BILL REQ. #:  H-4014.1 

Read first time 01/19/2004.   Referred to Committee on Health Care.

     AN ACT Relating to standards and protection of residents in boarding homes and adult family homes; amending RCW 18.20.020, 18.20.050, 18.20.125, 18.20.190, 70.128.060, and 70.128.160; reenacting and amending RCW 70.128.010; and declaring an emergency.

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

Sec. 1   RCW 18.20.020 and 2003 c 231 s 2 are each amended to read as follows:
     As used in this chapter:
     (1) "Boarding home" means any home or other institution, however named, which is advertised, announced, or maintained for the express or implied purpose of providing board and domiciliary care to seven or more residents after July 1, 2000. However, a boarding home that is licensed to provide board and domiciliary care to three to six residents on July 1, 2000, may maintain its boarding home license as long as it is continually licensed as a boarding home. "Boarding home" shall not include facilities certified as group training homes pursuant to RCW 71A.22.040, nor any home, institution or section thereof which is otherwise licensed and regulated under the provisions of state law providing specifically for the licensing and regulation of such home, institution or section thereof. Nor shall it include any independent senior housing, independent living units in continuing care retirement communities, or other similar living situations including those subsidized by the department of housing and urban development.
     (2) "Person" means any individual, firm, partnership, corporation, company, association, or joint stock association, and the legal successor thereof.
     (3) "Secretary" means the secretary of social and health services.
     (4) "Department" means the state department of social and health services.
     (5) "Domiciliary care" means: Assistance with activities of daily living provided by the boarding home either directly or indirectly; or assuming general responsibility for the safety and well-being of the resident; or intermittent nursing services, if provided directly or indirectly by the boarding home. "Domiciliary care" does not include general observation or preadmission assessment for the purposes of transitioning to a licensed care setting.
     (6) "General responsibility for the safety and well-being of the resident" does not include: (a) Emergency assistance provided on an intermittent or nonroutine basis to any nonresident individual; or (b) services customarily provided under landlord tenant agreements governed by the residential landlord-tenant act, chapter 59.18 RCW. Such services do not include care or supervision.
     (7) "Resident" means an individual who: Lives in a boarding home, including those receiving respite care; is not related by blood or marriage to the operator of the boarding home; and by reason of age or disability, receives domiciliary care provided either directly or indirectly by the boarding home.
     (8) "Harm" means a physical, mental, or emotional injury or damage to a resident caused by a violation of this chapter, the rules adopted under this chapter, or other applicable law. Injury or damage that is due to the resident's natural decline or resulting from a refusal of treatment pursuant to law are not considered harm.
     (9) "Significant harm" means harm that causes significant physical, mental, or emotional injury or damage to a resident caused by a violation of this chapter, the rules adopted under this chapter, or other applicable law. Injury or damage that is due to the resident's natural decline or resulting from a refusal of treatment pursuant to law are not considered significant harm.
     (10) "Violation" means a violation of this chapter, the rules adopted under this chapter, or other laws applicable to the operation of a boarding home, and:
     (a) "Serious violation" means a violation cited by the department that causes significant harm to a resident or creates the likely threat that significant harm or death will occur to a resident.
     (b) "Uncorrected violation" means the department has cited or notified the boarding home in writing of a violation and the violation remains uncorrected at the time the department makes a subsequent inspection to verify whether the violation has been corrected.
     (c) "Recurring violation" means a violation cited by the department and the circumstances of (c)(i) or (ii) of this subsection are present: (i) The department twice previously cited the same or substantially the same violation within the preceding thirty-six months; or (ii) the department previously imposed an enforcement remedy for the same or substantially the same violation within the preceding thirty-six months.

