AN ACT Relating to health care neglect in residential facilities; adding a new chapter to Title 9A RCW; prescribing penalties; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature finds that the prevention of unwarranted neglect of residents in institutional settings is a matter of exceptional importance to the state. Individuals who reside in institutional settings and depend on others for their care and well-being because of the infirmities of aging or mental or physical disabilities must not be knowingly neglected by those whose actions are dictated by indifference or a desire for additional profits.

The legislature further finds that meaningful deterrents and remedies for neglect of residents can be accomplished without infringing on the normal and appropriate business and professional practices of those discharging their responsibility for the care of others. The definition of "medically necessary," together with other operative definitions, establishes a clear, appropriate and humane standard for the care and treatment of residents.

The legislature further finds that the medicaid fraud control unit, in conjunction with county prosecutor offices, is an appropriate agency to review and evaluate allegations of criminal neglect and assist in whatever means requested and necessary to implement the findings and purpose of the legislature, as set forth in this act.

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

(1) "Person," "he," and "she" means any natural person, corporation, joint stock association, partnership, or unincorporated association;

(2) "Resident" means:

(a) An individual residing in any home, place, or institution which operates or maintains a facility providing any type of convalescent or chronic care for three or more residents not related by blood to the person operating the facility;

(b) An individual residing in a facility designated as a nursing home, skilled nursing facility, intermediate care facility, or any section of any other facility providing any type of convalescent or chronic care; or

(c) An individual residing in a state operated residential facility providing any type of convalescent or chronic care for the mentally retarded, developmentally disabled, physically handicapped, mentally or emotionally disturbed.

(3) "Convalescent or chronic care" means a residential setting providing supportive, restorative, or preventive health services including board, room, and personal care in conjunction with a social program for residents with intermittent, intermediate, or skilled nursing care.

(4) "Great bodily harm" means bodily injury which causes serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily part or organ.

(5) (a) "Substantial bodily harm" means bodily injury which involves a substantial disfigurement, loss or impairment of the function of any bodily part or organ, a fracture of any bodily part, or substantial pain, whether such substantial bodily harm is temporary or permanent.

(b) "Substantial pain" means serious physical pain extending for a long enough period of time to cause considerable suffering. The pain shall be the result of an actual injury or condition capable of causing serious physical pain.

(6) "Bodily harm" means physical pain or injury, illness, or an impairment of physical condition.

(7) "Neglects" or "neglecting" means a knowing:

(a) Failure to provide medically necessary services, which may include any one of the following: Medical treatment, medicine, supportive, restorative, or preventive health care, supervision, therapies, and nursing services;

(b) Failure to provide medically necessary fluid and nutritional intake in all forms;

(c) Failure to accurately monitor and record intake of all prescribed drugs, vitamins, chemicals, and medicine or failure to accurately monitor and record fluid or nutritional intake;

(d) Failure to provide medically necessary personal sanitation or sanitary conditions; or

(e) Use of isolation, urinary catheters, or physical or chemical restraints in a manner and under circumstances where they are not medically necessary.

(9) "Medically necessary" means that standard of care, supervision, treatment, service, or exercise of judgment which is expected of a reasonably prudent person, employee, administrator, or professional health care provider responsible for a resident as defined in this chapter, at a time and in the profession or employee class to which he or she belongs, acting in the state of Washington and under same or similar circumstances.

NEW SECTION. Sec. 3. (1) A person is guilty of criminal neglect in the first degree when he or she neglects a resident and, in the course of such neglect, causes great bodily harm.

(2) Criminal neglect in the first degree is a class B felony. The maximum penalties upon conviction shall be imprisonment in a state correctional institution for a maximum term of not more than ten years or by a fine in an amount fixed by the court of not more than one hundred thousand dollars or by both imprisonment and fine.

NEW SECTION. Sec. 4. (1) A person is guilty of criminal neglect in the second degree when he or she neglects a resident and either: (a) Creates an imminent and substantial risk of death or great bodily harm; or (b) causes substantial bodily harm.

(2) Criminal neglect in the second degree is a class C felony. The maximum penalties upon conviction shall be imprisonment in a state correctional institution for a maximum term of not more than five years or by a fine in an amount fixed by the court of not more than seventy-five thousand dollars or by both imprisonment and fine.

NEW SECTION. Sec. 5. (1) A person is guilty of criminal neglect in the third degree when he or she neglects a resident and either: (a) The neglect creates a substantial risk of bodily harm; or (b) the neglect occurs in any one of the areas set forth under section 2 (c), (d) or (e) of this act.

(2) Criminal neglect in the third degree is a gross misdemeanor. The maximum penalties upon conviction shall be imprisonment in a county jail for a maximum term of not more than one year or by a fine in an amount fixed by the court of not more than fifty thousand dollars or by both imprisonment and fine.

NEW SECTION. Sec. 6. To establish an affirmative defense to a charge of criminal neglect, the defendant must prove, by a preponderance of evidence, that the act or failure to act was committed in accordance with the consent of the resident or a person authorized to consent on behalf of the resident as set forth in chapter 7.70 RCW, and that such action or failure to act was consistent with recognized legal standards.

NEW SECTION. Sec. 7. Sections 1 through 6 of this act shall constitute a new chapter in Title 9A RCW.

NEW SECTION. Sec. 8. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.