BILL REQ. #: S-0060.1
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/12/11. Referred to Committee on Judiciary.
AN ACT Relating to bail and pretrial release practices; amending RCW 2.56.030, 10.19.090, 10.19.100, 10.19.160, 18.185.010, 18.185.020, 18.185.040, 18.185.050, 18.185.070, 18.185.100, 18.185.110, and 71.05.385; reenacting and amending RCW 42.56.360 and 71.05.390; adding a new section to chapter 2.56 RCW; adding a new section to chapter 10.16 RCW; adding new sections to chapter 10.19 RCW; adding a new section to chapter 10.31 RCW; adding a new section to chapter 18.185 RCW; creating new sections; and making appropriations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 2.56.030 and 2009 c 479 s 2 are each amended to read
as follows:
The administrator for the courts shall, under the supervision and
direction of the chief justice:
(1) Examine the administrative methods and systems employed in the
offices of the judges, clerks, stenographers, and employees of the
courts and make recommendations, through the chief justice, for the
improvement of the same;
(2) Examine the state of the dockets of the courts and determine
the need for assistance by any court;
(3) Make recommendations to the chief justice relating to the
assignment of judges where courts are in need of assistance and carry
out the direction of the chief justice as to the assignments of judges
to counties and districts where the courts are in need of assistance;
(4) Collect and compile statistical and other data and make reports
of the business transacted by the courts and transmit the same to the
chief justice to the end that proper action may be taken in respect
thereto;
(5) Prepare and submit budget estimates of state appropriations
necessary for the maintenance and operation of the judicial system and
make recommendations in respect thereto;
(6) Collect statistical and other data and make reports relating to
the expenditure of public moneys, state and local, for the maintenance
and operation of the judicial system and the offices connected
therewith;
(7) Obtain reports from clerks of courts in accordance with law or
rules adopted by the supreme court of this state on cases and other
judicial business in which action has been delayed beyond periods of
time specified by law or rules of court and make report thereof to
supreme court of this state;
(8) Act as secretary of the judicial conference referred to in RCW
2.56.060;
(9) Submit annually, as of February 1st, to the chief justice, a
report of the activities of the administrator's office for the
preceding calendar year including activities related to courthouse
security;
(10) Administer programs and standards for the training and
education of judicial personnel;
(11) Examine the need for new superior court and district court
judge positions under an objective workload analysis. The results of
the objective workload analysis shall be reviewed by the board for
judicial administration which shall make recommendations to the
legislature. It is the intent of the legislature that an objective
workload analysis become the basis for creating additional district and
superior court positions, and recommendations should address that
objective;
(12) Provide staff to the judicial retirement account plan under
chapter 2.14 RCW;
(13) Attend to such other matters as may be assigned by the supreme
court of this state;
(14) Within available funds, develop a curriculum for a general
understanding of child development, placement, and treatment resources,
as well as specific legal skills and knowledge of relevant statutes
including chapters 13.32A, 13.34, and 13.40 RCW, cases, court rules,
interviewing skills, and special needs of the abused or neglected
child. This curriculum shall be completed and made available to all
juvenile court judges, court personnel, and service providers and be
updated yearly to reflect changes in statutes, court rules, or case
law;
(15) Develop, in consultation with the entities set forth in RCW
2.56.150(3), a comprehensive statewide curriculum for persons who act
as guardians ad litem under Title 13 or 26 RCW. The curriculum shall
be made available July 1, 2008, and include specialty sections on child
development, child sexual abuse, child physical abuse, child neglect,
domestic violence, clinical and forensic investigative and interviewing
techniques, family reconciliation and mediation services, and relevant
statutory and legal requirements. The curriculum shall be made
available to all superior court judges, court personnel, and all
persons who act as guardians ad litem;
(16) Develop a curriculum for a general understanding of crimes of
malicious harassment, as well as specific legal skills and knowledge of
RCW 9A.36.080, relevant cases, court rules, and the special needs of
malicious harassment victims. This curriculum shall be made available
to all superior court and court of appeals judges and to all justices
of the supreme court;
(17) Develop, in consultation with the criminal justice training
commission and the commissions established under chapters 43.113,
43.115, and 43.117 RCW, a curriculum for a general understanding of
ethnic and cultural diversity and its implications for working with
youth of color and their families. The curriculum shall be available
to all superior court judges and court commissioners assigned to
juvenile court, and other court personnel. Ethnic and cultural
diversity training shall be provided annually so as to incorporate
cultural sensitivity and awareness into the daily operation of juvenile
courts statewide;
(18) Authorize the use of closed circuit television and other
electronic equipment in judicial proceedings. The administrator shall
promulgate necessary standards and procedures and shall provide
technical assistance to courts as required;
(19) Develop a Washington family law handbook in accordance with
RCW 2.56.180;
(20) Administer state funds for improving the operation of the
courts and provide support for court coordinating councils, under the
direction of the board for judicial administration;
(21) Administer the family and juvenile court improvement grant
program;
(22)(a) Administer and distribute amounts appropriated under RCW
43.08.250(2) for district court judges' and qualifying elected
municipal court judges' salary contributions. The administrator for
the courts shall develop a distribution formula for these amounts that
does not differentiate between district and elected municipal court
judges.
