NOTICE: Formatting and page numbering in this document may be different

from that in the original published version.

FIFTY-SEVENTH DAY

------------

MORNING SESSION

------------

Senate Chamber, Olympia, Monday, March 10, 2003

      The Senate was called to order at 10:00 a.m. by President Owen. The Secretary called the roll and announced to the President that all Senators were present.

      The Sergeant at Arms Color Guard, consisting of Pages Luke Conklin and Karen Doerr, presented the Colors. Reverend Barbara Schacht, pastor of the Cornerstone Presbyterian Church in Olympia, offered the prayer.

MOTION

      On motion of Senator Sheahan, the reading of the Journal of the previous day was dispensed with and it was approved.

REPORTS OF STANDING COMMITTEES

March 6, 2003

SB 5135             Prime Sponsor, Senator Carlson: Creating tuition surcharges. Reported by Committee on Ways and Means

      MAJORITY Recommendation: That Second Substitute Senate Bill No. 5135 be substituted therefor, and the second substitute bill do pass. Signed by Senators Rossi, Chair; Hewitt, Vice Chair; Zarelli, Vice Chair; Hale, Honeyford, Johnson, Parlette, Roach, Sheahan and Winsley.

      MINORITY Recommendation: Do not pass. Signed by Senators Brown, Fairley, Fraser, Poulsen, Regala and B. Sheldon.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5337             Prime Sponsor, Senator Horn: Revising the agency council on coordinated transportation. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5337 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5429             Prime Sponsor, Senator Mulliken: Authorizing the Performance Registration Information Systems Management Program (PRISM). Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: Do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5455             Prime Sponsor, Senator Horn: Creating a pilot program for renewal of drivers' licenses by subagents. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: Do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Mulliken and Oke.

      MINORITY Recommendation: Do not pass. Signed by Senators Haugen, Jacobsen and Spanel.

      Passed to Committee on Rules for second reading.

March 5, 2003

SB 5499             Prime Sponsor, Senator Oke: Transferring accident data processing to the department of transportation. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5499 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5643             Prime Sponsor, Senator Esser: Implementing digitally printed license plates. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5643 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Mulliken and Prentice.

      MINORITY Recommendation: Do not pass. Signed by Senators Haugen, Jacobsen and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5694             Prime Sponsor, Senator Swecker: Creating a pilot project to develop an integrated environmental permit system. Reported by Committee on Ways and Means

      MAJORITY Recommendation: That Second Substitute Senate Bill No. 5694 be substituted therefor, and the second substitute bill do pass. Signed by Senators Rossi, Chair; Hewitt, Vice Chair; Zarelli, Vice Chair; Doumit, Fairley, Fraser, Hale, Honeyford, Johnson, Parlette, Poulsen, Regala, Roach, Sheahan, B. Sheldon and Winsley.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5937             Prime Sponsor, Senator Parlette: Adding to the scenic and recreational highway system. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: Do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5938             Prime Sponsor, Senator Finkbeiner: Updating financial responsibility laws for vessels. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5938 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5941             Prime Sponsor, Senator Swecker: Studying the Washington commerce corridor. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5941 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5953             Prime Sponsor, Senator Finkbeiner: Penalizing disruption of traffic by pedestrians. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5953 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Mulliken and Oke.

      MINORITY Recommendation: Do not pass. Signed by Senators Haugen, Jacobsen, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5961             Prime Sponsor, Senator Horn: Specifying penalties for aircraft registration violations. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5961 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5974             Prime Sponsor, Senator Benton: Exercising sound business practices to enhance revenues for Washington State Ferries. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5974 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5986             Prime Sponsor, Senator West: Allowing narrow vehicles to drive side by side in one lane. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5986 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Esser, Haugen, Kastama, Oke and Spanel.

      MINORITY Recommendation: Do not pass. Signed by Senators Benton, Vice Chair; and Jacobsen.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5987             Prime Sponsor, Senator Swecker: Delineating the roles and responsibilities of transportation agencies. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 5987 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 5989             Prime Sponsor, Senator Haugen: Representing pilots on the board of pilotage commissioners. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: Do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Finkbeiner, Haugen, Jacobsen, Kastama, Mulliken, Oke, Prentice and Spanel.

      Passed to Committee on Rules for second reading.

March 6, 2003

SB 6001             Prime Sponsor, Senator Benton: Legalizing a motor vehicle, travel trailer, and boat trailer combination. Reported by Committee on Highways and Transportation

      MAJORITY Recommendation: That Substitute Senate Bill No. 6001 be substituted therefor, and the substitute bill do pass. Signed by Senators Horn, Chair; Swecker, Vice Chair; Benton, Vice Chair; Esser, Haugen, Jacobsen, Mulliken and Prentice.

      MINORITY Recommendation: Do not pass. Signed by Senator Kastama.

      Passed to Committee on Rules for second reading.

March 6, 2003

SHB 1069          Prime Sponsor, House Committee on Finance: Authorizing a waiver of interest and penalties for property tax bills not sent to the taxpayer due to error by the county. Reported by Committee on Ways and Means

      MAJORITY Recommendation: Do Pass. Signed by Senators Rossi, Chair; Hewitt, Vice Chair; Zarelli, Vice Chair; Brown, Doumit, Fairley, Fraser, Hale, Honeyford, Johnson, Parlette, Poulsen, Regala, Roach, Sheahan, B. Sheldon and Winsley.

      Passed to Committee on Rules for second reading.

MESSAGES FROM THE HOUSE

March 6, 2003

MR. PRESIDENT:

      The House has passed:

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1056,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1360,

      ENGROSSED HOUSE BILL NO. 1563,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1564, and the same are herewith transmitted.

CYNTHIA ZEHNDER, Chief Clerk

March 7, 2002

MR. PRESIDENT:

      The Speaker has signed SUBSTITUTE HOUSE BILL NO. 1832, and the same is herewith transmitted.

CYNTHIA ZEHNDER, Chief Clerk

SIGNED BY THE PRESIDENT

      The President signed:

      SUBSTITUTE HOUSE BILL NO. 1832.

INTRODUCTION AND FIRST READING

SB 6028             by Senators Brandland, Spanel and Rasmussen

AN ACT Relating to the business and occupation taxation of manufacturing flax seed into flax oil; amending RCW 82.04.260; and providing an effective date.

Referred to Committee on Ways and Means.

INTRODUCTION AND FIRST READING OF HOUSE BILLS

ESHB 1056        by House Committee on Financial Institutions and Insurance (originally sponsored by Representatives Simpson and Campbell)

Notifying home buyers of where information regarding registered sex offenders may be obtained.

Referred to Committee on Financial Services, Insurance and Housing.

ESHB 1360        by House Committee on Technology, Telecommunications and Energy (originally sponsored by Representatives Ruderman and Anderson)

Allowing additional members on the information services board.

Referred to Committee on Technology and Communications.

EHB 1563          by Representatives Lantz, Delvin, Dickerson, Carrell, Upthegrove, Talcott, Kessler, Kagi, McDermott, Lovick, Moeller, Morrell, Murray, Pettigrew, Berkey, Kenney and Santos

Providing a procedure for court-ordered contact with a child for nonparents.

Referred to Committee on Children and Family Services and Corrections.

ESHB 1564        by House Committee on Local Government (originally sponsored by Representatives Alexander, Fromhold, Mielke, Kessler and Buck)

Clarifying county treasurer fiscal provisions.

Referred to Committee on Government Operations and Elections.

MOTION

      On motion of Senator Sheahan, Engrossed House Bill No. 1563 was referred to the Committee on Children and Family Services and Corrections.