Sec. 2   RCW 18.20.050 and 2003 c 231 s 4 are each amended to read as follows:
     Upon receipt of an application for license, if the applicant and the boarding home facilities meet the requirements established under this chapter, the department shall issue a license. If there is a failure to comply with the provisions of this chapter or the standards and rules adopted pursuant thereto, the department may in its discretion issue to an applicant for a license, or for the renewal of a license, a provisional license which will permit the operation of the boarding home for a period to be determined by the department, but not to exceed twelve months, which provisional license shall not be subject to renewal. The department may also place conditions on the license under RCW 18.20.190. At the time of the application for or renewal of a license or provisional license the licensee shall pay a license fee as established by the department under RCW 43.20B.110. All licenses issued under the provisions of this chapter shall expire on a date to be set by the department, but no license issued pursuant to this chapter shall exceed twelve months in duration. However, when the annual license renewal date of a previously licensed boarding home is set by the department on a date less than twelve months prior to the expiration date of a license in effect at the time of reissuance, the license fee shall be prorated on a monthly basis and a credit be allowed at the first renewal of a license for any period of one month or more covered by the previous license. All applications for renewal of a license shall be made not later than thirty days prior to the date of expiration of the license. Each license shall be issued only for the premises and persons named in the application, and no license shall be transferable or assignable. Licenses shall be posted in a conspicuous place on the licensed premises.
     A licensee who receives notification of the department's initiation of a denial, suspension, nonrenewal, or revocation of a boarding home license may, in lieu of appealing the department's action, surrender or relinquish the license. The department shall not issue a new license to or contract with the licensee, for the purposes of providing care to vulnerable adults or children, for a period of twenty years following the surrendering or relinquishment of the former license. The licensing record shall indicate that the licensee relinquished or surrendered the license, without admitting the violations, after receiving notice of the department's initiation of a denial, suspension, nonrenewal, or revocation of a license.
     When a change in licensee occurs, the new licensee is responsible for correcting any remaining violations that exist, including complying with any plan of correction in effect immediately prior to the change in licensee. If any person affiliated with the new licensee was affiliated with a prior licensee at the same boarding home, then the prior licensee's compliance and enforcement record is part of the new licensee's record at the boarding home. A person is considered affiliated with a licensee if the person is an applicant for the boarding home license, or is listed on the license application as a partner, officer, director, managerial employee, or majority owner of the applying entity.

Sec. 3   RCW 18.20.125 and 2003 c 231 s 5 are each amended to read as follows:
     (1) Inspections must be outcome based and responsive to resident complaints and based on a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to facilities. This includes that when conducting licensing inspections, the department shall interview an appropriate percentage of residents, family members, and advocates in addition to interviewing appropriate staff.
     (2) When the department finds a violation during an inspection or investigation, the department shall issue a written notice or citation and direct the boarding home to correct the violation.
     (3) Prompt and specific enforcement remedies shall also be implemented without delay, consistent with RCW 18.20.190, for facilities 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 license. In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance.
     (((3))) (4) To the extent funding is available, the licensee, administrator, and their staff 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 adults. Employees may be provisionally hired pending the results of the background check if they have been given three positive references.
     (((4))) (5) No licensee, administrator, or staff, or prospective licensee, administrator, or staff, with a stipulated finding of fact, conclusion of law, and agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into the 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.

Sec. 4   RCW 18.20.190 and 2003 c 231 s 6 are each amended to read as follows:
     (1) The department of social and health services is authorized to take one or more of the actions listed in subsections (2) and (3) of this section in any case in which the department finds that a boarding home provider has:
     (a) Failed or refused to comply with the requirements of this chapter ((or)), the rules adopted under this chapter, or other applicable law;
     (b) Operated a boarding 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 and consistent with the criteria in subsection (3) 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;
     (c) Impose civil penalties of not more than one hundred dollars per day per violation;
     (d) Suspend, revoke, or refuse to renew a license;
     (e) Suspend admissions to the boarding home by imposing stop placement; or
     (f) Suspend admission of a specific category or categories of residents as related to the violation by imposing a limited stop placement.
     (3) The selection of enforcement remedies shall be consistent with the following criteria:
     (a) A stop placement or limited stop placement may not be imposed unless there is a reasonable probability that significant harm to a resident, or harm to more than one resident, will occur or reoccur as a result of the violation or violations;
     (b) A summary suspension may not be imposed unless there is an imminent threat that significant harm to more than one resident will occur as a result of a violation or violations;
     (c) A license revocation, denial, or nonrenewal may not be imposed unless there is cause to summarily suspend the license; or there is a current violation and the boarding home has a history of significant noncompliance; or there is a serious current violation, such as possible business failure that jeopardizes the care of residents; or for willfully preventing or interfering with an inspection or investigation by the department;
     (d) If the department imposes a civil penalty, the initial day of the penalty for a violation that caused actual harm to a resident may be the first day harm occurred; and
     (e) If the department imposes a civil penalty for a serious, uncorrected, or recurring violation that caused actual harm to a resident, the total penalty shall be not less than one thousand dollars.
     (4) When the department orders stop placement or a limited stop placement, the facility shall not admit any new resident until the stop placement or limited 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 or limited stop placement. The department shall terminate the stop placement or limited stop placement when: (a) The violations necessitating the stop placement or limited stop placement have been corrected; and (b) the provider exhibits the capacity to maintain correction of the violations previously found deficient. However, if upon the revisit the department finds new violations that the department reasonably believes will result in a new stop placement or new limited stop placement, the previous stop placement or limited stop placement shall remain in effect until the new stop placement or new limited stop placement is imposed.
     (((4))) (5) After a department finding of a violation for which a stop placement or limited stop placement has been imposed, the department shall make an on-site revisit of the ((provider)) facility within fifteen working days from the request for revisit, to ensure correction of the violation. For violations that are serious or recurring or uncorrected following a previous citation, and create actual or threatened harm to one or more residents' well-being, including violations of residents' rights, the department shall make an on-site revisit as soon as appropriate to ensure correction of the violation. Verification of correction of all other violations may be made by either a department on-site revisit or by written or photographic documentation found by the department to be credible. This subsection does not prevent the department from enforcing license suspensions or revocations. Nothing in this subsection shall interfere with or diminish the department's authority and duty to ensure that the provider adequately cares for residents, including to make departmental on-site revisits as needed to ensure that the provider protects residents, and to enforce compliance with this chapter.
     (((5))) (6) RCW 43.20A.205 governs notice of a license denial, revocation, suspension, or modification. Chapter 34.05 RCW applies to department actions under this section, except that orders of the department imposing license suspension, stop placement, limited stop placement, or conditions for continuation of a license are effective immediately upon notice and shall continue pending any hearing.
     (((6))) (7) For the purposes of this section, "limited stop placement" means the ability to suspend admission of a specific category or categories of residents.

Sec. 5   RCW 70.128.010 and 2001 c 319 s 6 and 2001 c 319 s 2 are each reenacted and 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 residential home in which a person or persons provide personal care((,)) or special care, and 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 or required to be 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.
     (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.
     (10) "Resident manager" means a person employed or designated by the provider to manage the adult family home.
     (11) "Harm" means a physical, mental, or emotional injury or damage to a resident caused by a violation of this chapter, the rules adopted under this chapter, or other applicable law. Injury or damage that is due to the resident's natural decline or resulting from a refusal of treatment pursuant to law are not considered harm.
     (12) "Significant harm" means harm that causes significant physical, mental, or emotional injury or damage to a resident caused by a violation of this chapter, the rules adopted under this chapter, or other applicable law. Injury or damage that is due to the resident's natural decline or resulting from a refusal of treatment pursuant to law are not considered significant harm.
     (13) "Violation" means a violation of this chapter, the rules adopted under this chapter, or other laws applicable to the operation of an adult family home, and:
     (a) "Serious violation" means a violation cited by the department that causes significant harm to a resident or creates the likely threat that significant harm or death will occur to a resident.
     (b) "Uncorrected violation" means the department has cited or notified the adult family home in writing of a violation and the violation remains uncorrected at the time the department makes a subsequent inspection to verify whether the violation has been corrected.
     (c) "Recurring violation" means a violation cited by the department and the circumstances of (c)(i) or (ii) of this subsection are present: (i) The department twice previously cited the same or substantially the same violation within the preceding thirty-six months; or (ii) the department previously imposed an enforcement remedy for the same or substantially the same violation within the preceding thirty-six months.

Sec. 6   RCW 70.128.060 and 2001 c 193 s 9 are each amended to read as follows:
     (1) An application for license shall be made to the department upon forms provided by it and shall contain such information as the department reasonably requires.
     (2) The department shall issue a license to an adult family home if the department finds that the applicant and the home are in compliance with this chapter and the rules adopted under this chapter, unless (a) the applicant or a person affiliated with the applicant has prior violations of this chapter relating to the adult family home subject to the application or any other adult family home, or of any other law regulating residential care facilities within the past five years that resulted in revocation, suspension, or nonrenewal of a license or contract with the department; or (b) the applicant or a person affiliated with the applicant has a history of significant noncompliance with federal, state, or local laws, rules, or regulations relating to the provision of care or services to vulnerable adults or to children. A person is considered affiliated with an applicant if the person is listed on the license application as a partner, officer, director, resident manager, or majority owner of the applying entity.
     (3) The license fee shall be submitted with the application.
     (4) The department shall serve upon the applicant a copy of the decision granting or denying an application for a license. An applicant shall have the right to contest denial of his or her application for a license as provided in chapter 34.05 RCW by requesting a hearing in writing within twenty-eight days after receipt of the notice of denial.
     (5) The department shall not issue a license to a provider if the department finds that the provider or any partner, officer, director, managerial employee, or majority owner ((of five percent or more)) if the provider has a history of significant noncompliance with federal or state regulations, rules, or laws in providing care or services to vulnerable adults or to children.
     (6) The department shall license an adult family home for the maximum level of care that the adult family home may provide. The department shall define, in rule, license levels based upon the education, training, and caregiving experience of the licensed provider or staff.
     (7) The department shall establish, by rule, standards used to license nonresident providers and multiple facility operators.
     (8) The department shall establish, by rule, for multiple facility operators educational standards substantially equivalent to recognized national certification standards for residential care administrators.
     (9) The license fee shall be set at fifty dollars per year for each home. A fifty dollar processing fee shall also be charged each home when the home is initially licensed.
     (10) A provider who receives notification of the department's initiation of a denial, suspension, nonrenewal, or revocation of an adult family home license may, in lieu of appealing the department's action, surrender or relinquish the license. The department shall not issue a new license to or contract with the provider, for the purposes of providing care to vulnerable adults or children, for a period of twenty years following the surrendering or relinquishment of the former license. The licensing record shall indicate that the provider relinquished or surrendered the license, without admitting the violations, after receiving notice of the department's initiation of a denial, suspension, nonrenewal, or revocation of a license.
     (11) When a change in licensee occurs, the new licensee is responsible for correcting any remaining violations that exist, including complying with any plan of correction in effect immediately prior to the change in licensee. If any person affiliated with the new licensee was affiliated with a prior licensee at the same adult family home, then the prior licensee's compliance and enforcement record is part of the new licensee's record at the adult family home. A person is considered affiliated with a licensee if the person is an applicant for the adult family home license, or is listed on the license application as a partner, officer, director, resident manager, or majority owner of the applying entity.