(b) A city qualifies for state contribution of elected municipal
court judges' salaries under (a) of this subsection if:
(i) The judge is serving in an elected position;
(ii) The city has established by ordinance that a full-time judge
is compensated at a rate equivalent to at least ninety-five percent,
but not more than one hundred percent, of a district court judge salary
or for a part-time judge on a pro rata basis the same equivalent; and
(iii) The city has certified to the office of the administrator for
the courts that the conditions in (b)(i) and (ii) of this subsection
have been met;
(23) Subject to the availability of funds specifically appropriated
therefor, assist courts in the development and implementation of
language assistance plans required under RCW 2.43.090;
(24) Provide superior courts and courts of limited jurisdiction
access to the risk assessment tool developed by the Washington state
institute for public policy and used by the department of corrections
to assist judges in the pretrial release and detention process.
NEW SECTION. Sec. 2 A new section is added to chapter 2.56 RCW
to read as follows:
(1) The Washington state center for court research shall research,
evaluate, monitor, and report on the validity of the risk assessment
tool developed by the Washington state institute for public policy to
ensure the predictive value of the tool. Specifically, it shall:
(a) Monitor and report on the implementation of the risk assessment
tool to assess the extent to which bail setting practices are
responsive to risk for recidivism levels derived from the risk
assessment tool;
(b) Monitor and report on the accuracy of the risk assessment tool
in predicting recidivism; and
(c) Provide quality assurance and technical assistance to the
courts for the implementation and use of the risk assessment tool.
(2) By December 1, 2012, and every two years thereafter, the
Washington center for court research shall submit a report and
recommendations regarding the validity of the risk assessment tool to
the governor, the supreme court, and the legislature.
NEW SECTION. Sec. 3 A new section is added to chapter 10.16 RCW
to read as follows:
At the preliminary appearance or a subsequent hearing to reconsider
conditions of pretrial release or detention, the court may issue an
order requesting information related to mental health services, as
defined in RCW 71.05.020, that have been provided to the defendant. On
motion of the defendant or on the court's own motion, the court may
exclude the public from the hearing, seal portions of the hearing
record or court files, or grant other relief as may be necessary to
prevent disclosure to the public of information related to mental
health services, as defined in RCW 71.05.020.
NEW SECTION. Sec. 4 A new section is added to chapter 10.19 RCW
to read as follows:
The Washington state institute for public policy shall develop and
validate a pretrial risk assessment tool to measure the likelihood that
a defendant will fail to appear in court as required. The Washington
state institute for public policy shall complete the development and
validation of the pretrial risk assessment tool by December 1, 2011.
The institute shall submit a final report to the governor, the supreme
court, and the legislature by December 1, 2011. The report shall
describe the methodology for developing and validating the pretrial
risk assessment tool and the predictive value of the tool.
Sec. 5 RCW 10.19.090 and 1986 c 322 s 2 are each amended to read
as follows:
In criminal cases where a recognizance for the appearance of any
person, either as a witness or to appear and answer, shall have been
taken and a default entered, the recognizance shall be declared
forfeited by the court, and at the time of adjudging such forfeiture
said court shall enter judgment against the principal and sureties
named in such recognizance for the sum therein mentioned, and execution
may issue thereon the same as upon other judgments. If the surety is
not notified by the court in writing of the unexplained failure of the
defendant to appear within ((thirty)) fourteen calendar days of the
date for appearance, then the forfeiture shall be null and void and the
recognizance exonerated.
Sec. 6 RCW 10.19.100 and 1891 c 28 s 86 are each amended to read
as follows:
The parties, or either of them, against whom such judgment may be
entered in the superior or supreme courts, may stay said execution for
sixty days from the date of the notification by the court by giving a
bond with two or more sureties, to be approved by the clerk,
conditioned for the payment of such judgment at the expiration of sixty
days, unless the same shall be vacated before the expiration of that
time.