MOTION

      At 10:09 a.m., on motion of Senator Sheahan, the Senate was declared to be at ease.

      The Senate was called to order at 11:04 a.m. by President Owen.

SECOND READING

      SENATE BILL NO. 5192, by Senators Zarelli and Oke

Promoting job creation through state investments.

MOTIONS

      On motion of Senator Zarelli, Substitute Senate Bill No. 5192 was substituted for Senate Bill No. 5192 and the substitute bill was placed on second reading and read the second time.

      On motion of Senator Zarelli, the following striking amendment was adopted:

       Strike everything after the enacting clause and insert the following:

       "NEW SECTION. Sec. 1. The outlook for the state's pension system is dramatically affected by the performance of the state investment board. The recent performance of all pension funds throughout the country has resulted in a greater emphasis on investment expertise and accountability for investment decisions.

       The legislature has determined that particular roles and responsibilities are appropriate for various members of the investment board. In delineating these roles and responsibilities, a system of accountability for performance is an essential element.

       The legislature also finds that an examination of Washington investment opportunities within the context of Washington's overall investment strategy for diversification and maximizing returns is an appropriate role of the state investment board and that additional resources may be necessary to fully consider those investments.

       NEW SECTION. Sec. 2. (1) The state investment board shall maintain a portion of the board's investment portfolio in the technology investment account, an account that shall be accounted for separately and apart from other moneys invested by the board. Investments from the account may be made in technology businesses. These investments may be made directly by the board or through the board's investment advisors, including venture capital firms. The earnings on the technology investment account must be accounted for separately from other investments made by the board.

       (2) Investments under this section must be made in a manner consistent with investment or management criteria established by the board. In making investments of moneys in the technology investment account, the primary investment objectives are to maximize return at a prudent level of risk, as required by RCW 43.33A.110, and to maintain a diversity of investment as required by RCW 43.33A.140. In choosing among equal investment opportunities that satisfy these investment objectives, the board shall give priority to those investments from the account that help attract or assist technology businesses in the state, including investments in technology businesses seeking to locate or expand in this state.

       (3) The state investment board shall hire or designate from its current staff, at least one experienced full-time staff person to research, investigate, and recommend to the state investment board, if appropriate, and subject to the standards of investment and management under RCW 43.33A.110 and this section, investment opportunities in technology businesses that are located in, have a substantial employment base in, make a significant economic contribution to, or are seeking to locate or expand in, Washington state. The department of community, trade, and economic development is responsible for actively marketing the technology investment account to businesses seeking to locate or expand in Washington and shall work in conjunction with appropriate staff of the state investment board to coordinate information on technology businesses interested in locating or expanding in Washington.

       (4) As used in this section "technology business" means a company that has as its principal function the providing of services including computer, information transfer, communication, distribution, processing, administrative, laboratory, experimental, developmental, technical, testing services, manufacture of goods or materials, the processing of goods or materials by physical or chemical change, computer-related activities, robotics, energy, biological or pharmaceutical industrial activity, or technology-oriented or emerging industrial activity.

       Sec. 3. RCW 43.33A.020 and 2002 c 303 s 1 are each amended to read as follows:

       There is hereby created the state investment board to consist of ((fifteen)) members to be appointed as provided in this ((section)) chapter.

       (((1) One member who is an active member of the public employees' retirement system and has been an active member for at least five years. This member shall be appointed by the governor, subject to confirmation by the senate, from a list of nominations submitted by organizations representing active members of the system. The initial term of appointment shall be one year.

       (2) One member who is an active member of the law enforcement officers' and fire fighters' retirement system and has been an active member for at least five years. This member shall be appointed by the governor, subject to confirmation by the senate, from a list of nominations submitted by organizations representing active members of the system. The initial term of appointment shall be two years.

       (3) One member who is an active member of the teachers' retirement system and has been an active member for at least five years. This member shall be appointed by the superintendent of public instruction subject to confirmation by the senate. The initial term of appointment shall be three years.

       (4) The state treasurer or the assistant state treasurer if designated by the state treasurer.

       (5) A member of the state house of representatives. This member shall be appointed by the speaker of the house of representatives.

       (6) A member of the state senate. This member shall be appointed by the president of the senate.

       (7) One member who is a retired member of a state retirement system shall be appointed by the governor, subject to confirmation by the senate. The initial term of appointment shall be three years.

       (8) The director of the department of labor and industries.

       (9) The director of the department of retirement systems.

       (10) One member who is an active member of the school employees' retirement system and has at least five years of service credit. This member shall be appointed by the superintendent of public instruction subject to confirmation by the senate. The initial term of appointment shall be three years.

       (11) Five nonvoting members appointed by the state investment board who are considered experienced and qualified in the field of investments.

       The legislative members shall serve terms of two years. The initial legislative members appointed to the board shall be appointed no sooner than January 10, 1983. The position of a legislative member on the board shall become vacant at the end of that member's term on the board or whenever the member ceases to be a member of the senate or house of representatives from which the member was appointed.

       After the initial term of appointment, all other members of the state investment board, except ex officio members, shall serve terms of three years and shall hold office until successors are appointed. Members' terms, except for ex officio members, shall commence on January 1 of the year in which the appointments are made.

       Members may be reappointed for additional terms. Appointments for vacancies shall be made for the unexpired terms in the same manner as the original appointments. Any member may be removed from the board for cause by the member's respective appointing authority.))

       NEW SECTION. Sec. 4. There is hereby created an audit and accountability committee of the state investment board consisting of not more than five voting members of the investment board. The audit and accountability committee members are appointed by the state investment board chairperson.

       At least one member of the audit and accountability committee must be a representative of one of the retirement system beneficiaries.

       NEW SECTION. Sec. 5. The state treasurer or a designee is a member of the state investment board. In addition to serving as a fiduciary trustee, the state treasurer serves as a member of the audit and accountability committee. The state treasurer will use his or her expertise in financial markets to assist the accountability review process for the state investment board. The state treasurer will also assist in identifying in-state investment opportunities that meet or exceed out-of-state investment returns. The state treasurer will work with the chair of the state investment board and investment board staff to develop and implement an outreach program to Washington citizens. The purpose of the outreach program is to increase awareness of the performance of the pension fund and to encourage public review of the investment portfolio performance in aggregate. The state treasurer will report to the investment board at least twice a year the extent of those outreach efforts and any significant concerns or issues raised by the public regarding the state investment board.

       NEW SECTION. Sec. 6. One member of the state investment board is an active member of the public employees' retirement system and has been an active member for at least five years. This member is appointed by the governor, subject to confirmation by the senate, from a list of nominations submitted by organizations representing active members of the system. In addition to serving as a fiduciary trustee, this member will use his or her position as a representative of pension fund beneficiaries to work with state investment board staff to participate in an outreach program specific to the public employees' retirement system beneficiaries. At a minimum, the outreach program will include making available a written annual report to public employees and an annual meeting for public employees detailing board performance and investment objectives. The public employees' board member will also assist in identifying issues relevant to public employees' for which the state investment board is held accountable, and will provide a quarterly report to the board on those issues.

       NEW SECTION. Sec. 7. One member of the state investment board is an active member of the law enforcement officers' and fire fighters' retirement system and has been an active member for at least five years. This member is appointed by the governor, subject to confirmation by the senate, from a list of nominations submitted by organizations representing active members of the system. In addition to serving as a fiduciary trustee, this member will use his or her position as a representative of pension fund beneficiaries to work with state investment board staff to participate in an outreach program specific to the law enforcement officers' and fire fighters' retirement system beneficiaries. At a minimum, the outreach program will include making available a written annual report to law enforcement officers' and fire fighters' employees and an annual meeting for law enforcement officers' and fire fighters' employees detailing board performance and investment objectives. The law enforcement officers' and fire fighters' board member will also assist in identifying issues relevant to law enforcement officers' and fire fighters' for which the state investment board is held accountable, and will provide a quarterly report to the board on those issues.

