BILL REQ. #:  S-3907.3 

Read first time 01/17/2006.   Referred to Committee on Health & Long-Term Care.

     AN ACT Relating to protecting communities from individuals with behaviors that pose a threat of violence or sexual violence; amending RCW 43.190.020, 43.190.030, and 43.190.040; adding new sections to chapter 71A.12 RCW; creating a new section; prescribing penalties; and declaring an emergency.

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

NEW SECTION.  Sec. 1   The department of social and health services is providing a structured, therapeutic environment for persons who are eligible for placement in the community protection program in order for them to live safely and successfully in the community while minimizing the risk to public safety.
     The legislature approves of steps already taken by the department to create a community protection program within the division of developmental disabilities.

NEW SECTION.  Sec. 2   Sections 3 through 9 of this act apply to a person:
     (1)(a) Who: (i) Has been charged with or convicted of a crime of sexual violence as defined in chapter 9A.44 or 71.09 RCW, including, but not limited to, rape, rape of a child, and child molestation, or who has been charged with or convicted of sexual acts directed toward: Strangers, individuals with whom a relationship has been established or promoted for the primary purpose of victimization, or persons of casual acquaintance with whom no substantial personal relationship exists or who has committed one or more violent offenses, as defined by RCW 9.94A.030; and (ii) constitutes a current risk to others as determined by a qualified professional. Charges or crimes that resulted in acquittal must be excluded; or
     (b) Who has not been charged with and/or convicted of a crime, but has a history of stalking, sexually violent, predatory, and/or opportunistic behavior, which demonstrates a likelihood to commit a sexually violent and/or predatory act based on current behaviors, and constitutes a current risk to others as determined by a qualified professional; and
     (2) Who has been determined to have a developmental disability as defined by RCW 71A.10.020(3).

NEW SECTION.  Sec. 3   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Assessment" means the written opinion of a qualified professional stating, at a minimum:
     (a) Whether a person meets the criteria established in section 2 of this act;
     (b) The appropriateness of the community protection program for the person;
     (c) What restrictions are necessary;
     (d) A plan for identifying successful use of restrictive procedures and a plan for reducing restrictions.
     (2) "Certified community protection program intensive supported living services" means access to twenty-four-hour supervision, instruction, and support services as identified in the person's plan of care.
     (3) "Community protection program" means services specifically designed to support persons who meet the criteria of section 2 of this act.
     (4) "Constitutes a risk to others" means a determination of a person's risk and/or dangerousness based upon a thorough assessment by a qualified professional.
     (5) "Department" means the department of social and health services.
     (6) "Developmental disability" means that condition defined in RCW 71A.10.020(3).
     (7) "Disclosure" means providing copies of professional assessments, incident reports, legal documents, and other information pertaining to community protection issues to ensure the provider has all relevant information. Polygraph and plethysmograph reports are excluded from disclosure.
     (8) "Division" means the division of developmental disabilities.
     (9) "Managed successfully" means that a person supported by a community protection program does not engage in the behavior identified in section 2 of this act.
     (10) "Opportunistic behavior" means an act committed on impulse, which is not premeditated. Consider what was the original motive or intent of the offense/crime.
     (11) "Predatory" means acts directed toward strangers, individuals with whom a relationship has been established or promoted for the primary purpose of victimization, or casual acquaintances with whom no substantial personal relationship exists. Predatory behavior may be characterized by planning and/or rehearsing the act, stalking, and/or grooming the victim.
     (12) "Qualified professional" means a person with at least three years' prior experience working with individuals with developmental disabilities, and: (a) If the person being assessed has demonstrated sexually aggressive or sexually violent behavior, that person must be assessed by a qualified professional who is a licensed psychologist or psychiatrist, certified sex offender treatment provider, or affiliate sex offender treatment provider working under the supervision of a certified sex offender treatment provider; or (b) If the person being assessed has demonstrated violent, dangerous, or aggressive behavior, that person must be assessed by a qualified professional who has received specialized training in the treatment of or has at least three years' prior experience treating violent or aggressive behavior.
     (13) "Treatment team" means the program participant and the group of people responsible for the development, implementation, and monitoring of the person's individualized supports and services. This group may include, but is not limited to, the case resource manager, therapist, residential provider, employment/day program provider, and the person's legal representative and/or family.
     (14) "Violent offense" means any felony defined as a violent offense in RCW 9.94A.030.

