S-1681

AN ACT Relating to history of caregiver performance in long-term care services; amending RCW 74.39A.050; adding new sections to chapter 74.34 RCW; and adding a new section to chapter 74.39A RCW.

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

NEW SECTION. Sec. 1. A new section is added to chapter 74.34 RCW to read as follows:

(1) In addition to any registry maintained by the department to satisfy participation requirements of federally funded programs, the department shall establish and maintain a state caregiver registry containing names of, and other identifying information about, individuals who have been found to have abandoned, abused, financially exploited, or neglected vulnerable adults. The department shall remove the name of any individual from the caregiver registry who: (a) Later is found by the office of appeals under chapter 34.05 RCW, or a court of law not to have abandoned, abused, financially exploited, or neglected vulnerable adults; or (b) was erroneously placed upon the registry.

(2) The department shall adopt rules that are necessary to implement the caregiver registry. At a minimum, the rules shall address: (a) Disclosure; (b) disposition; (c) notification of findings, appeal rights, and fair hearing requirements; (d) the opportunity for the individual who is the subject of the investigation to provide information orally or in writing prior to the preliminary determination; and (e) requirements for employers to check the caregiver registry.

(3) When a nursing home, boarding home, adult family home, or in-home services agency under chapter 70.127 RCW or services authorized under RCW 71A.12.040(10) and 74.09.520, reasonably relies on information obtained from the caregiver registry, the employer shall be immune from liability for an employment decision based exclusively upon information obtained directly from the registry.

NEW SECTION. Sec. 2. A new section is added to chapter 74.34 RCW to read as follows:

(1) If following an investigation into allegations that an individual abandoned, abused, financially exploited, or neglected a vulnerable adult, the department determines that a preponderance of evidence exists to support the allegation, the department shall make a preliminary determination of abandonment, abuse, financial exploitation, or neglect. Prior to making a preliminary determination, the department must make reasonable efforts to notify the individual of the investigation and of the opportunity to provide information orally or in writing, regarding the allegations under investigation. The department shall not make a preliminary determination of neglect if the individual demonstrates that the neglect was caused by factors beyond his or her control. If the nursing care quality assurance commission and the department of health have completed a full investigation and have taken no action against a nurse licensed under chapter 18.79 RCW, the department shall not initiate an investigation into the same allegation of abuse, neglect, or financial exploitation in an in-home setting or in a facility operated by an entity licensed under chapter 70.127, 18.51, 70.128, or 18.20 RCW that may result in an individual's name being placed on the caregiver registry. The individual shall be notified of the preliminary determination and shall be entitled to appeal the preliminary finding in an adjudicative proceeding under chapter 34.05 RCW. If the individual does not request an adjudicative proceeding within the time allowed for appeal, or if a presiding officer issues an initial order upholding the department's determination following an adjudicative proceeding, the preliminary determination shall be considered a finding and the department shall place such finding on the caregiver registry described in section 1 of this act. This section does not apply to findings of abandonment, abuse, financial exploitation, or neglect by an individual who is a vulnerable adult and who has the functional, mental, or physical inability to care for himself or herself or who has been found incapacitated under chapter 11.88 RCW.

(2) Nothing in this section shall be construed as prohibiting the department from activities that are authorized under chapter 18.20, 18.51, or 70.128 RCW, this chapter, or Titles XVIII and XIX of the federal social security act.

NEW SECTION. Sec. 3. A new section is added to chapter 74.34 RCW to read as follows:

In the case of a single finding of neglect, and at least one year after the individual's name has been placed on the caregiver registry, the individual may petition the department for removal of his or her name from the caregiver registry, or the individual may petition the department to be allowed to work in a licensed nursing home, boarding home, or adult family home unless the individual has been convicted of a crime that disqualifies him or her from working in such a facility. The rules developed by the department shall describe how the petition can be filed, and shall identify criteria that the department will apply when making a decision on the petition.

Any individual whose name has been on the caregiver registry for ten consecutive years may petition for the removal of his or her name from the caregiver registry for any reason. In determining whether to remove the individual's name from the caregiver registry, the department shall consider the following information if reasonably available: (1) The nature of the conduct that caused the person's name to be placed on the caregiver registry; (2) the severity of harm in the original investigated incident; (3) the conduct of the individual since the individual's name was placed on the caregiver registry, including any treatment received, criminal convictions, and employment history; (4) any disqualifying criminal convictions; and (5) such other information as the department determines to be relevant.

