H-2175.3  _______________________________________________

 

                    SUBSTITUTE HOUSE BILL 1946

          _______________________________________________

 

State of Washington      55th Legislature     1997 Regular Session

 

By House Committee on Children & Family Services (originally sponsored by Representatives Kenney, Dyer, Cody, Van Luven, Chopp, Cooke, Keiser, Anderson, Cole, Cooper, Veloria, Hatfield, Constantine, Morris, O'Brien, Ogden, Blalock, Costa, Conway and Tokuda)

 

Read first time 03/05/97.

  Increasing protections for vulnerable persons.


    AN ACT Relating to increasing protections for vulnerable persons; amending RCW 43.43.832, 43.43.842, 43.20A.710, 18.52C.010, 18.52C.020, and 18.52C.040; adding a new section to chapter 43.20A RCW; and adding a new section to chapter 43.43 RCW.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

    Sec. 1.  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.

 

    Sec. 2.  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.

    (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 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. 3.  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. 4.  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. 5.  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. 6.  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. 7.  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. 8.  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.

 


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