Sec. 7 RCW 10.19.160 and 1986 c 322 s 5 are each amended to read
as follows:
The surety on the bond may return a person to custody ((a person))
for good cause in a criminal case under the surety's bond if the
surrender is accompanied by a notice of forfeiture or a notarized
affidavit specifying the reasons for the surrender. If a court
determines that good cause does not exist for the surety to surrender
a person, the surety shall return the premium paid by, or on behalf of,
the person, as well as any recovery fee. Good cause for surrender
includes, but is not limited to, a substantial increase in the
likelihood of the risk of flight, violation of a court order, failure
to appear, or the concealment or intentional misrepresentation of
information by the person. The surrender shall be made to the facility
in which the person was originally held in custody or the county or
city jail affiliated with the court issuing the warrant resulting in
bail.
NEW SECTION. Sec. 8 A new section is added to chapter 10.19 RCW
to read as follows:
The presiding judge of a court shall notify the administrative
office of the courts when the court revokes the justification or
certification of a bail bond agent to post bonds in the court. The
notice to the administrative office of the courts must include the
reasons for the revocation. Upon receiving the notification, the
administrative office of the courts shall notify superior courts and
courts of limited jurisdiction statewide. No civil liability may be
imposed by any court on the administrative office of the courts or its
employees under this section except upon proof of bad faith or willful
or wanton misconduct or gross negligence.
NEW SECTION. Sec. 9 A new section is added to chapter 10.31 RCW
to read as follows:
A police officer shall complete a standardized form at the time of
arrest that includes, to the extent that it is available, information
regarding the defendant's mental health and any history of domestic
violence. The standardized form must also include, to the extent that
it is available, victim input regarding the pretrial release of the
defendant.
Sec. 10 RCW 18.185.010 and 2004 c 186 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) "Department" means the department of licensing.
(2) "Director" means the director of licensing.
(3) "Commission" means the criminal justice training commission.
(4) "Collateral or security" means property of any kind given as
security to obtain a bail bond.
(5) "Bail bond agency" means a business that sells and issues
corporate surety bail bonds or that provides security in the form of
personal or real property to ensure the appearance of a criminal
defendant before the courts of this state or the United States.
(6) "Qualified agent" means an owner, sole proprietor, partner,
manager, officer, or chief operating officer of a corporation who meets
the requirements set forth in this chapter for obtaining a bail bond
agency license.
(7) "Bail bond agent" means a person who is employed by a bail bond
agency and engages in the sale or issuance of bail bonds, but does not
mean a clerical, secretarial, or other support person who does not
participate in the sale or issuance of bail bonds.
(8) "Licensee" means a bail bond agency, a bail bond agent, a
qualified agent, or a bail bond recovery agent.
(9) "Branch office" means any office physically separated from the
principal place of business of the licensee from which the licensee or
an employee or agent of the licensee conducts any activity meeting the
criteria of a bail bond agency.
(10) "Bail bond recovery agent" means a person who is under
contract with a bail bond agent to receive compensation, reward, or any
other form of lawful consideration for locating, apprehending, and
surrendering a fugitive criminal defendant for whom a bail bond has
been posted. "Bail bond recovery agent" does not include a general
authority Washington peace officer or a limited authority Washington
peace officer.
(11) (("Contract" means a written agreement between a bail bond
agent or qualified agent and a bail bond recovery agent for the purpose
of locating, apprehending, and surrendering a fugitive criminal
defendant in exchange for lawful consideration.)) "Planned forced entry" means a premeditated forcible entry
into a dwelling, building, or other structure without the occupant's
knowledge or consent for the purpose of apprehending a fugitive
criminal defendant subject to a bail bond. "Planned forced entry" does
not include situations where, during an imminent or actual chase or
pursuit of a fleeing fugitive criminal defendant, or during a casual or
unintended encounter with the fugitive, the bail bond recovery agent
forcibly enters into a dwelling, building, or other structure without
advanced planning.
(12)
(12) "Bond limit" means the maximum amount that a bail bond agent
may write on any single commercial surety bond or any single commercial
property bond.
(13) "Commercial property bond" means a bail bond executed for
compensation the security for which is real property, tangible personal
property, or other assets.
(14) "Commercial surety bond" means a bail bond that is guaranteed
by an insurance company that has been qualified to transact surety
insurance business in Washington state by the insurance commissioner.
Sec. 11 RCW 18.185.020 and 1993 c 260 s 3 are each amended to
read as follows:
An applicant must meet the following minimum requirements to obtain
a bail bond agent license:
(1) Be at least eighteen years of age;
(2) Be a citizen or resident alien of the United States;
(3) Not have been convicted of a crime in any jurisdiction in the
preceding ten years, if the director determines that the applicant's
particular crime directly relates to a capacity to perform the duties
of a bail bond agent and the director determines that the license
should be withheld to protect the citizens of Washington state. If the
director shall make a determination to withhold a license because of
previous convictions, the determination shall be consistent with the
restoration of employment rights act, chapter 9.96A RCW;
(4) Be employed by a bail bond agency or be licensed as a bail bond
agency; ((and))
(5) Pay the required fee; and
(6) Demonstrate proof of financial responsibility.
