AN ACT Relating to foster-family homes; amending RCW 4.92.040, 4.92.060, 4.92.070, and 4.92.130; reenacting and amending RCW 4.92.150; adding a new chapter to Title 74 RCW; and making an appropriation.

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

NEW SECTION. Sec. 1. The legislature finds and declares that foster parents are a valuable resource providing an important service to the citizens of Washington. The legislature further recognizes that the current insurance crisis has adversely affected some foster-family homes in three ways: (1) Homeowners' and tenants' insurance is unavailable to foster parents in some locales or available coverage excludes foster parent activities; (2) in some locales, foster parents are unable to obtain liability insurance coverage over and above homeowner's or tenant's coverage for actions filed against them by the foster child or the child's parents or legal guardian. In addition, the monthly payment made to foster-family homes is not sufficient to cover the cost of obtaining this extended coverage and there is no mechanism in place by which foster parents can recapture this cost; (3) foster parents' personal resources are at risk. Therefore, the legislature is providing relief to address these problems.

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

(1) "Aircraft" includes, but is not limited to, any airplane, glider, or hot air balloon.

(2) "Bodily injury" means any physical injury, sickness, or disease sustained by any person including death at any time resulting therefrom.

(3) "Foster child" means a person under nineteen years old who has been placed in the care and supervision of licensed foster parents.

(4) "Foster parent" means the person, and including his or her spouse if the spouse is a resident of the same household, providing care, custody, and control of a foster child in a licensed foster-family home as defined in chapter 74.15 RCW.

(5) "Occurrence" means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or personal injury neither expected nor intended by the foster parent.

(6) "Motor vehicle" means an automobile, motorcycle, moped, midget automobile, including the type commonly referred to as a kart, go-kart, speedmobile, or by a comparable name whether commercially built or otherwise, trailer or semitrailer designed for travel on public roads, including any machinery or apparatus attached thereto, or snowmobile.

(7) "Personal injury" means any injury to the feelings or reputation of any person or organization arising out of libel, slander, defamation, or disparagement, wrongful eviction, or entry.

(8) "Property damage" means any physical injury to, or destruction of, tangible property, including the loss of use thereof at any time resulting therefrom.

(9) "Watercraft" includes, but is not limited to, any boat, ship, raft, or canoe, whether motorized or not.

NEW SECTION. Sec. 3. There is hereby established the foster-family home insurance fund within the department of social and health services. The fund shall consist of moneys appropriated by the legislature, supplemented by insurance coverage as provided in section 9 of this act. The department shall contract with the office of risk management created in accordance with RCW 43.19.19362 to set up and operate the fund and perform such other administrative functions as may be necessary to carry out the intentions of this chapter. The purpose of the fund is to pay, on behalf of foster-family homes, as defined in chapter 74.15 RCW, claims of foster children, their parents, guardians, or guardians ad litem resulting from occurrences peculiar to the foster-care relationship and the provision of foster-care services, and to pay the necessary expenses of the defense of foster parents by the attorney general when authorized by section 14 of this act. The fund may sue and be sued.

The fund, subject to this chapter, shall pay, on behalf of foster-family homes, any claims of foster children, their parents, guardians, or guardians ad litem for damages arising from, and peculiar to, the foster-care relationship and the good faith provision of foster-care services, or shall reimburse foster-family homes for those damages.

NEW SECTION. Sec. 4. The fund shall not be liable for any of the following:

(1) Any occurrence which does not arise from the foster-care relationship or the good faith provision of foster-care services.

(2) Any bodily injury arising out of the operation or use of any motor vehicle, aircraft, or watercraft owned or operated by, or rented or loaned to, any foster parent.

(3) Any loss arising out of licentious, immoral, or sexual behavior on the part of a foster parent intended to lead to, or culminating in, any sexual act.

(4) Any loss or damage arising out of occurrences prior to the effective date of this act.

NEW SECTION. Sec. 5. The fund shall be liable, if a claim is approved, to pay on behalf of each licensed foster-family home, all sums which the foster-family home is obligated to pay as a result of a valid claim of bodily injury or personal injury arising out of the activities of a foster child, or a foster parent or foster parents, which occurs while the foster child resides in the foster-family home. Claims specified in this section of a foster child or a parent, guardian, or guardian ad litem of a foster child shall be the sole responsibility of the fund.

