[atlas:bill]

AN ACT Relating to adult family homes; amending RCW 18.52C.020, 70.24.017, 70.128.007, 70.128.010, 70.128.090, 70.128.100, 70.128.120, 70.128.125, and 70.128.160; adding new sections to chapter 70.128 RCW; adding a new section to chapter 69.06 RCW; adding a new section to chapter 74.39A RCW; and repealing RCW 70.128.061 and 70.128.062.

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

NEW SECTION. Sec. 1. A new section is added to chapter 70.128 RCW to read as follows:

The department shall develop a temporary management program utilizing community providers licensed under this chapter. This program is established to mitigate dislocation of residents of adult family homes while the department and the licensee, who is subject to departmental sanctions that would result in license revocation and/or a stop placement order, proceed with due process and dispute resolution proceedings as authorized by law.

In implementing this section the department shall consult with consumers, advocates, the adult family home advisory committee established under chapter 18.48 RCW, and organizations representing adult family homes.

The department shall report back to the legislature on the implementation of this program by December 31, 2002.

The department shall retain fees and fines from licensing violations for the purpose of funding this temporary management program.

NEW SECTION. Sec. 2. A new section is added to chapter 70.128 RCW to read as follows:

A provider licensed under this chapter may choose to have a dispute resolution center established under chapter 7.75 RCW resolve licensing disputes, sanctions, citations, and departmental actions. Family members, residents, surrogates, and resident managers of adult family homes may also have disputes with the department resolved by a dispute resolution center utilized through agreement of the parties, or by the request or order of an administrative law judge.

NEW SECTION. Sec. 3. A new section is added to chapter 70.128 RCW to read as follows:

A provider shall honor a written and properly executed advance directive of a resident or a resident's surrogate as set out in RCW 7.70.065, including a do not resuscitate directive of the resident or surrogate. The department shall not intervene with a written directive of a resident or a surrogate nor hold a provider liable for executing such a directive. The provider shall immediately report the incident to the appropriate first responder, emergency medical provider, fire department, coroner, sheriff's department, or hospice nurse pursuant to a hospice care plan.

Sec. 4. RCW 18.52C.020 and 1997 c 392 s 527 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 long-term care services, including chore services provided under chapter 74.39A RCW.

(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 or long-term care personnel for temporary employment in health care facilities, such as licensed nurses or practical nurses, nursing assistants, and chore service providers. "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.

(6) "Adult family home" means a residential home licensed pursuant to chapter 70.128 RCW.

Sec. 5. RCW 70.24.017 and 1991 c 3 s 322 are each amended to read as follows:

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

(1) "Acquired immunodeficiency syndrome" or "AIDS" means the clinical syndrome of HIV-related illness as defined by the board of health by rule.

(2) "Board" means the state board of health.

(3) "Department" means the department of health, or any successor department with jurisdiction over public health matters.

(4) "Health care provider" means any person who is a member of a profession under RCW 18.130.040 or other person providing medical, nursing, psychological, or other health care services regulated by the department of health.

(5) "Health care facility" means a hospital, nursing home, neuropsychiatric or mental health facility, home health agency, hospice, child care agency, ((~~adult family home,~~)) group care facility, family foster home, clinic, blood bank, blood center, sperm bank, laboratory, or other social service or health care institution regulated or operated by the department of health.

(6) "HIV-related condition" means any medical condition resulting from infection with HIV including, but not limited to, seropositivity for HIV.

(7) "Human immunodeficiency virus" or "HIV" means all HIV and HIV-related viruses which damage the cellular branch of the human immune or neurological systems and leave the infected person immunodeficient or neurologically impaired.

(8) "Test for a sexually transmitted disease" means a test approved by the board by rule.

(9) "Legal guardian" means a person appointed by a court to assume legal authority for another who has been found incompetent or, in the case of a minor, a person who has legal custody of the child.

(10) "Local public health officer" means the officer directing the county health department or his or her designee who has been given the responsibility and authority to protect the health of the public within his or her jurisdiction.

(11) "Person" includes any natural person, partnership, association, joint venture, trust, public or private corporation, or health facility.

(12) "Release of test results" means a written authorization for disclosure of any sexually transmitted disease test result which is signed, dated, and which specifies to whom disclosure is authorized and the time period during which the release is to be effective.