       NEW SECTION. Sec. 8. One member of the state investment board is an active member of the teachers' retirement system and has been an active member for at least five years. This member is appointed by the superintendent of public instruction subject to confirmation by the senate. In addition to serving as a fiduciary trustee, this member will use his or her position as a representative of pension fund beneficiaries to work with state investment board

staff to participate in an outreach program specific to the teachers' retirement system beneficiaries. At a minimum, the outreach program will include making available a written annual report to teachers' retirement system employees and an annual meeting for teachers' retirement system employees detailing board performance and investment objectives. The teachers' board member will also assist in identifying issues relevant to teachers for which the state investment board is held accountable, and will provide a quarterly report to the board on those issues.

       NEW SECTION. Sec. 9. One member of the state investment board is an active member of the school employees' retirement system and has at least five years of service credit. This member is appointed by the superintendent of public instruction subject to confirmation by the senate. In addition to serving as a fiduciary trustee, this member will use his or her position as a representative of pension fund beneficiaries to work with state investment board staff to participate in an outreach program specific to the school employees' retirement system beneficiaries. At a minimum, the outreach program will include making available a written annual report to school employees and an annual meeting for school employees detailing board performance and investment objectives. The school employees' board member will also assist in identifying issues relevant to school employees for which the state investment board is held accountable, and will provide a quarterly report to the board on those issues.

       NEW SECTION. Sec. 10. One member of the state investment board is a retired member of a state retirement system and is appointed by the governor subject to confirmation by the senate. In addition to serving as a fiduciary trustee, this member will use his or her position as a representative of pension fund beneficiaries to work with state investment board staff to participate in an outreach program specific to retired beneficiaries. At a minimum, the outreach program will include making available a written annual report to retirees and an annual meeting for retirees detailing board performance and investment objectives. The retirees' board member will also assist in identifying issues relevant to retirees for which the state investment board is held accountable, and will provide a quarterly report to the board on those issues.

       NEW SECTION. Sec. 11. The director of labor and industries is a member of the state investment board, representing an agency that is responsible for administering programs supported by state investment board earnings. In addition to serving as a fiduciary trustee, the director of labor and industries will work with state investment board staff to implement a process for reporting state investment board earnings and investment objectives to those businesses in Washington state that provide the funding for the programs administered by the department of labor and industries that are supported by state investment board earnings.

       NEW SECTION. Sec. 12. The director of retirement systems is a member of the state investment board, representing an agency that is responsible for administering programs supported by state investment board earnings. In addition to serving as a fiduciary trustee, the director of retirement systems will implement a process of reporting state investment board earnings to the constituents of retirement systems.

       NEW SECTION. Sec. 13. The performance of the state investment board has a profound effect on the state budget and the interests of the people of the state. Accordingly, the governor or the governor's designee is a member of the state investment board. In addition to serving as a fiduciary trustee, the governor will work with the state investment board staff to develop and implement an outreach program to Washington citizens. The intent of the outreach program is to increase awareness of the performance of the pension fund and to encourage public review of the investment board's performance.

       NEW SECTION. Sec. 14. The performance of the state investment board has a profound effect on the state budget and the interests of the people of the state. Accordingly, one member of the state investment board is a member of the state house of representatives. This member is appointed by the speaker of the house of representatives. In addition to serving as a fiduciary trustee, this member is responsible for reporting to the relevant committees in the house of representatives on the status of the funds for which the state investment board is responsible and accountable.

       NEW SECTION. Sec. 15. The performance of the state investment board has a profound effect on the state budget and the interests of the people of the state. Accordingly, one member of the state investment board is a member of the state senate. This member is appointed by the president of the senate. In addition to serving as a fiduciary trustee, this member is responsible for reporting to the relevant committees in the senate on the status of the funds for which the state investment board is responsible and accountable.

       NEW SECTION. Sec. 16. The performance of the state investment board has a profound effect on local government fiscal systems and the interests of people in our communities. Accordingly, one member is appointed by the governor, subject to confirmation by the senate, from a list of nominations submitted by cities and counties participating in pension systems supported by the state investment board. In addition to serving as a fiduciary trustee, this member is responsible for reporting to the appropriate local government entities on the status of the funds for which the state investment board is responsible and accountable. The local government designee will work with the state investment board staff to develop and implement an outreach program to Washington citizens. The intent of the outreach program is to increase awareness of the performance of the pension fund and to encourage public review of the investment board's performance.

       NEW SECTION. Sec. 17. Expertise in investment decisions is sought by the inclusion of five nonvoting members appointed by the state investment board after nomination by the audit and accountability committee, who are considered experienced and qualified in the field of investments. At least one of the nonvoting members must have experience in investing in companies, funds, or other investments that are located in, have a substantial employment base in, or make a significant economic contribution to, Washington state.

       NEW SECTION. Sec. 18. (1) All members of the state investment board, except nonvoting members, legislative members, and ex officio members, serve terms of three years and hold office until successors are appointed. Members' terms, except for nonvoting members, commence on January 1st of the year in which the appointments are made.

       (2) Members may be reappointed for additional terms. Appointments for vacancies are made for the unexpired terms in the same manner as the original appointments. Any voting member may be removed from the state investment board for cause by the member's respective appointing authority. The five nonvoting members serve for a term determined by the audit and accountability committee, which may not exceed two years. Nonvoting members may be removed from the board by the audit and accountability committee at any time with or without cause.

       (3) The legislative members serve terms of two years. The position of a legislative member on the state investment board becomes vacant at the end of that member's term on the state investment board or whenever the member ceases to be a member of the senate or house of representatives from which the member was appointed.

       Sec. 19. RCW 43.33A.040 and 2002 c 303 s 2 are each amended to read as follows:

       (1) A quorum to conduct the business of the state investment board consists of ((at least six)) a majority of the voting members serving on the board. No action may be taken by the board without the affirmative vote of ((six members)) a majority of the voting members serving on the board.

       (2) The state investment board shall meet at least quarterly at such times as it may fix. The board shall elect a chairperson and vice chairperson annually: PROVIDED, That the legislative members are not eligible to serve as chairperson.

       NEW SECTION. Sec. 20. Sections 2 and 4 through 18 of this act are each added to chapter 43.33A RCW.

       NEW SECTION. Sec. 21. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately."

MOTIONS

      On motion of Senator Zarelli, the following title amendment was adopted:

       On page 1, line 1 of the title, after "investments;" strike the remainder of the title and insert "amending RCW 43.33A.020 and 43.33A.040; adding new sections to chapter 43.33A RCW; creating a new section; and declaring an emergency."

      On motion of Senator Zarelli, the rules were suspended, Engrossed Substitute Senate Bill No. 5192 was advanced to third reading, the second reading considered the third and the bill was placed on final passage. 

      Debate ensued.

      The President declared the question before the Senate to be the roll call on the final passage of Engrossed Substitute Senate Bill No. 5192.

ROLL CALL

      The Secretary called the roll on the final passage of Engrossed Substitute Senate Bill No. 5192 and the bill passed the Senate by the following vote: Yeas, 33; Nays, 16; Absent, 0; Excused, 0.

