BILL REQ. #:  Z-0012.4 

Read first time 01/11/11.   Referred to Committee on Health & Long-Term Care.

     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.