BILL REQ. #: Z-0126.8
| State of Washington | 61st Legislature | 2009 Regular Session |
Read first time 01/28/09. Referred to Committee on Human Services & Corrections.
AN ACT Relating to vulnerable adults; amending RCW 30.22.210, 74.34.020, 74.34.035, 74.34.050, 74.34.063, 74.34.067, 74.34.080, and 74.34.095; reenacting and amending RCW 9.94A.533; adding new sections to chapter 74.34 RCW; creating a new section; repealing RCW 74.34.021 and 74.34.068; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature recognizes that: (1) Crimes
against vulnerable adults are a serious crime against society; and (2)
adult victims of crime deserve the maximum protection which the law and
those who enforce the law can provide. All too often, adults are
targeted because of their vulnerability. The ability of vulnerable
adults to protect themselves may be compromised because of issues
surrounding their health, lack of mobility, memory loss, or their
inability to communicate.
Sec. 2 RCW 9.94A.533 and 2008 c 276 s 301 and 2008 c 219 s 3 are
each reenacted and amended to read as follows:
(1) The provisions of this section apply to the standard sentence
ranges determined by RCW 9.94A.510 or 9.94A.517.
(2) For persons convicted of the anticipatory offenses of criminal
attempt, solicitation, or conspiracy under chapter 9A.28 RCW, the
standard sentence range is determined by locating the sentencing grid
sentence range defined by the appropriate offender score and the
seriousness level of the completed crime, and multiplying the range by
seventy-five percent.
(3) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a firearm as defined in RCW
9.41.010 and the offender is being sentenced for one of the crimes
listed in this subsection as eligible for any firearm enhancements
based on the classification of the completed felony crime. If the
offender is being sentenced for more than one offense, the firearm
enhancement or enhancements must be added to the total period of
confinement for all offenses, regardless of which underlying offense is
subject to a firearm enhancement. If the offender or an accomplice was
armed with a firearm as defined in RCW 9.41.010 and the offender is
being sentenced for an anticipatory offense under chapter 9A.28 RCW to
commit one of the crimes listed in this subsection as eligible for any
firearm enhancements, the following additional times shall be added to
the standard sentence range determined under subsection (2) of this
section based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Five years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) Three years for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Eighteen months for any felony defined under any law as a class
C felony or with a statutory maximum sentence of five years, or both,
and not covered under (f) of this subsection;
(d) If the offender is being sentenced for any firearm enhancements
under (a), (b), and/or (c) of this subsection and the offender has
previously been sentenced for any deadly weapon enhancements after July
23, 1995, under (a), (b), and/or (c) of this subsection or subsection
(4)(a), (b), and/or (c) of this section, or both, all firearm
enhancements under this subsection shall be twice the amount of the
enhancement listed;
(e) Notwithstanding any other provision of law, all firearm
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(4);
(f) The firearm enhancements in this section shall apply to all
felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a firearm enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(4) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 23, 1995, if the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for one of the crimes listed in this subsection as eligible for any
deadly weapon enhancements based on the classification of the completed
felony crime. If the offender is being sentenced for more than one
offense, the deadly weapon enhancement or enhancements must be added to
the total period of confinement for all offenses, regardless of which
underlying offense is subject to a deadly weapon enhancement. If the
offender or an accomplice was armed with a deadly weapon other than a
firearm as defined in RCW 9.41.010 and the offender is being sentenced
for an anticipatory offense under chapter 9A.28 RCW to commit one of
the crimes listed in this subsection as eligible for any deadly weapon
enhancements, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this section
based on the felony crime of conviction as classified under RCW
9A.28.020:
(a) Two years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both, and not covered under (f) of this subsection;
(b) One year for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both, and
not covered under (f) of this subsection;
(c) Six months for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both, and
not covered under (f) of this subsection;
(d) If the offender is being sentenced under (a), (b), and/or (c)
of this subsection for any deadly weapon enhancements and the offender
has previously been sentenced for any deadly weapon enhancements after
July 23, 1995, under (a), (b), and/or (c) of this subsection or
subsection (3)(a), (b), and/or (c) of this section, or both, all deadly
weapon enhancements under this subsection shall be twice the amount of
the enhancement listed;
(e) Notwithstanding any other provision of law, all deadly weapon
enhancements under this section are mandatory, shall be served in total
confinement, and shall run consecutively to all other sentencing
provisions, including other firearm or deadly weapon enhancements, for
all offenses sentenced under this chapter. However, whether or not a
mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(4);
(f) The deadly weapon enhancements in this section shall apply to
all felony crimes except the following: Possession of a machine gun,
possessing a stolen firearm, drive-by shooting, theft of a firearm,
unlawful possession of a firearm in the first and second degree, and
use of a machine gun in a felony;
(g) If the standard sentence range under this section exceeds the
statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a deadly weapon enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
(5) The following additional times shall be added to the standard
sentence range if the offender or an accomplice committed the offense
while in a county jail or state correctional facility and the offender
is being sentenced for one of the crimes listed in this subsection. If
the offender or an accomplice committed one of the crimes listed in
this subsection while in a county jail or state correctional facility,
and the offender is being sentenced for an anticipatory offense under
chapter 9A.28 RCW to commit one of the crimes listed in this
subsection, the following additional times shall be added to the
standard sentence range determined under subsection (2) of this
section:
(a) Eighteen months for offenses committed under RCW 69.50.401(2)
(a) or (b) or 69.50.410;
(b) Fifteen months for offenses committed under RCW 69.50.401(2)
(c), (d), or (e);
(c) Twelve months for offenses committed under RCW 69.50.4013.
