BILL REQ. #: Z-0263.1
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/12/11. Referred to Committee on Health Care & Wellness.
AN ACT Relating to protection of vulnerable adults; amending RCW 74.34.020, 74.34.063, and 74.34.067; 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: (i) Causing a vulnerable adult
to perform services for the benefit of another; (ii) 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)); or (iii) manipulating or grooming a
vulnerable adult into making a gift or loan, or executing or changing
a will, power of attorney, or other document that creates an agency
relationship.
(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 by the department.
(6)(a) "Financial exploitation" means the illegal, wrongful, or
improper use, control, transfer, withholding, or possession of the
property((, income, resources, or trust funds)) 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.
"Financial exploitation" may include:
(i) Accepting payment to provide goods or services to a vulnerable
adult and failing to provide such goods or services;
(ii) The use of, or benefit from, the property or the income of a
vulnerable adult for a purpose that does not benefit a vulnerable
adult, by a person acting as a representative of the vulnerable adult
or by any person with a fiduciary duty to the vulnerable adult for a
purpose that does not benefit the vulnerable adult;
(iii) Solicitation or attempted solicitation of a vulnerable adult
for gifts, loans, or the use of the vulnerable adult's property or
income by any person or entity involved in the provision of long-term
care or personal care services to vulnerable adults; or
(iv) The acceptance of a gift or loan from a facility resident by
a facility provider, any employee of the facility, or any person
contracted with the facility.
(b) For the purposes of this subsection, "property" includes any:
(i) Interest in real or personal property;
(ii) Income;
(iii) Other resources;
(iv) Credit;
(v) Identity;
(vi) Property or other resources that are held for the benefit of
a vulnerable adult by a fiduciary or representative of the vulnerable
adult, including property located in trust accounts, conservatorships,
guardianships, or other accounts.
(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 74.34.063 and 2005 c 274 s 354 are each amended to
read as follows:
(1) The department shall initiate a response to a report of
suspected abandonment, abuse, financial exploitation, neglect, or self-neglect of a vulnerable adult, 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
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.
(3) 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) The department and law enforcement 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) The department shall notify the proper licensing authority
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.
(6) The department may share reports of abandonment, abuse,
neglect, or financial exploitation of a vulnerable adult, investigative
information, and final investigation reports or findings with
appropriate state or local agencies, law enforcement agencies, the
office of the attorney general, federally recognized tribes, or other
entities or businesses that provide services or support to vulnerable
adults or that license persons who provide the services when the
sharing would promote (a) the protection of vulnerable adults; (b) the
provision of services to vulnerable adults; or (c) criminal or civil
investigations of, or actions against, individuals alleged to have
abused, abandoned, neglected, or financially exploited vulnerable
adults.
Sec. 3 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's adult protective services division may enter
into agreements with federally recognized tribes to investigate reports
of abandonment, abuse, neglect, financial exploitation, 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 may not be independently or
jointly and severally 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. 4 RCW 74.34.021 (Vulnerable adult -- Definition)
and 1999 c 336 s 6 are each repealed.