Sec. 12 RCW 18.185.040 and 2004 c 186 s 4 are each amended to
read as follows:
(1) Applications for licenses required under this chapter shall be
filed with the director on a form provided by the director. The
director may require any information and documentation that reasonably
relates to the need to determine whether the applicant meets the
criteria, including fingerprints.
(2) An applicant who intends to post commercial surety bonds shall
file the following information and documents with the department:
(a) Any outstanding bonds in Washington not yet exonerated,
including the court name, the name of the defendant, the amount of the
bond, and the date issued;
(b) Any bond forfeitures that have not yet been paid or are in
dispute;
(c) A declaration listing all criminal convictions and previous
disciplinary action or investigations undertaken by the department;
(d) A copy of the power of attorney for each surety;
(e) A copy of the applicant's license issued by the office of the
insurance commissioner; and
(f) A copy of the corporate surety's certificate of authority
issued by the office of the insurance commissioner.
(3) An applicant who intends to post commercial property bonds
shall file the following information and documents with the department:
(a) Any outstanding bonds in Washington not yet exonerated,
including the court name, the name of the defendant, the amount of the
bond, and the date issued;
(b) Any bond forfeitures that have not yet been paid or are in
dispute;
(c) A declaration listing all criminal convictions and previous
disciplinary action or investigations undertaken by the department;
(d) A list of all real property owned by the applicant and located
in Washington, including an appraisal by a qualified real estate
appraiser dated not more than two years prior to the date of
application, a title letter, and property tax statements;
(e) A list of tangible personal property owned by the applicant and
located in Washington; and
(f) A list of any irrevocable letters of credit or other bank
accounts that are accessible only to a court for the purpose of paying
a forfeited bond.
(4) Applicants for licensure or endorsement as a bail bond agent or
a bail bond recovery agent must complete a records check through the
Washington state patrol criminal identification system and through the
federal bureau of investigation at the applicant's expense. Such
record check shall include a fingerprint check using a Washington state
patrol approved fingerprint card. The Washington state patrol shall
forward the fingerprints of applicants to the federal bureau of
investigation for a national criminal history records check. The
director may accept proof of a recent national crime information
center/III criminal background report or any national or interstate
criminal background report in addition to fingerprints to accelerate
the licensing and endorsement process. The director is authorized to
periodically perform a background investigation of licensees to
identify criminal convictions subsequent to the renewal of a license or
endorsement.
Sec. 13 RCW 18.185.050 and 1993 c 260 s 6 are each amended to
read as follows:
(1) The director shall issue a bail bond agent license card to each
licensed bail bond agent. The bail bond agent license card must
indicate the licensee's bond limit for commercial surety bonds and
commercial property bonds. A bail bond agent shall carry the license
card whenever he or she is performing the duties of a bail bond agent
and shall exhibit the card upon request.
(2) The director shall issue a license certificate to each licensed
bail bond agency.
(a) Within seventy-two hours after receipt of the license
certificate, the licensee shall post and display the certificate in a
conspicuous place in the principal office of the licensee within the
state.
(b) It is unlawful for any person holding a license certificate to
knowingly and willfully post the license certificate upon premises
other than those described in the license certificate or to materially
alter a license certificate.
(c) Every advertisement by a licensee that solicits or advertises
business shall contain the name of the licensee, the address of record,
and the license number as they appear in the records of the director.
(d) The licensee shall notify the director within thirty days of
any change in the licensee's officers or directors or any material
change in the information furnished or required to be furnished to the
director.
Sec. 14 RCW 18.185.070 and 1993 c 260 s 8 are each amended to
read as follows:
(1) No bail bond agency license may be issued under the provisions
of this chapter unless the qualified agent files with the director a
bond, executed by a surety company authorized to do business in this
state, in the sum of ((ten)) one hundred thousand dollars conditioned
to recover against the agency and its servants, officers, agents, and
employees by reason of its violation of the provisions of RCW
18.185.100. The bond shall be made payable to the state of Washington,
and anyone so injured by the agency or its servants, officers, agents,
or employees may bring suit upon the bond in any county in which
jurisdiction over the licensee may be obtained. The suit must be
brought not later than two years after the failure to return property
in accordance with RCW 18.185.100. If valid claims against the bond
exceed the amount of the bond or deposit, each claimant shall be
entitled only to a pro rata amount, based on the amount of the claim as
it is valid against the bond, without regard to the date of filing of
any claim or action.