     Voting yea: Senators Benton, Brandland, Deccio, Doumit, Eide, Esser, Finkbeiner, Hale, Haugen, Hewitt, Honeyford, Horn, Johnson, Kastama, McAuliffe, McCaslin, Morton, Mulliken, Oke, Parlette, Rasmussen, Reardon, Regala, Roach, Rossi, Schmidt, Sheahan, Shin, Stevens, Swecker, West, Winsley and Zarelli - 33.

     Voting nay: Senators Brown, Carlson, Fairley, Franklin, Fraser, Hargrove, Jacobsen, Keiser, Kline, Kohl-Welles, Poulsen, Prentice, Sheldon, B., Sheldon, T., Spanel and Thibaudeau - 16.

      ENGROSSED SUBSTITUTE SENATE BILL NO. 5192, having received the constitutional majority, was declared passed. There being no objection, the title of the bill will stand as the title of the act.

MOTION

      On motion of Senator Eide, Senator Kastama was excused.

SECOND READING

      SENATE JOINT MEMORIAL NO. 8020, by Senators West, Oke, Hale, Zarelli, Esser, Swecker, Schmidt, Honeyford, Stevens, Deccio, Sheahan, Hewitt, Horn, Mulliken, Morton, Finkbeiner, McCaslin, Carlson, Parlette, Rossi, Johnson, Brandland, Roach and Benton

Requesting the United States Senate to approve Mr. Estrada.

      The joint memorial was read the second time.

MOTION

      On motion of Senator West, the rules were suspended, Senate Joint Memorial No. 8020 was advanced to third reading, the second reading considered the third and the joint memorial was placed on final passage.

      Debate ensued.

      The President declared the question before the Senate to be the roll call on the final passage of Senate Joint Memorial No. 8020.

ROLL CALL

      The Secretary called the roll on the final passage of Senate Joint Memorial No. 8020 and the joint memorial passed the Senate by the following vote: Yeas, 26; Nays, 22; Absent, 0; Excused, 1.

     Voting yea: Senators Benton, Brandland, Carlson, Deccio, Esser, Finkbeiner, Hale, Hargrove, Hewitt, Honeyford, Horn, Johnson, McCaslin, Morton, Mulliken, Oke, Parlette, Roach, Rossi, Schmidt, Sheahan, Sheldon, T., Stevens, Swecker, West and Zarelli - 26.

     Voting nay: Senators Brown, Doumit, Eide, Fairley, Franklin, Fraser, Haugen, Jacobsen, Keiser, Kline, Kohl-Welles, McAuliffe, Poulsen, Prentice, Rasmussen, Reardon, Regala, Sheldon, B., Shin, Spanel, Thibaudeau and Winsley - 22.

     Excused: Senator Kastama - 1.

      SENATE JOINT MEMORIAL NO. 8020, having received the constitutional majority, was declared passed.

PERSONAL PRIVILEGE

      Senator Rasmussen: “A point of personal privilege, Mr. President. Well, as many of you know, my son is with the 446th at McChord. They were activated over the weekend--the aerial port squadron. I think what we need to do is remember the employers of these reservists, because they need to be honored. They let their reservists go now for up to six months. Some of those employers are from the state of Washington; some of them are State Troopers. Of course, there are many, many businesses and then the local employers of the counties and the cities. I think we need to take a moment to say ‘thank you’ to those employers that do honor our reservists and allow them the opportunity to serve our country. While my son is not activated as yet, his aerial port squadron is and so he oversees the forty-eight young men and women that are going to be deployed--some of them will stay at McChord and will serve their activation there and some of them will be all over the world. I just think it is fitting to be able to honor the people that employ these individuals and certainly honor those that serve our country.”

SECOND READING

      SENATE BILL NO. 5178, by Senators Hewitt, T. Sheldon, Rasmussen, Franklin, Shin, Rossi, Hale and B. Sheldon (by request of Lieutenant Governor Owen)

Creating the legislative international trade account.

MOTIONS

      On motion of Senator Hewitt, Substitute Senate Bill No. 5178 was substituted for Senate Bill No. 5178 and the substitute bill was placed on second reading and read the second time.

      On motion of Senator Fraser, the following amendment by Senators Fraser, Betti Sheldon and Hewitt was adopted:

      On page 1, beginning on line 8, strike all material down to and including "capacity." on line 16 and insert the following:

       "The legislative international trade account is created in the custody of the state treasurer. All moneys received by the president of the senate from gifts, grants, and endowments for international trade hosting and missions activities must be deposited in the account. Only private, nonpublic gifts, grants, and endowments may be deposited in the account. Expenditures from the account may be used only for the purposes of international trade hosting and international trade mission activities, excluding travel and lodging, in which the president and members of the senate and members of the house of representatives participate in an official capacity."

MOTION

      On motion of Senator Hewitt, the rules were suspended, Engrossed Substitute Senate Bill No. 5178 was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      The President declared the question before the Senate to be the roll call on the final passage of Engrossed Substitute Senate Bill No. 5178.

ROLL CALL

      The Secretary called the roll on the final passage of Engrossed Substitute Senate Bill No. 5178 and the bill passed the Senate by the following vote: Yeas, 49; Nays, 0; Absent, 0; Excused, 0.

     Voting yea: Senators Benton, Brandland, Brown, Carlson, Deccio, Doumit, Eide, Esser, Fairley, Finkbeiner, Franklin, Fraser, Hale, Hargrove, Haugen, Hewitt, Honeyford, Horn, Jacobsen, Johnson, Kastama, Keiser, Kline, Kohl-Welles, McAuliffe, McCaslin, Morton, Mulliken, Oke, Parlette, Poulsen, Prentice, Rasmussen, Reardon, Regala, Roach, Rossi, Schmidt, Sheahan, Sheldon, B., Sheldon, T., Shin, Spanel, Stevens, Swecker, Thibaudeau, West, Winsley and Zarelli - 49.

      ENGROSSED SUBSTITUTE SENATE BILL NO. 5178, having received the constitutional majority, was declared passed. There being no objection, the title of the bill will stand as the title of the act.

MOTION

      On motion of Senator Hewitt, Senator Roach was excused.

SECOND READING

      SENATE BILL NO. 5223, by Senators Keiser, Parlette, Hargrove, Deccio and Kline

Authorizing mental health advance directives.

MOTIONS

      On motion of Senator Keiser, Substitute Senate Bill No. 5223 was substituted for Senate Bill No. 5223 and the substitute bill was placed on second reading and read the second time.

      Senator Keiser moved that the following striking amendment be adopted:

       Strike everything after the enacting clause and insert the following:

"PART I

General Provisions

       NEW SECTION. Sec. 1. (1) The legislature declares that an individual with capacity has the ability to control decisions relating to his or her own mental health care. The legislature finds that:

       (a) Some mental illnesses cause individuals to fluctuate between capacity and incapacity;

       (b) During periods when an individual's capacity is unclear, the individual may be unable to access needed treatment because the individual may be unable to give informed consent;

       (c) Early treatment may prevent an individual from becoming so ill that involuntary treatment is necessary; and

       (d) Mentally ill individuals need some method of expressing their instructions and preferences for treatment and providing advance consent to or refusal of treatment.

       The legislature recognizes that a mental health advance directive can be an essential tool for an individual to express his or her choices at a time when the effects of mental illness have not deprived him or her of the power to express his or her instructions or preferences.

       (2) The legislature further finds that:

       (a) A mental health advance directive must provide the individual with a full range of choices;

       (b) Mentally ill individuals have varying perspectives on whether they want to be able to revoke a directive during periods of incapacity;

       (c) For a mental health advance directive to be an effective tool, individuals must be able to choose how they want their directives treated during periods of incapacity; and

       (d) There must be clear standards so that treatment providers can readily discern an individual's treatment choices.

