SHB 1494 -
By Representative Moeller
ADOPTED AS AMENDED 03/07/2011
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 (1) The legislature finds that locating
acceptable housing and appropriate care for vulnerable adults is an
important aspect of providing an appropriate continuity of care for
senior citizens.
(2) The legislature further finds that locating appropriate and
quality housing alternatives sometimes depends on elder and vulnerable
adult referral agencies attempting to assist with referral.
(3) The legislature further finds that vulnerable adult referral
professionals should be required to meet certain minimum requirements
to promote better integration of vulnerable adult housing choices.
(4) The legislature further finds that the requirement that elder
and vulnerable adult referral agencies meet minimum standards of
conduct is in the interest of public health, safety, and welfare.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Care services" means any combination of services, including
in-home care, private duty care, or private duty nursing designed for
or with the goal of allowing vulnerable adults to receive care and
related services at home or in a home-like setting. Care service
providers must include home health agencies and in-home service
agencies licensed under chapter 70.127 RCW.
(2) "Client" means an elder person or a vulnerable adult, and his
or her representative if any, seeking a referral or assistance with
entering into an arrangement for supportive housing or care services
through an elder and vulnerable adult referral agency. For purposes of
this chapter, the "client's representative" means the person authorized
under RCW 7.70.065 or other laws to provide informed consent for an
individual unable to do so.
(3) "Elder and vulnerable adult referral agency" or "agency" means
a business or person who receives a fee from or on behalf of a
vulnerable adult seeking a referral to care services or supportive
housing, or who receives a fee from a care services provider or
supportive housing provider because of any referral provided to or on
behalf of a vulnerable adult. "Elder and vulnerable adult referral
agency" or "agency" includes government agencies that provide referrals
to care services or supportive housing and geriatric case and care
managers that receive a fee from a client to whom they have provided a
referral.
(4) "Fee" means anything of value. "Fee" includes money or other
valuable consideration or services or the promise of money or other
valuable consideration or services, received directly or indirectly by
an elder and vulnerable adult referral agency.
(5) "Information" means the provision of general information by an
agency to a person about the types of supportive housing or care
services available in the area that may meet the needs of elderly or
vulnerable adults without giving the person the names of specific
providers of care services or supportive housing, or giving a provider
the name of the person or vulnerable adult. Information also means the
provision by an agency of the names of specific providers to a social
worker, discharge planner, case manager, professional guardian, nurse,
or other professional who is assisting a vulnerable adult locate
supportive housing or care services, where the agency does not request
or receive any fee.
(6) "Person" includes any individual, firm, corporation,
partnership, association, company, society, manager, contractor,
subcontractor, bureau, agency, organization, service, office, or an
agent or any of their employees.
(7) "Provider" means any entity or person that both provides
supportive housing or care services to a vulnerable adult for a fee and
provides or is required to provide such housing or services under a
state or local business license specific to such housing or services.
(8) "Referral" means the act of an agency giving a client the name
or names of specific providers of care services or supportive housing
that may meet the needs of the vulnerable adult identified in the
intake form described in section 7 of this act, or the agency gives a
provider the name of a client for the purposes of enabling the provider
to contact the client regarding care services or supportive housing
provided by that provider.
(9) "Supportive housing" means any type of housing that includes
services for care needs and is designed for prospective residents who
are vulnerable adults. Supportive housing includes, but is not limited
to, nursing homes licensed under chapter 18.51 RCW, boarding homes
licensed under chapter 18.20 RCW, adult family homes licensed under
chapter 70.128 RCW, and continuing care retirement communities under
RCW 70.38.025.
(10) "Vulnerable adult" has the same meaning as in RCW 74.34.020.
NEW SECTION. Sec. 3 (1) As of January 1, 2012, a business or
person may not operate or maintain an agency in this state without
complying with the provisions of this chapter. An agency must maintain
liability insurance to cover the acts and services of the agency. The
combined single limit liability insurance coverage required is one
million dollars.
(2) The agency may not create an exclusive agreement between the
agency and the client, or between the agency and a provider. The
agency cannot provide referral services to a client where the only
names given to the client are of providers in which the agency or its
personnel or immediate family members have an ownership interest in
those providers. An agreement entered into between an agency and a
provider must allow either the provider or the agency to cancel the
agreement with specific payment terms regarding pending fees or
commissions outlined in the agreement.