NEW SECTION.  Sec. 4   (1) Prior to receiving services through the community protection program, a person must first receive an assessment of risk and/or dangerousness by a qualified professional. The assessment must be consistent with the guidelines for risk assessments and psychosexual evaluations developed by the division. The person requesting services and the person's legal representative have the right to choose the qualified professional who will perform the assessment from a list of state contracted qualified professionals. The assessment must contain, at a minimum, a determination by the qualified professional whether the person can be managed successfully in the community with reasonably available safeguards and that lesser restrictive residential placement alternatives have been considered and would not be reasonable for the person seeking services.
     (2) Any person being considered for placement in the community protection program and his or her legal representative must be informed in writing of the following: (a) Limitations regarding the services that will be available due to the person's community protection issues; (b) disclosure requirements as a condition of receiving services other than case management; (c) the requirement to engage in therapeutic treatment may be a condition of receiving certain services; (d) anticipated restrictions that may be provided including, but not limited to intensive supervision, limited access to television viewing, reading material, videos; (e) the right to accept or decline services; (f) the anticipated consequences of declining services such as the loss of existing services and removal from waiver services; (g) the right to an administrative fair hearing in accordance with department and division policy; (h) the requirement to sign a preplacement agreement as a condition of receiving community protection intensive supported living services.
     (3)(a) If the department determines that a person is appropriate for placement in the community protection program, the individual and his or her legal representative shall receive in writing a determination by the department that the person meets the criteria for placement within the community protection program.
     (b) If the department determines that a person cannot be managed successfully in the community protection program with reasonably available safeguards, the department must notify the person and his or her legal representative in writing.

NEW SECTION.  Sec. 5   (1) An applicant or eligible person who is dissatisfied with a decision, action, or inaction made by the department or its agents regarding that person's eligibility, or department services provided to that person is entitled to an administrative hearing. Such administrative hearings shall be conducted pursuant to chapter 34.05 RCW by an administrative law judge.
     (2) The applicant or eligible individual may appeal final decisions issued following administrative hearings under RCW 34.05.510 through 34.05.598.
     (3) The department shall develop rules governing other processes for dispute resolution as required under the federal rehabilitation act of 1973.

NEW SECTION.  Sec. 6   (1) Community protection program participants shall have appropriate opportunities to receive services in the least restrictive manner and in the least restrictive environments possible. When considering requests or recommendations for lessening program restrictions, reducing supervision, or terminating services, careful consideration to the safety and welfare of both the individual and the community must be given.
     (2) Every participant in the community protection program shall receive a reassessment at least once every twelve months. The reassessment shall be consistent with the guidelines for risk assessments and psychosexual evaluations developed by the division and shall incorporate the best available science at any given time. The reassessment shall be conducted by a qualified professional and shall include a written report addressing, at a minimum, the participant's risk to reoffend and/or dangerousness and an opinion as to whether or not the participant can continue to be managed successfully in the community with reasonably available safeguards. If a treatment team member has reason to be concerned that circumstances have changed significantly, the team member may request that a reassessment be conducted at any time.

NEW SECTION.  Sec. 7   A participant who demonstrates success in complying with reduced restrictions and remains free of offenses that may indicate a relapse for at least twelve months, may be considered for placement in a less restrictive community residential setting. The participant or any member of the treatment team may request to be considered for a less restrictive placement.
     The process to move a participant to a less restrictive residential placement shall include:
     (1) Written verification of the person's treatment progress, assessment of low risk of reoffense, and a recommendation as to suitable placement by the treatment team;
     (2) Development of a gradual phase out plan by the treatment team, projected over a reasonable period of time and includes specific criteria for evaluating reductions in restrictions, especially supervision;
     (3) The absence of any incidents that may indicate relapse for a minimum of twelve months;
     (4) A written plan that details what supports and services, including the level of supervision the person will receive from the division upon exiting the community protection program;
     (5) An assessment consistent with the guidelines for risk assessments and psychosexual evaluations developed by the division, conducted by a qualified professional, evaluating the participant's risk of reoffense and/or dangerousness, including an opinion as to whether or not the person can be managed successfully in a less restrictive community residential setting;
     (6) Consensus by the treatment team that the participant is ready to move to a less restrictive community residential placement.

NEW SECTION.  Sec. 8   (1) The department is authorized to take one or more of the enforcement actions listed in subsection (2) of this section when the department finds that a provider of residential services and support with whom the department entered into an agreement with under this chapter has:
     (a) Failed or refused to comply with the requirements of this chapter or the rules adopted under it;
     (b) Failed or refused to cooperate with the certification process;
     (c) Prevented or interfered with a certification, inspection, or investigation by the department;
     (d) Failed to comply with any applicable requirements regarding vulnerable adults under chapter 74.34 RCW;
     (e) Knowingly, or with reason to know, made a false statement of material fact related to certification or contracting with the department or in any matter under investigation by the department.
     (2) The department may:
     (a) Decertify or refuse to renew the certification of a provider;
     (b) Impose conditions on the provider's certification;
     (c) Impose civil penalties of not more than five hundred dollars per day per violation. Each day during which the same or similar action or inaction occurs constitutes a separate violation;
     (d) Suspend department referrals to the provider; or
     (e) Require a provider to implement a plan of correction developed by the department, and to cooperate with subsequent monitoring of the provider's progress.
     (3) When determining the appropriate enforcement action or actions to take under subsection (2) of this section, the department must select actions commensurate with the seriousness of the harm or threat of harm, to the persons being served by the provider. Further, the department may take enforcement actions that are more severe for violations that are uncorrected, repeated, pervasive, or present a serious threat of harm to the health, safety, or welfare of persons served by the provider.
     (4) The provisions of chapter 34.05 RCW apply to enforcement actions under this section. Except for imposition of civil penalties, the effective date of enforcement actions shall not be delayed or suspended pending any hearing or informal review.
     (5) The enforcement actions and penalties authorized in this section are not exclusive and nothing in this section prohibits the department from taking any other action authorized in statute or rule or under the terms of a contract with the provider.

