AN
ACT Relating to state agency loss prevention; adding new sections to chapter
43.41 RCW; and creating a new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature intends that when the death of a person, serious injury to a
person, or other substantial loss is alleged or suspected to be caused at least
in part by the actions of a state agency, a loss prevention review shall be
conducted. The legislature recognizes the tension inherent in a loss
prevention review and the need to balance the prevention of harm to the public
with state agencies' accountability to the public. The legislature intends to
minimize this tension and to foster open and frank discussions by granting
members of the loss prevention review teams protection from having to testify,
and by declaring a general rule that the work product of these teams is
inadmissible in civil actions or administrative proceedings.
NEW
SECTION. Sec. 2. A
new section is added to chapter 43.41 RCW to read as follows:
(1)
The director of financial management shall appoint a loss prevention review
team when the death of a person, serious injury to a person, or other
substantial loss is alleged or suspected to be caused at least in part by the
actions of a state agency, unless the director in his or her discretion
determines that the incident does not merit review. A loss prevention review
team may also be appointed when any other substantial loss occurs as a result
of agency policies, litigation or defense practices, or other management
practices. When the director decides not to appoint a loss prevention review
team he or she shall issue a statement of the reasons for the director's
decision. The statement shall be made available on the web site of the office
of financial management. The director's decision pursuant to this section to
appoint or not appoint a loss prevention review team shall not be admitted into
evidence in a civil or administrative proceeding.
(2)
A loss prevention review team shall consist of at least three but no more than
five persons, and may include independent consultants, contractors, or state
employees, but it shall not include any person employed by the agency involved
in the loss or risk of loss giving rise to the review, nor any person with
testimonial knowledge of the incident to be reviewed. At least one member of
the review team shall have expertise relevant to the matter under review.
(3)
The loss prevention review team shall review the death, serious injury, or
other incident and the circumstances surrounding it, evaluate its causes, and
recommend steps to reduce the risk of such incidents occurring in the future.
The loss prevention review team shall accomplish these tasks by reviewing
relevant documents, interviewing persons with relevant knowledge, and reporting
its recommendations in writing to the director of financial management and the
director of the agency involved in the loss or risk of loss within the time
requested by the director of financial management. The final report shall not
disclose the contents of any documents required by law to be kept confidential.
(4)
Pursuant to guidelines established by the director, state agencies must notify
the office of financial management immediately upon becoming aware of a death,
serious injury, or other substantial loss that is alleged or suspected to be
caused at least in part by the actions of the state agency. State agencies
shall provide the loss prevention review team ready access to relevant
documents in their possession and ready access to their employees.
NEW
SECTION. Sec. 3. A
new section is added to chapter 43.41 RCW to read as follows:
(1)
The final report from a loss prevention review team to the director of
financial management shall be made public by the director promptly upon
receipt, and shall be subject to public disclosure. The final report shall be
subject to discovery in a civil or administrative proceeding. However, the
final report shall not be admitted into evidence or otherwise used in a civil
or administrative proceeding except pursuant to subsection (2) of this section.
(2)
The relevant excerpt or excerpts from the final report of a loss prevention
review team may be used to impeach a fact witness in a civil or administrative
proceeding only if the party wishing to use the excerpt or excerpts from the
report first shows the court by clear and convincing evidence that the witness,
in testimony provided in deposition or at trial in the present proceeding, has
contradicted his or her previous statements to the loss prevention review team
on an issue of fact material to the present proceeding. In that case, the
party may use only the excerpt or excerpts necessary to demonstrate the
contradiction. This section shall not be interpreted as expanding the scope of
material that may be used to impeach a witness.
(3)
No member of a loss prevention review team may be examined in a civil or
administrative proceeding as to (a) the work of the loss prevention review
team, (b) the incident under review, (c) his or her statements, deliberations,
thoughts, analyses, or impressions relating to the work of the loss prevention
review team or the incident under review, or (d) the statements, deliberations,
thoughts, analyses, or impressions of any other member of the loss prevention
review team, or any person who provided information to it, relating to the work
of the loss prevention review team or the incident under review.
(4)
Any document that exists prior to the appointment of a loss prevention review
team, or that is created independently of such a team, does not become
inadmissible merely because it is reviewed or used by the loss prevention
review team. A person does not become unavailable as a witness merely because
the person has been interviewed by or has provided a statement to a loss
prevention review team. However, if called as a witness, the person may not be
examined regarding the person's interactions with the loss prevention review
team, including without limitation whether the loss prevention review team
interviewed the person, what questions the loss prevention review team asked,
and what answers the person provided to the loss prevention review team. This
section shall not be construed as restricting the person from testifying fully
in any proceeding regarding his or her knowledge of the incident under review.
(5)
Documents prepared by or for the loss prevention review team are inadmissible
and may not be used in a civil or administrative proceeding, except that
excerpts may be used to impeach the credibility of a witness under the same
circumstances that excerpts of the final report may be used pursuant to
subsection (2) of this section.
(6)
The restrictions set forth in this section shall not apply in a licensing or
disciplinary proceeding arising from an agency's effort to revoke or suspend
the license of any licensed professional based in whole or in part upon
allegations of wrongdoing in connection with the death, injury, or other
incident reviewed by the loss prevention review team.
(7)
Within one hundred twenty days after completion of the final report of a loss
prevention review team, the agency under review shall issue to the office of
financial management a response to the report. The response will indicate (a)
which of the report's recommendations the agency hopes to implement, (b)
whether implementation of those recommendations will require additional funding
or legislation, and (c) whatever other information the director may require.
This response shall be considered part of the final report and shall be subject
to all provisions of this section that apply to the final report, including
without limitation the restrictions on admissibility and use in civil or
administrative proceedings and the obligation of the director to make the final
report public.
(8)
Nothing in section 2 of this act or this section is intended to limit the scope
of a legislative inquiry into or review of an incident that is the subject of a
loss prevention review.
(9)
Nothing in section 2 of this act or in this section affects chapter 70.41 RCW
and application of that chapter to state-owned or managed hospitals licensed
under chapter 70.41 RCW.