(3) The marketing materials, informational brochures, and web sites
owned or operated by an agency, and concerning information or referral
services for elderly or vulnerable adults, must include a clear
identification of the agency.
(4) All owners, operators, and employees of an agency shall be
considered mandated reporters under the vulnerable adults act, chapter
74.34 RCW. No agency may develop or enforce any policies or procedures
that interfere with the reporting requirements of chapter 74.34 RCW.
NEW SECTION. Sec. 4 Nothing in this chapter may be construed to
prohibit, restrict, or apply to:
(1) Any home health or hospice agency while providing counseling to
patients on placement options in the normal course of practice as long
as no fee or other compensation is provided to the home health or
hospice agency for such counseling;
(2) Government entities providing information and assistance to
vulnerable adults unless making a referral in which a fee is received
from a client;
(3) Professional guardians providing services under authority of
their guardianship appointment;
(4) Supportive housing or care services providers who make
referrals to other supportive housing or care services providers where
no monetary value is exchanged;
(5) Social workers, discharge planners, or other social services
staff assisting a vulnerable adult to define supportive housing or care
services providers in the course of their employment responsibilities
if they do not receive any monetary value from a provider; or
(6) Any person to the extent that he or she provides information to
another person.
NEW SECTION. Sec. 5 (1) Each agency shall keep records of all
referrals rendered to or on behalf of clients. These records must
contain:
(a) The name of the vulnerable adult, and the address and phone
number of the client or the client's representative, if any;
(b) The kind of supportive housing or care services for which
referral was sought;
(c) The location of the care services or supportive housing
referred to the client and probable duration, if known;
(d) The monthly or unit cost of the supportive housing or care
services, if known;
(e) If applicable, the amount of the agency's fee to the client or
to the provider;
(f) If applicable, the dates and amounts of refund of the agency's
fee, if any, and reason for such refund; and
(g) A copy of the client's disclosure and intake forms described in
sections 6 and 7 of this act.
(2) Each agency shall also keep records of any contract or written
agreement entered into with any provider for services rendered to or on
behalf of a vulnerable adult, including any referrals to a provider.
Any provision in a contract or written agreement not consistent with
this chapter is void and unenforceable.
(3) The agency must maintain the records covered by this chapter
for a period of six years. The agency's records identifying a client
are considered "health care information" and the provisions of chapter
70.02 RCW apply. The client must have access upon request to the
agency's records concerning the client and covered by this chapter.
NEW SECTION. Sec. 6 (1) An agency must provide a disclosure
statement to each client prior to making a referral. A disclosure
statement is not required when the agency is only providing information
to a person. The disclosure statement must be acknowledged by the
client prior to the referral and the agency shall retain a copy of the
disclosure statement and acknowledgment. Acknowledgment may be in the
form of:
(a) A signature of the client or legal representative on the exact
disclosure statement;
(b) An electronic signature that includes the date, time, internet
provider address, and displaying the exact disclosure statement
document;
(c) A faxed confirmation that includes the date, time, and fax
number and displaying the exact disclosure statement document; or
(d) In instances where a vulnerable adult chooses not to sign or
otherwise provide acknowledgment of the disclosure statement, the
referral professional or agency may satisfy the acknowledgment
requirement of this subsection (1) by documenting the client's refusal
to sign.
(2) The disclosure statement must be dated and must contain the
following information:
(a) The name, address, and telephone number of the agency;
(b) The name of the client;
(c) The amount of the fee to be received from the client, if any.
Alternatively, if the fee is to be received from the provider, the
method of computation of the fee and the time and method of payment.
In addition, the agency shall disclose to the client the amount of fee
to be received from the provider, if the client requests such
information;
(d) A clear description of the services provided by the agency in
general, and to be provided specifically for the client;
(e) A clear description of the services not provided by the agency;
(f) A provision stating that the agency may not require or request
clients to sign waivers of potential liability for losses of personal
property or injury, or to sign waivers of any rights of the client
established in state or federal law;
(g) A provision stating that the agency works with both the client
and the care services or supportive housing provider in the same
transaction, and an explanation that the agency will need the client's
authorization to obtain or disclose confidential health care
information;
(h) A listing of the qualifications of the agency personnel who
will be working with the client, including their years of experience in
the fields of supportive housing and care services, their experience
working with vulnerable adults, and their education level and relevant
certifications or licenses, if any, or alternatively, a statement
informing the client how to obtain such information from the agency;
(i) A provision stating that the client is not required to use the
services of the agency and may, without cause, stop using the agency or
switch to another agency without penalty or cancellation fee to the
client;
(j) An explanation of the agency's refund of fees policy, which
must be consistent with section 9 of this act;
(k) A statement that the client may file a complaint with the
attorney general's office for violations of this chapter, including the
name, address, and telephone number of the consumer protection division
of that office; and
(l) If the agency or its personnel who are directly involved in
providing referrals to clients, including the personnel's immediate
family members, have an ownership interest in the supportive housing or
care services to which the client is given a referral, a provision
stating that the agency or such personnel or their immediate family
members have an ownership interest in the supportive housing or care
services to which the client is given referral services, and, if such
ownership interest exists, an explanation of that interest.
