BILL REQ. #:  S-3805.1 

Read first time 01/21/08.   Referred to Committee on Health & Long-Term Care.

     AN ACT Relating to intermediate care facilities for the mentally retarded; and amending RCW 70.129.005, 70.129.007, 70.129.010, 70.129.040, 70.129.090, 70.129.105, 70.129.110, 70.129.150, 70.129.160, and 70.129.170.

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

Sec. 1   RCW 70.129.005 and 1994 c 214 s 1 are each amended to read as follows:
     The legislature recognizes that long-term and intermediate care facilities are a critical part of the state's long-term care services system. It is the intent of the legislature that individuals who reside in long-term and intermediate care facilities receive appropriate services, be treated with courtesy, and continue to enjoy their basic civil and legal rights.
     It is also the intent of the legislature that long-term care facility and intermediate care facility for the mentally retarded residents have the opportunity to exercise reasonable control over life decisions. The legislature finds that choice, participation, privacy, and the opportunity to engage in religious, political, civic, recreational, and other social activities foster a sense of self-worth and enhance the quality of life for ((long-term care)) residents.
     The legislature finds that the public interest would be best served by providing the same basic resident rights in all long-term and intermediate care settings. Residents in nursing facilities are guaranteed certain rights by federal law and regulation, 42 U.S.C. 1396r and 42 C.F.R. part 483. It is the intent of the legislature to extend those basic rights to residents in veterans' homes, boarding homes, ((and)) adult family homes, and intermediate care facility for the mentally retarded.
     The legislature intends that a facility should care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. A resident should have a safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal belongings to the extent possible.

Sec. 2   RCW 70.129.007 and 1994 c 214 s 20 are each amended to read as follows:
     The rights set forth in this chapter are the minimal rights guaranteed to all residents of long-term and intermediate care facilities, and are not intended to diminish rights set forth in other state or federal laws that may contain additional rights.

Sec. 3   RCW 70.129.010 and 1997 c 392 s 203 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Department" means the department of state government responsible for licensing the provider in question.
     (2) "Facility" means a long-term care facility or an intermediate care facility for the mentally retarded.
     (3) "Long-term care facility" means a facility that is licensed or required to be licensed under chapter 18.20, 72.36, or 70.128 RCW.
     (4) "Intermediate care facility for the mentally retarded" means an intermediate care facility certified by the department of social and health services and/or by the federal department of health and human services to provide residential care under 42 U.S.C. Sec. 1396d(d).
     (5) "Resident" means the individual receiving services in a long-term care facility or an intermediate care facility for the mentally retarded, that resident's attorney-in-fact, guardian, or other legal representative acting within the scope of their authority.
     (((5))) (6) "Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body, is used for discipline or convenience, and not required to treat the resident's medical symptoms.
     (((6))) (7) "Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the resident's medical symptoms.
     (((7))) (8) "Representative" means a person appointed under RCW 7.70.065.
     (((8))) (9) "Reasonable accommodation" by a facility to the needs of a prospective or current resident has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

Sec. 4   RCW 70.129.040 and 1995 1st sp.s. c 18 s 66 are each amended to read as follows:
     (1) The resident has the right to manage his or her financial affairs, and the facility may not require residents to deposit their personal funds with the facility.
     (2) Upon written authorization of a resident, if the facility agrees to manage the resident's personal funds, the facility must hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility as specified in this section.
     (a) The facility must deposit a resident's personal funds in excess of one hundred dollars in an interest-bearing account or accounts that is separate from any of the facility's operating accounts, and that credits all interest earned on residents' funds to that account. In pooled accounts, there must be a separate accounting for each resident's share.
     (b) The facility must maintain a resident's personal funds that do not exceed one hundred dollars in a noninterest-bearing account, interest-bearing account, or petty cash fund.
     (3) The facility must establish and maintain a system that assures a full and complete and separate accounting of each resident's personal funds entrusted to the facility on the resident's behalf.
     (a) The system must preclude any commingling of resident funds with facility funds or with the funds of any person other than another resident.
     (b) The individual financial record must be available on request to the resident or his or her legal representative.
     (4) Upon the death of a resident with a personal fund deposited with the facility the facility must convey within forty-five days the resident's funds, and a final accounting of those funds, to the individual or probate jurisdiction administering the resident's estate; but in the case of a resident who received ((long-term)) care services paid for by the state, the funds and accounting shall be sent to the state of Washington, department of social and health services, office of financial recovery. The department shall establish a release procedure for use for burial expenses.

