AN ACT Relating to the long-term care ombudsman program; amending RCW 43.190.010, 43.190.020, 43.190.050, 43.190.070, 43.190.080, 43.190.090, 43.190.100, and 43.190.110; adding new sections to chapter 43.190 RCW; creating a new section; and repealing RCW 43.190.030, 43.190.040, 43.190.060, and 43.190.120.

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

Sec. 1. Section 1, chapter 290, Laws of 1983 and RCW 43.190.010 are each amended to read as follows:

The legislature finds that in order to comply with the federal Older Americans Act, to monitor the manner by which the department of social and health services carries out its responsibilities with respect to long-term care facilities, to respond to complaints concerning long-term care facilities, to facilitate mutual problem resolution, and to effectively assist residents, patients, and clients of long-term care facilities in the assertion of their civil and human rights, a long-term care ombudsman program should be instituted.

Sec. 2. Section 2, chapter 290, Laws of 1983 and RCW 43.190.020 are each amended to read as follows:

As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.

(1) "Area agency on aging" means an agency designated by the department pursuant to chapter 74.38 RCW, and the federal Older Americans Act of 1965, (42 U.S.C. Sec. 3024 et. seq.).

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

(3) "Local long-term care ombudsman" means a person, agency, or organization designated by a local governmental authority or an area agency on aging to carry out the duties for such position described in section 3 of this 1987 act, and which meets such additional standards as may be set forth in regulations developed by the state long-term care ombudsman and promulgated by the department. Any person acting as a local long-term care ombudsman shall:

(a) Have training or experience in the areas of gerontology, long-term care, related social services programs, the legal system, and dispute resolution techniques, including investigation, mediation, and negotiation;

(b) Not have been employed by any long-term care facility within the past three years; and

(c) Not have, nor have had, nor have a husband, wife, father, mother, brother, sister, son, or daughter who has or has had, within the past three years, any pecuniary interest in a long-term care health facility.

(4) "Long-term care facility" means any of the following ((~~which provide services to persons sixty years of age and older and is~~)) facilities:

((~~(1)~~)) (a) A nursing home, skilled nursing facility, intermediate care facility, or similar facility which:

((~~(a) Maintains and operates~~)) (i) Provides twenty-four hour skilled nursing services for the care and treatment of chronically ill or convalescent patients, including those experiencing mental, emotional, or behavioral problems, mental retardation, or alcoholism; or

((~~(b)~~)) (ii) Provides supportive, restorative, and preventive health services in conjunction with a socially oriented program to its residents, and which ((~~maintains and operates~~)) provides twenty-four hour services including board, room, personal care, ((~~and~~)) or intermittent nursing care((~~. "Long-term health care facility" includes nursing homes, skilled nursing facilities, and intermediate care facilities, but does not include~~)); and

(iii) Is not an acute care hospital or other licensed facilities except for that distinct part of the hospital or facility which provides nursing home, skilled nursing facility, or intermediate care facility services or is used by the hospital as a swing bed to provide such services on an intermittent basis.

((~~(2)~~)) (b) Any family home, boarding home, group care facility, or similar facility ((~~determined by the secretary, for~~)) which provides licensed twenty-four hour nonmedical care of ((~~persons~~)) adults in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual.

((~~(3) Any swing bed in an acute care facility.~~)) (5) "Long-term care ombudsman" means any employee of the office of the state long-term care ombudsman or a local long-term care ombudsman or a volunteer ombudsman.

(6) "Office" means the office of the state long-term care ombudsman which has the responsibility to carry out the duties described for said office in section 3 of this 1987 act and which shall fulfill the role of the long-term care ombudsman program as authorized by the federal Older Americans Act of 1965, (42 U.S.C. Sec. 3024 et. seq.).

(7) "Secretary" means the secretary of the state department of social and health services.

(8) "Committee" means the state long-term care ombudsman advisory committee.