NEW SECTION. Sec. 6. (1) Any claim against the fund shall be filed with the fund in accordance with claims procedures and on forms enacted by the department of social and health services or its designated contract agency. The department of social and health services is authorized to promulgate rules in accordance with chapter 34.__ RCW (chapter 288, Laws of 1988).

(2) Any claim against the fund filed by a foster parent or a third party shall be submitted to the fund within the applicable period of limitations for the appropriate civil action underlying the claim. If a claim is not submitted to the fund within the applicable time, there shall be no recourse against the fund.

(3) The office of risk management shall approve or reject a claim within one hundred eighty days after it is presented.

(4) No person may bring a civil action against a foster parent for which the fund is liable unless that person has first filed a claim against the fund and the claim has been rejected, or the claim has been filed, approved, and paid, and damages in excess of the payment are claimed.

NEW SECTION. Sec. 7. All processing of decisions and reports, payment of claims, and other administrative actions relating to the fund shall be conducted by the office of risk management by agreement with the department of social and health services.

NEW SECTION. Sec. 8. It is the intent of the legislature to maintain the fund established pursuant to section 3 of this act at an adequate level to meet anticipated liabilities.

NEW SECTION. Sec. 9. On or before July 1, 1989, the office of risk management shall provide liability insurance to licensed foster parents on behalf of the department of social and health services, through an interagency agreement.

The liability insurance shall provide coverage for claims against the foster-family home insurance fund for damages in excess of fifty thousand dollars, subject to the exclusions set forth in section 4 of this act.

NEW SECTION. Sec. 10. Notwithstanding any other provision of this chapter, the fund or its insurer shall not be liable for damages in excess of three hundred thousand dollars for any single foster-family home for all claims arising due to one or more occurrences during a single calendar year.

NEW SECTION. Sec. 11. Sections 1 through 10 of this act shall constitute a new chapter in Title 74 RCW.

Sec. 12. Section 4, chapter 95, Laws of 1895 as last amended by section 4, chapter 126, Laws of 1986 and RCW 4.92.040 are each amended to read as follows:

(1) No execution shall issue against the state on any judgment.

(2) Whenever a final judgment against the state is obtained in an action on a claim arising out of tortious conduct, the claim shall be paid from the tort claims revolving fund.

(3) Whenever a final judgment against the state shall have been obtained in any other action, the clerk of the court shall make and furnish to the risk management office a duly certified copy of such judgment; the risk management office shall thereupon audit the amount of damages and costs therein awarded, and the same shall be paid from appropriations specifically provided for such purposes by law.

(4) Final judgments for which there are no provisions in state law for payment shall be transmitted by the risk management office to the senate and house of representatives committees on ways and means as follows:

(a) On the first day of each session of the legislature, the risk management office shall transmit judgments received and audited since the adjournment of the previous session of the legislature.

(b) During each session of legislature, the risk management office shall transmit judgments immediately upon completion of audit.

(5) All claims, other than judgments, made to the legislature against the state of Washington for money or property, shall be accompanied by a statement of the facts on which such claim is based and such evidence as the claimant intends to offer in support of the claim and shall be filed with the risk management office, which shall retain the same as a record. All claims of two thousand dollars or less shall be approved or rejected by the risk management office, and if approved shall be paid from appropriations specifically provided for such purpose by law. Such decision, if adverse to the claimant in whole or part, shall not preclude the claimant from seeking relief from the legislature. If the claimant accepts any part of his or her claim which is approved for payment by the risk management office, such acceptance shall constitute a waiver and release of the state from any further claims relating to the damage or injury asserted in the claim so accepted. The risk management office shall submit to the house and senate committees on ways and means, at the beginning of each regular session, a comprehensive list of all claims paid pursuant to this subsection during the preceding year. For all claims not approved by the risk management office, the risk management office shall recommend to the legislature whether such claims should be approved or rejected. Recommendations shall be submitted to the senate and house of representatives committees on ways and means not later than the thirtieth day of each regular session of the legislature. Claims which cannot be processed for timely submission of recommendations shall be held for submission during the following regular session of the legislature. The recommendations shall include, but not be limited to:

(a) A summary of the facts alleged in the claim, and a statement as to whether these facts can be verified by the risk management office;

(b) An estimate by the risk management office of the value of the loss or damage which was alleged to have occurred;

(d) A summary of equitable or public policy arguments which might be helpful in resolving the claim.