(2) Every licensed bail bond agency must at all times maintain on
file with the director the bond required by this section in full force
and effect. Upon failure by a licensee to do so, the director shall
suspend the licensee's license and shall not reinstate the license
until this requirement is met.
(3) In lieu of posting a bond, a qualified agent may deposit in an
interest-bearing account, ((ten)) one hundred thousand dollars.
(4) The director may waive the bond requirements of this section,
in his or her discretion, pursuant to adopted rules.
Sec. 15 RCW 18.185.100 and 2004 c 186 s 8 are each amended to
read as follows:
(1)(a) Every qualified agent shall keep adequate records for three
years of all collateral and security received, all trust accounts
required by this section, and all bail bond transactions handled by the
bail bond agency, as specified by rule. The records shall be open to
inspection without notice by the director or authorized representatives
of the director.
(b) The department may audit licensee trust accounts every two
years unless the licensee submits a financial report prepared by a
certified public accountant to the department on an annual basis.
(2) Every qualified agent who receives collateral or security is a
fiduciary of the property and shall keep adequate records for three
years of the receipt, safekeeping, and disposition of the collateral or
security. Every qualified agent shall maintain a trust account in a
federally insured financial institution located in this state. All
moneys, including cash, checks, money orders, wire transfers, and
credit card sales drafts, received as collateral or security or
otherwise held for a bail bond agency's client shall be deposited in
the trust account not later than the third banking day following
receipt of the funds or money. A qualified agent shall not in any way
encumber the corpus of the trust account or commingle any other moneys
with moneys properly maintained in the trust account. Each qualified
agent required to maintain a trust account shall report annually under
oath to the director the account number and balance of the trust
account, and the name and address of the institution that holds the
trust account, and shall report to the director within ten business
days whenever the trust account is changed or relocated or a new trust
account is opened.
(3) Whenever a bail bond is exonerated by the court, the qualified
agent shall, within five business days after written notification of
exoneration, return all collateral or security to the person entitled
thereto.
(4) Records of contracts for fugitive apprehension must be retained
by the bail bond agent and by the bail bond recovery agent for a period
of three years.
Sec. 16 RCW 18.185.110 and 2008 c 105 s 4 are each amended to
read as follows:
In addition to the unprofessional conduct described in RCW
18.235.130, the following conduct, acts, or conditions constitute
unprofessional conduct:
(1) Violating any of the provisions of this chapter or the rules
adopted under this chapter;
(2) Failing to meet the qualifications set forth in RCW 18.185.020,
18.185.030, and 18.185.250;
(3) Knowingly committing, or being a party to, any material fraud,
misrepresentation, concealment, conspiracy, collusion, trick, scheme,
or device whereby any other person lawfully relies upon the word,
representation, or conduct of the licensee. However, this subsection
(3) does not prevent a bail bond recovery agent from using any pretext
to locate or apprehend a fugitive criminal defendant or gain any
information regarding the fugitive;
(4) Assigning or transferring any license issued pursuant to the
provisions of this chapter, except as provided in RCW 18.185.030 or
18.185.250;
(5) Conversion of any money or contract, deed, note, mortgage, or
other evidence of title, to his or her own use or to the use of his or
her principal or of any other person, when delivered to him or her in
trust or on condition, in violation of the trust or before the
happening of the condition; and failure to return any money or
contract, deed, note, mortgage, or other evidence of title within
thirty days after the owner is entitled to possession, and makes demand
for possession, shall be prima facie evidence of conversion;
(6) Entering into a contract, including a general power of
attorney, with a person that gives the bail bond agent full authority
over the person's finances, assets, real property, or personal
property;
(7) Failing to keep records, maintain a trust account, or return
collateral or security, as required by RCW 18.185.100;
(((7))) (8) Any conduct in a bail bond transaction which
demonstrates bad faith, dishonesty, or untrustworthiness;
(((8))) (9) Violation of an order to cease and desist that is
issued by the director under chapter 18.235 RCW;
(((9))) (10) Wearing, displaying, holding, or using badges not
approved by the department;
(((10))) (11) Making any statement that would reasonably cause
another person to believe that the bail bond recovery agent is a sworn
peace officer;
(((11))) (12) Failing to carry a copy of the contract or to present
a copy of the contract as required under RCW 18.185.270(1);
(((12))) (13) Using the services of an unlicensed bail bond
recovery agent or using the services of a bail bond recovery agent
without issuing the proper contract;
(((13))) (14) Misrepresenting or knowingly making a material
misstatement or omission in the application for a license;
(((14))) (15) Using the services of a person performing the
functions of a bail bond recovery agent who has not been licensed by
the department as required by this chapter;
(((15))) (16) Performing the functions of a bail bond recovery
agent without being both (a) licensed under this chapter or supervised
by a licensed bail bond recovery agent under RCW 18.185.290; and (b)
under contract with a bail bond agent;
(((16))) (17) Performing the functions of a bail bond recovery
agent without exercising due care to protect the safety of persons
other than the defendant and the property of persons other than the
defendant; or
(((17))) (18) Using a dog in the apprehension of a fugitive
criminal defendant.
NEW SECTION. Sec. 17 A new section is added to chapter 18.185
RCW to read as follows:
(1) To determine whether an applicant has demonstrated proof of
financial responsibility as required by RCW 18.185.020, the department
shall consider the information and documents filed under RCW
18.185.040. For purposes of determining financial responsibility, the
department may not take into consideration a bank account other than an
irrevocable letter of credit or other bank account that is accessible
only to a court for the purpose of paying a forfeited bond.
(2) Once the department has determined that an applicant has
demonstrated proof of financial responsibility, the department shall
determine the applicant's bond limit for commercial surety bonds and
commercial property bonds.
NEW SECTION. Sec. 18 The Legislature intends, in response to
Koenig v. Thurston County, 155 Wn. App. 398 (2010), to clarify that
public inspection of or access to information related to mental health
is subject to chapter 71.05 RCW and not the public records act, chapter
42.56 RCW.
Sec. 19 RCW 42.56.360 and 2010 c 128 s 3 and 2010 c 52 s 6 are
each reenacted and amended to read as follows:
(1) The following health care information is exempt from disclosure
under this chapter:
(a) Information obtained by the board of pharmacy as provided in
RCW 69.45.090;
(b) Information obtained by the board of pharmacy or the department
of health and its representatives as provided in RCW 69.41.044,
69.41.280, and 18.64.420;
(c) Information and documents created specifically for, and
collected and maintained by a quality improvement committee under RCW
43.70.510, 70.230.080, or 70.41.200, or by a peer review committee
under RCW 4.24.250, or by a quality assurance committee pursuant to RCW
74.42.640 or 18.20.390, or by a hospital, as defined in RCW 43.70.056,
for reporting of health care-associated infections under RCW 43.70.056,
a notification of an incident under RCW 70.56.040(5), and reports
regarding adverse events under RCW 70.56.020(2)(b), regardless of which
agency is in possession of the information and documents;
(d)(i) Proprietary financial and commercial information that the
submitting entity, with review by the department of health,
specifically identifies at the time it is submitted and that is
provided to or obtained by the department of health in connection with
an application for, or the supervision of, an antitrust exemption
sought by the submitting entity under RCW 43.72.310;
(ii) If a request for such information is received, the submitting
entity must be notified of the request. Within ten business days of
receipt of the notice, the submitting entity shall provide a written
statement of the continuing need for confidentiality, which shall be
provided to the requester. Upon receipt of such notice, the department
of health shall continue to treat information designated under this
subsection (1)(d) as exempt from disclosure;
(iii) If the requester initiates an action to compel disclosure
under this chapter, the submitting entity must be joined as a party to
demonstrate the continuing need for confidentiality;
(e) Records of the entity obtained in an action under RCW 18.71.300
through 18.71.340;
(f) Complaints filed under chapter 18.130 RCW after July 27, 1997,
to the extent provided in RCW 18.130.095(1);
(g) Information obtained by the department of health under chapter
70.225 RCW;
(h) Information collected by the department of health under chapter
70.245 RCW except as provided in RCW 70.245.150;
(i) Cardiac and stroke system performance data submitted to
national, state, or local data collection systems under RCW
70.168.150(2)(b); and
(j) All documents, including completed forms, received pursuant to
a wellness program under RCW 41.04.362, but not statistical reports
that do not identify an individual.
(2) Chapters 70.02 and 71.05 RCW ((applies)) apply to public
inspection and copying of health care information ((of patients)) and
information related to mental health services.
(3)(a) Documents related to infant mortality reviews conducted
pursuant to RCW 70.05.170 are exempt from disclosure as provided for in
RCW 70.05.170(3).
(b)(i) If an agency provides copies of public records to another
agency that are exempt from public disclosure under this subsection
(3), those records remain exempt to the same extent the records were
exempt in the possession of the originating entity.
(ii) For notice purposes only, agencies providing exempt records
under this subsection (3) to other agencies may mark any exempt records
as "exempt" so that the receiving agency is aware of the exemption,
however whether or not a record is marked exempt does not affect
whether the record is actually exempt from disclosure.
Sec. 20 RCW 71.05.385 and 2009 c 320 s 2 are each amended to read
as follows:
(1) A mental health service provider shall release to the persons
authorized under subsection (2) of this section, upon request:
(a) The fact, place, and date of an involuntary commitment, the
fact and date of discharge or release, and the last known address of a
person who has been committed under this chapter.
(b) Information related to mental health services, in the format
determined under subsection (9) of this section, concerning a person
who:
(i) Is currently committed to the custody or supervision of the
department of corrections or the indeterminate sentence review board
under chapter 9.94A or 9.95 RCW;
(ii) Has been convicted or found not guilty by reason of insanity
of a serious violent offense; or
(iii) Was charged with a serious violent offense and such charges
were dismissed under RCW 10.77.086.
Legal counsel may release such information to the persons
authorized under subsection (2) of this section on behalf of the mental
health service provider, provided that nothing in this subsection shall
require the disclosure of attorney work product or attorney-client
privileged information.
(2) The information subject to release under subsection (1) of this
section shall be released to law enforcement officers, personnel of a
county or city jail, prosecuting attorneys, designated mental health
professionals, public health officers, ((therapeutic)) court personnel,
personnel of the department of corrections, or personnel of the
indeterminate sentence review board, when such information is requested
during the course of business and for the purpose of carrying out the
responsibilities of the requesting person's office. No mental health
service provider or person employed by a mental health service
provider, or its legal counsel, shall be liable for information
released to or used under the provisions of this section or rules
adopted under this section except under RCW 71.05.440.
(3) A person who requests information under subsection (1)(b) of
this section must comply with the following restrictions:
(a) Information must be requested only for the purposes permitted
by this subsection and for the purpose of carrying out the
responsibilities of the requesting person's office. Appropriate
purposes for requesting information under this section include:
(i) Completing presentence investigations or risk assessment
reports;
(ii) Assessing a person's risk to the community;
(iii) Assessing a person's risk of harm to self or others when
confined in a city or county jail;
(iv) Planning for and provision of supervision of an offender,
including decisions related to sanctions for violations of conditions
of community supervision; and
(v) Responding to an offender's failure to report for department of
corrections supervision.
(b) Information shall not be requested under this section unless
the requesting person has reasonable suspicion that the individual who
is the subject of the information:
(i) Has engaged in activity indicating that a crime or a violation
of community custody or parole has been committed or, based upon his or
her current or recent past behavior, is likely to be committed in the
near future; or
(ii) Is exhibiting signs of a deterioration in mental functioning
which may make the individual appropriate for civil commitment under
this chapter.
(c) Any information received under this section shall be held
confidential and subject to the limitations on disclosure outlined in
this chapter, except:
(i) Such information may be shared with other persons who have the
right to request similar information under subsection (2) of this
section, solely for the purpose of coordinating activities related to
the individual who is the subject of the information in a manner
consistent with the official responsibilities of the persons involved;
(ii) Such information may be shared with a prosecuting attorney
acting in an advisory capacity for a person who receives information
under this section. A prosecuting attorney under this subsection shall
be subject to the same restrictions and confidentiality limitations as
the person who requested the information; and
(iii) As provided in RCW 72.09.585.
(4) A request for information related to mental health services
under this section shall not require the consent of the subject of the
records. Such request shall be provided in writing, except to the
extent authorized in subsection (5) of this section. A written request
may include requests made by e-mail or facsimile so long as the
requesting person is clearly identified. The request must specify the
information being requested.
(5) In the event of an emergency situation that poses a significant
risk to the public or the offender, a mental health service provider,
or its legal counsel, shall release information related to mental
health services delivered to the offender and, if known, information
regarding where the offender is likely to be found to the department of
corrections or law enforcement upon request. The initial request may
be written or oral. All oral requests must be subsequently confirmed
in writing. Information released in response to an oral request is
limited to a statement as to whether the offender is or is not being
treated by the mental health service provider and the address or
information about the location or whereabouts of the offender.
(6) Disclosure under this section to state or local law enforcement
authorities is mandatory for the purposes of the health insurance
portability and accountability act.
(7) Whenever federal law or federal regulations restrict the
release of information contained in the treatment records of any
patient who receives treatment for alcoholism or drug dependency, the
release of the information may be restricted as necessary to comply
with federal law and regulations.
(8) This section does not modify the terms and conditions of
disclosure of information related to sexually transmitted diseases
under chapter 70.24 RCW.
(9) In collaboration with interested organizations, the department
shall develop a standard form for requests for information related to
mental health services made under this section and a standard format
for information provided in response to such requests. Consistent with
the goals of the health information privacy provisions of the federal
health insurance portability and accountability act, in developing the
standard form for responsive information, the department shall design
the form in such a way that the information disclosed is limited to the
minimum necessary to serve the purpose for which the information is
requested.
Sec. 21 RCW 71.05.390 and 2009 c 320 s 3 and 2009 c 217 s 6 are
each reenacted and amended to read as follows:
Except as provided in this section, RCW 71.05.445, 71.05.630,
70.96A.150, 71.05.385, or pursuant to a valid release under RCW
70.02.030, the fact of admission and all information and records
compiled, obtained, or maintained in the course of providing services
to either voluntary or involuntary recipients of services at public or
private agencies shall be confidential.
Information and records may be disclosed only:
(1) In communications between qualified professional persons to
meet the requirements of this chapter, in the provision of services or
appropriate referrals, or in the course of guardianship proceedings.
The consent of the person, or his or her personal representative or
guardian, shall be obtained before information or records may be
disclosed by a professional person employed by a facility unless
provided to a professional person:
(a) Employed by the facility;
(b) Who has medical responsibility for the patient's care;
(c) Who is a designated mental health professional;
(d) Who is providing services under chapter 71.24 RCW;
(e) Who is employed by a state or local correctional facility where
the person is confined or supervised; or
(f) Who is providing evaluation, treatment, or follow-up services
under chapter 10.77 RCW.
(2) When the communications regard the special needs of a patient
and the necessary circumstances giving rise to such needs and the
disclosure is made by a facility providing services to the operator of
a facility in which the patient resides or will reside.
(3)(a) When the person receiving services, or his or her guardian,
designates persons to whom information or records may be released, or
if the person is a minor, when his or her parents make such
designation.
(b) A public or private agency shall release to a person's next of
kin, attorney, personal representative, guardian, or conservator, if
any:
(i) The information that the person is presently a patient in the
facility or that the person is seriously physically ill;
(ii) A statement evaluating the mental and physical condition of
the patient, and a statement of the probable duration of the patient's
confinement, if such information is requested by the next of kin,
attorney, personal representative, guardian, or conservator; and
(iii) Such other information requested by the next of kin or
attorney as may be necessary to decide whether or not proceedings
should be instituted to appoint a guardian or conservator.
(4) To the extent necessary for a recipient to make a claim, or for
a claim to be made on behalf of a recipient for aid, insurance, or
medical assistance to which he or she may be entitled.
(5)(a) For either program evaluation or research, or both:
PROVIDED, That the secretary adopts rules for the conduct of the
evaluation or research, or both. Such rules shall include, but need
not be limited to, the requirement that all evaluators and researchers
must sign an oath of confidentiality substantially as follows:
"As a condition of conducting evaluation or research concerning
persons who have received services from (fill in the facility, agency,
or person) I, . . . . . . . . ., agree not to divulge, publish, or
otherwise make known to unauthorized persons or the public any
information obtained in the course of such evaluation or research
regarding persons who have received services such that the person who
received such services is identifiable.
I recognize that unauthorized release of confidential information
may subject me to civil liability under the provisions of state law.
/s/ . . . . . . . . . . . . " |
NEW SECTION. Sec. 22 The sum of two hundred thousand dollars, or
as much thereof as may be necessary, is appropriated for the fiscal
year ending June 30, 2012, from the general fund to the administrative
office of the courts for the purpose of providing access to the risk
assessment tool for pretrial release and detention purposes.
NEW SECTION. Sec. 23 The sum of ninety thousand dollars, or as
much thereof as may be necessary, is appropriated for the fiscal year
ending June 30, 2012, from the general fund to the administrative
office of the courts to be distributed to the Washington state center
for court research for the purpose of maintaining the validity of the
risk assessment tool.
NEW SECTION. Sec. 24 The sum of twenty-five thousand dollars, or
as much thereof as may be necessary, is appropriated for the fiscal
year ending June 30, 2012, from the general fund to The Evergreen State
College to be distributed to the Washington state institute for public
policy for the purpose of developing the failure to appear risk
assessment tool.
NEW SECTION. Sec. 25 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.
NEW SECTION. Sec. 26 If any part of this act is found to be in
conflict with federal requirements that are a prescribed condition to
the allocation of federal funds to the state, the conflicting part of
this act is inoperative solely to the extent of the conflict and with
respect to the agencies directly affected, and this finding does not
affect the operation of the remainder of this act in its application to
the agencies concerned. Rules adopted under this act must meet federal
requirements that are a necessary condition to the receipt of federal
funds by the state.