2637-S2 AAS 3/1/00

2SHB 2637 - S COMM AMD (S4961.2) AMD BY #204

By Committee on Human Services & Corrections

                                         ADOPTED AS AMENDED 3/1/00

    Strike everything after the enacting clause and insert the following:

    "Sec. 1.  RCW 43.43.832 and 1997 c 392 s 524 are each amended to read as follows:

    (1) The legislature finds that businesses and organizations providing services to children, developmentally disabled persons, and vulnerable adults need adequate information to determine which employees or licensees to hire or engage.  The legislature further finds that many developmentally disabled individuals and vulnerable adults desire to hire their own employees directly and also need adequate information to determine which employees or licensees to hire or engage.  Therefore, the Washington state patrol criminal identification system shall disclose, upon the request of a business or organization as defined in RCW 43.43.830, a developmentally disabled person, or a vulnerable adult as defined in RCW 43.43.830 or his or her guardian, an applicant's record for convictions of offenses against children or other persons, convictions for crimes relating to financial exploitation, but only if the victim was a vulnerable adult, adjudications of child abuse in a civil action, the issuance of a protection order against the respondent under chapter 74.34 RCW, and disciplinary board final decisions and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision.

    (2) The legislature also finds that the state board of education may request of the Washington state patrol criminal identification system information regarding a certificate applicant's record for convictions under subsection (1) of this section.

    (3) The legislature also finds that law enforcement agencies, the office of the attorney general, prosecuting authorities, and the department of social and health services may request this same information to aid in the investigation and prosecution of child, developmentally disabled person, and vulnerable adult abuse cases and to protect children and adults from further incidents of abuse.

    (4) The legislature further finds that the department of social and health services must consider the information listed in subsection (1) of this section in the following circumstances:

    (a) When considering persons for state ((positions directly responsible for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults)) employment in positions directly responsible for the supervision, care, or treatment of children, vulnerable adults, or individuals with mental illness or developmental disabilities;

    (b) When considering persons for state positions involving unsupervised access to vulnerable adults to conduct comprehensive assessments, financial eligibility determinations, licensing and certification activities, investigations, surveys, or case management; or for state positions otherwise required by federal law to meet employment standards;

(c) When licensing agencies or facilities with individuals in positions directly responsible for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults, including but not limited to agencies or facilities licensed under chapter 74.15 or 18.51 RCW;

    (((c))) (d) When contracting with individuals or businesses or organizations for the care, supervision, case management, or treatment of children, developmentally disabled persons, or vulnerable adults, including but not limited to services contracted for under chapter 18.20, 18.48, 70.127, 70.128, 72.36, or 74.39A RCW or Title 71A RCW;

(e) When individual providers are paid by the state or providers are paid by home care agencies to provide in-home services involving unsupervised access to persons with physical, mental, or developmental disabilities or mental illness, or to vulnerable adults as defined in chapter 74.34 RCW, including but not limited to services provided under chapter 74.39 or 74.39A RCW.

    (5) Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis pending completion of the state background investigation.  Whenever a national criminal record check through the federal bureau of investigation is required by state law, a person may be employed or engaged as a volunteer or independent contractor on a conditional basis pending completion of the national check.  The Washington personnel resources board shall adopt rules to accomplish the purposes of this subsection as it applies to state employees.

    (6)(a) For purposes of facilitating timely access to criminal background information and to reasonably minimize the number of requests made under this section, recognizing that certain health care providers change employment frequently, health care facilities may, upon request from another health care facility, share copies of completed criminal background inquiry information.

    (b) Completed criminal background inquiry information may be shared by a willing health care facility only if the following conditions are satisfied:  The licensed health care facility sharing the criminal background inquiry information is reasonably known to be the person's most recent employer, no more than twelve months has elapsed from the date the person was last employed at a licensed health care facility to the date of their current employment application, and the criminal background information is no more than two years old.

    (c) If criminal background inquiry information is shared, the health care facility employing the subject of the inquiry must require the applicant to sign a disclosure statement indicating that there has been no conviction or finding as described in RCW 43.43.842 since the completion date of the most recent criminal background inquiry.

    (d) Any health care facility that knows or has reason to believe that an applicant has or may have a disqualifying conviction or finding as described in RCW 43.43.842, subsequent to the completion date of their most recent criminal background inquiry, shall be prohibited from relying on the applicant's previous employer's criminal background inquiry information.  A new criminal background inquiry shall be requested pursuant to RCW 43.43.830 through 43.43.842.