Sec. 5   RCW 70.129.090 and 1994 c 214 s 10 are each amended to read as follows:
     (1) The resident has the right and the facility must not interfere with access to any resident by the following:
     (a) Any representative of the state;
     (b) The resident's individual physician;
     (c) The state long-term care ombudsman as established under chapter 43.190 RCW;
     (d) The agency responsible for the protection and advocacy system for developmentally disabled individuals as established under part C of the developmental disabilities assistance and bill of rights act;
     (e) The agency responsible for the protection and advocacy system for mentally ill individuals as established under the protection and advocacy for mentally ill individuals act;
     (f) Subject to reasonable restrictions to protect the rights of others and to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident and others who are visiting with the consent of the resident;
     (g) The agency responsible for the protection and advocacy system for individuals with disabilities as established under section 509 of the rehabilitation act of 1973, as amended, who are not served under the mandates of existing protection and advocacy systems created under federal law.
     (2) The facility must provide reasonable access to a resident by his or her representative or an entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.
     (3) The facility must allow representatives of the state ombudsman to examine a resident's clinical records with the permission of the resident or the resident's legal representative, and consistent with state and federal law.
     (4) The facility shall notify the resident's representative, if any, of access, visitation, or examination of clinical records made under this section.

Sec. 6   RCW 70.129.105 and 1997 c 392 s 211 are each amended to read as follows:
     No long-term care facility ((or)), nursing facility licensed under chapter 18.51 RCW, or an intermediate care facility for the mentally retarded shall require or request residents to sign waivers of potential liability for losses of personal property or injury, or to sign waivers of residents' rights set forth in this chapter or in the applicable licensing or certification laws.

Sec. 7   RCW 70.129.110 and 1997 c 392 s 205 are each amended to read as follows:
     (1) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless:
     (a) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;
     (b) The safety of individuals in the facility is endangered;
     (c) The health of individuals in the facility would otherwise be endangered;
     (d) The resident has failed to make the required payment for his or her stay; or
     (e) The facility ceases to operate.
     (2) All ((long-term care)) facilities shall fully disclose to potential residents or their legal representative the service capabilities of the facility prior to admission to the facility. If the care needs of the applicant who is medicaid eligible are in excess of the facility's service capabilities, the department shall identify other care settings or residential care options consistent with federal law.
     (3) Before a ((long-term care)) facility transfers or discharges a resident, the facility must:
     (a) First attempt through reasonable accommodations to avoid the transfer or discharge, unless agreed to by the resident;
     (b) Notify the resident and representative and make a reasonable effort to notify, if known, an interested family member of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand;
     (c) Record the reasons in the resident's record; and
     (d) Include in the notice the items described in subsection (5) of this section.
     (4)(a) Except when specified in this subsection, the notice of transfer or discharge required under subsection (3) of this section must be made by the facility at least thirty days before the resident is transferred or discharged.
     (b) Notice may be made as soon as practicable before transfer or discharge when:
     (i) The safety of individuals in the facility would be endangered;
     (ii) The health of individuals in the facility would be endangered;
     (iii) An immediate transfer or discharge is required by the resident's urgent medical needs; or
     (iv) A resident has not resided in the facility for thirty days.
     (5) The written notice specified in subsection (3) of this section must include the following:
     (a) The reason for transfer or discharge;
     (b) The effective date of transfer or discharge;
     (c) The location to which the resident is transferred or discharged;
     (d) The name, address, and telephone number of the state long-term care ombudsman;
     (e) For residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under part C of the developmental disabilities assistance and bill of rights act; ((and))
     (f) For residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the protection and advocacy for mentally ill individuals act; and
     (g) For residents of an intermediate care facility for the mentally retarded, the mailing addresses and telephone numbers of the resident's representative, if any, and the human rights committee of that facility established under 42 C.F.R. 483.440.
     (6) A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.
     (7) A resident discharged in violation of this section has the right to be readmitted immediately upon the first availability of a gender-appropriate bed in the facility.

Sec. 8   RCW 70.129.150 and 1997 c 392 s 206 are each amended to read as follows:
     (1) This section applies to long-term care facilities, intermediate care facilities for the mentally retarded, and nursing facilities licensed under chapter 18.51 RCW.
     (2) Prior to admission, all ((long-term care)) facilities ((or nursing facilities licensed under chapter 18.51 RCW)) that require payment of an admissions fee, deposit, or a minimum stay fee, by or on behalf of a person seeking admission to the ((long-term care facility or nursing)) facility, shall provide the resident, or his or her representative, full disclosure in writing in a language the resident or his or her representative understands, a statement of the amount of any admissions fees, deposits, prepaid charges, or minimum stay fees. The facility shall also disclose to the person, or his or her representative, the facility's advance notice or transfer requirements, prior to admission. In addition, the ((long-term care facility or nursing)) facility shall also fully disclose in writing prior to admission what portion of the deposits, admissions fees, prepaid charges, or minimum stay fees will be refunded to the resident or his or her representative if the resident leaves the ((long-term care facility or nursing)) facility. Receipt of the disclosures required under this subsection must be acknowledged in writing. If the facility does not provide these disclosures, the deposits, admissions fees, prepaid charges, or minimum stay fees may not be kept by the facility. If a resident dies or is hospitalized or is transferred to another facility for more appropriate care and does not return to the original facility, the facility shall refund any deposit or charges already paid less the facility's per diem rate for the days the resident actually resided or reserved or retained a bed in the facility notwithstanding any minimum stay policy or discharge notice requirements, except that the facility may retain an additional amount to cover its reasonable, actual expenses incurred as a result of a private-pay resident's move, not to exceed five days' per diem charges, unless the resident has given advance notice in compliance with the admission agreement. All ((long-term care facilities or nursing)) facilities covered under this section are required to refund any and all refunds due the resident or his or her representative within thirty days from the resident's date of discharge from the facility. Nothing in this section applies to provisions in contracts negotiated between ((a nursing facility or long-term care)) the facility and a certified health plan, health or disability insurer, health maintenance organization, managed care organization, or similar entities.
     (2) Where a ((long-term care facility or nursing)) facility requires the execution of an admission contract by or on behalf of an individual seeking admission to the facility, the terms of the contract shall be consistent with the requirements of this section, and the terms of an admission contract by a long-term care facility or an intermediate care facility for the mentally retarded shall be consistent with the requirements of this chapter.

Sec. 9   RCW 70.129.160 and 1998 c 245 s 113 are each amended to read as follows:
     The long-term care ombudsman shall monitor implementation of this chapter and determine the degree to which veterans' homes, nursing facilities, adult family homes, ((and)) boarding homes, and intermediate care facilities for the mentally retarded ensure that residents are able to exercise their rights. The long-term care ombudsman shall consult with the departments of health and social and health services, long-term care facility organizations, the human rights committee of an intermediate care facility for the mentally retarded, resident groups, and senior and disabled citizen organizations.

Sec. 10   RCW 70.129.170 and 1994 c 214 s 19 are each amended to read as follows:
     (1) The legislature intends that ((long-term care facility)) residents of facilities or nursing home residents, their family members or guardians, the long-term care ombudsman, protection and advocacy personnel, and the human rights committee identified in RCW 70.129.110(((4))) (5) (e) ((and)), (f), and (g), and others who may seek to assist ((long-term care facility or nursing home)) residents, use the least formal means available to satisfactorily resolve disputes that may arise regarding the rights conferred by the provisions of chapter 70.129 RCW and RCW 18.20.180, 18.51.009, 72.36.037, and 70.128.125. Wherever feasible, direct discussion with facility personnel or administrators should be employed. Failing that, and where feasible, recourse may be sought through state or federal long-term care, intermediate care facility for the mentally retarded, or nursing home licensing or other regulatory authorities. ((However,))
     (2) The procedures suggested in this section are cumulative and shall not restrict an agency or person from seeking a remedy provided by law or from obtaining additional relief based on the same facts, including any remedy available to an individual at common law.
     (3) Chapter 214, Laws of 1994 is not intended to, and shall not be construed to, create any right of action on the part of any individual beyond those in existence under any common law or statutory doctrine.
     (4) Chapter 214, Laws of 1994 is not intended to, and shall not be construed to, operate in derogation of any right of action on the part of any individual in existence on June 9, 1994.