(13) "Sexually transmitted disease" means a bacterial, viral, fungal, or parasitic disease, determined by the board by rule to be sexually transmitted, to be a threat to the public health and welfare, and to be a disease for which a legitimate public interest will be served by providing for regulation and treatment. The board shall designate chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), trachomitis, genital human papilloma virus infection, syphilis, acquired immunodeficiency syndrome (AIDS), and human immunodeficiency virus (HIV) infection as sexually transmitted diseases, and shall consider the recommendations and classifications of the centers for disease control and other nationally recognized medical authorities in designating other diseases as sexually transmitted.

(14) "State public health officer" means the secretary of health or an officer appointed by the secretary.

Sec. 6. RCW 70.128.007 and 1995 1st sp.s. c 18 s 19 are each amended to read as follows:

The purposes of this chapter are to:

(1) Encourage the establishment and maintenance of adult family homes that provide a humane, safe, and ((~~homelike~~)) residential home environment for persons with functional limitations who need personal and special care and who choose to have their care provided in an adult family home;

(2) Establish standards for regulating adult family homes that adequately protect residents and allow residents the right to choose the residential placement and care in an adult family home;

(3) Encourage consumers, families, providers, and the public to become active in assuring their full participation in development of adult family homes that provide high quality and cost-effective care;

(4) Provide for appropriate care of residents in adult family homes by requiring that each resident have a care plan that promotes the most appropriate level of physical, mental, and psychosocial well-being consistent with client choice; and

(5) Accord each resident the right to participate in the development of the care plan and in other major decisions involving the resident and their care.

Sec. 7. RCW 70.128.010 and 1995 c 260 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) "Adult family home" means a ((~~regular family abode~~)) residential home in which a person or persons provide 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.

(2) "Provider" means any person who is licensed under this chapter to operate an adult family home. For the purposes of this section, "person" means any individual, partnership, corporation, association, or limited liability company.

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

(4) "Resident" means an adult in need of personal or special care in an adult family home who is not related to the provider.

(5) "Adults" means persons who have attained the age of eighteen years.

(6) "Home" means an adult family home.

(7) "Imminent danger" means serious physical harm to or death of a resident has occurred, or there is a serious threat to resident life, health, or safety or bodily harm as defined in RCW 9A.04.110(4).

(8) "Special care" means care beyond personal care as defined by the department, in rule.

(9) "Capacity" means the maximum number of persons in need of personal or special care permitted in an adult family home at a given time. This number shall include related children or adults in the home and who received special care.

Sec. 8. RCW 70.128.090 and 1995 1st sp.s. c 18 s 24 are each amended to read as follows:

(1) During inspections of an adult family home, the department shall have access and authority to examine areas and articles in the home used to provide care or support to residents, including residents' records, accounts, and the physical premises, including the buildings, grounds, and equipment. However, the personal records of the provider are not subject to department inspection nor is the separate bedroom of the provider, not used in direct care of a client, subject to review. The department may inspect all rooms during the initial licensing of the home. The department also shall have the authority to interview the provider and residents of an adult family home.

(2) Whenever an inspection is conducted, the department shall prepare a written report that summarizes all information obtained during the inspection, and if the home is in violation of this chapter, serve a copy of the inspection report upon the provider at the same time as a notice of violation. This notice shall be mailed to the provider within ten working days of the inspection. If the home is not in violation of this chapter, a copy of the inspection report shall be mailed to the provider within ten calendar days of the inspection of the home. All inspection reports shall be made available to the public at the department during business hours. The department is prohibited from releasing any information regarding alleged violations until the provider has been notified of the alleged violations and has been provided due process under this chapter.

(3) The provider shall develop corrective measures for any violations found by the department's inspection. The department ((~~may~~)) shall provide consultation and technical assistance to assist the provider in developing effective corrective measures. The department shall include a statement of the provider's corrective measures in the department's inspection report.

(4) The provider may submit a statement for the record on any plans of correction or violation. The statement shall be made available to the public in the inspection report and in any press release initiated by the department.

Sec. 9. RCW 70.128.100 and 1989 c 427 s 32 are each amended to read as follows:

The department has the authority to immediately suspend a license if it finds that conditions there constitute an imminent danger to residents or bodily harm as defined in RCW 9A.04.110(4).

