BILL REQ. #: H-1571.1
State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 02/15/11.
AN ACT Relating to protection of vulnerable adults; amending RCW 74.34.020 and 74.34.067; adding a new section to chapter 74.34 RCW; and repealing RCW 74.34.021.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 74.34.020 and 2010 c 133 s 2 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.
(2) "Abuse" means the willful action or inaction that inflicts
injury, unreasonable confinement, intimidation, or punishment on 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:
(a) "Sexual abuse" means any form of nonconsensual sexual contact,
including 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 staff
person, who is not also a resident or client, of a facility or a staff
person of a program authorized under chapter 71A.12 RCW, and a
vulnerable adult living in that facility or receiving service from a
program authorized under chapter 71A.12 RCW, whether or not it is
consensual.
(b) "Physical abuse" means the willful action of inflicting bodily
injury or physical mistreatment. Physical abuse includes, but is not
limited to, striking with or without an object, slapping, pinching,
choking, 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) "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, and verbal assault that includes
ridiculing, intimidating, yelling, or swearing.
(d) "Exploitation" means an act of forcing, compelling, or exerting
undue influence over a vulnerable adult 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) "Consent" 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.
(4) "Department" means the department of social and health
services.
(5) "Facility" means a residence licensed or required to be
licensed under chapter 18.20 RCW, boarding homes; chapter 18.51 RCW,
nursing homes; chapter 70.128 RCW, adult family homes; chapter 72.36
RCW, soldiers' homes; or chapter 71A.20 RCW, residential habilitation
centers; or any other facility licensed or certified by the department.
(6) "Financial exploitation" means the illegal or improper use,
control over, or withholding of the property, income, resources, or
trust funds of the vulnerable adult by any person or entity for any
person's or entity's profit or advantage other than for the vulnerable
adult's profit or advantage. "Financial exploitation" includes, but is
not limited to:
(a) 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 obtain or use the property, income, resources, or
trust funds of the vulnerable adult for the benefit of a person or
entity other than the vulnerable adult;
(b) The breach of a fiduciary duty including, but not limited to,
the misuse of a power of attorney, trust, or a guardianship
appointment, that results in the unauthorized appropriation, sale, or
transfer of the property, income, resources, or trust funds of the
vulnerable adult for the benefit of a person or entity other than the
vulnerable adult; or
(c) Obtaining or using a vulnerable adult's property, income,
resources, or trust funds without lawful authority, by a person or
entity who knows or clearly should know that the vulnerable adult lacks
the capacity to consent to the release or use of his or her property,
income, resources, or trust funds.
(7) "Financial institution" has the same meaning as in RCW
30.22.040 and 30.22.041. For purposes of this chapter only, "financial
institution" also means a "broker-dealer" or "investment adviser" as
defined in RCW 21.20.005.
(8) "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).
(9) "Individual provider" means a person under contract with the
department to provide services in the home under chapter 74.09 or
74.39A RCW.
(10) "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.
(11) "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.
(12) "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 act or omission 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.
(13) "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.
(14) "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.
(15) "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.
(16) "Vulnerable adult" includes a person:
(a) Sixty years of age or older who has the functional, mental, or
physical inability to care for himself or herself; or
(b) Found incapacitated under chapter 11.88 RCW; or
(c) Who has a developmental disability as defined under RCW
71A.10.020; or
(d) Admitted to any facility; or
(e) Receiving services from home health, hospice, or home care
agencies licensed or required to be licensed under chapter 70.127 RCW;
or
(f) Receiving services from an individual provider; or
(g) Who self-directs his or her own care and receives services from
a personal aide under chapter 74.39 RCW.
Sec. 2 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 abandonment, abuse, financial exploitation,
neglect, or 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's adult protective services division may enter
into agreements with federally recognized tribes to investigate reports
of abandonment, abuse, financial exploitation, neglect, or self-neglect
of vulnerable adults on property over which a federally recognized
tribe has exclusive jurisdiction. If the department has information
that abandonment, abuse, financial exploitation, or neglect is criminal
or is placing a vulnerable adult on tribal property at potential risk
of personal or financial harm, the department may notify tribal law
enforcement or another tribal representative specified by the tribe.
Upon receipt of the notification, the tribe may assume jurisdiction of
the matter. Neither the department nor its employees may participate
in the investigation after the tribe assumes jurisdiction. The
department, its officers, and its employees are not liable for any
action or inaction of the tribe or for any harm to the alleged victim,
the person against whom the allegations were made, or other parties
that occurs after the tribe assumes jurisdiction. Nothing in this
section limits the department's jurisdiction and authority over
facilities or entities that the department licenses or certifies under
federal or state law.
(8) 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))) (9) 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.
NEW SECTION. Sec. 3 A new section is added to chapter 74.34 RCW
to read as follows:
(1) When the department opens an investigation of a report of
abandonment, abuse, financial exploitation, or neglect of a vulnerable
adult, the department shall, at the time of the interview of the
vulnerable adult who is an alleged victim, provide a written statement
of the rights afforded under this chapter and other applicable law to
alleged victims or legal guardians. This statement must include the
department's name, address, and telephone number and may include other
appropriate referrals. The statement must be substantially in the
following form:
"You are entitled to be free from abandonment, abuse, financial
exploitation, and neglect. If there is a reason to believe that you
have experienced abandonment, abuse, financial exploitation, or
neglect, you have the right to:
(a) Make a report to the department of social and health services
and law enforcement and share any information you believe could be
relevant to the investigation, and identify any persons you believe
could have relevant information.
(b) Be free from retaliation for reporting or causing a report of
abandonment, abuse, neglect, or financial exploitation.
(c) Be treated with dignity and addressed with respectful language.
(d) Reasonable accommodation for your disability when reporting,
and during investigations and administrative proceedings.
(e) Request an order that prohibits anyone who has abused,
neglected, financially exploited, or abandoned you from remaining in
your home, having contact with you, or accessing your money or
property.
(f) Receive from the department of social and health services
information and appropriate referrals to other agencies that can
advocate, investigate, or take action.
(g) Be informed of the status of investigations, proceedings, court
actions, and outcomes by the agency that is handling any case in which
you are a victim.
(h) Request referrals for advocacy or legal assistance to help with
safety planning, investigations, and hearings.
(i) Complain to the department of social and health services,
formally or informally, about investigations or proceedings, and
receive a prompt response."
(2) This section shall not be construed to create any new cause of
action or limit any existing remedy.
NEW SECTION. Sec. 4 RCW 74.34.021 (Vulnerable adult -- Definition)
and 1999 c 336 s 6 are each repealed.