((~~(5)~~)) (6) The legislative committees to whom such claims are referred shall make a transcript, recording, or statement of the substance of the evidence given in support of such a claim. If the legislature approves a claim the same shall be paid from appropriations specifically provided for such purpose by law.

((~~(6)~~)) (7) Subsections (3) through (5) of this section do not apply to judgments or claims against the state housing finance commission created under chapter 43.180 RCW.

(8) This section does not apply to judgments or claims against the foster-family home insurance fund.

Sec. 13. Section 1, chapter 79, Laws of 1921 as last amended by section 5, chapter 126, Laws of 1986 and RCW 4.92.060 are each amended to read as follows:

Whenever an action or proceeding for damages shall be instituted against any state officer, including state elected officials, employee, ((or)) volunteer, or foster parent licensed in accordance with chapter 74.15 RCW, arising from acts or omissions while performing, or in good faith purporting to perform, official duties, or, in the case of a foster parent, arising from an occurrence for which the foster-family home insurance fund established in section 3 of this act may be liable, such officer, employee, ((or)) volunteer, or foster parent may request the attorney general to authorize the defense of said action or proceeding at the expense of the state.

Sec. 14. Section 2, chapter 79, Laws of 1921 as last amended by section 6, chapter 126, Laws of 1986 and RCW 4.92.070 are each amended to read as follows:

If the attorney general shall find that said officer, employee, or volunteer's acts or omissions were, or were purported to be in good faith, within the scope of that person's official duties, or, in the case of a foster parent, that the occurrence is one for which the foster-family home insurance fund may be liable, said request shall be granted, in which event the necessary expenses of the defense of said action or proceeding shall be paid from the appropriations made for the support of the department to which such officer, employee, or volunteer is attached, or, in the case of a foster parent, from the foster-family home insurance fund created in section 3 of this act. In such cases the attorney general shall appear and defend such officer, employee, ((or)) volunteer, or foster parent, who shall assist and cooperate in the defense of such suit.

Sec. 15. Section 7, chapter 159, Laws of 1963 as last amended by section 3, chapter 217, Laws of 1985 and RCW 4.92.130 are each amended to read as follows:

A tort claims revolving fund in the custody of the treasurer is hereby created to be used solely and exclusively for the payment of claims against the state arising out of tortious conduct and against its officers, employees, and volunteers for whom the defense of the claim was authorized under RCW 4.92.070. The tort claims revolving fund shall not be used to pay judgments or claims against foster parents. No money shall be paid from the tort claims revolving fund unless all proceeds available to the claimant from any valid and collectible liability insurance shall have been exhausted and unless:

(1) The claim shall have been reduced to final judgment in a court of competent jurisdiction; or

(2) The claim has been approved for payment in accordance with RCW 4.92.140 as herein or hereafter amended.

Sec. 16. Section 9, chapter 159, Laws of 1963 as last amended by section 9, chapter 188, Laws of 1985 and by section 5, chapter 217, Laws of 1985 and RCW 4.92.150 are each reenacted and amended to read as follows:

After commencement of an action in a court of competent jurisdiction upon a claim against the state, or any of its officers, employees, or volunteers arising out of tortious conduct or pursuant to 42 U.S.C. Sec. 1981 et seq., or against a foster parent that the attorney general is defending pursuant to RCW 4.92.070, or upon petition by the state, the attorney general, with the prior approval of the risk management office and with the approval of the court, following such testimony as the court may require, may compromise and settle the same and stipulate for judgment against the state, the affected officer, employee, ((or)) volunteer, or foster parent.

NEW SECTION. Sec. 17. The sum of .......... dollars, or so much thereof as may be necessary, is appropriated for the biennium ending June 30, 1991, from the general fund to the department of social and health services for the purposes of this act.