BILL REQ. #:  Z-0231.3 

Read first time 01/13/2005.   Referred to Committee on Health Care.

     AN ACT Relating to transferring the duties of the home care quality authority to the department of social and health services; amending RCW 74.39A.220, 74.39A.230, 74.39A.240, 74.39A.250, 74.39A.270, 74.39A.290, 41.56.030, 74.39A.095, and 74.39A.300; and repealing RCW 74.39A.260, 74.39A.280, and 70.127.041.

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

Sec. 1   RCW 74.39A.220 and 2002 c 3 s 1 are each amended to read as follows:
     The people of the state of Washington find as follows:
     (1) Thousands of Washington seniors and persons with disabilities live independently in their own homes, which they prefer and is less costly than institutional care such as nursing homes.
     (2) Many Washington seniors and persons with disabilities currently receive long-term in-home care services from individual providers hired directly by them under the medicaid personal care, community options programs entry system, or chore services program.
     (3) Quality long-term in-home care services allow Washington seniors, persons with disabilities, and their families the choice of allowing seniors and persons with disabilities to remain in their homes, rather than forcing them into institutional care such as nursing homes. Long-term in-home care services are also less costly, saving Washington taxpayers significant amounts through lower reimbursement rates.
     (4) The quality of long-term in-home care services in Washington would benefit from improved regulation, higher standards, better accountability, and improved access to such services. The quality of long-term in-home care services would further be improved by a well-trained, stable individual provider work force earning reasonable wages and benefits.
     (5) Washington seniors and persons with disabilities would benefit from the establishment of ((an authority that has the power and duty to regulate and)) a home care quality council to advise the governor and the department on ways to improve the quality of long-term in-home care services.
     (6) The ((authority)) home care quality council should promote and monitor the department's efforts to ensure that the quality of long-term in-home care services provided by individual providers is improved through better regulation, higher standards, increased accountability, and the enhanced ability to obtain services. The ((authority)) home care quality council should also encourage the department's efforts to promote stability in the individual provider work force through collective bargaining and by providing training opportunities.

Sec. 2   RCW 74.39A.230 and 2002 c 3 s 2 are each amended to read as follows:
     (1) The home care quality ((authority)) council is established to advise the governor and the department in its efforts to regulate and improve the quality of long-term in-home care services by recruiting, training, and stabilizing the work force of individual providers.
     (2) The ((authority)) home care quality council consists of a board of nine members appointed by the governor. At least five ((board)) home care quality councilmembers shall be current and/or former consumers of long-term in-home care services provided for functionally disabled persons, at least one of whom shall be a person with a developmental disability((;)). Also, of the home care quality councilmembers, at least one ((board)) member shall be a representative of the developmental disabilities planning council; at least one ((board)) member shall be a representative of the governor's committee on disability issues and employment; at least one ((board)) member shall be a representative of the state council on aging; and at least one ((board)) member shall be a representative of the Washington state association of area agencies on aging. The initial appointments to the home care quality council will be as follows: Three members will be appointed for a one-year term, three members will be appointed for a two-year term, and three members will be appointed for a three-year term. Thereafter, each ((board)) home care quality councilmember ((serves)) will be appointed to serve a term of three years. If a vacancy occurs, the governor will make an appointment to become immediately effective for the unexpired term. Each ((board)) home care quality councilmember is eligible for reappointment and may serve no more than two consecutive terms. In making appointments, the governor will take into consideration any nominations or recommendations made by the groups or agencies represented.

Sec. 3   RCW 74.39A.240 and 2002 c 3 s 3 are each amended to read as follows:
     The definitions in this section apply throughout RCW 74.39A.030 and ((74.39A.095 and)) 74.39A.220 through 74.39A.300, 41.56.026, ((70.127.041,)) and 74.09.740 unless the context clearly requires otherwise.
     (1) (("Authority" means the home care quality authority.
     (2) "Board" means the board created under RCW 74.39A.230.
     (3))) "Consumer" means a person to whom an individual provider provides any such services.
     (((4))) (2) "Home care quality council" means the council created under RCW 74.39A.230.
     (3) "Individual provider" means a person, including a personal aide, who has contracted with the department to provide personal care or respite care services to functionally disabled persons under the medicaid personal care, community options program entry system, chore services program, or respite care program, or to provide respite care or residential services and support to persons with developmental disabilities under chapter 71A.12 RCW, or to provide respite care as defined in RCW 74.13.270.

Sec. 4   RCW 74.39A.250 and 2002 c 3 s 4 are each amended to read as follows:
     (1) The ((authority)) department, with advice and input from the home care quality council, must carry out the following duties:
     (a) Establish qualifications and reasonable standards for accountability for and investigate the background of individual providers and prospective individual providers, except in cases where, after the department has sought approval of any appropriate amendments or waivers under RCW 74.09.740, federal law or regulation requires that such qualifications and standards for accountability be established by another entity in order to preserve eligibility for federal funding. Qualifications established must include compliance with the minimum requirements for training and satisfactory criminal background checks as provided in RCW 74.39A.050 and confirmation that the individual provider or prospective individual provider is not currently listed on any long-term care abuse and neglect registry used by the department at the time of the investigation;
     (b) Undertake, to the extent that funds are provided by the legislature, recruiting activities to identify and recruit individual providers and prospective individual providers;
     (c) Provide training opportunities, either directly or through contract, for individual providers, prospective individual providers, consumers, and prospective consumers;
     (d) Provide, to the extent that funds are provided by the legislature, assistance to consumers and prospective consumers in finding individual providers and prospective individual providers through the establishment of a referral registry of individual providers and prospective individual providers. Before placing an individual provider or prospective individual provider on the referral registry, the ((authority)) department shall determine that:
     (i) The individual provider or prospective individual provider has met the minimum requirements for training set forth in RCW 74.39A.050;
     (ii) The individual provider or prospective individual provider has satisfactorily undergone a criminal background check conducted within the prior twelve months; and
     (iii) The individual provider or prospective individual provider is not listed on any long-term care abuse and neglect registry used by the department;
     (e) Remove from the referral registry any individual provider or prospective individual provider the ((authority)) department determines not to meet the qualifications set forth in (d) of this subsection or to have committed misfeasance or malfeasance in the performance of his or her duties as an individual provider. The individual provider or prospective individual provider, or the consumer to which the individual provider is providing services, may request a fair hearing to contest the removal from the referral registry, as provided in chapter 34.05 RCW;
     (f) Provide routine, emergency, and respite referrals of individual providers and prospective individual providers to consumers and prospective consumers who are authorized to receive long-term in-home care services through an individual provider; and
     (g) Give preference in the recruiting, training, referral, and employment of individual providers and prospective individual providers to recipients of public assistance or other low-income persons who would qualify for public assistance in the absence of such employment((; and
     (h) Cooperate with the department, area agencies on aging, and other federal, state, and local agencies to provide the services described and set forth in this section. If, in the course of carrying out its duties, the authority identifies concerns regarding the services being provided by an individual provider, the authority must notify the relevant area agency or department case manager regarding such concerns)).
     (2) In determining how best to carry out its duties, the ((authority)) department must identify existing individual provider recruitment, training, and referral resources made available to consumers by other state and local public, private, and nonprofit agencies. The ((authority)) department may coordinate with the agencies to provide a local presence for ((the authority)) home care quality services and to provide consumers greater access to individual provider recruitment, training, and referral resources in a cost-effective manner. Using requests for proposals or similar processes, the ((authority)) department may contract with the agencies to provide recruitment, training, and referral services if the ((authority)) department determines the agencies can provide the services according to reasonable standards of performance determined by the ((authority)) department. The ((authority)) department must provide an opportunity for consumer participation in the determination of the standards.

