AN ACT Relating to the licensing of home care providers; amending RCW 70.38.025, 70.38.105, and 70.126.010; adding a new chapter to Title 70 RCW; adding a new section to chapter 70.126 RCW; prescribing penalties; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The primary purpose of this chapter is to provide for the protection of the public by promoting the safe and competent care of disabled, infirm, or ill persons in the place of residence through the licensing of home care providers.

NEW SECTION. Sec. 2. Unless the context clearly requires to the contrary, the definitions in this section apply throughout this chapter.

(1) "Home health agency" means a private or public agency or organization that administers and provides home health care and is certified by the department pursuant to chapter 70.126 RCW.

(2) "Home health care services" means those services, supplies, and medical equipment that meet the definition in RCW 70.126.010 and the standards of RCW 70.126.020.

(3) "Home care provider" means:

(a) A private or public agency or organization that administers and provides home care services and is licensed by the department as a class A home care provider under this chapter; or

(b) A home health agency that is licensed by the department as a class B home care provider under this chapter.

(4) "Home care services" means personal or homemaker services provided to disabled or infirm persons in the place of residence, coordinated and supervised by home care providers.

(5) "Department" means the department of social and health services.

(6) "Person" means an individual, firm, partnership, corporation, company, association, or joint stock association, and the legal successor thereof.

NEW SECTION. Sec. 3. (1) No person may for a fee provide home care services without being licensed as a class A home care provider by the department.

(2) No person may for a fee provide home health care services without being licensed as a class B home care provider by the department.

(3) No home health agency may provide home health care services unless licensed by the department as a class B home care provider.

(4) Sole practitioners who are otherwise licensed by the state are exempt from licensure under this chapter.

NEW SECTION. Sec. 4. (1) An applicant for a class A or a class B home care provider license must:

(a) File a written application on a form provided by the department;

(b) Demonstrate ability to comply with this chapter and implementing rules;

(d) Provide evidence of liability insurance in a minimum amount to be determined by the department;

(e) Provide such proof as the department may require concerning the honesty, veracity, and good reputation, as well as the identity of the applicant, principal officers, controlling person, or partners;

(f) Pay to the department a license fee as provided in section 5 of this act; and

(g) Provide any other information that the department may reasonably require.

(2) In addition to the requirements provided in subsection (1) of this section, an applicant for a class B license must be a home health agency.

(3) No license may be granted pursuant to this chapter if the applicant, principal officers, or partners have been convicted of any crime within the preceding ten years which relates directly to providing home care or home health care, or have suffered any judgment within the preceding five years in any civil action involving fraud, misrepresentation, or conversion.

NEW SECTION. Sec. 5. An application for a class A or a class B home care provider license shall be accompanied by a fee as established by the department under RCW 43.20A.055. The department may charge a different license fee for class A and class B licenses.

NEW SECTION. Sec. 6. Upon receipt of an application for a license and the license fee, the department shall issue a license if the applicant meets the requirements established under this chapter. A license issued under this chapter shall not be transferred or assigned. A license, unless suspended or revoked, shall be renewed annually. Application for renewal shall be on forms provided by the department. Renewal of a class B home care provider license is contingent on continued certification as a home health agency pursuant to chapter 70.126 RCW. Each application for renewal shall be accompanied by a license fee as established by the department under RCW 43.20A.055, which may be different for class A and class B licenses.

NEW SECTION. Sec. 7. The department may deny, suspend, or revoke a home care provider license for failure to comply with this chapter or any implementing rules. Any action to deny, suspend, or revoke licensure shall comply with chapter 34.04 RCW, the administrative procedure act.

NEW SECTION. Sec. 8. (1) The department, in consultation with the home care advisory council created under section 10 of this act, shall adopt rules necessary to implement this chapter in accordance with chapter 34.04 RCW. The department's rules shall require that licensees:

(a) Maintain and preserve all records that relate directly to the care and treatment of persons in such detail and on such forms as the department requires;

(b) Establish a procedure for recording and evaluating complaints of persons receiving care pursuant to this chapter; and

(c) Establish a plan that provides for on-going care of persons and preservation of records if the home care provider ceases operations.

(2) With respect to class A licensees, the department shall adopt rules to provide for quality of care standards for home care and for minimum education, training, supervision, and experience qualifications for persons providing home care.

(3) With respect to class B licensees, the department shall adopt rules to require that home health agency certification must be maintained pursuant to chapter 70.126 RCW, and to require that class B licensees shall:

(a) Provide for continuing education and in-service training of direct service staff;

(b) Conduct interdisciplinary patient conferences on a routine basis;

(d) Maintain written personnel policies and procedures and personnel records which provide for regular performance evaluations, including observation in the home, participation in orientation and in-service training, and involvement in quality assurance activities; and

(e) Maintain written policies regarding consultation on clinical questions, set and monitor productivity standards, and provide for paid staff time for patient care conferences, interdisciplinary team meetings, and coordination with referral sources and community resources.