    (e) Health care facilities that share criminal background inquiry information shall be immune from any claim of defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of this information in accordance with this subsection.

    (f) Health care facilities shall transmit and receive the criminal background inquiry information in a manner that reasonably protects the subject's rights to privacy and confidentiality.

    (g) For the purposes of this subsection, "health care facility" means a nursing home licensed under chapter 18.51 RCW, a boarding home licensed under chapter 18.20 RCW, or an adult family home licensed under chapter 70.128 RCW.

(7) If a federal bureau of investigation check is required in addition to the state background check by the department of social and health services, an applicant who is not disqualified based on the results of the state background check shall be eligible for a one hundred twenty day provisional approval to hire, pending the outcome of the federal bureau of investigation check.  The department may extend the provisional approval until receipt of the federal bureau of investigation check.  If the federal bureau of investigation check disqualifies an applicant, the department shall notify the requestor that the provisional approval to hire is withdrawn and the applicant may be terminated.

    Sec. 2.  RCW 43.20A.710 and 1999 c 336 s 7 are each amended to read as follows:

    (1) The secretary shall investigate the conviction records, pending charges or disciplinary board final decisions of:

    (a) Persons being considered for state employment in positions directly responsible for the supervision, care, or treatment of children, vulnerable adults, or individuals with mental illness or developmental disabilities; ((and))

    (b) Persons being considered for state employment in positions involving unsupervised access to vulnerable adults to conduct comprehensive assessments, financial eligibility determinations, licensing and certification activities, investigations, surveys, or case management; or for state positions otherwise required by federal law to meet employment standards;

(c) Individual providers who are paid by the state ((for)) and providers who are paid by home care agencies to provide in-home services ((and hired by individuals)) involving unsupervised access to persons with physical ((disabilities)), mental, or developmental disabilities((,)) or mental illness, or ((mental impairment)) to vulnerable adults as defined in chapter 74.34 RCW, including but not limited to services provided under chapter 74.39 or 74.39A RCW; and

(d) Individuals or businesses or organizations for the care, supervision, case management, or treatment of children, developmentally disabled persons, or vulnerable adults, including but not limited to services contracted for under chapter 18.20, 18.48, 70.127, 70.128, 72.36, or 74.39A RCW or Title 71A RCW.

    (2) The investigation may include an examination of state and national criminal identification data.  The secretary shall use the information solely for the purpose of determining the character, suitability, and competence of these applicants.

    (3) An individual provider or home care agency provider who has resided in the state less than three years before applying for employment involving unsupervised access to a vulnerable adult as defined in chapter 74.34 RCW must be fingerprinted for the purpose of investigating conviction records both through the Washington state patrol and the federal bureau of investigation.  This subsection applies only with respect to the provision of in-home services funded by medicaid personal care under RCW 74.09.520, community options program entry system waiver services under RCW 74.39A.030, or chore services under RCW 74.39A.110.  However, this subsection does not supersede RCW 74.15.030(2)(b).

(4) An individual provider or home care agency provider hired to provide in-home care for and having unsupervised access to a vulnerable adult as defined in chapter 74.34 RCW must have no conviction for a disqualifying crime under RCW 43.43.830 and 43.43.842.  An individual or home care agency provider must also have no conviction for a crime relating to drugs as defined in RCW 43.43.830.  This subsection applies only with respect to the provision of in-home services funded by medicaid personal care under RCW 74.09.520, community options program entry system waiver services under RCW 74.39A.030, or chore services under RCW 74.39A.110.

(5) The secretary shall provide the results of the ((state)) background check on individual providers to the ((individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment)) persons hiring them or to their legal guardians, if any, for their determination of the character, suitability, and competence of the applicants.  If ((an individual)) the person elects to hire or retain an individual provider after receiving notice from the department that the applicant has a conviction for an offense that would disqualify the applicant from ((employment with the department)) having unsupervised access to persons with physical, mental, or developmental disabilities or mental illness, or to vulnerable adults as defined in chapter 74.34 RCW, then the secretary shall deny payment for any subsequent services rendered by the disqualified individual provider.

    (((4))) (6) Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose.