Sec. 10. RCW 70.128.120 and 2000 c 121 s 5 are each amended to read as follows:

Each adult family home provider and each resident manager shall have the following minimum qualifications:

(1) Twenty-one years of age or older;

(2) Effective September 1, 2001, a high school diploma or certificate of educational competence for successful completion of general educational development test;

(3) Good moral and responsible character and reputation;

((~~(3)~~)) (4) Literacy in English language, however a person not literate in the English language may meet the requirements of this subsection by assuring that there is a person on staff and available who is literate in English;

((~~(4)~~)) (5) Management and administrative ability to carry out the requirements of this chapter;

((~~(5)~~)) (6) Satisfactory completion of department-approved basic training and continuing education training as specified by the department in rule, based on recommendations of the community long-term care training and education steering committee and working in collaboration with providers, consumers, caregivers, advocates, family members, educators, and other interested parties in the rule-making process;

((~~(6)~~)) (7) Satisfactory completion of department-approved, or equivalent, special care training before a provider may provide special care services to a resident;

((~~(7)~~)) (8) Not been convicted of any crime listed in RCW 43.43.830 and 43.43.842;((~~and~~

~~(8) Effective July 1, 1996,~~)) (9) Registered with the department of health;

(10) Effective September 1, 2001, at least three hundred twenty hours of successful direct caregiving experience to vulnerable adults prior to operating or managing an adult family home; and

(11) Effective September 2001, department licensors and complaint investigators charged with enforcement, inspection, investigation, and licensure of adult family homes pursuant to this chapter must have one hundred sixty hours of successful direct caregiving experience in an adult family home within the first year of employment. Within the first year of employment, wages paid by the adult family home for this purpose may be reverted to the state to offset cost.

Sec. 11. RCW 70.128.125 and 1994 c 214 s 24 are each amended to read as follows:

(1) RCW 70.129.005 through 70.129.030, 70.129.040(1), and 70.129.050 through 70.129.170 apply to this chapter and persons regulated under this chapter. The department shall allow each resident to exercise his or her option to stay in an adult family home and to exercise his or her judgment as to activities the resident chooses.

(2) No resident of an adult family home shall be removed from an adult family home for any reason by the department without the informed written consent of a resident competent to make such a decision; or without the informed written consent of a resident's legal guardian if the resident has been determined incompetent; or after the provision by the department of adequate written notice to the resident, legal guardian, and the responsible family member or attorney-in-fact and after a meaningful opportunity for an adjudicative hearing pursuant to chapter 34.05 RCW; or after notice and hearing consistent with RCW 71A.10.050 for residents with developmental disabilities. The department shall continue all payments, services, and benefits necessary for residential care for medicaid recipients in their current placement pending the final administrative decision on the merits; except that if the department determines with factual findings that a resident is subjected to conditions of imminent danger in the home, the department shall immediately obtain a court order pursuant to RCW 70.128.105 authorizing removal of the specific resident of an adult family home it believes in good faith to be subjected to imminent danger, subject to final resolution of the matter in an adjudicative hearing pursuant to chapter 34.05 RCW.

Sec. 12. RCW 70.128.160 and 1995 1st sp.s. c 18 s 28 are each amended to read as follows:

(1) The department is authorized to take one or more of the actions listed in subsection (2) of this section in any case in which the department finds that an adult family home provider has:

(a) Failed or refused to comply with the requirements of this chapter or the rules adopted under this chapter;

(b) Operated an adult family home without a license or under a revoked license;

(c) Knowingly or with reason to know made a false statement of material fact on his or her application for license or any data attached thereto, or in any matter under investigation by the department; or

(d) Willfully prevented or interfered with any inspection or investigation by the department.

(2) When authorized by subsection (1) of this section, the department may take one or more of the following actions:

(a) Refuse to issue a license;

(b) Impose reasonable conditions on a license, such as correction within a specified time, training, and limits on the type of clients the provider may admit or serve;

(d) Suspend, revoke, or refuse to renew a license; or

(e) Suspend admissions to the adult family home by imposing stop placement.

(3) The department shall promulgate specific remedies and sanctions for deficiencies and violations of this chapter by adult family home licensees similar to other long-term care providers. The remedies and sanctions must be appropriate for the home-like, noninstitutional environment of an adult family home and must be the same as or less than the criteria listed in subsection (5) of this section and consistent with subsections (2)(g) and (5) of WAC 388-98-003, as it exists on January 1, 2001. The department shall ensure that sanctions and remedies in subsection (2)(a) through (e) of this section do not impose summary suspension, stop placement, or revocation if there are no factual findings of serious abuse, serious neglect, serious financial exploitation, or other serious harm by the licensee. No adult family home license shall be revoked for deficiencies or violations of documentation or paperwork compliance requirements. If the department has not implemented the revised regulations required by this subsection by January 1, 2001, the criteria listed in WAC 388-98-003(3) shall be the standard for imposition of sanctions and remedies in adult family home licensing cases until such new regulations are effective.