NEW SECTION. Sec. 9. Any home care provider which is in operation at the time of adoption of any applicable rules under this chapter shall be given a reasonable time, not to exceed three months from the date of the adoption, to comply with the rules.

NEW SECTION. Sec. 10. The governor shall appoint a home care advisory council. The council shall consist of:

(1) Five members of the general public who are not owners or employees of a home care provider and do not provide home care or home health care services. In addition, the five general public members may not be associated in any way with an organization that contracts for or directly provides home care or home health care services. Of these five members, one shall be a representative of senior citizens and one shall be a representative of disabled or handicapped persons;

(2) Three members who are employed by home health agencies;

(3) One member who is a physician;

(4) One member of the state nurses association; and

(5) One member who is a licensed physical or occupational therapist, social worker with a master's degree, or speech and hearing therapist, but who is not employed by a home care provider.

The governor shall choose one of the five members from the general public to be chair of the advisory home care council. Members of the council shall be reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060. Each member shall serve for a term of four years, except that any member appointed to fill a vacancy shall serve for the remainder of the unexpired term. The terms of office of the members first taking office shall expire, as designated at the time of appointment, two at the end of the first year, three at the end of the second year, three at the end of the third year, and three at the end of the fourth year after the date of appointment. Thereafter all appointments shall be for four years. The council shall meet as frequently as the chair deems necessary, but not less than quarterly each year. Upon request by four or more members, it is the duty of the chair to call a meeting of the council.

NEW SECTION. Sec. 11. The advisory home care council shall:

(1) Consult with the department in matters of policy affecting home care providers; and

(2) Review and make recommendations with respect to rules and standards pertaining to home care providers prior to their adoption by the department as specified in this chapter.

NEW SECTION. Sec. 12. Any person performing home care or home health care services without a license under this chapter who is not exempt from licensure pursuant to section 3 of this act is guilty of a misdemeanor.

NEW SECTION. Sec. 13. The department may at any time inspect those parts of the premises of a home care provider and examine those records necessary to determine compliance with this chapter. Following an inspection, the department shall give written notice of any violation of this chapter or the rules adopted under this chapter. The notice shall describe the reasons for noncompliance, and inform the home care provider that it must comply within a specified reasonable time, not to exceed sixty days. A home care provider's license may be revoked if the provider fails to comply.

NEW SECTION. Sec. 14. All information received by the department through filed reports, inspection, or as otherwise authorized under this chapter shall not be disclosed publicly in any manner as to identify individuals receiving care pursuant to this chapter.

NEW SECTION. Sec. 15. No home care provider may apply for medicare or medicaid reimbursement unless it holds a class B license. Nothing in this chapter affects the provisions of chapter 70.38 RCW.

NEW SECTION. Sec. 16. A new section is added to chapter 70.126 RCW to read as follows:

The department of social and health services shall consult with the home care advisory council established under section 10 of this act prior to adoption or amendment of rules dealing with home health agencies.

Sec. 17. Section 2, chapter 161, Laws of 1979 ex. sess. as last amended by section 43, chapter 41, Laws of 1983 1st ex. sess. and RCW 70.38.025 are each amended to read as follows:

When used in this chapter, the terms defined in this section shall have the meanings indicated.

(1) "Board of health" means the state board of health created pursuant to chapter 43.20 RCW.

(2) "Capital expenditure" is an expenditure, including a force account expenditure (i.e., an expenditure for a construction project undertaken by a facility as its own contractor) which, under generally accepted accounting principles, is not properly chargeable as an expense of operation or maintenance. Where a person makes an acquisition under lease or comparable arrangement, or through donation, which would have required review if the acquisition had been made by purchase, such expenditure shall be deemed a capital expenditure. Capital expenditures include donations of equipment or facilities to a health care facility which if acquired directly by such facility would be subject to certificate of need review under the provisions of this chapter and transfer of equipment or facilities for less than fair market value if a transfer of the equipment or facilities at fair market value would be subject to such review. The cost of any studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition, improvement, expansion, or replacement of any plant or equipment with respect to which such expenditure is made shall be included in determining the amount of the expenditure.

(3) "Council" means the state health coordinating council created in RCW 70.38.055 and described in Public Law 93-641.

(4) "Department" means the state department of social and health services.

(5) "Expenditure minimum" means, for the purposes of the certificate of need program, one million dollars adjusted by the department by rule to reflect changes in the United States department of commerce composite construction cost index; or a lesser amount required by federal law and established by the department by rule.

(6) "Federal law" means Public Law 93-641, as amended, or its successor.