       Consequently, the legislature affirms that, pursuant to other provisions of law, a validly executed mental health advance directive is to be respected by agents, guardians, and other surrogate decision makers, health care providers, professional persons, and health care facilities.

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

       (1) "Adult" means any individual who has attained the age of majority or is an emancipated minor.

       (2) "Agent" has the same meaning as an attorney-in-fact or agent as provided in chapter 11.94 RCW.

       (3) "Capacity" means that an adult has not been found to be incapacitated pursuant to this chapter or RCW 11.88.010(1)(e).

       (4) "Court" means a superior court under chapter 2.08 RCW.

       (5) "Health care facility" means a hospital, as defined in RCW 70.41.020; an institution, as defined in RCW 71.12.455; a state hospital, as defined in RCW 72.23.010; a nursing home, as defined in RCW 18.51.010; or a clinic that is part of a community mental health service delivery system, as defined in RCW 71.24.025.

       (6) "Health care provider" means an osteopathic physician or osteopathic physician's assistant licensed under chapter 18.57 or 18.57A RCW, a physician or physician's assistant licensed under chapter 18.71 or 18.71A RCW, or an advanced registered nurse practitioner licensed under RCW 18.79.050.

       (7) "Incapacitated" means an adult who: (a) Is unable to understand the nature, character, and anticipated results of proposed treatment or alternatives; understand the recognized serious possible risks, complications, and anticipated benefits in treatments and alternatives, including nontreatment; or communicate his or her understanding or treatment decisions; or (b) has been found to be incompetent pursuant to RCW 11.88.010(1)(e).

       (8) "Informed consent" means consent that is given after the person: (a) Is provided with a description of the nature, character, and anticipated results of proposed treatments and alternatives, and the recognized serious possible risks, complications, and anticipated benefits in the treatments and alternatives, including nontreatment, in language that the person can reasonably be expected to understand; or (b) elects not to be given the information included in (a) of this subsection.

       (9) "Long-term care facility" has the same meaning as defined in RCW 43.190.020.

       (10) "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions.

       (11) "Mental health advance directive" or "directive" means a written document in which the principal makes a declaration of instructions or preferences or appoints an agent to make decisions on behalf of the principal regarding the principal's mental health treatment, or both, and that is consistent with the provisions of this chapter.

       (12) "Mental health professional" means a psychiatrist, psychologist, psychiatric nurse, or social worker, and such other mental health professionals as may be defined by rules adopted by the secretary pursuant to the provisions of chapter 71.05 RCW.

       (13) "Principal" means an adult who has executed a mental health advance directive.

       (14) "Professional person" means a mental health professional and shall also mean a physician, registered nurse, and such others as may be defined by rules adopted by the secretary pursuant to the provisions of chapter 71.05 RCW.

       NEW SECTION. Sec. 3. (1) The definition of informed consent is to be construed to be consistent with that term as it is used in chapter 7.70 RCW.

       (2) The definitions of mental disorder, mental health professional, and professional person are to be construed to be consistent with those terms as they are defined in RCW 71.05.020.

       NEW SECTION. Sec. 4. For the purposes of this chapter, an adult is presumed to have capacity.

PART II

The Document: Creation, Contents, Revocation

       NEW SECTION. Sec. 5. (1) An adult with capacity may execute a mental health advance directive.

       (2) A directive executed in accordance with this chapter is presumed to be valid. The inability to honor one or more provisions of a directive does not affect the validity of the remaining provisions.

       (3) A directive may include any provision relating to mental health treatment or the care of the principal or the principal's personal affairs. Without limitation, a directive may include:

       (a) The principal's preferences and instructions for mental health treatment;

       (b) Consent to specific types of mental health treatment;

       (c) Refusal to consent to specific types of mental health treatment;

       (d) Consent to admission to and retention in a facility for mental health treatment for up to fourteen days;

       (e) Descriptions of situations that may cause the principal to experience a mental health crisis;

       (f) Suggested alternative responses that may supplement or be in lieu of direct mental health treatment, such as treatment approaches from other providers;

       (g) Appointment of an agent pursuant to chapter 11.94 RCW to make mental health treatment decisions on the principal's behalf, including authorizing the agent to provide consent on the principal's behalf to voluntary admission to inpatient mental health treatment; and

       (h) The principal's nomination of a guardian or limited guardian as provided in RCW 11.94.010 for consideration by the court if guardianship proceedings are commenced.

       (4) A directive may be combined with or be independent of a nomination of a guardian or other durable power of attorney under chapter 11.94 RCW, so long as the processes for each are executed in accordance with its own statutes.

       NEW SECTION. Sec. 6. (1) A directive shall:

       (a) Be in writing;

       (b) Contain language that clearly indicates that the principal intends to create a directive;

       (c) Be dated and signed by the principal or at the principal's direction in the principal's presence if the principal is unable to sign;

       (d) Designate whether the principal wishes to be able to revoke the directive during any period of incapacity or wishes to be unable to revoke the directive during any period of incapacity; and

       (e) Be witnessed in writing by at least two adults, each of whom shall declare that he or she personally knows the principal, was present when the principal dated and signed the directive, and that the principal did not appear to be incapacitated or acting under fraud, undue influence, or duress.

       (2) A directive that includes the appointment of an agent under chapter 11.94 RCW shall contain the words "This power of attorney shall not be affected by the incapacity of the principal," or "This power of attorney shall become effective upon the incapacity of the principal," or similar words showing the principal's intent that the authority conferred shall be exercisable notwithstanding the principal's incapacity.

       (3) A directive is valid upon execution, but all or part of the directive may take effect at a later time as designated by the principal in the directive.

       (4) A directive may:

       (a) Be revoked, in whole or in part, pursuant to the provisions of section 8 of this act; or

       (b) Expire under its own terms.

       NEW SECTION. Sec. 7. A directive may not:

       (1) Create an entitlement to mental health or medical treatment or supersede a determination of medical necessity;

       (2) Obligate any health care provider, professional person, or health care facility to pay the costs associated with the treatment requested;

       (3) Obligate any health care provider, professional person, or health care facility to be responsible for the nontreatment personal care of the principal or the principal's personal affairs outside the scope of services the facility normally provides;

       (4) Replace or supersede the provisions of any will or testamentary document or supersede the provisions of intestate succession;

       (5) Be revoked by an incapacitated principal unless that principal selected the option to permit revocation while incapacitated at the time his or her directive was executed; or

       (6) Be used as the authority for inpatient admission for more than fourteen days in any twenty-one day period.

       NEW SECTION. Sec. 8. (1)(a) A principal with capacity may, by written statement by the principal or at the principal's direction in the principal's presence, revoke a directive in whole or in part.

       (b) An incapacitated principal may revoke a directive only if he or she elected at the time of executing the directive to be able to revoke when incapacitated.

       (2) The revocation need not follow any specific form so long as it is written and the intent of the principal can be discerned.

       (3) The principal shall provide a copy of his or her written statement of revocation to his or her agent, if any, and to each health care provider, professional person, or health care facility that received a copy of the directive from the principal.

       (4) The written statement of revocation is effective:

       (a) As to a health care provider, professional person, or health care facility, upon receipt. The professional person, health care provider, or health care facility, or persons acting under their direction shall make the statement of revocation part of the principal's medical record; and

       (b) As to the principal's agent, upon receipt. The principal's agent shall notify the principal's health care provider, professional person, or health care facility of the revocation and provide them with a copy of the written statement of revocation.