NEW SECTION. Sec. 7 (1) The agency shall use a standardized
intake form for all clients prior to making a referral. The intake
form must, at a minimum, contain the following data regarding the
vulnerable adult:
(a) Recent medical history, as relevant to the referral process;
(b) Known medications and medication management needs;
(c) Known medical diagnoses, health concerns, and the reasons the
client is seeking supportive housing or care services;
(d) Significant known behaviors or symptoms that may cause concern
or require special care;
(e) Mental illness, dementia, or developmental disability
diagnosis, if any;
(f) Assistance needed for daily living;
(g) Particular culture needs and accommodations;
(h) Activity preferences;
(i) Sleeping habits of the vulnerable adult, if known;
(j) Basic information about the financial situation of the
vulnerable adult and the availability of any long-term care insurance
or financial assistance, including medicaid, which may be helpful in
defining supportive housing and care services options for the
vulnerable adult;
(k) Current living situation of the client;
(l) Geographic location preferences; and
(m) Preferences regarding other issues important to the client,
such as food and daily routine.
(2) The agency shall obtain the intake information from the most
available sources, such as from the client, the client's
representative, or a health care professional, and shall allow the
vulnerable adult to participate to the maximum extent possible. The
agency may not obtain or disclose health care information, as defined
in RCW 70.02.010, without the authorization of the client or the
client's representative.
(3) The agency may provide information to a person about the types
of supportive housing or care services available in the area that may
meet the needs of elderly or vulnerable adults without the need to
complete an intake form or provide a disclosure statement, if the
agency does not make a referral or request or receive any fee. In
addition, the agency may provide the names of specific providers to a
social worker, discharge planner, case manager, professional guardian,
nurse, or other professional who is assisting a vulnerable adult locate
supportive housing or care services, provided the agency does not
request or receive any fee.
NEW SECTION. Sec. 8 (1) The agency may choose to provide a
referral for the client by either giving the client the name or names
of specific providers who may meet the needs of the vulnerable adult
identified in the intake form or by giving a provider or providers the
name of the client after obtaining the authorization of the client or
the client's representative.
(2)(a) Prior to making a referral to a specific provider, the
agency shall speak with a representative of the provider and obtain, at
a minimum, the following general information, which must be dated and
retained in the agency's records:
(i) The type of license held by the provider and license number;
(ii) Whether the provider is authorized by license to provide care
to individuals with a mental illness, dementia, or developmental
disability;
(iii) Sources of payment accepted, including whether medicaid is
accepted;
(iv) General level of medication management services provided;
(v) General level and types of personal care services provided;
(vi) Particular cultural needs that may be accommodated;
(vii) Activities typically provided;
(viii) Behavioral problems or symptoms that can or cannot be met;
(ix) Food preferences and special diets that can be accommodated;
and
(x) Other special care or services available.
(b) The agency shall update this information regarding the provider
at least annually. Referrals made by the agency shall be to providers
who appear able to meet the vulnerable adult's identified needs.
(3) Prior to making a referral of a supportive housing provider,
the agency shall conduct a search, and inform the client that a search
was conducted, of the department of social and health service's web
site to see if the provider is in enforcement status for violation of
its licensing regulations. Prior to making a referral of a care
services provider, the agency shall conduct a search, and inform the
client that a search was conducted, of the department of health's web
site to determine if the provider is in enforcement status for
violation of its licensing regulations. The searches required by this
subsection must be considered timely if done within thirty days before
the referral. The information obtained by the agency from the searches
must be disclosed in writing to the client if the referral includes
that provider.