For the purposes of this subsection, all of the real property of a
state correctional facility or county jail shall be deemed to be part
of that facility or county jail.
(6) An additional twenty-four months shall be added to the standard
sentence range for any ranked offense involving a violation of chapter
69.50 RCW if the offense was also a violation of RCW 69.50.435 or
9.94A.605. All enhancements under this subsection shall run
consecutively to all other sentencing provisions, for all offenses
sentenced under this chapter.
(7) An additional two years shall be added to the standard sentence
range for vehicular homicide committed while under the influence of
intoxicating liquor or any drug as defined by RCW 46.61.502 for each
prior offense as defined in RCW 46.61.5055.
(8)(a) The following additional times shall be added to the
standard sentence range for felony crimes committed on or after July 1,
2006, if the offense was committed with sexual motivation, as that term
is defined in RCW 9.94A.030. If the offender is being sentenced for
more than one offense, the sexual motivation enhancement must be added
to the total period of total confinement for all offenses, regardless
of which underlying offense is subject to a sexual motivation
enhancement. If the offender committed the offense with sexual
motivation and the offender is being sentenced for an anticipatory
offense under chapter 9A.28 RCW, the following additional times shall
be added to the standard sentence range determined under subsection (2)
of this section based on the felony crime of conviction as classified
under RCW 9A.28.020:
(i) Two years for any felony defined under the law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both;
(ii) Eighteen months for any felony defined under any law as a
class B felony or with a statutory maximum sentence of ten years, or
both;
(iii) One year for any felony defined under any law as a class C
felony or with a statutory maximum sentence of five years, or both;
(iv) If the offender is being sentenced for any sexual motivation
enhancements under (a)(i), (ii), and/or (iii) of this subsection and
the offender has previously been sentenced for any sexual motivation
enhancements on or after July 1, 2006, under (a)(i), (ii), and/or (iii)
of this subsection, all sexual motivation enhancements under this
subsection shall be twice the amount of the enhancement listed;
(b) Notwithstanding any other provision of law, all sexual
motivation enhancements under this subsection are mandatory, shall be
served in total confinement, and shall run consecutively to all other
sentencing provisions, including other sexual motivation enhancements,
for all offenses sentenced under this chapter. However, whether or not
a mandatory minimum term has expired, an offender serving a sentence
under this subsection may be granted an extraordinary medical placement
when authorized under RCW 9.94A.728(4);
(c) The sexual motivation enhancements in this subsection apply to
all felony crimes;
(d) If the standard sentence range under this subsection exceeds
the statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a sexual motivation
enhancement increases the sentence so that it would exceed the
statutory maximum for the offense, the portion of the sentence
representing the enhancement may not be reduced;
(e) The portion of the total confinement sentence which the
offender must serve under this subsection shall be calculated before
any earned early release time is credited to the offender;
(f) Nothing in this subsection prevents a sentencing court from
imposing a sentence outside the standard sentence range pursuant to RCW
9.94A.535.
(9) An additional one-year enhancement shall be added to the
standard sentence range for the felony crimes of RCW 9A.44.073,
9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, or 9A.44.089 committed on
or after July 22, 2007, if the offender engaged, agreed, or offered to
engage the victim in the sexual conduct in return for a fee. If the
offender is being sentenced for more than one offense, the one-year
enhancement must be added to the total period of total confinement for
all offenses, regardless of which underlying offense is subject to the
enhancement. If the offender is being sentenced for an anticipatory
offense for the felony crimes of RCW 9A.44.073, 9A.44.076, 9A.44.079,
9A.44.083, 9A.44.086, or 9A.44.089, and the offender attempted,
solicited another, or conspired to engage, agree, or offer to engage
the victim in the sexual conduct in return for a fee, an additional
one-year enhancement shall be added to the standard sentence range
determined under subsection (2) of this section. For purposes of this
subsection, "sexual conduct" means sexual intercourse or sexual
contact, both as defined in chapter 9A.44 RCW.
(10)(a) For a person age eighteen or older convicted of any
criminal street gang-related felony offense for which the person
compensated, threatened, or solicited a minor in order to involve the
minor in the commission of the felony offense, the standard sentence
range is determined by locating the sentencing grid sentence range
defined by the appropriate offender score and the seriousness level of
the completed crime, and multiplying the range by one hundred twenty-five percent. If the standard sentence range under this subsection
exceeds the statutory maximum sentence for the offense, the statutory
maximum sentence is the presumptive sentence unless the offender is a
persistent offender.
(b) This subsection does not apply to any criminal street gang-related felony offense for which involving a minor in the commission of
the felony offense is an element of the offense.
(c) The increased penalty specified in (a) of this subsection is
unavailable in the event that the prosecution gives notice that it will
seek an exceptional sentence based on an aggravating factor under RCW
9.94A.535.