       (5) A directive also may:

       (a) Be revoked, in whole or in part, expressly or to the extent of any inconsistency, by a subsequent directive; or

       (b) Be superseded or revoked by a court order, including any order entered in a criminal matter. A directive may be superseded by a court order regardless of whether the order contains an explicit reference to the directive. To the extent a directive is not in conflict with a court order, the directive remains effective, subject to the provisions of section 15 of this act. A directive shall not be interpreted in a manner that interferes with: (I) Incarceration or detention by the department of corrections, in a city or county jail, or by the department of social and health services; or (ii) treatment of a principal who is subject to involuntary treatment pursuant to chapter 10.77, 70.96A, 71.05, 71.09, or 71.34 RCW.

       (6) A directive that would have otherwise expired but is effective because the principal is incapacitated remains effective until the principal is no longer incapacitated unless the principal has elected to be able to revoke while incapacitated and has revoked the directive.

       (7) When a principal with capacity consents to treatment that differs from, or refuses treatment consented to in, the provisions of his or her directive, the consent or refusal constitutes a waiver of that provision and does not constitute a revocation of the provision or directive unless the principal also revokes the directive or provision.

       NEW SECTION. Sec. 9. A witness may not be any of the following:

       (1) A person designated to make health care decisions on the principal's behalf;

       (2) A health care provider or professional person directly involved with the provision of care to the principal at the time the directive is executed;

       (3) An owner, operator, employee, or relative of an owner or operator of a health care facility or long-term care facility in which the principal is a patient or resident;

       (4) A person who is related by blood, marriage, or adoption to the person or with whom the principal has a dating relationship, as defined in RCW 26.50.010;

       (5) A person who is declared to be an incapacitated person; or

       (6) A person who would benefit financially if the principal making the directive undergoes mental health treatment.

       NEW SECTION. Sec. 10. (1) If a directive authorizes the appointment of an agent, the provisions of chapter 11.94 RCW and RCW 7.70.065 shall apply unless otherwise stated in this chapter.

       (2) The principal who appoints an agent must notify the agent in writing of the appointment.

       (3) An agent must act in good faith.

       (4) An agent may make decisions on behalf of the principal. Unless the principal has revoked the directive, the decisions must be consistent with the instructions and preferences the principal has expressed in the directive, or if not expressed, as otherwise known to the agent. If the principal's instructions or preferences are not known, the agent shall make a decision he or she determines is in the best interest of the principal.

       (5) Except to the extent the right is limited by the appointment or any federal or state law, the agent has the same right as the principal to receive, review, and authorize the use and disclosure of the principal's health care information when the agent is acting on behalf of the principal and to the extent required for the agent to carry out his or her duties. This subsection shall be construed to be consistent with chapters 70.02, 70.24, 70.96A, 71.05, and 71.34 RCW, and with federal law regarding health care information.

       (6) Unless otherwise provided in the appointment and agreed to in writing by the agent, the agent is not, as a result of acting in the capacity of agent, personally liable for the cost of treatment provided to the principal.

       (7) An agent may resign or withdraw at any time by giving written notice to the principal. The agent must also give written notice to any health care provider, professional person, or health care facility providing treatment to the principal. The resignation or withdrawal is effective upon receipt unless otherwise specified in the resignation or withdrawal.

       (8) If the directive gives the agent authority to act while the principal has capacity, the decisions of the principal supersede those of the agent at any time the principal has capacity.

       (9) Unless otherwise provided in the durable power of attorney, the principal may revoke the agent's appointment as provided under other state law.

PART III

Capacity and Process for Incapacitated Persons

       NEW SECTION. Sec. 11. (1) For the purposes of this chapter, a principal, agent, professional person, or health care provider may seek a determination whether the principal is incapacitated or has regained capacity.

       (2)(a) For the purposes of this chapter, no adult may be declared an incapacitated person except by:

       (I) A court, if the request is made by the principal or the principal's agent;

       (ii) One mental health professional and one health care provider; or

       (iii) Two health care providers.

       (b) One of the persons making the determination under (a)(ii) or (iii) of this subsection must be a psychiatrist, psychologist, or a psychiatric advanced registered nurse practitioner.

       (3) When a professional person or health care provider requests a capacity determination, he or she shall promptly inform the principal that:

       (a) A request for capacity determination has been made; and

       (b) The principal may request that the determination be made by a court.

       (4) At least one mental health professional or health care provider must personally examine the principal prior to making a capacity determination.

       (5)(a) When a court makes a determination whether a principal has capacity, the court shall, at a minimum, be informed by the testimony of one mental health professional familiar with the principal and shall, except for good cause, give the principal an opportunity to appear in court prior to the court making its determination.

       (b) To the extent that local court rules permit, any party or witness may testify telephonically.

       (6) When a court has made a determination regarding a principal's capacity and there is a subsequent change in the principal's condition, subsequent determinations whether the principal is incapacitated may be made in accordance with any of the provisions of subsection (2) of this section.

       NEW SECTION. Sec. 12. A principal may bring an action to contest the validity of his or her directive. If an action under this section is commenced while an action to determine the principal's capacity is pending, the court shall consolidate the actions and decide the issues simultaneously.

       NEW SECTION. Sec. 13. (1) An initial determination of capacity must be completed within forty-eight hours of a request made by a person authorized in section 11 of this act. During the period between the request for an initial determination of the principal's capacity and completion of that determination, the principal may not be treated unless he or she consents at the time or treatment is otherwise authorized by state or federal law.

       (2)(a)(I) When an incapacitated principal is admitted to inpatient treatment pursuant to the provisions of his or her directive, his or her capacity must be reevaluated within seventy-two hours or when there has been a change in the principal's condition that indicates that he or she appears to have regained capacity, whichever occurs first.

       (ii) When an incapacitated principal has been admitted to and remains in inpatient treatment for more than seventy-two hours pursuant to the provisions of his or her directive, the principal's capacity must be reevaluated when there has been a change in his or her condition that indicates that he or she appears to have regained capacity.

       (iii) When a principal who is being treated on an inpatient basis and has been determined to be incapacitated requests, or his or her agent requests, a redetermination of the principal's capacity the redetermination must be made within seventy-two hours.

       (b) When a principal who has been determined to be incapacitated is being treated on an outpatient basis and there is a request for a redetermination of his or her capacity, the redetermination must be made within five days of the first request following a determination.

       (3)(a) When a principal who has appointed an agent for mental health treatment decisions requests a determination or redetermination of capacity, the agent must make reasonable efforts to obtain the determination or redetermination.

       (b) When a principal who does not have an agent for mental health treatment decisions is being treated in an inpatient facility and requests a determination or redetermination of capacity, the mental health professional or health care provider must complete the determination or, if the principal is seeking a determination from a court, must make reasonable efforts to notify the person authorized to make decisions for the principal under RCW 7.70.065 of the principal's request.

       (c) When a principal who does not have an agent for mental health treatment decisions is being treated on an outpatient basis, the person requesting a capacity determination must arrange for the determination.

       (4) If no determination has been made within the time frames established in subsection (1) or (2) of this section, the principal shall be considered to have capacity.

       (5) When an incapacitated principal is being treated pursuant to his or her directive, a request for a redetermination of capacity does not prevent treatment.

       NEW SECTION. Sec. 14. (1) A principal who:

       (a) Chose not to be able to revoke his or her directive during any period of incapacity;

       (b) Consented to voluntary admission to inpatient mental health treatment, or authorized an agent to consent on the principal's behalf; and

       (c) At the time of admission to inpatient treatment, refuses to be admitted,

may only be admitted into inpatient mental health treatment under subsection (2) of this section.