Sec. 7   RCW 70.128.160 and 2001 c 193 s 5 are each amended to read as follows:
     (1) The department is authorized to take one or more of the actions listed in subsections (2) and (3) 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, or other applicable law;
     (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 and consistent with the criteria in subsection (3) 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;
     (c) Impose civil penalties of not more than one hundred dollars per day per violation;
     (d) Suspend, revoke, or refuse to renew a license; ((or))
     (e) Suspend admissions to the adult family home by imposing stop placement; or
     (f) Suspend admission of a specific category or categories of residents as related to the violation by imposing a limited stop placement.
     (3) The selection of enforcement remedies shall be consistent with the following criteria:
     (a) A stop placement or limited stop placement may not be imposed unless there is a reasonable probability that significant harm to a resident, or harm to more than one resident, will occur or reoccur as a result of the violation or violations;
     (b) A summary suspension may not be imposed unless there is an imminent threat that significant harm to more than one resident will occur as a result of a violation or violations;
     (c) A license revocation, denial, or nonrenewal may not be imposed unless there is cause to summarily suspend the license; or there is a current violation and the adult family home has a history of significant noncompliance; or there is a serious current violation, such as possible business failure that jeopardizes the care of residents; or for willfully preventing or interfering with an inspection or investigation by the department;
     (d) If the department imposes a civil penalty, the initial day of the penalty for a violation that caused actual harm to a resident may be the first day harm occurred; and
     (e) If the department imposes a civil penalty for a serious, uncorrected, or recurring violation that caused actual harm to a resident, the total penalty shall be not less than five hundred dollars.
     (4) When the department orders stop placement or limited stop placement, the facility shall not admit any person until the stop placement or limited 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 or limited stop placement. The department shall terminate the stop placement or limited stop placement when: (a) The violations necessitating the stop placement or limited stop placement have been corrected; and (b) the provider exhibits the capacity to maintain correction of the violations previously found deficient. However, if upon the revisit the department finds new violations that the department reasonably believes will result in a new stop placement or limited stop placement, the previous stop placement shall remain in effect until the new stop placement or new limited stop placement is imposed.
     (((4))) (5) After a department finding of a violation for which a stop placement or limited stop placement has been imposed, the department shall make an on-site revisit of the ((provider)) adult family home within fifteen working days from the request for revisit, to ensure correction of the violation. For violations that are serious or recurring or uncorrected following a previous citation, and create actual or threatened harm to one or more residents' well-being, including violations of residents' rights, the department shall make an on-site revisit as soon as appropriate to ensure correction of the violation. Verification of correction of all other violations may be made by either a department on-site revisit or by written or photographic documentation found by the department to be credible. This subsection does not prevent the department from enforcing license suspensions or revocations. Nothing in this subsection shall interfere with or diminish the department's authority and duty to ensure that the provider adequately cares for residents, including to make departmental on-site revisits as needed to ensure that the provider protects residents, and to enforce compliance with this chapter.
     (((5))) (6) Chapter 34.05 RCW applies to department actions under this section, except that orders of the department imposing license suspension, stop placement, limited stop placement, or conditions for continuation of a license are effective immediately upon notice and shall continue in effect pending any hearing.

NEW SECTION.  Sec. 8   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.