(11) An additional twelve months and one day shall be added to the
standard sentence range for a conviction of attempting to elude a
police vehicle as defined by RCW 46.61.024, if the conviction included
a finding by special allegation of endangering one or more persons
under RCW 9.94A.834.
(12) The following additional times shall be added to the standard
sentence range for felony crimes committed after July 1, 2009, if the
victim was a vulnerable adult as defined in RCW 74.34.020, at the time
of the offense. If the offender is being sentenced for more than one
offense, the enhancement or enhancements must be added to the total
period of confinement for all offenses, regardless of which underlying
offense is subject to an enhancement. If the offender is being
sentenced for an anticipatory offense under chapter 9A.28 RCW, the
following additional times shall be added to the standard sentence
range determined under subsection (2) of this section based on the
felony crime of conviction as classified under RCW 9A.28.020:
(a) Five years for any felony defined under any law as a class A
felony or with a statutory maximum sentence of at least twenty years,
or both;
(b) Three years for any felony defined under any law as a class B
felony or with a statutory maximum sentence of ten years, or both;
(c) Eighteen months for any felony defined under any law as a class
C felony or with a statutory maximum sentence of five years, or both;
(d) All vulnerable adult enhancements under this subsection are
mandatory, shall be served in total confinement, and shall run
consecutively to all other sentencing provisions, including other
firearm or deadly weapon enhancements, for all offenses sentenced under
this chapter. However, whether or not a mandatory minimum term has
expired, an offender serving a sentence under this subsection may be
granted an extraordinary medical placement when authorized under RCW
9.94A.728(4);
(e) If the standard sentence range under this subsection exceeds
the statutory maximum sentence for the offense, the statutory maximum
sentence shall be the presumptive sentence unless the offender is a
persistent offender. If the addition of a firearm enhancement
increases the sentence so that it would exceed the statutory maximum
for the offense, the portion of the sentence representing the
enhancement may not be reduced.
Sec. 3 RCW 30.22.210 and 1981 c 192 s 21 are each amended to read
as follows:
(1) Nothing contained in this chapter shall be deemed to require
any financial institution to make any payment from an account to a
depositor, or any trust or P.O.D. account beneficiary, or any other
person claiming an interest in any funds deposited in the account, if
the financial institution has actual knowledge of the existence of a
dispute between the depositors, beneficiaries, or other persons
concerning their respective rights of ownerships to the funds contained
in, or proposed to be withdrawn, or previously withdrawn from the
account, or in the event the financial institution is otherwise
uncertain as to who is entitled to the funds pursuant to the contract
of deposit. In any such case, the financial institution may, without
liability, notify, in writing, all depositors, beneficiaries, or other
persons claiming an interest in the account of either its uncertainty
as to who is entitled to the distributions or the existence of any
dispute, and may also, without liability, refuse to disburse any funds
contained in the account to any depositor, and/or trust or P.O.D.
account beneficiary thereof, and/or other persons claiming an interest
therein, until such time as either:
(((1))) (a) All such depositors and/or beneficiaries have
consented, in writing, to the requested payment; or
(((2))) (b) The payment is authorized or directed by a court of
proper jurisdiction.
(2) If a financial institution reasonably believes that financial
exploitation of a vulnerable adult, as defined in RCW 74.34.020, has
occurred, has been attempted, or is being attempted, the financial
institution may, without liability, refuse to disburse any funds
contained in the account of a vulnerable adult, an account on which the
vulnerable adult is a beneficiary, including a trust or guardianship
account, or an account of a person suspected of perpetrating financial
exploitation of a vulnerable adult pending an investigation by the
financial institution, the department of social and health services, or
law enforcement. A financial institution may refuse to disburse funds
under this subsection if the department of social and health services,
law enforcement, or the prosecuting attorney's office provides
information to the financial institution demonstrating that it is
reasonable to believe that exploitation of a vulnerable adult, as
defined in RCW 74.34.020, has occurred, has been attempted, or is being
attempted.
Sec. 4 RCW 74.34.020 and 2007 c 312 s 1 are each amended to read
as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Abandonment" means action or inaction by a person or entity
with a duty of care for a vulnerable adult that leaves the vulnerable
person without the ((means or ability to obtain necessary food,
clothing, shelter, or health care)) basic necessities of life.
(2) "Abuse" means ((the willful action or inaction that inflicts
injury, unreasonable confinement, intimidation, or punishment on a
vulnerable adult)) sexual abuse, mental abuse, physical abuse, and
exploitation of a vulnerable adult. In instances of abuse of a
vulnerable adult who is unable to express or demonstrate physical harm,
pain, or mental anguish, the abuse is presumed to cause physical harm,
pain, or mental anguish. ((Abuse includes sexual abuse, mental abuse,
physical abuse, and exploitation of a vulnerable adult, which have the
following meanings:)) (3) "Sexual abuse" means any willful act subjecting or
seeking to subject a vulnerable adult to any form of nonconsensual,
unwanted, or inappropriate sexual contact or conduct, including ((
(a)but
not limited to unwanted or)) inappropriate touching, rape, sodomy,
sexual coercion, sexually explicit photographing, and sexual
harassment. Sexual abuse includes any sexual contact between: (a) A
staff person((, who is not also a resident or client,)) of a facility
((or)) and a resident of the facility, whether or not it is consensual;
(b) a staff person of a program authorized under chapter 71A.12
RCW((,)) and a vulnerable adult ((living in that facility or))
receiving services ((from a program authorized)) under that chapter
((71A.12 RCW, whether or not it is consensual)), whether or not it is
consensual; (c) an individual providing transportation services and a
vulnerable adult receiving such services, whether or not it is
consensual; or (d) an individual providing in-home services under
chapter 74.38 or 74.39A RCW and a vulnerable adult receiving such
services, unless the vulnerable adult has capacity to and does consent
to the sexual contact or conduct.