(4) In the event of a citation for a deficiency or violation of the long-term care regulations, if the department establishes that a violation or deficiency occurred, the licensee has the burden of proving that the licensee did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation. If the licensee sustains this burden, the citation must be dismissed.

(5) When the department orders stop placement, the facility shall not admit any person until the stop placement order is terminated. The department may approve readmission of a resident to the facility from a hospital or nursing home during the stop placement. The department shall terminate the stop placement when: (a) The violations necessitating the stop placement have been corrected; and (b) the provider exhibits the capacity to maintain adequate care and service.

((~~(4)~~)) (6) Chapter 34.05 RCW applies to department actions under this section, except that orders of the department imposing license suspension, stop placement, or conditions for continuation of a license are effective immediately upon notice and shall continue in effect pending any hearing. However, the temporary management program created in section 1 of this act allows the continuation of the license in accordance with the provisions of the program. The department shall explain in writing to the provider, residents, and residents' families any reasons for not implementing a temporary management program.

(7) If the department determines that imminent danger to the residents of an adult family home is present, imposition of summary suspension and stop placement orders pending a hearing shall be implemented by the department only through an order of the superior court in compliance with RCW 70.128.100 and 70.128.105.

NEW SECTION. Sec. 13. A new section is added to chapter 70.128 RCW to read as follows:

The department shall ensure that state-paid client care plans are funded to the actual cost of services provided, including hours of supervision required for a state-paid client. The hours of required services to be provided by the provider shall be included in the care plan, including hours of required supervision. A provider shall not be required to provide services for which they are not being paid or services not in the care plan.

NEW SECTION. Sec. 14. A new section is added to chapter 70.128 RCW to read as follows:

Adult family homes shall comply with the provisions of chapter 70.24 RCW.

NEW SECTION. Sec. 15. A new section is added to chapter 70.128 RCW to read as follows:

Any residential home currently licensed as an adult family home shall be deemed acceptable and licensable by the department as an adult family home, even when rented, leased, or sold to a different provider. The department may develop a provisional license to facilitate the timely transfer of a license under this section.

NEW SECTION. Sec. 16. A new section is added to chapter 70.128 RCW to read as follows:

In any administrative or adjudicative proceeding between the department and a licensee conducted pursuant to chapter 34.05 RCW, the appellant shall be awarded reasonable attorney fees and expenses consistent with RCW 4.84.340 through 4.84.360.

NEW SECTION. Sec. 17. A new section is added to chapter 69.06 RCW to read as follows:

Food handler permits are not required for providers, resident managers, employees, volunteers, or residents of adult family homes.

NEW SECTION. Sec. 18. A new section is added to chapter 74.39A RCW to read as follows:

An employer providing home and community services, including facilities licensed under chapters 18.51, 18.20, and 70.128 RCW, an employer of a program authorized under RCW 71A.12.040(10), or an in-home services agency employer licensed under chapter 70.127 RCW, who discloses information about a former or current employee to a prospective home and community services employer, nursing home employer, or home health, hospice, or home care agency employer, is presumed to be acting in good faith and is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to: (1) The employee's ability to perform his or her job; (2) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (3) any illegal or wrongful act committed by the employee when related to his or her ability to care for a vulnerable adult. For purposes of this section, the presumption of good faith may only be rebutted upon a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false or made with reckless disregard for the truth of the information disclosed. Should the employee successfully rebut the presumption of good faith standard in a court of competent jurisdiction, and therefore be the prevailing party, the prevailing party shall be entitled to recover reasonable attorneys' fees against the employer. Nothing in this section shall affect or limit any other state, federal, or constitutional right otherwise available.

NEW SECTION. Sec. 19. The following acts or parts of acts are each repealed:

(1) RCW 70.128.061 (Moratorium on authorization of adult family home licenses) and 1997 c 392 s 402; and

(2) RCW 70.128.062 (Rule-making authority to implement RCW 70.128.061) and 1997 c 392 s 403.