NEW SECTION. Sec. 3. A new section is added to chapter 43.190 RCW to read as follows:

(1) There is created within the department of social and health services the office of the state long-term care ombudsman. The office shall be separate from those units of the department which license and certify long-term care facilities. The office shall be under the direction of a full-time chief executive who shall be known as the state long-term care ombudsman. The office shall have the following powers, duties, and responsibilities:

(a) To investigate and resolve complaints made by or on behalf of residents of long-term care facilities relating to actions which may adversely affect the health, safety, welfare, and rights of these individuals;

(b) To monitor the development and implementation of federal, state, and local laws, regulations, and policies with respect to long-term care facilities in the state;

(c) To provide information as appropriate to public agencies regarding the problems of individuals residing in long-term care facilities;

(d) To provide training for the staff of the state long-term care ombudsman and for volunteer long-term care ombudsmen and to promote the development of citizen organizations to participate in the ombudsman program;

(e) To establish a state-wide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities for the purpose of identifying and resolving significant problems, including problems with the timeliness and effectiveness of the response of the department to complaints concerning long-term care facilities, with provision for submission of such data to the legislature, the state long-term care ombudsman advisory committee, the department, and to the federal department of health and human services, or its successor agency, on a regular basis;

(f) To consider the views of area agencies on aging, interested citizens, and provider agencies in the planning and operation of the long-term care ombudsman program;

(g) To select, train, and supervise volunteer long-term care ombudsmen who shall serve at the pleasure of the state long-term care ombudsman; and

(h) To carry out such other powers, duties, and responsibilities as are prescribed in this chapter, the federal Older Americans Act of 1965, (42 U.S.C. Sec. 3024 et. seq.) and any federal regulations promulgated thereunder.

(2) A local long-term care ombudsman shall have the same powers, duties, and responsibilities as the office of the state long-term care ombudsman, except that a local long-term care ombudsman shall not be required to establish a state-wide uniform reporting system as set forth in subsection (1)(e) of this section, but may establish a similar system for the geographical area served by the local long-term care ombudsman.

(3) A volunteer long-term care ombudsman shall be able to identify and resolve problems regarding the care of residents in long-term care facilities and to assist such residents in the assertion of their civil and human rights. However, volunteers shall not be used for complaint investigation but may engage in fact-finding activities to determine whether a formal complaint should be submitted to the department.

NEW SECTION. Sec. 4. A new section is added to chapter 43.190 RCW to read as follows:

(1) The secretary shall designate a chief executive officer to head the office of the state long-term care ombudsman from among a list of three nominees for the position presented to the secretary by the committee. Each person nominated to be appointed as the state long-term care ombudsman shall:

(b) Not have been employed by any long-term care facility within the past three years; and

(c) Not have, nor have had, a husband, wife, father, mother, brother, sister, son, or daughter who has or has had, within the past three years, any pecuniary interest in a long-term care health facility.

(2) The state long-term care ombudsman shall be exempt from the provisions of the state civil service law, chapter 41.06 RCW.

(3) Whenever the state long-term care ombudsman dies, resigns, becomes ineligible to serve for any reason, or is removed from office, the secretary shall appoint an acting state long-term care ombudsman within thirty days who shall serve until the designation of the state long-term care ombudsman's successor, but in no event longer than four months from the occurrence of the vacancy. The acting state long-term care ombudsman shall exercise, during this period, all the powers and duties of the state long-term care ombudsman pursuant to the provisions of this chapter.

NEW SECTION. Sec. 5. A new section is added to chapter 43.190 RCW to read as follows:

(1) The state long-term care ombudsman advisory committee is hereby created consisting of eleven members appointed by the secretary and responsible for carrying out the duties described in this section. Members of the committee shall include representatives of the nursing home industry, area agencies on aging, local long-term care ombudsman programs, long-term care facility residents or family members of such residents, senior citizen advocacy organizations, long-term care facility residents or family councils, operators of adult family homes, and interested citizens of the state. A majority of the members of the committee shall consist of long-term care facility residents and family members and representatives of senior citizen advocacy organizations, area agencies on aging, and local long-term care ombudsman programs.

(2) Each member of the committee shall hold office for a term of three years, except that any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term. The terms of office of the initial members first taking office shall expire, as follows: Three at the end of the first year, four at the end of the second year, and four at the end of the third year after the date of appointment. Thereafter all appointments shall be for three years. The initial members of the state long-term care ombudsman advisory committee shall be appointed within sixty days of the effective date of this section. Vacancies shall be filled within sixty days of their occurrence. The secretary shall choose one of the members to be the chairman of the advisory committee.