(((b))) (4) "Physical abuse" means ((the willful action of
inflicting)) a willful act that causes bodily injury ((or)), pain, or
physical mistreatment that is not related to medical treatment,
therapy, or that is not essential for the reasonable protection of the
health or safety of the vulnerable adult or others. Physical abuse
includes((, but is not limited to,)) striking with or without an
object, slapping, pinching, choking, strangling, kicking, shoving,
prodding, or the use of chemical restraints or physical restraints
unless the restraints are consistent with licensing requirements((, and
includes restraints that are otherwise being used inappropriately)).
(((c))) (5) "Mental abuse" means any willful action or inaction of
mental or verbal abuse. Mental abuse includes, but is not limited to,
coercion, harassment, inappropriately isolating a vulnerable adult from
family, friends, or regular activity, confinement, and verbal assault
that includes ridiculing, intimidating, yelling, or swearing.
(((d))) (6) "Exploitation" means ((an)) any willful act of forcing,
compelling, or exerting undue influence over a vulnerable adult causing
the vulnerable adult to act against his or her will, causing the
vulnerable adult to act in a way that is inconsistent with relevant
past behavior, or causing the vulnerable adult to perform services for
the benefit of another.
(((3))) (7) "Basic necessities of life" means food, water, shelter,
clothing, and medically necessary health care including, but not
limited to, health-related treatment or activities, hygiene, oxygen,
and medication.
(8) "Consent," for purposes of financial exploitation or
exploitation, means express written consent granted after the
vulnerable adult or his or her legal representative has been fully
informed of the nature of the services to be offered and that the
receipt of services is voluntary. "Consent," for purposes of sexual
abuse, means that at the time of the act of sexual contact or conduct,
the vulnerable adult through actual words or conduct expresses an
agreement to have sexual contact or conduct. However, sexual contact
with or sexual conduct directed at a vulnerable adult is presumed to be
nonconsensual if the: (a) Vulnerable adult lacks mental capacity to
consent; (b) consent was coerced by undue influence or duress; or (c)
sexual contact or sexual conduct was between a vulnerable adult and a
paid or unpaid caregiver or service provider to vulnerable adults, with
the exception of sexual conduct or sexual contact between a vulnerable
adult and an individual care provider under chapter 74.38 or 74.39A
RCW, in the case where the vulnerable adult has capacity to and
consents to the sexual contact or sexual conduct.
(((4))) (9) "Department" means the department of social and health
services.
(((5))) (10) "Facility" means a residence licensed or required to
be licensed by the department, including boarding homes under chapter
18.20 RCW((, boarding homes)); nursing homes under chapter 18.51 RCW((,
nursing homes)); adult family homes under chapter 70.128 RCW((, adult
family homes)); soldiers' homes under chapter 72.36 RCW((, soldiers'
homes)); ((or)) residential habilitation centers under chapter 71A.20
RCW((, residential habilitation centers)); or any ((other facility
licensed by the department)) residence certified under Title XVIII or
XIX of the federal social security act to provide nursing services or
to provide intermediate care services for individuals with mental
retardation.
(((6))) (11) "Financial exploitation" means ((the)) illegal,
wrongful, or improper use, control over, benefit from, transfer,
withholding, or possession of the property, interest in property,
income, ((resources)) credit, or ((trust funds)) other resources of
((the)) a vulnerable adult by ((any)) a person ((for any person's
profit or advantage other than for the vulnerable adult's profit or
advantage)) or entity.
(a) Financial exploitation includes:
(i) The use of deception, intimidation, or undue influence by a
person or entity in a position of trust and confidence with a
vulnerable adult to improperly obtain or use the property, income,
resources, or trust funds of the vulnerable adult;
(ii) The breach of a fiduciary duty, including the misuse of a
power of attorney, trust, or guardianship appointment;
(iii) Improperly obtaining or use of a vulnerable adults' property,
income, resources, or trust funds by a person or entity who knows or
reasonably should know that the vulnerable adult lacks capacity to
consent to the release or use of his or her property, income,
resources, or trust funds;
(iv) Improper and unauthorized use of the identity of the
vulnerable adult; or
(v) Attempted financial exploitation which is established with
evidence that a substantial step toward the commission of financial
exploitation has occurred.
(b) As used in this chapter, "property, income, or other resources"
of a vulnerable adult includes property, income, or other resources
maintained by a fiduciary or representative on behalf of the vulnerable
adult including, without limitation, trust accounts, conservatorships,
guardianship accounts, or other fiduciary accounts.
(((7))) (12) "Finding" means a finding made by the department on a
more probable than not basis that an act of abuse, abandonment,
financial exploitation, neglect, or self-neglect has occurred.
(13) "Incapacitated person" means a person who is at a significant
risk of personal or financial harm under RCW 11.88.010(1) (a), (b),
(c), or (d).
