5889-S AMH HC H2806.3

SSB 5889 - H COMM AMD

By Committee on Health Care

     Strike everything after the enacting clause and insert the following:

     "Sec. 1.  RCW 74.34.010 and 1984 c 97 s 7 are each amended to read as follows:

The legislature finds that frail elders and vulnerable persons may be subjected to abuse, neglect, exploitation, or abandonment.  The legislature finds that there are a number of ((adults sixty years of age or older)) persons who lack the ability to perform or obtain those services necessary to maintain or establish their well-being.  The legislature finds that many frail elders and vulnerable persons have health problems that place them in a dependent position.  The legislature further finds that a significant number of frail elders and vulnerable persons have mental and verbal limitations that leave them vulnerable and incapable of asking for help and protection.

     It is the intent of the legislature to prevent or remedy the abuse, neglect, exploitation, or abandonment of persons sixty years of age or older or vulnerable persons who have a functional, mental, or physical inability to care for or protect themselves.

It is the intent of the legislature to assist frail elders and vulnerable persons by providing these persons with the protection of the courts and with the least-restrictive services, such as home care, and by preventing or reducing inappropriate institutional care.  The legislature finds that it is in the interests of the public health, safety, and welfare of the people of the state to provide a procedure for identifying these vulnerable persons and providing the services and remedies necessary for their well-being.

     Sec. 2.  RCW 74.34.100 and 1986 c 187 s 4 are each amended to read as follows:

     The legislature finds that frail elders and vulnerable ((adults,)) persons who are ((physically or emotionally)) abused, neglected, abandoned, or ((financially)) exploited may need the protection of the courts.  The legislature further finds that many of these elderly or vulnerable persons may be homebound or otherwise may be unable to represent themselves in court or to retain legal counsel in order to obtain the relief available to them under this chapter.

It is the intent of the legislature to improve access to the courts for victims of abuse, neglect, exploitation, and abandonment in order to better protect the state's frail elderly and vulnerable persons.

     Sec. 3.  RCW 74.34.020 and 1984 c 97 s 8 are each amended to read as follows:

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

     (1) "Abandonment" means ((leaving a)) action or inaction by a person or entity with a duty of care for a frail elder or a vulnerable person that leaves the vulnerable ((adult)) person without the means or ability to obtain necessary food, clothing, shelter, or health care.

     (2) "Abuse" means ((an)) a nonaccidental act of physical or mental mistreatment or injury, or sexual mistreatment, which harms ((or threatens)) a person through action or inaction by another individual.

     (3) "Consent" means express written consent granted after the person has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary.

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

     (5) "Exploitation" means the illegal or improper use of a frail elder or vulnerable ((adult)) person or that ((adult's)) person's income or resources including trust income for another person's profit or advantage.

     (6) "Neglect" means a pattern of conduct ((resulting)) or inaction by a person or entity with a duty of care for a frail elder or vulnerable person that results in the deprivation of care necessary to maintain ((minimum)) the vulnerable person's physical ((and)) or mental health.

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

     (8) "Frail elder or vulnerable ((adult)) person" means a person ((sixty)) eighteen years of age or older who has the functional, mental, or physical inability to care for himself or herself.  "Frail elder or vulnerable person" shall include, but not be limited to, persons found incapacitated under chapter 11.88 RCW, or a person who has a developmental disability under chapter 71A.10 RCW, and persons admitted to any long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, or persons receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW.

(9) No frail elder or vulnerable person who relies upon and is being provided spiritual treatment in lieu of medical treatment in accordance with the tenets and creed of a well-recognized religious denomination shall for that reason alone be considered abandoned, abused, or neglected, nor shall anything in this chapter be construed to permit or require medical or spiritual treatment contrary to the stated or clearly implied objection of such a person.

NEW SECTION. Sec. 4.  A new section is added to chapter 74.34 RCW to read as follows:

     (1) In addition to other remedies available under the law, a frail elder or vulnerable person age eighteen or older who has been subjected to abuse, neglect, exploitation, or abandonment either while residing in a long-term care facility or, in the case of a person in the care of a home health, hospice, or home care agency, residing at home, shall have a cause of action for damages on account of his or her injuries, pain and suffering, and loss of property sustained thereby.  This action shall be available where the defendant is or was a corporation, trust, unincorporated association, partnership, administrator, employee, agent, officer, partner, or director of a long-term care facility, such as a nursing home or boarding home, that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, or of a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW, as now or subsequently designated.

     (2) It is the intent of the legislature, however, that where there is a dispute about the care or treatment of a frail elder or vulnerable adult, the parties should use the least formal means available to try to resolve the dispute.  Where feasible, parties are encouraged but not mandated to employ direct discussion with the health care provider, use of the long-term care ombudsman or other intermediaries, and, when necessary, recourse through licensing or other regulatory authorities.

     (3) In an action brought under this section, a prevailing plaintiff shall be awarded his or her actual damages, together with the costs of the suit, including a reasonable attorney's fee.  The term "costs" includes, but is not limited to, the reasonable fees for a guardian, guardian ad litem, and experts, if any, that may be necessary to the litigation of a claim brought under this section.

NEW SECTION. Sec. 5.  A new section is added to chapter 74.34 RCW to read as follows:

     A petition for an order for protection or an action for damages under this chapter may be brought by the plaintiff, or where necessary, by his or her family members and/or guardian or legal fiduciary, or as otherwise provided under this chapter.  The death of the plaintiff shall not deprive the court of jurisdiction over a petition or claim brought under this chapter.  Upon petition, after the death of the vulnerable person, the right to initiate or maintain the action shall be transferred to the executor or administrator of the deceased, for the benefit of the surviving spouse, child or children, or other heirs set forth in chapter 4.20 RCW.

     Sec. 6.  RCW 74.34.070 and 1984 c 97 s 13 are each amended to read as follows:

     In responding to reports of abuse, exploitation, neglect, or abandonment under this chapter, the department shall provide information to the ((elderly person)) frail elder or vulnerable person on protective services available to the person and inform the person of the right to refuse such services.  The department shall develop cooperative agreements with community-based agencies servicing the abused elderly and vulnerable persons.  The agreements shall cover such subjects as the appropriate roles and responsibilities of the department and community-based agencies in identifying and responding to reports of ((elderly)) abuse, the provision of case-management services, standardized data collection procedures, and related coordination activities.

     Sec. 7.  RCW 74.34.030 and 1986 c 187 s 1 are each amended to read as follows:

     Any person, including but not limited to, financial institutions or attorneys, having reasonable cause to believe that a vulnerable ((adult)) person has suffered abuse, exploitation, neglect, or abandonment, or is otherwise in need of protective services may report such information to the department.  Any police officer, social worker, employee of the department, a social service, welfare, mental health, or health agency, including but not limited to home health, hospice, and home care agencies licensed under chapter 70.127 RCW, congregate long-term care facility, including but not limited to adult family homes licensed under chapter 70.128 RCW, boarding homes licensed under chapter 18.20 RCW, and nursing homes licensed under chapter 18.51 RCW, or assisted living services pursuant to RCW 74.39A.010, or health care provider licensed under Title 18 RCW, including but not limited to doctors, nurses, psychologists, and pharmacists, having reasonable cause to believe that a vulnerable ((adult)) person has suffered abuse, exploitation, neglect, or abandonment, shall make an immediate oral report of such information to the department and shall report such information in writing to the department within ten calendar days of receiving the information.

NEW SECTION. Sec. 8.  RCW 74.34.100 is recodified as RCW 74.34.015."

                                    --- END ---