(7) "Health care facility" means hospices, hospitals, psychiatric hospitals, tuberculosis hospitals, nursing homes, kidney disease treatment centers, ambulatory surgical facilities, rehabilitation facilities, and home health agencies that participate in medicare or medicaid, and includes such facilities when owned and operated by the state or by a political subdivision or instrumentality of the state and such other facilities as required by federal law and implementing regulations, but does not include Christian Science sanatoriums operated, listed, or certified by the First Church of Christ Scientist, Boston, Massachusetts. In addition, the term does not include any nonprofit hospital: (a) Which is operated exclusively to provide health care services for children; (b) which does not charge fees for such services; (c) whose rate reviews are waived by the state hospital commission; and (d) if not contrary to federal law as necessary to the receipt of federal funds by the state.

(8) "Health maintenance organization" means a public or private organization, organized under the laws of the state, which:

(a) Is a qualified health maintenance organization under Title XIII, section 1310(d) of the Public Health Services Act; or

(b) (i) Provides or otherwise makes available to enrolled participants health care services, including at least the following basic health care services: Usual physician services, hospitalization, laboratory, x-ray, emergency, and preventive services, and out-of-area coverage; (ii) is compensated (except for copayments) for the provision of the basic health care services listed in (b)(i) to enrolled participants by a payment which is paid on a periodic basis without regard to the date the health care services are provided and which is fixed without regard to the frequency, extent, or kind of health service actually provided; and (iii) provides physicians' services primarily (A) directly through physicians who are either employees or partners of such organization, or (B) through arrangements with individual physicians or one or more groups of physicians (organized on a group practice or individual practice basis).

(9) "Health services" means clinically related (i.e., preventive, diagnostic, curative, rehabilitative, or palliative) services and includes alcoholism, drug abuse, and mental health services and as defined in federal law.

(10) "Health service area" means a geographic region appropriate for effective health planning which includes a broad range of health services and a population of at least four hundred fifty thousand persons.

(11) "Institutional health services" means health services provided in or through health care facilities and entailing annual operating costs of at least five hundred thousand dollars adjusted by the department by rule to reflect changes in the United States department of commerce composite construction cost index; or a lesser amount required by federal law and established by the department by rule: PROVIDED, That no new health care facility may be initiated as an institutional health service.

(12) "Major medical equipment" means medical equipment which is used for the provision of medical and other health services and which costs in excess of one million dollars, adjusted by the department by rule to reflect changes in the United States department of commerce composite construction cost index; or a lesser amount required by federal law and established by the department by rule; except that such term does not include medical equipment acquired by or on behalf of a clinical laboratory to provide clinical laboratory services if the clinical laboratory is independent of a physician's office and a hospital and it has been determined under Title XVIII of the Social Security Act to meet the requirements of paragraphs (10) and (11) of section 1861(s) of such act;

(13) "Person" means an individual, a trust or estate, a partnership, a corporation (including associations, joint stock companies, and insurance companies), the state, or a political subdivision or instrumentality of the state, including a municipal corporation or a hospital district.

(14) "Provider" generally means a health care professional or an organization, institution, or other entity providing health care but the precise definition for this term shall be established by rule of the department, consistent with federal law.

(15) "Public health" means the level of well-being of the general population; those actions in a community necessary to preserve, protect, and promote the health of the people for which government is responsible; and the governmental system developed to guarantee the preservation of the health of the people.

(16) "Regional health council" means a public regional planning body or a private nonprofit corporation which is organized and operated in a manner that is consistent with the laws of the state and which is capable of performing each of the functions described in RCW 70.38.085. A regional health council shall have a governing body for health planning which is composed of a majority (but not more than sixty percent of the members) of persons who are residents of the health service area served by the entity; who are consumers of health care; who are broadly representative of the social, economic, linguistic, and racial populations, and geographic areas of the health service area, and major purchasers of health care; and who are not, nor within the twelve months preceding appointment have been, providers of health care. The remainder of the members shall be residents of the health service area served by the agency who are providers of health care.

(17) "Regional health plan" means a document which provides at least a statement of health goals and priorities for the health service area. In addition, it sets forth the number, type, and distribution of health facilities, services, and manpower needed within the health service area to meet the goals of the plan.

(18) "State health plan" means a document developed in accordance with RCW 70.38.065.

Sec. 18. Section 10, chapter 161, Laws of 1979 ex. sess. as last amended by section 21, chapter 288, Laws of 1984 and RCW 70.38.105 are each amended to read as follows:

(1) The department is authorized and directed to implement the certificate of need program in this state pursuant to the provisions of this chapter.

(2) There shall be a state certificate of need program which is administered consistent with the requirements of federal law as necessary to the receipt of federal funds by the state.