(((8))) (14) "Individual provider" means a person under contract
with the department to provide services in the home under chapter
((74.09)) 74.38 or 74.39A RCW.
(((9))) (15) "Interested person" means a person who demonstrates to
the court's satisfaction that the person is interested in the welfare
of the vulnerable adult, that the person has a good faith belief that
the court's intervention is necessary, and that the vulnerable adult is
unable, due to incapacity, undue influence, or duress at the time the
petition is filed, to protect his or her own interests.
(((10))) (16) "Mandated reporter" is an employee of the department;
law enforcement officer; social worker; professional school personnel;
individual provider; an employee of a facility; an operator of a
facility; an employee of a social service, welfare, mental health,
adult day health, adult day care, home health, home care, or hospice
agency; county coroner or medical examiner; Christian Science
practitioner; ((or)) health care provider subject to chapter 18.130
RCW; or a nonemergency transportation provider specializing in the
transportation of vulnerable adults.
(((11))) (17) "Neglect" means (a) a pattern of conduct or inaction
by a person or entity with a duty of care that fails to provide the
goods and services that maintain physical or mental health of a
vulnerable adult, or that fails to avoid or prevent physical or mental
harm or pain to a vulnerable adult; or (b) ((an)) a single act or
omission by a person or entity with a duty of care that demonstrates a
serious disregard of consequences of such a magnitude as to constitute
a clear and present danger to the vulnerable adult's health, welfare,
or safety, including but not limited to conduct prohibited under RCW
9A.42.100.
(((12))) (18) "Permissive reporter" means any person((,))
including, but not limited to, an employee of a financial institution,
attorney, or volunteer in a facility or program providing services for
vulnerable adults.
(((13))) (19) "Perpetrator" means a person or entity whom the
department concludes, on a more probable than not basis following
investigation, has perpetrated abandonment, abuse, financial
exploitation, or neglect of a vulnerable adult.
(20) "Protective services" means any services provided by the
department to a vulnerable adult with the consent of the vulnerable
adult, or the legal representative of the vulnerable adult, who has
been abandoned, abused, financially exploited, neglected, or in a state
of self-neglect. These services may include, but are not limited to
case management, social casework, home care, placement, arranging for
medical evaluations, psychological evaluations, day care, or referral
for legal assistance.
(((14))) (21) "Self-neglect" means the failure of a vulnerable
adult, not living in a facility, to provide for himself or herself the
goods and services necessary for the vulnerable adult's physical or
mental health, and the absence of which impairs or threatens the
vulnerable adult's well-being. This definition may include a
vulnerable adult who is receiving services through home health,
hospice, or a home care agency, or an individual provider when the
neglect is not a result of inaction by that agency or individual
provider.
(((15))) (22) "Vulnerable adult" includes a person:
(a) Sixty years of age or older at the time of the alleged
mistreatment who has the functional, mental, or physical inability to
care for himself or herself; or
(b) ((Found)) Eighteen years of age or older at the time of the
alleged mistreatment who:
(i) Is adjudicated as incapacitated under chapter 11.88 RCW; ((or)) (ii) Has a developmental disability as defined under RCW
71A.10.020; ((
(c) Whoor)) (iii) Is admitted to any facility; ((
(d)or)) (iv) Is receiving services from home health, hospice, or home
care agencies licensed or required to be licensed under chapter 70.127
RCW; ((
(e)or)) (v) Is receiving services from an individual provider; or
(f)
(vi) Is receiving services from any individual who, for
compensation, serves as a personal aide to a person who self-directs
his or her own care in his or her home under RCW 74.39.007.
(23) "Willful" means an intentional, nonaccidental act or omission.
A requirement that an act or omission be committed willfully may be
satisfied if a person acts knowingly with respect to the material
outcome of the act or omission.
Sec. 5 RCW 74.34.035 and 2003 c 230 s 2 are each amended to read
as follows:
(1) When there is reasonable cause to believe that abandonment,
abuse, financial exploitation, or neglect of a vulnerable adult has
occurred, mandated reporters shall immediately report to the
department.
(2) When there is reason to suspect that sexual assault, theft,
criminal mistreatment, or fraud has occurred, mandated reporters shall
immediately report to the appropriate law enforcement agency and to the
department. The office of the attorney general shall assist the
department in developing training materials for the mandatory reporting
of the crimes listed in this subsection which shall be posted on the
department's web site.
(3) When there is reason to suspect that physical assault has
occurred or there is reasonable cause to believe that an act has caused
fear of imminent harm:
(a) Mandated reporters shall immediately report to the department;
and
(b) Mandated reporters shall immediately report to the appropriate
law enforcement agency, except as provided in subsection (4) of this
section.
(4) A mandated reporter is not required to report to a law
enforcement agency, unless requested by the injured vulnerable adult or
his or her legal representative or family member, an incident of
physical assault between vulnerable adults that causes minor bodily
injury and does not require more than basic first aid, unless:
(a) The injury appears on the back, face, head, neck, chest,
breasts, groin, inner thigh, buttock, genital, or anal area;
(b) There is a fracture;
(c) There is a pattern of physical assault between the same
vulnerable adults or involving the same vulnerable adults; or
(d) There is an attempt to choke a vulnerable adult.