Sec. 5   RCW 74.39A.270 and 2004 c 3 s 1 are each amended to read as follows:
     (1) Solely for the purposes of collective bargaining and as expressly limited under subsections (2) and (3) of this section, the governor is the public employer, as defined in chapter 41.56 RCW, of individual providers, who, solely for the purposes of collective bargaining, are public employees as defined in chapter 41.56 RCW. To accommodate the role of the state as payor for the community-based services provided under this chapter and to ensure coordination with state employee collective bargaining under chapter 41.80 RCW and the coordination necessary to implement RCW 74.39A.300, the public employer shall be represented for bargaining purposes by the governor or the governor's designee appointed under chapter 41.80 RCW. The governor or governor's designee shall periodically consult with the ((authority)) home care quality council during the collective bargaining process to allow the ((authority)) home care quality council to communicate issues relating to the long-term in-home care services received by consumers.
     (2) Chapter 41.56 RCW governs the collective bargaining relationship between the governor and individual providers, except as otherwise expressly provided in this chapter and except as follows:
     (a) The only unit appropriate for the purpose of collective bargaining under RCW 41.56.060 is a statewide unit of all individual providers;
     (b) The showing of interest required to request an election under RCW 41.56.060 is ten percent of the unit, and any intervener seeking to appear on the ballot must make the same showing of interest;
     (c) The mediation and interest arbitration provisions of RCW 41.56.430 through 41.56.470 and 41.56.480 apply, except that:
     (i) With respect to commencement of negotiations between the governor and the bargaining representative of individual providers, negotiations shall be commenced by May 1st of any year prior to the year in which an existing collective bargaining agreement expires;
     (ii) With respect to factors to be taken into consideration by an interest arbitration panel, the panel shall consider the financial ability of the state to pay for the compensation and fringe benefit provisions of a collective bargaining agreement; and
     (iii) The decision of the arbitration panel is not binding on the legislature and, if the legislature does not approve the request for funds necessary to implement the compensation and fringe benefit provisions of the arbitrated collective bargaining agreement, is not binding on the ((authority or the)) state;
     (d) Individual providers do not have the right to strike; and
     (e) Individual providers who are related to, or family members of, consumers or prospective consumers are not, for that reason, exempt from this chapter or chapter 41.56 RCW.
     (3) Individual providers who are public employees solely for the purposes of collective bargaining under subsection (1) of this section are not, for that reason, employees of the state, its political subdivisions, or an area agency on aging for any purpose. Chapter 41.56 RCW applies only to the governance of the collective bargaining relationship between the employer and individual providers as provided in subsections (1) and (2) of this section.
     (4) Consumers and prospective consumers retain the right to select, hire, supervise the work of, and terminate any individual provider providing services to them. Consumers may elect to receive long-term in-home care services from individual providers who are not referred to them by the ((authority)) department.
     (5) ((In implementing and administering this chapter, neither the authority nor any of its contractors may reduce or increase the hours of service for any consumer below or above the amount determined to be necessary under any assessment prepared by the department or an area agency on aging.
     (6))) Except as expressly limited in this section and RCW 74.39A.300, the wages, hours, and working conditions of individual providers are determined solely through collective bargaining as provided in this chapter. No agency or department of the state((, other than the authority,)) may establish policies or rules governing the wages or hours of individual providers except as necessary to implement a collective bargaining agreement. However, this subsection does not modify:
     (a) The department's authority to establish a plan of care for each consumer and to determine the hours of care that each consumer is eligible to receive;
     (b) The department's authority to terminate its contracts with individual providers who are not adequately meeting the needs of a particular consumer, or to deny a contract under RCW 74.39A.095(8);
     (c) The consumer's right to assign hours to one or more individual providers selected by the consumer within the maximum hours determined by his or her plan of care;
     (d) The consumer's right to select, hire, terminate, supervise the work of, and determine the conditions of employment for each individual provider providing services to the consumer under this chapter;
     (e) The department's obligation to comply with the federal medicaid statute and regulations and the terms of any community-based waiver granted by the federal department of health and human services and to ensure federal financial participation in the provision of the services; and
     (f) The legislature's right to make programmatic modifications to the delivery of state services under this title, including standards of eligibility of consumers and individual providers participating in the programs under this title, and the nature of services provided. The governor shall not enter into, extend, or renew any agreement under this chapter that does not expressly reserve the legislative rights described in this subsection (((6))) (5)(f).
     (((7)(a))) (6) The state, the department, ((the authority,)) the area agencies on aging, or their contractors under this chapter may not be held vicariously or jointly liable for the action or inaction of any individual provider or prospective individual provider, whether or not that individual provider or prospective individual provider was included on the ((authority's)) department's referral registry or referred to a consumer or prospective consumer. The existence of a collective bargaining agreement, the placement of an individual provider on the referral registry, or the development or approval of a plan of care for a consumer who chooses to use the services of an individual provider and the provision of case management services to that consumer, by the department or an area agency on aging, does not constitute a special relationship with the consumer.
     (((b) The members of the board are immune from any liability resulting from implementation of this chapter.
     (8))) (7) Nothing in this section affects the state's responsibility with respect to unemployment insurance for individual providers. However, individual providers are not to be considered, as a result of the state assuming this responsibility, employees of the state.

Sec. 6   RCW 74.39A.290 and 2002 c 3 s 8 are each amended to read as follows:
     (1) The joint legislative audit and review committee will conduct a performance review of the ((authority)) department's progress in implementing the goals of chapter 3, Laws of 2002 every two years and submit the review to the legislature and the governor. The first review will be submitted before December 1, 2006.
     (2) The performance review will include an evaluation of the health, welfare, and satisfaction with services provided of the consumers receiving long-term in-home care services from individual providers under chapter 3, Laws of 2002, including the degree to which all required services have been delivered, the degree to which consumers receiving services from individual providers have ultimately required additional or more intensive services, such as home health care, or have been placed in other residential settings or nursing homes, the promptness of response to consumer complaints, and any other issue the committee deems relevant.
     (3) The performance review will provide an explanation of the full cost of individual provider services, including the administrative costs of the ((authority)) department, unemployment compensation, social security and medicare payroll taxes paid by the department, and area agency on aging home care oversight costs.
     (4) The performance review will make recommendations to the legislature and the governor for any amendments to chapter 3, Laws of 2002 that will further ensure the well-being of consumers and prospective consumers under chapter 3, Laws of 2002, and the most efficient means of delivering required services. ((In addition, the first performance review will include findings and recommendations regarding the appropriateness of the authority's assumption of responsibility for verification of hours worked by individual providers, payment of individual providers, and other duties.))

Sec. 7   RCW 41.56.030 and 2004 c 3 s 6 are each amended to read as follows:
     As used in this chapter:
     (1) "Public employer" means any officer, board, commission, council, or other person or body acting on behalf of any public body governed by this chapter, or any subdivision of such public body. For the purposes of this section, the public employer of district court or superior court employees for wage-related matters is the respective county legislative authority, or person or body acting on behalf of the legislative authority, and the public employer for nonwage-related matters is the judge or judge's designee of the respective district court or superior court.
     (2) "Public employee" means any employee of a public employer except any person (a) elected by popular vote, or (b) appointed to office pursuant to statute, ordinance or resolution for a specified term of office as a member of a multimember board, commission, or committee, whether appointed by the executive head or body of the public employer, or (c) whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to (i) the executive head or body of the applicable bargaining unit, or (ii) any person elected by popular vote, or (iii) any person appointed to office pursuant to statute, ordinance or resolution for a specified term of office as a member of a multimember board, commission, or committee, whether appointed by the executive head or body of the public employer, or (d) who is a court commissioner or a court magistrate of superior court, district court, or a department of a district court organized under chapter 3.46 RCW, or (e) who is a personal assistant to a district court judge, superior court judge, or court commissioner, or (f) excluded from a bargaining unit under RCW 41.56.201(2)(a). For the purpose of (e) of this subsection, no more than one assistant for each judge or commissioner may be excluded from a bargaining unit.
     (3) "Bargaining representative" means any lawful organization which has as one of its primary purposes the representation of employees in their employment relations with employers.
     (4) "Collective bargaining" means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter.
     (5) "Commission" means the public employment relations commission.
     (6) "Executive director" means the executive director of the commission.
     (7) "Uniformed personnel" means: (a) Law enforcement officers as defined in RCW 41.26.030 employed by the governing body of any city or town with a population of two thousand five hundred or more and law enforcement officers employed by the governing body of any county with a population of ten thousand or more; (b) correctional employees who are uniformed and nonuniformed, commissioned and noncommissioned security personnel employed in a jail as defined in RCW 70.48.020(5), by a county with a population of seventy thousand or more, and who are trained for and charged with the responsibility of controlling and maintaining custody of inmates in the jail and safeguarding inmates from other inmates; (c) general authority Washington peace officers as defined in RCW 10.93.020 employed by a port district in a county with a population of one million or more; (d) security forces established under RCW 43.52.520; (e) fire fighters as that term is defined in RCW 41.26.030; (f) employees of a port district in a county with a population of one million or more whose duties include crash fire rescue or other fire fighting duties; (g) employees of fire departments of public employers who dispatch exclusively either fire or emergency medical services, or both; or (h) employees in the several classes of advanced life support technicians, as defined in RCW 18.71.200, who are employed by a public employer.
     (8) "Institution of higher education" means the University of Washington, Washington State University, Central Washington University, Eastern Washington University, Western Washington University, The Evergreen State College, and the various state community colleges.
     (9) (("Home care quality authority" means the authority under chapter 74.39A RCW.
     (10))) "Individual provider" means an individual provider as defined in RCW 74.39A.240(((4))) (3) who, solely for the purposes of collective bargaining, is a public employee as provided in RCW 74.39A.270.

Sec. 8   RCW 74.39A.095 and 2004 c 141 s 1 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 oversight of the care being provided to consumers receiving services under this section to the extent of available funding. Case management responsibilities incorporate this oversight, and include, but are not limited to:
     (a) Verification that ((any)) the individual provider ((who has not been referred to a consumer by the authority established under chapter 3, Laws of 2002)) has met any training requirements established by the department;
     (b) Verification of a sample of worker time sheets;
     (c) Monitoring the consumer's plan of care to verify that it adequately meets the needs of the consumer, through activities such as home visits, telephone contacts, and responses to information received by the area agency on aging indicating that a consumer may be experiencing problems relating to his or her home care;
     (d) Reassessment and reauthorization of services;
     (e) Monitoring of individual provider performance((. If, in the course of its case management activities, the area agency on aging identifies concerns regarding the care being provided by an individual provider who was referred by the authority, the area agency on aging must notify the authority regarding its concerns)); and
     (f) Conducting criminal background checks or verifying that criminal background checks have been conducted ((for any individual provider who has not been referred to a consumer by the authority)).
     (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 by the individual provider that he or she 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. ((When the department or area agency on aging terminates or summarily suspends a contract under this subsection, it must provide oral and written notice of the action taken to the authority.)) The department may by rule adopt guidelines for implementing this subsection.
     (8) The department or area agency on aging may reject a request by 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.

Sec. 9   RCW 74.39A.300 and 2004 c 3 s 2 are each amended to read as follows:
     (1) Upon meeting the requirements of subsection (2) of this section, the governor must submit, as a part of the proposed biennial or supplemental operating budget submitted to the legislature under RCW 43.88.030, a request for funds necessary to administer chapter 3, Laws of 2002 and to implement the compensation and fringe benefits provisions of a collective bargaining agreement entered into under RCW 74.39A.270 or for legislation necessary to implement such agreement.
     (2) A request for funds necessary to implement the compensation and fringe benefits provisions of a collective bargaining agreement entered into under RCW 74.39A.270 shall not be submitted by the governor to the legislature unless such request:
     (a) Has been submitted to the director of financial management by October 1st prior to the legislative session at which the request is to be considered; and
     (b) Has been certified by the director of financial management as being feasible financially for the state or reflects the binding decision of an arbitration panel reached under RCW 74.39A.270(2)(c).
     (3) The legislature must approve or reject the submission of the request for funds as a whole. If the legislature rejects or fails to act on the submission, any such agreement will be reopened solely for the purpose of renegotiating the funds necessary to implement the agreement.
     (4) When any increase in individual provider wages or benefits is negotiated or agreed to, no increase in wages or benefits negotiated or agreed to under this chapter will take effect unless and until, before its implementation, the department has determined that the increase is consistent with federal law and federal financial participation in the provision of services under Title XIX of the federal social security act.
     (5) The governor shall periodically consult with the joint committee on employment relations established by RCW 41.80.010 regarding appropriations necessary to implement the compensation and fringe benefits provisions of any collective bargaining agreement and, upon completion of negotiations, advise the committee on the elements of the agreement and on any legislation necessary to implement such agreement.
     (6) After the expiration date of any collective bargaining agreement entered into under RCW 74.39A.270, all of the terms and conditions specified in any such agreement remain in effect until the effective date of a subsequent agreement, not to exceed one year from the expiration date stated in the agreement, except as provided in RCW 74.39A.270(((6))) (5)(f).
     (7) If, after the compensation and benefit provisions of an agreement are approved by the legislature, a significant revenue shortfall occurs resulting in reduced appropriations, as declared by proclamation of the governor or by resolution of the legislature, both parties shall immediately enter into collective bargaining for a mutually agreed upon modification of the agreement.

NEW SECTION.  Sec. 10   The following acts or parts of acts are each repealed:
     (1) RCW 74.39A.260 (Department duties) and 2002 c 3 s 5;
     (2) RCW 74.39A.280 (Powers) and 2002 c 3 s 7; and
     (3) RCW 70.127.041 (Home care quality authority not subject to regulation) and 2002 c 3 s 13.