NEW SECTION. Sec. 9 (1) The agency shall clearly disclose its
fees and refund policies to clients and providers. If the agency
receives a fee regarding a client who was provided referral services
for supportive housing, and the vulnerable adult dies, is hospitalized,
or is transferred to another supportive housing setting for more
appropriate care within the first thirty days of admission, then the
agency shall refund a portion of its fee to the person who paid it,
whether that is the client or the supportive housing provider. The
amount refunded must be a prorated portion of the agency's fees, based
upon a per diem calculation for the days that the client resided or
retained a bed in the supportive housing.
(2) A refund policy inconsistent with this section is void and
unenforceable.
(3) This section does not limit the application of other remedies,
including the consumer protection act, chapter 19.86 RCW.
NEW SECTION. Sec. 10 Any employee, owner, or operator of an
agency that works with vulnerable adults must pass a criminal
background check every twenty-four months and not have been convicted
of any crime that is disqualifying under RCW 43.43.830 or 43.43.842, or
been found by a court of law or disciplinary authority to have abused,
neglected, financially exploited, or abandoned a minor or vulnerable
adult.
NEW SECTION. Sec. 11 An agency may not charge or accept a fee or
other consideration from a client, care services provider, or
supportive housing provider unless the agency substantially complies
with the terms of this chapter.
NEW SECTION. Sec. 12 (1) The provisions of this chapter relating
to the regulation of private elder and vulnerable adult referral
agencies are exclusive.
(2) This chapter may not be construed to affect or reduce the
authority of any political subdivision of the state of Washington to
provide for the licensing of private elder and vulnerable adult
referral agencies solely for revenue purposes.
NEW SECTION. Sec. 13 In accordance with RCW 74.09.240, the
agency may not solicit or receive any remuneration directly or
indirectly, overtly or covertly, in cash or in kind, in return for
referring an individual to a person for the furnishing or arranging for
the furnishing of any item or service for which payment may be made in
whole or in part under chapter 74.09 RCW.
NEW SECTION. Sec. 14 The legislature finds that the operation of
an agency in violation of this chapter is a matter vitally affecting
the public interest for the purpose of applying the consumer protection
act, chapter 19.86 RCW. Such a violation is an unfair or deceptive act
in trade or commerce and an unfair method of competition for the
purpose of applying the consumer protection act, chapter 19.86 RCW.
NEW SECTION. Sec. 15 Nothing in this chapter is intended to make
an agency liable for the acts or omissions of a provider.
NEW SECTION. Sec. 16 This chapter may be known and cited as the
"elder and vulnerable adult referral agency act."
NEW SECTION. Sec. 17 Sections 1 through 16 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 18 This act takes effect January 1, 2012.
NEW SECTION. Sec. 19 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected."
Correct the title.
EFFECT: Expands the definition of "information" to include a
referral agency providing the names of providers to professionals that
assist vulnerable adults seeking supportive housing or care services
(such as social workers, discharge planners, professional guardians)
without charging a fee. Specifies that requirements related to
disclosure statements and intake forms do not apply to the provision of
information by a referral agency (the requirements only apply to
referrals).
Specifies that (1) government entities are only exempt when making
a referral without charging a fee; and (2) people providing
"information" to another person are exempt.
Removes the requirement that disclosure statements from referral
agencies (1) state the amount of the fee if the agency receives its fee
from a provider, unless the client requests to know the actual amount
and (2) state that the agency will be acting as a representative of the
client. Allows referral agencies to meet the requirement to disclose
staff qualifications by notifying the client regarding the disclosure
statement as to how such information may be obtained. Specifies that
the requirement to disclose ownership interests only applies if such an
interest exists.
Adds items to be considered in an intake form to include the
client's current living situation and geographic location preference.
Limits medical history requirements to that information relevant to the
referral process. Eliminates the collection of intake information
related to available financial assistance from the vulnerable adult's
family and friends.
Specifies that the background check requirement applies to those
agency owners, operators, and employees that have contact with
vulnerable adults.
Removes the minimum referral agency refund policy related to agency
fees based upon monthly charges (leaves the refund policy as a standard
pro rata share of the agency fee for the number of days that the client
resided with the housing provider).
Requires referral agencies to "substantially comply" with the bill
in order to collect a fee (changed from the requirement that they
comply).
Identifies owners, operators, and employees as mandated reporters
under the Vulnerable Adults Act.
Requires marketing materials and web sites owned or operated by a
referral agency to clearly identify the agency.
States that the bill does not intend to establish liability for
referral agencies for the acts or omissions of a provider.
Establishes an effective date of January 1, 2012.