       (2) A principal may only be admitted to inpatient mental health treatment under his or her directive if, prior to admission, a physician member of the treating facility's professional staff:

       (a) Evaluates the principal's mental condition, including a review of reasonably available psychiatric and psychological history, diagnosis, and treatment needs, and determines, in conjunction with another health care provider or mental health professional, that the principal is incapacitated;

       (b) Obtains the informed consent of the agent, if any, designated in the directive;

       (c) Makes a written determination that the principal needs an inpatient evaluation or is in need of inpatient treatment and that the evaluation or treatment cannot be accomplished in a less restrictive setting; and

       (d) Documents in the principal's medical record a summary of the physician's findings and recommendations for treatment or evaluation.

       (3) In the event the admitting physician is not a psychiatrist, the principal shall receive a complete psychological assessment by a mental health professional within twenty-four hours of admission to determine the continued need for inpatient evaluation or treatment.

       (4)(a) If it is determined that the principal has capacity, then the principal may only be admitted to, or remain in, inpatient treatment if he or she consents at the time or is detained under the involuntary treatment provisions of chapter 70.96A, 71.05, or 71.34 RCW.

       (b) If a principal who is determined by two health care providers or one mental health professional and one health care provider to be incapacitated continues to refuse inpatient treatment, the principal may immediately seek injunctive relief for release from the facility.

       (5) If, at the end of the period of time that the principal or the principal's agent, if any, has consented to voluntary inpatient treatment, but no more than fourteen days after admission, the principal has not regained capacity or has regained capacity but refuses to consent to remain for additional treatment, the principal must be released during reasonable daylight hours, unless detained under chapter 70.96A, 71.05, or 71.34 RCW.

       (6)(a) Except as provided in (b) of this subsection, any principal who is voluntarily admitted to inpatient mental health treatment under this chapter shall have all the rights provided to individuals who are voluntarily admitted to inpatient treatment under chapter 71.05, 71.34, or 72.23 RCW.

       (b) Notwithstanding RCW 71.05.050 regarding consent to inpatient treatment for a specified length of time, the choices an incapacitated principal expressed in his or her directive shall control, provided, however, that a principal who takes action demonstrating a desire to be discharged, in addition to making statements requesting to be discharged, shall be discharged, and no principal shall be restrained in any way in order to prevent his or her discharge.

       (7) Consent to inpatient admission in a directive is effective only while the professional person, health care provider, and health care facility are in substantial compliance with the material provisions of the directive related to inpatient treatment.

PART IV

Provider Responsibilities and Immunities

       NEW SECTION. Sec. 15. (1) Upon receiving a directive, a health care provider, professional person, or health care facility providing treatment to the principal, or persons acting under the direction of the health care provider, professional person, or health care facility, shall make the directive a part of the principal's medical record and shall be deemed to have actual knowledge of the directive's contents.

       (2) When acting under authority of a directive, a health care provider, professional person, or health care facility shall act in accordance with the provisions of the directive to the fullest extent possible, unless in the determination of the health care provider, professional person, or health care facility:

       (a) Compliance with the provision would violate the accepted standard of care established in RCW 7.70.040;

       (b) The requested treatment is not available;

       (c) Compliance with the provision would violate applicable law; or

       (d) It is an emergency situation and compliance would endanger any person's life or health.

       (3)(a) In the case of a principal committed or detained under the involuntary treatment provisions of chapter 10.77, 70.96A, 71.05, 71.09, or 71.34 RCW, those provisions of a principal's directive that, in the determination of the health care provider, professional person, or health care facility, are inconsistent with the purpose of the commitment or with any order of the court relating to the commitment are invalid during the commitment.

       (b) Remaining provisions of a principal's directive are advisory while the principal is committed or detained.

       The treatment provider is encouraged to follow the remaining provisions of the directive, except as provided in (a) of this subsection or subsection (2) of this section.

       (4) In the case of a principal who is incarcerated or committed in a state or local correctional facility, provisions of the principal's directive that are inconsistent with reasonable penological objectives or administrative hearings regarding involuntary medication are invalid during the period of incarceration or commitment. In addition, treatment may be given despite refusal of the principal or the provisions of the directive: (a) For any reason under subsection (2) of this section; or (b) if, without the benefit of the specific treatment measure, there is a significant possibility that the person will harm self or others before an improvement of the person's condition occurs.

       (5)(a) If the health care provider, professional person, or health care facility is, at the time of receiving the directive, unable or unwilling to comply with any part or parts of the directive for any reason, the health care provider, professional person, or health care facility shall promptly notify the principal and, if applicable, his or her agent and shall document the reason in the principal's medical record.

       (b) If the health care provider, professional person, or health care facility is acting under authority of a directive and is unable to comply with any part or parts of the directive for the reasons listed in subsection (2) or (3) of this section, the health care provider, professional person, or health care facility shall promptly notify the principal and if applicable, his or her agent, and shall document the reason in the principal's medical record.

       (6) In the event that one or more parts of the directive are not followed because of one or more of the reasons set forth in subsection (2) or (4) of this section, all other parts of the directive shall be followed.

       (7) If no provider-patient relationship has previously been established, nothing in this chapter requires the establishment of a provider-patient relationship.

       NEW SECTION. Sec. 16. Where a principal consents in a directive to electroconvulsive therapy, the health care provider, professional person, or health care facility, or persons acting under the direction of the health care provider, professional person, or health care facility, shall document the therapy and the reason it was used in the principal's medical record.

       NEW SECTION. Sec. 17. (1) For the purposes of this section, "provider" means a private or public agency, government entity, health care provider, professional person, health care facility, or person acting under the direction of a health care provider or professional person, health care facility, or long-term care facility.

       (2) A provider is not subject to civil liability or sanctions for unprofessional conduct under the uniform disciplinary act, chapter 18.130 RCW, when in good faith and without negligence:

       (a) The provider provides treatment to a principal in the absence of actual knowledge of the existence of a directive, or provides treatment pursuant to a directive in the absence of actual knowledge of the revocation of the directive;

       (b) A health care provider or mental health professional determines that the principal is or is not incapacitated for the purpose of deciding whether to proceed according to a directive, and acts upon that determination;

       (c) The provider administers or does not administer mental health treatment according to the principal's directive in good faith reliance upon the validity of the directive and the directive is subsequently found to be invalid;

       (d) The provider does not provide treatment according to the directive for one of the reasons authorized under section 15 of this act; or

       (e) The provider provides treatment according to the principal's directive.

PART V

Interpretive Provisions

       NEW SECTION. Sec. 18. (1) Where an incapacitated principal has executed more than one valid directive and has not revoked any of the directives:

       (a) The directive most recently created shall be treated as the principal's mental health treatment preferences and instructions as to any inconsistent or conflicting provisions, unless provided otherwise in either document.

       (b) Where a directive executed under this chapter is inconsistent with a directive executed under any other chapter, the most recently created directive controls as to the inconsistent provisions.

       (2) Where an incapacitated principal has appointed more than one agent under chapter ll.94 RCW with authority to make mental health treatment decisions, RCW 11.94.010 controls.

       (3) The treatment provider shall inquire of a principal whether the principal is subject to any court orders that would affect the implementation of his or her directive.

       NEW SECTION. Sec. 19. (1) Directives validly executed before the effective date of this section shall be given full force and effect until revoked, superseded, or expired.

       (2) A directive validly executed in another political jurisdiction is valid to the extent permitted by Washington state law.