(5) Permissive reporters may report to the department or a law
enforcement agency when there is reasonable cause to believe that a
vulnerable adult is being or has been abandoned, abused, financially
exploited, or neglected.
(6) No facility, as defined by this chapter, agency licensed or
required to be licensed under chapter 70.127 RCW, or facility or agency
under contract with the department to provide care for vulnerable
adults may develop policies or procedures that interfere with the
reporting requirements of this chapter.
(7) Each report, oral or written, must contain as much as possible
of the following information:
(a) The name and address of the person making the report;
(b) The name and address of the vulnerable adult and the name of
the facility or agency providing care for the vulnerable adult;
(c) The name and address of the legal guardian or alternate
decision maker;
(d) The nature and extent of the abandonment, abuse, financial
exploitation, neglect, or self-neglect;
(e) Any history of previous abandonment, abuse, financial
exploitation, neglect, or self-neglect;
(f) The identity of the alleged perpetrator, if known; and
(g) Other information that may be helpful in establishing the
extent of abandonment, abuse, financial exploitation, neglect, or the
cause of death of the deceased vulnerable adult.
(8) Unless ((there is a judicial proceeding)) authorized by a court
or administrative order, or the person consents, the identity of the
person making the report under this section is confidential.
Sec. 6 RCW 74.34.050 and 1999 c 176 s 6 are each amended to read
as follows:
(1) A person participating in good faith in making a report, which
includes the provision of information or documents in any resulting
investigation by the department, a law enforcement agency, or the
prosecuting attorney's office, under this chapter or testifying about
alleged abuse, neglect, abandonment, financial exploitation, or self-neglect of a vulnerable adult in a judicial or administrative
proceeding under this chapter is immune from liability or professional
licensure action resulting from the report or testimony. The making of
permissive reports as allowed in this chapter does not create any duty
to report and no criminal, civil, or administrative liability or
professional licensure action shall attach for any failure to make a
permissive report as allowed under this chapter.
(2) Conduct conforming with the reporting and testifying provisions
of this chapter shall not be deemed a violation of any confidential
communication privilege or a violation or waiver of the protections
found in RCW 43.70.510 or 70.41.200. Nothing in this chapter shall be
construed as superseding or abridging remedies provided in chapter 4.92
RCW.
Sec. 7 RCW 74.34.063 and 2005 c 274 s 354 are each amended to
read as follows:
(1) The department shall initiate a response to a report, no later
than twenty-four hours after knowledge of the report, of suspected
abandonment, abuse, financial exploitation, neglect, or self-neglect of
a vulnerable adult.
(2) When the initial report or investigation by the department
indicates that the alleged abandonment, abuse, financial exploitation,
or neglect may be criminal, the department shall make an immediate
report to the appropriate law enforcement agency. The department and
local law enforcement ((will coordinate in investigating reports made
under this chapter. The department may provide protective services and
other remedies as specified in this chapter)) agencies may enter into
local agreements in which the law enforcement agency shall specify the
criteria for those referrals constituting potential criminal
abandonment, abuse, financial exploitation, and neglect which
subsequently shall be forwarded by the department to the law
enforcement agency.
(3) The department and law enforcement shall coordinate in
investigation reports made under this chapter. The department may
provide protective services and other remedies as specified in this
chapter.
(4) The law enforcement agency ((or the department)) shall report
the incident in writing to the proper county prosecutor or city
attorney for appropriate action whenever the investigation reveals that
a crime may have been committed.
(((4))) (5) The department ((and)), law enforcement, and the
prosecuting attorney's office may share information contained in
reports and findings of abandonment, abuse, financial exploitation, and
neglect of vulnerable adults, consistent with RCW 74.04.060, chapter
42.56 RCW, and other applicable confidentiality laws.
(((5))) (6) The department shall notify the proper ((licensing))
authority or agency concerning any report received under this chapter
that alleges that a person who is professionally licensed, certified,
or registered under Title 18 RCW has abandoned, abused, financially
exploited, or neglected a vulnerable adult.
Sec. 8 RCW 74.34.067 and 2007 c 312 s 2 are each amended to read
as follows:
(1) Where appropriate, an investigation by the department may
include a private interview with the vulnerable adult regarding the
alleged abandonment, abuse, financial exploitation, neglect, or self-neglect.
(2) In conducting the investigation, the department shall interview
the complainant, unless anonymous, and shall use its best efforts to
interview the vulnerable adult or adults harmed, and, consistent with
the protection of the vulnerable adult shall interview facility staff,
any available independent sources of relevant information, including if
appropriate the family members of the vulnerable adult.
(3) The department may conduct ongoing case planning and
consultation with: (a) Those persons or agencies required to report
under this chapter or submit a report under this chapter; (b)
consultants designated by the department; and (c) designated
representatives of Washington Indian tribes if client information
exchanged is pertinent to cases under investigation or the provision of
protective services. Information considered privileged by statute and
not directly related to reports required by this chapter must not be
divulged without a valid written waiver of the privilege.
(4) The department shall prepare and keep on file a report of each
investigation conducted by the department for a period of time in
accordance with policies established by the department.