    Sec. 3.  RCW 74.39A.050 and 1999 c 336 s 5 are each amended to read as follows:

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

    (1) The system shall be client-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for consumers consistent with chapter 392, Laws of 1997.

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

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

    (4) The emphasis should be on problem prevention both in monitoring and in screening potential providers of service.

    (5) Monitoring should be outcome based and responsive to consumer complaints and a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to providers.

    (6) Prompt and specific enforcement remedies shall also be implemented without delay, pursuant to RCW 74.39A.080, RCW 70.128.160, chapter 18.51 RCW, or chapter 74.42 RCW, for providers found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or uncorrected, or that create a hazard that is causing or likely to cause death or serious harm to one or more residents.  These enforcement remedies may also include, when appropriate, reasonable conditions on a contract or license.  In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance.

    (7) To the extent funding is available, all long-term care staff directly responsible for the care, supervision, or treatment of vulnerable persons should be screened through background checks in a uniform and timely manner to ensure that they do not have a criminal history that would disqualify them from working with vulnerable persons.  Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis according to law and rules adopted by the department.

    (8) No provider or staff, or prospective provider or staff, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry finding him or her guilty of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.

    (9) ((The department shall establish, by rule, a state registry which contains identifying information about personal care aides identified under this chapter who have substantiated findings of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult as defined in RCW 74.34.020.  The rule must include disclosure, disposition of findings, notification, findings of fact, appeal rights, and fair hearing requirements.  The department shall disclose, upon request, substantiated findings of abuse, neglect, financial exploitation, or abandonment to any person so requesting this information.

    (10))) The department shall by rule develop training requirements for individual providers and home care agency providers.  The department shall deny payment to an individual provider or a home care provider who does not complete the training requirement within the time limit specified by the department by rule.

    (((11))) (10) The department shall establish, by rule, training, background checks, and other quality assurance requirements for personal aides who provide in-home services funded by medicaid personal care as described in RCW 74.09.520, community options program entry system waiver services as described in RCW 74.39A.030, or chore services as described in RCW 74.39A.110 that are equivalent to requirements for individual providers.

    (((12))) (11) Under existing funds the department shall establish internally a quality improvement standards committee to monitor the development of standards and to suggest modifications.

    (((13))) (12) Within existing funds, the department shall design, develop, and implement a long-term care training program that is flexible, relevant, and qualifies towards the requirements for a nursing assistant certificate as established under chapter 18.88A RCW.  This subsection does not require completion of the nursing assistant certificate training program by providers or their staff.  The long-term care teaching curriculum must consist of a fundamental module, or modules, and a range of other available relevant training modules that provide the caregiver with appropriate options that assist in meeting the resident's care needs.  Some of the training modules may include, but are not limited to, specific training on the special care needs of persons with developmental disabilities, dementia, mental illness, and the care needs of the elderly.  No less than one training module must be dedicated to workplace violence prevention.  The nursing care quality assurance commission shall work together with the department to develop the curriculum modules.  The nursing care quality assurance commission shall direct the nursing assistant training programs to accept some or all of the skills and competencies from the curriculum modules towards meeting the requirements for a nursing assistant certificate as defined in chapter 18.88A RCW.  A process may be developed to test persons completing modules from a caregiver's class to verify that they have the transferable skills and competencies for entry into a nursing assistant training program.  The department may review whether facilities can develop their own related long-term care training programs.  The department may develop a review process for determining what previous experience and training may be used to waive some or all of the mandatory training.  The department of social and health services and the nursing care quality assurance commission shall work together to develop an implementation plan by December 12, 1998.

    Sec. 4.  RCW 74.34.095 and 1999 c 176 s 17 are each amended to read as follows:

    (1) The following information is confidential and not subject to disclosure, except as provided in this section:

    (a) A report of abandonment, abuse, financial exploitation, or neglect made under this chapter;

    (b) The identity of the person making the report; and

    (c) All files, reports, records, communications, and working papers used or developed in the investigation or provision of protective services.

    (2) Information considered confidential may be disclosed only for a purpose consistent with this chapter or as authorized by chapter 18.20, 18.51, or 74.39A RCW, or as authorized by the long-term care ombudsman programs under federal law or state law, chapter 43.190 RCW.

    (3) A court or presiding officer in an administrative proceeding may order disclosure of confidential information only if the court, or presiding officer in an administrative proceeding, determines that disclosure is essential to the administration of justice and will not endanger the life or safety of the vulnerable adult or individual who made the report.  The court or presiding officer in an administrative hearing may place restrictions on such disclosure as the court or presiding officer deems proper.

    Sec. 5.  RCW 74.39A.095 and 1999 c 175 s 3 are each amended to read as follows:

    (1) In carrying out case management responsibilities established under RCW 74.39A.090 for consumers who are receiving services under the medicaid personal care, community options programs entry system or chore services program through an individual provider, each area agency on aging shall provide adequate oversight of the care being provided to consumers receiving services under this section.  Such oversight shall include, but is not limited to:

    (a) Verification that the individual provider has met any training requirements established by the department;

    (b) Verification of a sample of worker time sheets;

    (c) Home visits or telephone contacts sufficient to ensure that the plan of care is being appropriately implemented;

    (d) Reassessment and reauthorization of services;

    (e) Monitoring of individual provider performance; and

    (f) Conducting criminal background checks or verifying that criminal background checks have been conducted.

    (2) The area agency on aging case manager shall work with each consumer to develop a plan of care under this section that identifies and ensures coordination of health and long-term care services that meet the consumer's needs.  In developing the plan, they shall utilize, and modify as needed, any comprehensive community service plan developed by the department as provided in RCW 74.39A.040.  The plan of care shall include, at a minimum:

    (a) The name and telephone number of the consumer's area agency on aging case manager, and a statement as to how the case manager can be contacted about any concerns related to the consumer's well-being or the adequacy of care provided;

    (b) The name and telephone numbers of the consumer's primary health care provider, and other health or long-term care providers with whom the consumer has frequent contacts;

    (c) A clear description of the roles and responsibilities of the area agency on aging case manager and the consumer receiving services under this section;

    (d) The duties and tasks to be performed by the area agency on aging case manager and the consumer receiving services under this section;

    (e) The type of in-home services authorized, and the number of hours of services to be provided;

    (f) The terms of compensation of the individual provider;

    (g) A statement that the individual provider has the ability and willingness to carry out his or her responsibilities relative to the plan of care; and

    (h)(i) Except as provided in (h)(ii) of this subsection, a clear statement indicating that a consumer receiving services under this section has the right to waive any of the case management services offered by the area agency on aging under this section, and a clear indication of whether the consumer has, in fact, waived any of these services.

    (ii) The consumer's right to waive case management services does not include the right to waive reassessment or reauthorization of services, or verification that services are being provided in accordance with the plan of care.

    (3) Each area agency on aging shall retain a record of each waiver of services included in a plan of care under this section.

    (4) Each consumer has the right to direct and participate in the development of their plan of care to the maximum practicable extent of their abilities and desires, and to be provided with the time and support necessary to facilitate that participation.

    (5) A copy of the plan of care must be distributed to the consumer's primary care provider, individual provider, and other relevant providers with whom the consumer has frequent contact, as authorized by the consumer.

    (6) The consumer's plan of care shall be an attachment to the contract between the department, or their designee, and the individual provider.

    (7) If the department or area agency on aging case manager finds that an individual provider's inadequate performance or inability to deliver quality care is jeopardizing the health, safety, or well-being of a consumer receiving service under this section, the department or the area agency on aging may take action to terminate the contract between the department and the individual provider.  If the department or the area agency on aging has a reasonable, good faith belief that the health, safety, or well-being of a consumer is in imminent jeopardy, the department or area agency on aging may summarily suspend the contract pending a fair hearing.  The consumer may request a fair hearing to contest the planned action of the case manager, as provided in chapter 34.05 RCW.  The department may by rule adopt guidelines for implementing this subsection.

    (8) The department or area agency on aging may reject a request by ((an [a])) a consumer receiving services under this section to have a family member or other person serve as his or her individual provider if the case manager has a reasonable, good faith belief that the family member or other person will be unable to appropriately meet the care needs of the consumer.  The consumer may request a fair hearing to contest the decision of the case manager, as provided in chapter 34.05 RCW.  The department may by rule adopt guidelines for implementing this subsection."

2SHB 2637 - S COMM AMD

By Committee on Human Services & Corrections

                                                    ADOPTED 3/1/00

    On page 1, line 2 of the title, after "adults;" strike the remainder of the title and insert "amending RCW 43.43.832, 43.20A.710, 74.39A.050, 74.34.095, and 74.39A.095."

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