NEW SECTION.  Sec. 9   The department shall develop and maintain rules, guidelines, or policy manuals, as appropriate, for implementing and maintaining the community protection program under this chapter.

Sec. 10   RCW 43.190.020 and 1995 1st sp.s. c 18 s 32 are each amended to read as follows:
     As used in this chapter, "long-term care facility" means any of the following:
     (1) A facility which:
     (a) Maintains and operates twenty-four hour skilled nursing services for the care and treatment of chronically ill or convalescent patients, including mental, emotional, or behavioral problems, mental retardation, or alcoholism;
     (b) Provides supportive, restorative, and preventive health services in conjunction with a socially oriented program to its residents, and which maintains and operates twenty-four hour services including board, room, personal care, and intermittent nursing care. "Long-term health care facility" includes nursing homes and nursing facilities, but does not include acute care hospital or other licensed facilities except for that distinct part of the hospital or facility which provides nursing facility services.
     (2) Any family home, group care facility, or similar facility determined by the secretary, for twenty-four hour nonmedical care of persons, including persons with developmental disabilities, in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual or community.
     (3) Any swing bed in an acute care facility.

Sec. 11   RCW 43.190.030 and 1997 c 194 s 1 are each amended to read as follows:
     There is created the office of the state long-term care ombudsman. The department of community, trade, and economic development shall contract with a private nonprofit organization to provide long-term care ombudsman services as specified under, and consistent with, the federal older Americans act as amended, federal mandates, the goals of the state, and the needs of its citizens. The department of community, trade, and economic development shall ensure that all program and staff support necessary to enable the ombudsman to effectively protect the interests of residents, patients, and clients of all long-term care facilities, including long-term care facilities serving persons with developmental disabilities, is provided by the nonprofit organization that contracts to provide long-term care ombudsman services. The department of community, trade, and economic development shall adopt rules to carry out this chapter and the long-term care ombudsman provisions of the federal older Americans act, as amended, and applicable federal regulations. The long-term care ombudsman program shall have the following powers and duties:
     (1) To provide services for coordinating the activities of long-term care ombudsmen throughout the state;
     (2) Carry out such other activities as the department of community, trade, and economic development deems appropriate;
     (3) Establish procedures consistent with RCW 43.190.110 for appropriate access by long-term care ombudsmen to long-term care facilities and patients' records, including procedures to protect the confidentiality of the records and ensure that the identity of any complainant or resident will not be disclosed without the written consent of the complainant or resident, or upon court order;
     (4) Establish a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities for the purpose of identifying and resolving significant problems, with provision for submission of such data to the department of social and health services and to the federal department of health and human services, or its successor agency, on a regular basis; and
     (5) Establish procedures to assure that any files maintained by ombudsman programs shall be disclosed only at the discretion of the ombudsman having authority over the disposition of such files, except that the identity of any complainant or resident of a long-term care facility shall not be disclosed by such ombudsman unless:
     (a) Such complainant or resident, or the complainant's or resident's legal representative, consents in writing to such disclosure; or
     (b) Such disclosure is required by court order.

Sec. 12   RCW 43.190.040 and 2002 c 100 s 1 are each amended to read as follows:
     (1) Any long-term care ombudsman authorized by this chapter or a local governmental authority shall have training or experience or both in the following areas:
     (a) Gerontology, long-term care, or other related social services programs, including programs that serve persons with developmental disabilities.
     (b) The legal system.
     (c) Dispute or problem resolution techniques, including investigation, mediation, and negotiation.
     (2) A long-term care ombudsman shall not have been employed by or participated in the management of any long-term care facility within the past year.
     (3) A long-term care ombudsman shall not have been employed in a governmental position with direct involvement in the licensing, certification, or regulation of long-term care facilities within the past year.
     (4) No long-term care ombudsman or any member of his or her immediate family shall have, or have had within the past year, any significant ownership or investment interest in one or more long-term care facilities.
     (5) A long-term care ombudsman shall not be assigned to a long-term care facility in which a member of that ombudsman's immediate family resides.

NEW SECTION.  Sec. 13   Sections 2 through 9 of this act are each added to chapter 71A.12 RCW.

NEW SECTION.  Sec. 14   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.