If the department determines the individual's name can be removed from the caregiver registry, the department shall immediately remove the individual's name. The department's decision to grant an individual's petition for removal of findings applies only to the caregiver registry and does not apply to any registry that is maintained by the department in order to ensure receipt of federal funds.

The department shall maintain records related to the petition for removal in accordance with state government records retention requirements, however, such records may not be disclosed, except to the individual who filed the petition, or under the order of a Washington state superior court. Any disclosure of records made under this section is subject to privacy, safety, and confidentiality protections provided in laws related to vulnerable adults and public records.

If the department acted in good faith and in accordance with established procedures when it removed an individual's name from the caregiver registry, or when it allowed an individual whose name is on the caregiver registry to work in a nursing home, boarding home, or adult family home setting, it shall be immune from liability for the future actions of the individual.

NEW SECTION. Sec. 4. A new section is added to chapter 74.34 RCW to read as follows:

A caregiver registry preliminary determination of abandonment, abuse, financial exploitation, or neglect shall be sustained in an adjudicative proceeding if the presiding officer finds it is supported by a preponderance of the evidence. The presiding officer's decision must be rendered within one hundred twenty days of the date the individual's hearing request was received by the office of administrative hearings. However, if the presiding officer finds that extenuating circumstances exist that will prevent the decision from being made within the one hundred twenty-day time period, the presiding officer may extend the deadline only as long as is reasonably necessary.

NEW SECTION. Sec. 5. A new section is added to chapter 74.34 RCW to read as follows:

When the department learns that any in-state or out-of-state program or agency, disciplining authority, or court has taken an action that would prevent the individual from being employed in the care of and having unsupervised access to vulnerable adults in accordance with RCW 74.39A.050(8), the department shall place the individual's name and other identifying information about the individual on the caregiver registry and if appropriate, on any other registry that is maintained by the department in order to ensure receipt of federal funds.

NEW SECTION. Sec. 6. A new section is added to chapter 74.34 RCW to read as follows:

Subject to the following conditions, the department shall disclose caregiver registry findings of abuse, neglect, abandonment, and financial exploitation to: (1) Any employer providing home and community services as defined in chapter 74.39A RCW, including entities licensed under chapters 18.51, 18.20, 70.127, and 70.128 RCW; (2) any employer of a program authorized under RCW 71A.12.040(10); (3) any person who is employing, staffing, licensing, or contracting for the provision of long-term care or protective services to a vulnerable adult; and (4) the long-term care ombudsman. The person requesting such information must provide the department with the individual's correct legal name, social security number, gender, and date of birth. The department may request additional information necessary to ensure the accurate identification of the individual on the caregiver registry. The department shall not release an individual's home address, social security number, or home telephone number.

Nothing in this act is to be construed to prevent anyone from obtaining any information about themselves that is in the possession of the department. The department may withhold information regarding other persons as provided by law or when release of such information could reasonably result in a violation or threat to any person's privacy, health, or safety and such information is known by the department.

The person requesting caregiver registry findings shall use this information only for making decisions regarding employment, staffing, contracting, or licensing, or the provision of care or services to vulnerable adults or services authorized under RCW 74.09.520 and 71A.12.040(10). Further dissemination or use of the findings is prohibited.

NEW SECTION. Sec. 7. 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.

Sec. 8. RCW 74.39A.050 and 2000 c 121 s 10 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~~)) with a finding of abuse, neglect, financial 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 except as provided in section 3 of this act.

(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. Effective March 1, 2002, individual providers and home care agency providers must satisfactorily complete department-approved orientation, basic training, and continuing education within the time period specified by the department in rule. The department shall adopt rules by March 1, 2002, for the implementation of this section based on the recommendations of the community long-term care training and education steering committee established in RCW 74.39A.190. The department shall deny payment to an individual provider or a home care provider who does not complete the training requirements within the time limit specified by the department by rule.

((~~(11)~~)) (10) In an effort to improve access to training and education and reduce costs, especially for rural communities, the coordinated system of long-term care training and education must include the use of innovative types of learning strategies such as internet resources, videotapes, and distance learning using satellite technology coordinated through community colleges or other entities, as defined by the department.

((~~(12)~~)) (11) The department shall create an approval system by March 1, 2002, for those seeking to conduct department-approved training. In the rule-making process, the department shall adopt rules based on the recommendations of the community long-term care training and education steering committee established in RCW 74.39A.190.

((~~(13)~~)) (12) 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.

((~~(14)~~)) (13) Under existing funds the department shall establish internally a quality improvement standards committee to monitor the development of standards and to suggest modifications.

((~~(15)~~)) (14) 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.