(3) The committee shall meet as frequently as the chairman deems necessary, but not less than three times each year. Upon request of four or more members, it shall be the duty of the chairman to call a meeting of the committee. Each member of the committee shall receive reimbursement for travel expenses in accordance with RCW 43.03.050 and 43.03.060.

(4) The committee shall have the following duties, powers, and responsibilities:

(a) To submit to the secretary a list of three nominees for the position of state long-term care ombudsman within sixty days of the occurrence of a vacancy in that position;

(b) To provide advice and consultation to the state long-term care ombudsman on issues concerning long-term care facilities or affecting the provision of ombudsman services;

(c) To review the annual report made by the office of the state long-term care ombudsman pursuant to RCW 43.190.100 prior to its submission to the legislature, to make recommendations to the state long-term care ombudsman, if the committee deems it appropriate, for changes in such report, to attach additional comments to such report, if the committee deems it appropriate, and to publicize the conclusions of such report to the extent deemed appropriate by the committee.

Sec. 6. Section 5, chapter 290, Laws of 1983 and RCW 43.190.050 are each amended to read as follows:

Every long-term care facility shall post in a conspicuous location a notice of the department's nursing home complaint toll-free number and the name, address, and phone number of the office of the ((~~appropriate~~)) state long-term care ombudsman, local long-term care ombudsman if one serves the geographic area in which the long-term care facility is located, and a brief description of the services provided by ((~~the office~~)) long-term care ombudsmen. The form of the notice shall be approved by the office and the ((~~organization~~)) bureau or agency in the department responsible for maintaining the nursing home complaint toll-free number. This information shall also be distributed to ((~~the~~)) a resident((s)), family members, and legal guardians upon the resident's admission to ((~~the~~)) a long-term care facility.

Sec. 7. Section 7, chapter 290, Laws of 1983 and RCW 43.190.070 are each amended to read as follows:

(1) The office ((~~of the state long-term care ombudsman~~)) shall develop referral procedures for all long-term care ombudsman programs to refer any complaint to any appropriate state or local government agency. All complainants having complaints concerning matters over which the department has enforcement authority with respect to a long-term care facility shall be encouraged by long-term care ombudsmen to make such complaints to the department, or allow the long-term care ombudsman to make such a complaint to the department on the complainant's behalf. No complainant may be required to make such a complaint, except as otherwise required by law, or to waive their right to confidentiality pursuant to RCW 43.190.110. The department ((~~of social and health services~~)) shall ((~~act as quickly as possible on~~)) respond in a reasonable and timely manner to any complaint referred to ((~~them~~)) it by a long-term care ombudsman except that any complaint from any source alleging an immediate threat to resident health and safety shall be given first priority and responded to in a time frame reasonable in light of the nature and the immediacy of the threat. All complaints made or referred to the department by a long-term care ombudsman shall be deemed made pursuant to, and handled in accordance with, all applicable laws governing the handling of complaints or requests for inspection of the type of long-term care facility referred to in the complaint.

(2) The department ((~~of social and health services~~)) shall ((~~respond to any complaint against a~~)) provide the office with access to all the department's records, including identifying details concerning long-term care ((~~facility which was referred to it by a long-term care ombudsman and~~)) facilities, except to the extent that the disclosure is prohibited under RCW 74.46.820.

(3) At the conclusion of the department's investigation of any complaint which was referred by a long-term care ombudsman, the department shall forward to that ombudsman a summary of the results of the investigation and action proposed or taken, if such summary was requested by the ombudsman referring the complaint.

Sec. 8. Section 8, chapter 290, Laws of 1983 and RCW 43.190.080 are each amended to read as follows:

(1) The office ((~~of the state long-term care ombudsman~~)) shall develop procedures governing the right of entry of all long-term care ombudsmen to long-term care facilities and ((~~shall have access to residents with provisions made for privacy~~)) their access to patients' records. Such procedures shall protect the confidentiality of patients' records and ensure that the identity of any complainant or resident will not be disclosed without the written consent of such complainant or resident, or upon court order. State and local long-term care ombudsmen shall have the right of entry to long-term care facilities for the purpose of hearing, investigating, and resolving complaints of, and rendering advice to, individuals who are patients or residents of the facilities at any time deemed necessary and reasonable by ((~~the~~)) state ((~~ombudsman~~)) and local long-term care ombudsmen to effectively carry out the provisions of this chapter. Volunteer ombudsmen shall have the right of entry to long-term care facilities for the purpose of carrying out their powers, duties, and responsibilities as set forth in RCW 43.190.030.