(5) If the department has reason to believe that the vulnerable
adult has suffered from abuse, neglect, self-neglect, abandonment, or
financial exploitation, and lacks the ability or capacity to consent,
and needs the protection of a guardian, the department may bring a
guardianship action under chapter 11.88 RCW.
(6) When the investigation is completed and the department
determines that an incident of abandonment, abuse, financial
exploitation, neglect, or self-neglect has occurred, the department
shall inform the vulnerable adult of their right to refuse protective
services, and ensure that, if necessary, appropriate protective
services are provided to the vulnerable adult, with the consent of the
vulnerable adult. The vulnerable adult has the right to withdraw or
refuse protective services.
(7) The department may photograph a vulnerable adult or their
environment for the purpose of providing documentary evidence of the
physical condition of the vulnerable adult or his or her environment.
When photographing the vulnerable adult, the department shall obtain
permission from the vulnerable adult or his or her legal representative
unless immediate photographing is necessary to preserve evidence.
However, if the legal representative is alleged to have abused,
neglected, abandoned, or exploited the vulnerable adult, consent from
the legal representative is not necessary. No such consent is
necessary when photographing the physical environment.
(((8) When the investigation is complete and the department
determines that the incident of abandonment, abuse, financial
exploitation, or neglect has occurred, the department shall inform the
facility in which the incident occurred, consistent with
confidentiality requirements concerning the vulnerable adult,
witnesses, and complainants.))
Sec. 9 RCW 74.34.080 and 1999 c 176 s 11 are each amended to read
as follows:
(1) Willful interference with an investigation under this chapter
is illegal, and the department is authorized to obtain injunctive
relief from superior court ordering anyone willfully interfering with
an investigation to refrain from doing so.
(2) If access is denied to an employee of the department seeking to
investigate an allegation of abandonment, abuse, financial
exploitation, or neglect of a vulnerable adult by an individual, the
department may seek an injunction to prevent interference with the
investigation. The court shall issue the injunction if the department
shows that:
(((1))) (a) There is reasonable cause to believe that the person is
a vulnerable adult and is or has been abandoned, abused, financially
exploited, or neglected; and
(((2))) (b) The employee of the department seeking to investigate
the report has been denied access.
Sec. 10 RCW 74.34.095 and 2000 c 87 s 4 are each amended to read
as follows:
(1) The following information is confidential and not subject to
disclosure, except as provided in this section:
(a) A report of abandonment, abuse, financial exploitation, or
neglect made under this chapter;
(b) The identity of the person making the report; and
(c) All files, reports, records, communications, and working papers
used or developed ((in)) during the investigation or in the provision
of protective services.
(2) Information considered confidential may be disclosed only to
the extent specified in this section or for a purpose consistent with
this chapter or as authorized by chapter 74.04, 18.20, 18.51, 70.128,
or 74.39A RCW, Titles XVIII or XIX of the federal social security act,
or ((as authorized by)) the long-term care ombudsman programs under
((federal law or state law,)) chapter 43.190 RCW, or other applicable
federal law. Information about department investigations related to
the certification of entities providing residential services and
supports under RCW 71A.12.040 may be disclosed to the same extent that
information may be disclosed under RCW 74.39A.060(6).
(3) Upon request, unless the department has a reason to believe
disclosing such information could compromise the safety or well-being
of a vulnerable adult or compromise the investigation by the department
or law enforcement, the department shall disclose the fact that a
report was received by the department and disclose whether or not an
investigator has been assigned and whether the investigation is
completed or ongoing. The department may also disclose whether
protective services were offered and whether or not the vulnerable
adult accepted or refused protective services.
(4) The department may provide a written report of the outcome of
a completed investigation under this chapter to a public or private
agency that has or is serving the vulnerable adult, or that employed or
employs the perpetrator, subject to the following conditions:
(a) The name of the vulnerable adult may be disclosed to a public
or private agency, program, or provider serving the vulnerable adult;
(b) The name of the individual investigated for abuse, abandonment,
neglect, or financial exploitation may be disclosed;
(c) The department shall not disclose the identity of the person
making the report or of a witness without the individual's written
permission;
(d) The report must include a determination by the department as to
whether or not an incident of abuse, neglect, self-neglect,
abandonment, or financial exploitation has occurred;
(e) The department must inform the recipient whether the finding is
pending, subject to the perpetrator's right to challenge the finding in
an administrative appeal, or whether the finding is final after
completion of the administrative appeal process.
(5) When the department has determined that an incident of abuse,
abandonment, neglect, or financial exploitation has occurred, the
department shall inform:
(a) The facility in which the incident occurred or in which the
vulnerable adult resides or the provider of adult day care or adult day
health services in which the vulnerable adult received or receives
services;
(b) The appropriate state or local government authority responsible
for licensing, certification, or registration of the agency, program,
or provider serving the vulnerable adult; and
(c) The proper licensing or certifying authority of any person
professionally licensed, certified, or registered under Title 18 RCW
found to have abandoned, abused, neglected, or financially exploited
the vulnerable adult.
(6) When the department has completed the investigation and
determined that an incident of abuse, abandonment, neglect, or
financial exploitation has occurred, the department shall notify the
alleged perpetrator by sending a notice to the alleged perpetrator's
last known address. The notice shall advise the alleged perpetrator of
his or her right to appeal the finding and how to contact the
department to verify the name of the vulnerable adult.
(7) The department may share information contained in reports and
investigations of abuse, abandonment, neglect, self-neglect, or
financial exploitation of vulnerable adults with the certified
professional guardian board and the office of public guardianship, as
described in chapter 2.72 RCW and General Rule GR 23, when consistent
with the actions of the office of public guardianship or certified
professional guardian board in recruiting, administering, monitoring,
or regulating certified professional guardians providing services to
certain vulnerable adults found incapacitated under chapter 11.88 RCW.
Except to the extent authorized by this chapter, disclosure of the
information shared by the department with the office of public
guardianship or certified professional guardian board is prohibited.
(8) A court or presiding officer in an administrative proceeding
may order disclosure of confidential information only if the court((,))
or presiding officer ((in an administrative proceeding,)) determines
that disclosure is essential to the administration of justice and will
not endanger the life or safety of the vulnerable adult or the
individual who made the report. The court or presiding officer in an
administrative hearing may place restrictions on such disclosure as the
court or presiding officer deems proper.
(9) The department shall adopt rules necessary to implement this
section.
NEW SECTION. Sec. 11 (1) A financial institution, as defined in
RCW 30.22.040 and 30.22.041, must ensure that existing employees
complete training concerning the financial exploitation of vulnerable
adults within one year of the effective date of this section, and must
thereafter provide the training to new employees as part of new
employee orientation. The training must include recognition of
indicators of financial exploitation, how employees may report
suspected financial exploitation to the department and to law
enforcement as permissive reporters, and what steps employees may take
to prevent suspected financial exploitation, consistent with the
employing institution's agreement with customers, or as otherwise
authorized by law. The attorney general's office and the department
will develop a standardized training that financial institutions may
offer, or the financial institution may develop its own training.
(2) Financial institutions may provide access to or copies of
records which are relevant to suspected financial exploitation or
attempted financial exploitation of a vulnerable adult to the
department, law enforcement, or the prosecuting attorney's office,
consistent with a referral to the department law enforcement or as
requested by the department, law enforcement, or prosecuting attorney's
office as part of an investigation. The records may include those
relating to the most recent transaction or transactions which may
comprise financial exploitation, as well as historical records.
(3) No criminal, civil, or administrative liability shall attach to
any financial institution or employee for conduct conforming with the
reporting or prevention of financial exploitation or the provision of
access to or copies of records to the department or law enforcement as
provided in this chapter, the provisions of the financial institution's
customer agreements, or as otherwise provided by law.
NEW SECTION. Sec. 12 (1) Subject to available resources, the
department may establish and maintain a searchable electronic database
of findings of abuse, neglect, financial exploitation, and abandonment
made by the department under this chapter, which shall be available to
the public.
(2) The database shall contain a summary of the finding of abuse,
neglect, financial exploitation, or abandonment and as much of the
following information as known to the department about each
perpetrator, such as: The name, gender, date of birth, home address,
business address and telephone number, and any other identifying
information.
(3) The database shall contain the disclaimer stating that the
department does not guarantee the identity of a perpetrator on the
database. The department is immune from liability for placing an
individual's name on the database in good faith.
(4) After a perpetrator has been provided the opportunity to
contest the finding in an administrative hearing and the finding is
made final through the administrative process, the perpetrator's name
and publicly disclosable identifying information shall be posted on the
database. If the administrative law judge upholds a finding, the judge
may order the perpetrator to provide identifying information to the
department, including his or her date of birth and social security
number. Nothing in this section shall limit the department's authority
to share initial findings as authorized in RCW 74.34.067 and
74.34.095(2), or make referrals to law enforcement and licensing or
certifying agencies as authorized in RCW 74.34.063.
(5) The database shall not contain the names or identifying
information of any vulnerable adult victim or any other information
which is confidential under RCW 74.34.095.
(6) A nursing home, boarding home, adult family home, employer
providing in-home services under chapter 70.127 RCW or services
authorized under RCW 71A.12.040(10) and 74.09.520, person who seeks to
employ an in-home care provider for themselves or another person, or
employer of persons providing adult day care or adult day health
services, who reasonably relies on information obtained from the
database shall be immune from liability for an employment decision
based exclusively upon information obtained directly from the database.
(7) The department shall report to the legislature, the governor,
and the long-term care ombudsman on the status of the development and
implementation of a perpetrator database by January 2010.
NEW SECTION. Sec. 13 The department shall substantiate an
allegation if it finds, on a more probable than not basis, that
abandonment, abuse, financial exploitation, neglect, or self-neglect as
defined in this chapter has occurred. The department is not required
to determine the subjective intent of a perpetrator of abandonment,
abuse, financial exploitation, or neglect. Abandonment, abuse,
financial exploitation, or neglect are established if a reasonable
person in the same circumstances would know or should have known that
the act or omission or acts or omissions could reasonably be expected
to result in abandonment, abuse, financial exploitation, or neglect.
NEW SECTION. Sec. 14 The following acts or parts of acts are
each repealed:
(1) RCW 74.34.021 (Vulnerable adult -- Definition) and 1999 c 336 s
6; and
(2) RCW 74.34.068 (Investigation results -- Report -- Rules) and 2001
c 233 s 2.
NEW SECTION. Sec. 15 Sections 11 through 13 of this act are each
added to chapter