(3) No person shall engage in any undertaking which is subject to certificate of need review under subsection (4) of this section without first having received from the department either a certificate of need or an exception granted in accordance with this chapter.

(4) The following shall be subject to certificate of need review under this chapter:

(a) The construction, development, or other establishment of a new health care facility;

(b) The sale, purchase, or lease of part or all of any existing hospital as defined in RCW 70.39.020;

(c) Any capital expenditure by or on behalf of a health care facility which substantially changes the services of the facility after January 1, 1981, provided that the substantial changes in services are specified by the department in rule;

(d) Any capital expenditure by or on behalf of a health care facility which exceeds the expenditure minimum as defined by RCW 70.38.025. However, a capital expenditure which is not subject to certificate of need review under (a), (b), (c), (e), (f), or (g) of this subsection and which is solely for any one or more of the following is not subject to certificate of need review except to the extent required by the federal government as a condition to receipt of federal assistance and does not substantially affect patient charges:

(i) Communications and parking facilities;

(ii) Mechanical, electrical, ventilation, heating, and air conditioning systems;

(iii) Energy conservation systems;

(iv) Repairs to, or the correction of, deficiencies in existing physical plant facilities which are necessary to maintain state licensure;

(v) Acquisition of equipment, including data processing equipment, which is not or will not be used in the direct provision of health services;

(vi) Construction which involves physical plant facilities, including administrative and support facilities, which are not or will not be used for the provision of health services;

(vii) Acquisition of land; and

(viii) Refinancing of existing debt;

(e) A change in bed capacity of a health care facility which increases the total number of licensed beds or redistributes beds among facility and service categories of acute care, skilled nursing, intermediate care, and boarding home care if the bed redistribution is to be effective for a period in excess of six months;

(f) Acquisition of major medical equipment:

(i) If the equipment will be owned by or located in a health care facility; or

(ii) If, after January 1, 1981, the equipment is not to be owned by or located in a health care facility, the department finds consistent with federal regulations the equipment will be used to provide services for hospital inpatients, or the person acquiring such equipment did not notify the department of the intent to acquire such equipment at least thirty days before entering into contractual arrangements for such acquisition;

(g) Any new institutional health services which are offered in or through a health care facility, and which were not offered on a regular basis by, in, or through such health care facility within the twelve-month period prior to the time such services would be offered. However, no new health care facility may be initiated by an institutional health service; and

(h) Any expenditure by or on behalf of a health care facility in excess of the expenditure minimum made in preparation for any undertaking under subsection (4) of this section and any arrangement or commitment made for financing such undertaking. Expenditures of preparation shall include expenditures for architectural designs, plans, working drawings, and specifications. The department may issue certificates of need permitting predevelopment expenditures, only, without authorizing any subsequent undertaking with respect to which such predevelopment expenditures are made.

(5) No person may divide a project in order to avoid review requirements under any of the thresholds specified in this section.

Sec. 19. Section 5, chapter 249, Laws of 1983 as amended by section 4, chapter 22, Laws of 1984 and RCW 70.126.010 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Hospice" means a private or public agency or organization that administers and provides hospice care and is certified by the department of social and health services as a hospice care agency.

(2) "Hospice care" means care prescribed and supervised by the attending physician and provided by the hospice to the terminally ill in accordance with the standards of RCW 70.126.030.

(3) "Home health agency" means a private or public agency or organization that administers and provides home health care and is certified by the department of social and health services as a home health care agency under this chapter and licensed by the department of social and health services as a home care provider under chapter 70.-- RCW (sections 1 through 15 of this 1985 act).

(4) "Home health care" means services, supplies, and medical equipment that meet the standards of RCW 70.126.020, prescribed and supervised by the attending physician, and provided through a home health agency and rendered to ((~~members~~)) persons in their residences ((~~when hospitalization would otherwise be required~~)) who are injured, ill, or infirm.

(5) "Home health aide" means a person employed by a home health agency or a hospice who is providing part-time or intermittent care under the supervision of a registered nurse, a physical therapist, occupational therapist, or speech therapist. Such care includes ambulation and exercise, assistance with medications ordinarily self-administered, reporting changes in patients' conditions and needs, completing appropriate records, and personal care or household services that are needed to achieve the medically desired results.

(6) "Home health care plan of treatment" means a written plan of care established and periodically reviewed by a physician that describes medically necessary home health care to be provided to a patient for treatment of illness or injury.

(7) "Hospice plan of care" means a written plan of care established and periodically reviewed by a physician that describes hospice care to be provided to a terminally ill patient for palliation or medically necessary treatment of an illness or injury.

(8) "Physician" means a physician licensed under chapter 18.57 or 18.71 RCW.

NEW SECTION. Sec. 20. Sections 1 through 15 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 21. 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. 22. This act shall take effect January 1, 1986.