(2) Nothing in this chapter restricts, limits, or increases any existing right of any organizations or individuals not described in subsection (1) of this section to enter or provide assistance to patients or residents of long-term care facilities.

(3) Nothing in this chapter restricts any right or privilege of any patient or resident of a long-term care facility to receive visitors of his or her choice.

Sec. 9. Section 9, chapter 290, Laws of 1983 and 43.190.090 are each amended to read as follows:

(1) No long-term care ombudsman is liable for the good faith performance or exercise of the powers, duties, or responsibilities of his or her position under this chapter.

(2) No discriminatory, disciplinary, or retaliatory action may be taken against any employee of a facility or agency, any patient, resident, or client of a long-term care facility, or any volunteer, for any communication made, or information given or disclosed, to aid ((~~the~~)) a long-term care ombudsman in carrying out ((~~its~~)) his or her powers, duties ((~~and~~)), or responsibilities, unless the same was done maliciously or without good faith. This subsection is not intended to infringe on the rights of the employer to supervise, discipline, or terminate an employee for other reasons.

(3) All communications by a long-term care ombudsman, if reasonably related to the requirements of that individual's responsibilities under this chapter and done in good faith, are privileged and that privilege shall serve as a defense to any action in libel or slander.

(4) A representative of the office is exempt from being required to testify in court as to any confidential matters except as the court may deem necessary to enforce this chapter.

Sec. 10. Section 10, chapter 290, Laws of 1983 and RCW 43.190.100 are each amended to read as follows:

The office shall prepare and submit by ((~~January 1~~)) December 1st of each year a report on the operations of the office, including an analysis of complaints about, the conditions of, and significant problems in, long-term care facilities, as well as recommendations for policy and program changes and appropriate supporting data, to the state long-term care ombudsman advisory committee. The office shall give careful consideration to any recommendations for changes in the report made by the committee, and shall submit the report, along with any additional written comments on the report or its substance made by the committee, by the following January 1st to the governor, the legislature, the federal commissioner on aging, any area agencies on aging, and the department. ((~~The report shall include information on complaints and conditions in long-term care facilities and may include recommendations for policy and program changes and appropriate supporting data.~~))

Sec. 11. Section 11, chapter 290, Laws of 1983 and RCW 43.190.110 are each amended to read as follows:

All records and files of long-term care ombudsmen relating to any complaint or investigation or other activities made pursuant to carrying out their duties and the identities of complainants, witnesses, patients, or residents shall remain confidential unless disclosure is authorized in writing by the patient or resident or his or her guardian or legal representative or required by court order. No disclosures may be made ((~~outside the office~~)) without the consent of any named witnesses, resident, patient, client, or complainant unless the disclosure is made without the identity of any of these individuals being disclosed. However, the secretary and the supervisors of the state long-term care ombudsman shall have access to the files and records of the state long-term care ombudsman, and the supervisors of all other long-term care ombudsmen shall have access to the files and records of such ombudsmen. The secretary and such supervisors shall have no right to disclose to anyone the contents of such files or records or the identity of complainants, witnesses, patients, or residents.

NEW SECTION. Sec. 12. A new section is added to chapter 43.190 RCW to read as follows:

The department shall comply with all federal funding requirements for the long-term care ombudsman program set forth in the Older Americans Act of 1965, (42 U.S.C. Sec. 3024 et. seq.).

NEW SECTION. Sec. 13. The legislative budget committee shall conduct a study to determine the effectiveness of the long-term care ombudsman program, including an analysis of the appropriateness of the placement of the office of the state long-term care ombudsman within the department, and shall prepare a report to the legislature of its conclusions. This report shall be submitted to the legislature no later than December 1, 1988.

NEW SECTION. Sec. 14. The following acts or parts of acts are each repealed:

(1) Section 3, chapter 290, Laws of 1983 and RCW 43.190.030;

(2) Section 4, chapter 290, Laws of 1983 and RCW 43.190.040;

(3) Section 6, chapter 290, Laws of 1983 and RCW 43.190.060; and

(4) Section 12, chapter 290, Laws of 1983 and RCW 43.190.120.