       NEW SECTION. Sec. 20. Any person with reasonable cause to believe that a directive has been created or revoked under circumstances amounting to fraud, duress, or undue influence may petition the court for appointment of a guardian for the person or to review the actions of the agent or person alleged to be involved in improper conduct under RCW 11.94.090 or 74.34.110.

       NEW SECTION. Sec. 21. The fact that a person has executed a directive does not constitute an indication of mental disorder or that the person is not capable of providing informed consent.

       NEW SECTION. Sec. 22. A person shall not be required to execute or to refrain from executing a directive, nor shall the existence of a directive be used as a criterion for insurance, as a condition for receiving mental or physical health services, or as a condition of admission to or discharge from a health care facility or long-term care facility.

       NEW SECTION. Sec. 23. No person or health care facility may use or threaten abuse, neglect, financial exploitation, or abandonment of the principal, as those terms are defined in RCW 74.34.020, to carry out the directive.

       NEW SECTION. Sec. 24. A directive does not limit any authority otherwise provided in Title 10, 70, or 71 RCW, or any other applicable state or federal laws to detain a person, take a person into custody, or to admit, retain, or treat a person in a health care facility.

       NEW SECTION. Sec. 25. (1) If a principal who is a resident of a long-term care facility is admitted to inpatient mental health treatment pursuant to his or her directive, the principal shall be allowed to be readmitted to the same long-term care facility as if his or her inpatient admission had been for a physical condition on the same basis that the principal would be readmitted under state or federal statute or rule when:

       (a) The treating facility's professional staff determine that inpatient mental health treatment is no longer medically necessary for the resident. The determination shall be made in writing by a psychiatrist or by a mental health professional and a physician; or

       (b) The person's consent to admission in his or her directive has expired.

       (2)(a) If the long-term care facility does not have a bed available at the time of discharge, the treating facility may discharge the resident, in consultation with the resident and agent if any, and in accordance with a medically appropriate discharge plan, to another long-term care facility.

       (b) This section shall apply to inpatient mental health treatment admission of long-term care facility residents, regardless of whether the admission is directly from a facility, hospital emergency room, or other location.

       (c) This section does not restrict the right of the resident to an earlier release from the inpatient treatment facility. This section does not restrict the right of a long-term care facility to initiate transfer or discharge of a resident who is readmitted pursuant to this section, provided that the facility has complied with the laws governing the transfer or discharge of a resident.

       (3) The joint legislative audit and review committee shall conduct an evaluation of the operation and impact of this section. The committee shall report its findings to the appropriate committees of the legislature by December

1, 2004.

PART VI

The Form

       NEW SECTION. Sec. 26. The directive shall be in substantially the following form:

PART VII

Amendatory Sections

         Sec. 27. RCW 11.94.010 and 1995 c 297 s 9 are each amended to read as follows:

         (1) Whenever a principal designates another as his or her attorney in fact or agent, by a power of attorney in writing, and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's disability, the authority of the attorney in fact or agent is exercisable on behalf of the principal as provided notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or the principal's guardian or heirs, devisees, and personal representative as if the principal were alive, competent, and not disabled. A principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification. If a guardian thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the guardian rather than the principal. The guardian has the same power the principal would have had if the principal were not disabled or incompetent, to revoke, suspend or terminate all or any part of the power of attorney or agency.

         (2) Persons shall place reasonable reliance on any determination of disability or incompetence as provided in the instrument that specifies the time and the circumstances under which the power of attorney document becomes effective.

         (3)(a) A principal may authorize his or her attorney-in-fact to provide informed consent for health care decisions on the principal's behalf. If a principal has appointed more than one agent with authority to make mental health treatment decisions in accordance with a directive under chapter 71.-- RCW (sections 1 through 26 of this act), to the extent of any conflict, the most recently appointed agent shall be treated as the principal's agent for mental health treatment decisions unless provided otherwise in either appointment.

         (b) Unless he or she is the spouse, or adult child or brother or sister of the principal, none of the following persons may act as the attorney-in-fact for the principal: Any of the principal's physicians, the physicians' employees, or the owners, administrators, or employees of the health care facility or long-term care facility as defined in RCW 43.190.020 where the principal resides or receives care. Except when the principal has consented in a mental health advance directive executed under chapter 71.-- RCW (sections 1 through 26 of this act) to inpatient admission or electroconvulsive therapy, this authorization is subject to the same limitations as those that apply to a guardian under RCW 11.92.043(5) (a) through (c).

         NEW SECTION. Sec. 28. A new section is added to chapter 11.94 RCW to read as follows:

         No person appointed by a principal as an agent to make mental health treatment decisions pursuant to a mental health advance directive under chapter 71.-- RCW (sections 1 through 26 of this act) shall be compensated for the performance of his or her duties as an agent to make mental health treatment decisions. This section does not prohibit an agent from receiving reimbursement for reasonable expenses incurred in the performance of his or her duties under chapter 71.-- RCW (sections 1 through 26 of this act).

         Sec. 29. RCW 7.70.065 and 1987 c 162 s 1 are each amended to read as follows:

         (1) Informed consent for health care for a patient who is not competent, as defined in RCW 11.88.010(1)(((b))) (e), to consent may be obtained from a person authorized to consent on behalf of such patient. Persons authorized to provide informed consent to health care on behalf of a patient who is not competent to consent shall be a member of one of the following classes of persons in the following order of priority:

         (a) The appointed guardian of the patient, if any;

         (b) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions;

         (c) The patient's spouse;

         (d) Children of the patient who are at least eighteen years of age;

         (e) Parents of the patient; and

         (f) Adult brothers and sisters of the patient.

         (2) If the physician seeking informed consent for proposed health care of the patient who is not competent to consent makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and finds no such person available, authorization may be given by any person in the next class in the order of descending priority. However, no person under this section may provide informed consent to health care:

         (a) If a person of higher priority under this section has refused to give such authorization; or

         (b) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class.

         (3) Before any person authorized to provide informed consent on behalf of a patient not competent to consent exercises that authority, the person must first determine in good faith that that patient, if competent, would consent to the proposed health care. If such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient's best interests.

         NEW SECTION. Sec. 30. A new section is added to chapter 7.70 RCW to read as follows:

         Consent to treatment or admission contained in a validly executed mental health advance directive constitutes informed consent for purposes of this chapter.

         NEW SECTION. Sec. 31. A new section is added to chapter 9A.60 RCW to read as follows:

         (1) For purposes of this section "mental health advance directive" means a written document that is a "mental health advance directive" as defined in section 2 of this act.

         (2) A person is guilty of fraudulent creation or revocation of a mental health advance directive if he or she knowingly:

         (a) Makes, completes, alters, or revokes the mental health advance directive of another without the principal's consent;

         (b) Utters, offers, or puts off as true a mental health advance directive that he or she knows to be forged; or

         (c) Obtains or prevents the signature of a principal or witness to a mental health advance directive by deception or duress.

         (3) Fraudulent creation or revocation of a mental health advance directive is a class C felony.

         Sec. 32. RCW 9.94A.515 and 2002 c 340 s 2, 2002 c 324 s 2, 2002 c 290 s 2, 2002 c 253 s 4, 2002 c 229 s 2, 2002 c 134 s 2, and 2002 c 133 s 4 are each reenacted and amended to read as follows:

         Sec. 33 RCW 9.94A.515 and 2002 c 340 s 2, 2002 c 324 s 2, 2002 c 290 s 7, 2002 c 253 s 4, 2002 c 229 s 2, 2002 c 134 s 2, and 2002 c 133 s 4 are each reenacted and amended to read as follows: