCW, or a person who has a developmental disability under chapter 71A.10 RCW, and persons admitted to any long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, or persons receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW.

(9) No frail elder or vulnerable person who relies upon and is being provided spiritual treatment in lieu of medical treatment in accordance with the tenets and practices of a well-recognized religious denomination shall for that reason alone be considered abandoned, abused, or neglected.

Sec. 524. RCW 43.43.832 and 1995 c 250 s 2 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 ((~~may~~)) 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. When necessary, applicants may be employed on a conditional basis pending completion of such a background investigation.

(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, when considering persons for state positions directly responsible for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults or when licensing ((or)), authorizing, or contracting such services, persons, or agencies pursuant to its authority under chapter 74.15, 71A.10, 70.128, 18.51, 18.20, 18.48, 72.36, or 72.23 RCW, or persons receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.126 RCW, or any later-enacted statute which purpose is to license or regulate a facility which handles vulnerable adults, must consider the information listed in subsection (1) of this section. However, when necessary, persons may be employed on a conditional basis pending completion of the background investigation. Conditional employment or unsupervised volunteer work pending the completion of the criminal history background check shall only be authorized if the potential volunteer, employer, or employee verifies that the background application has been submitted to the appropriate agency and the applicant shows three positive work or personal references. The three references must be approved by the employer, kept by the agency or individual serving as employer, agent, supervisor, or department, as appropriate, and made available for the department to review. The approved three references shall serve only as a means for allowing temporary employment until an approved criminal history background check has been received. The approved three references do not take the place of a clear criminal history background check. The Washington personnel resources board shall adopt rules to accomplish the purposes of this subsection as it applies to state employees.

(5)(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.

Sec. 525. RCW 43.43.842 and 1992 c 104 s 1 are each amended to read as follows:

(1) The secretary of social and health services and the secretary of health shall adopt additional requirements for the licensure or relicensure of agencies providing services under chapter 74.39A RCW and nursing pools under chapter 18.52C RCW or facilities which provide care and treatment to vulnerable adults consistent with chapter 74.34 RCW. These additional requirements shall ensure that any person associated with a licensed agency or facility having direct contact with a vulnerable adult shall not have been: (a) Convicted of a crime against persons as defined in RCW 43.43.830, except as provided in this section; (b) convicted of crimes relating to financial exploitation as defined in RCW 43.43.830, except as provided in this section; (c) found in any disciplinary board final decision to have abused a vulnerable adult under RCW 43.43.830; or (d) the subject in a protective proceeding under chapter 74.34 RCW.

(b) The offense was prostitution, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;

(e) The offense was forgery, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment.

In consultation with law enforcement personnel, the secretary of social and health services and the secretary of health shall investigate the conviction record and the protection proceeding record information under chapter 43.43 RCW of each agency providing services pursuant to chapters 74.39A and 18.52C RCW, or facility and its staff under their respective jurisdictions seeking licensure or relicensure. The secretaries shall use the information solely for the purpose of determining eligibility for licensure or relicensure. Criminal justice agencies shall provide the secretaries such information as they may have and that the secretaries may require for such purpose.

Sec. 526. RCW 43.20A.710 and 1993 c 210 s 1 are each amended to read as follows:

The secretary shall investigate the conviction records, pending charges or disciplinary board final decisions of: (1) 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 (2) 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. The investigation may include an examination of state and national criminal identification data and the child abuse and neglect register established under chapter 26.44 RCW. 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 who hired them and to their legal guardians, if any. The secretary shall use the information solely for the purpose of determining the character, suitability, and competence of these applicants except that in the case of individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment who employ individual providers, the determination of character, suitability, and competence of applicants ((~~shall~~)) may be made by the individual with a physical disability, developmental disability, mental illness, or mental impairment, and except that state payment for in-home services shall be denied if the in-home provider has a disqualifying criminal history background. Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose. If necessary, persons may be employed on a conditional basis pending completion of the background investigation. Conditional employment or unsupervised volunteer work pending the completion of the criminal history background check shall only be authorized if the potential volunteer, employer, or employee verifies that the background application has been submitted to the appropriate agency and the applicant shows three positive work or personal references. The three references must be approved by the employer, kept by the individual receiving the services, and made available for the department to review. The approved three references shall serve only as a means for allowing temporary employment until an approved criminal history background check has been received. The approved three references do not take the place of a clear criminal history background check.

Sec. 527. RCW 18.52C.010 and 1988 c 243 s 1 are each amended to read as follows:

The legislature intends to protect the public's right to high quality health care by assuring that nursing pools employ, procure, or refer competent and qualified nursing personnel or long-term care personnel providing services pursuant to chapter 74.39A RCW, and that such nursing or long-term care personnel are provided to individuals, agencies, or health care facilities in a way to meet the needs of residents and patients.

Sec. 528. RCW 18.52C.020 and 1991 c 3 s 130 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Secretary" means the secretary of the department of health.

(2) "Health care facility" means a nursing home, hospital, hospice care facility, home health care agency, hospice agency, boarding home, adult family home, group home, or other entity for the delivery of health care, or the delivery of long-term care services pursuant to chapter 74.39A RCW, including services provided under the state-funded individual provider program.

(3) "Nursing home" means any nursing home facility licensed pursuant to chapter 18.52 RCW.

(4) "Nursing pool" means any person engaged in the business of providing, procuring, or referring health care personnel for temporary employment in health care facilities, such as licensed nurses or practical nurses, and nursing assistants. "Nursing pool" does not include an individual who only engages in providing his or her own services.

(5) "Person" includes an individual, firm, corporation, partnership, or association.

Sec. 529. RCW 18.52C.040 and 1991 c 3 s 132 are each amended to read as follows:

(1) The nursing pool shall document that each temporary employee or referred independent contractor provided or referred to health care facilities currently meets the minimum state credentialing requirements.

(2) The nursing pool shall not require, as a condition of employment or referral, that employees or independent contractors of the nursing pool recruit new employees or independent contractors for the nursing pool from among the permanent employees of the health care facility to which the nursing pool employee or independent contractor has been assigned or referred.

(3) The nursing pool shall carry professional and general liability insurance to insure against any loss or damage occurring, whether professional or otherwise, as the result of the negligence of its employees, agents or independent contractors for acts committed in the course of their employment with the nursing pool: PROVIDED, That a nursing pool that only refers self-employed, independent contractors to health care facilities shall carry professional and general liability insurance to cover its own liability as a nursing pool which refers self-employed, independent contractors to health care facilities: AND PROVIDED FURTHER, That it shall require, as a condition of referral, that self‑employed, independent contractors carry professional and general liability insurance to insure against loss or damage resulting from their own acts committed in the course of their own employment by a health care facility.

(4) The uniform disciplinary act, chapter 18.130 RCW, shall govern the issuance and denial of registration and the discipline of persons registered under this chapter. The secretary shall be the disciplinary authority under this chapter.

(5) All nursing pools shall require background checks under chapter 43.43 RCW for employees or independent contractors of the nursing pools and other individuals working with unsupervised access to vulnerable adults in compliance with the requirements of RCW 43.43.830 through 43.43.842.

NEW SECTION. Sec. 530. A new section is added to chapter 43.20A RCW to read as follows:

The secretary of social and health services shall adopt additional requirements for individuals who work independently, or with any agency or organization providing temporary assistance as a paid or voluntary employee, or through independent contractors, that brings them into unsupervised access with vulnerable adults receiving long-term care services or assistance under chapters 74.39A, 72.23, and 72.36 RCW.

NEW SECTION. Sec. 531. A new section is added to chapter 43.43 RCW to read as follows:

If information is released under this chapter by the state of Washington, the state and its employees: (1) Make no representation that the subject of the inquiry has no criminal record or adverse civil or administrative decisions; (2) make no determination that the subject of the inquiry is suitable for involvement with a business or organization; and (3) are not liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information.

NEW SECTION. Sec. 532. The following acts or parts of acts are each repealed:

(1) RCW 74.39.030 and 1989 c 427 s 11;

(2) RCW 74.39.040 and 1989 c 427 s 13;

(3) RCW 74.39A.005 and 1993 c 508 s 1; and

(4) RCW 74.39A.008 and 1995 1st sp.s. c 18 s 1.

NEW SECTION. Sec. 533. Part headings and captions used in this act are not part of the law.

NEW SECTION. Sec. 534. Section 403 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately."

E2SHB 1850 - CONF REPT

By Conference Committee

On page 1, line 2 of the title, after "act;" strike the remainder of the title and insert "amending RCW 70.129.010, 70.129.030, 70.129.110, 70.129.150, 74.39A.030, 74.39A.040, 74.39A.050, 74.39A.060, 70.129.105, 74.42.030, 74.42.450, 43.20B.080, 74.34.010, 74.39A.170, 70.128.175, 9A.42.010, 9A.42.050, 9A.42.020, 9A.42.030, 9A.44.010, 9A.44.050, 9A.44.100, 18.130.200, 43.43.842, 70.124.020, 70.124.040, 70.124.070, 74.34.020, 43.43.832, 43.43.842, 43.20A.710, 18.52C.010, 18.52C.020, and 18.52C.040; reenacting and amending RCW 18.130.040; adding a new section to chapter 74.39A RCW; adding a new section to chapter 70.124 RCW; adding new sections to chapter 74.34 RCW; adding new sections to chapter 18.20 RCW; adding a new section to chapter 43.20B RCW; adding a new section to chapter 43.70 RCW; adding a new section to chapter 18.51 RCW; adding new sections to chapter 9A.42 RCW; adding a new section to chapter 43.20A RCW; adding a new section to chapter 43.43 RCW; creating new sections; repealing RCW 74.39.030, 74.39.040, 74.39A.005, and 74.39A.008; and declaring an emergency."