AN ACT Relating to the long-term care ombudsman program; amending RCW 43.190.010, 43.190.020, 43.190.030, 43.190.040, and 43.190.090; creating new sections; providing an effective date; and declaring an emergency.

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

Sec. 1. RCW 43.190.010 and 1983 c 290 s 1 are each amended to read as follows:

The legislature finds that in order to comply with the federal Older Americans Act, provide protection to persons with developmental disabilities, and to effectively assist residents, patients, and clients of long-term care facilities in the assertion of their civil and human rights, a long-term care ombudsman program should be instituted, and shall include an office of developmental disabilities ombudsman with the separate full-time position of state developmental disabilities ombudsman.

Sec. 2. RCW 43.190.020 and 1995 1st sp.s. c 18 s 32 are each amended to read as follows:

As used in this chapter, "long-term care facility" means any of the following:

(1) A facility which:

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

(b) Provides supportive, restorative, and preventive health services in conjunction with a socially oriented program to its residents, and which maintains and operates twenty-four hour services including board, room, personal care, and intermittent nursing care. "Long-term health care facility" includes nursing homes and nursing facilities, but does not include acute care hospital or other licensed facilities except for that distinct part of the hospital or facility which provides nursing facility services.

(2) Any family home, group care facility, or similar facility determined by the ((~~secretary~~)) director of community, trade, and economic development, for twenty-four hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual.

(3) Any swing bed in an acute care facility.

Sec. 3. RCW 43.190.030 and 1995 c 399 s 105 are each amended to read as follows:

There is created the office of the state long-term care ombudsman and the office of the developmental disabilities ombudsman. The department of community, trade, and economic development shall contract (1) with a private nonprofit organization to provide long-term care ombudsman services as specified under, and consistent with, the federal older Americans act as amended, federal mandates, and (2) with a private nonprofit organization to provide developmental disabilities ombudsman services, consistent with the goals of the developmental disabilities provisions in Title 71A RCW, the goals of the state, and the needs of its citizens. The department of community, trade, and economic development shall ensure that all program and staff support necessary to enable the ((~~ombudsman~~)) ombudsmen to effectively protect the interests of residents, patients, and clients of all long-term care facilities is provided by the nonprofit organization that contracts to provide ((~~long-term care~~)) ombudsman services. The ((~~long-term care~~)) ombudsman programs shall have the following powers and duties:

(1) To provide services for coordinating the activities of ((~~long-term care~~)) ombudsmen throughout the state;

(2) Carry out such other activities as the department of community, trade, and economic development deems appropriate;

(3) Establish procedures consistent with RCW 43.190.110 for appropriate access by ((~~long-term care~~)) ombudsmen to long-term care facilities and patients' records, including procedures to protect the confidentiality of the records and ensure that the identity of any complainant or resident will not be disclosed without the written consent of the complainant or resident, or upon court order;

(4) Establish a state-wide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities for the purpose of identifying and resolving significant problems, with provision for submission of such data to the department of social and health services and to the federal department of health and human services, or its successor agency, on a regular basis; and

(5) Establish procedures to assure that any files maintained by ombudsman programs shall be disclosed only at the discretion of the ombudsman having authority over the disposition of such files, except that the identity of any complainant or resident of a long-term care facility shall not be disclosed by such ombudsman unless:

(a) Such complainant or resident, or the complainant's or resident's legal representative, consents in writing to such disclosure; or

(b) Such disclosure is required by court order.

Sec. 4. RCW 43.190.040 and 1983 c 290 s 4 are each amended to read as follows:

(1) Any ((~~long-term care~~)) ombudsman authorized by this chapter or a local governmental authority shall have training or experience or both in the following areas:

(a) Gerontology, long-term care, or other related social services programs((.));

(b) Developmental disabilities;

((~~(c)~~)) (d) Dispute or problem resolution techniques, including investigation, mediation, and negotiation.

(2) An ((~~long-term care~~)) ombudsman shall not have been employed by any long-term care facility or program serving the developmentally disabled within the past three years.

(3) No ((~~long-term care~~)) ombudsman or any member of his or her immediate family shall have, or have had within the past three years, any pecuniary interest in the provision of long-term health care facilities, or program serving the developmentally disabled.

Sec. 5. RCW 43.190.090 and 1983 c 290 s 9 are each amended to read as follows:

(1) No long-term care ombudsman or developmental disabilities ombudsman is liable for good faith performance of responsibilities under this chapter.

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

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

(4) A representative of the offices of long-term care and developmental disabilities ombudsman is exempt from being required to testify in court as to any confidential matters except as the court may deem necessary to enforce this chapter.

(5) For the purposes of this chapter, the meaning of "retaliatory action" shall be consistent with the definition of "reprisal and retaliatory action" in RCW 42.40.050.

NEW SECTION. Sec. 6. SEPARATE OFFICE OF DEVELOPMENTAL DISABILITIES OMBUDSMAN CREATED WITHIN THE LONG-TERM CARE OMBUDSMAN PROGRAM. (1) The office of developmental disabilities ombudsman is created within the long-term care ombudsman program. The office shall be charged with protecting the rights and interests of persons with developmental disabilities.

(2) State funds appropriated by the legislature in the biennial operating budget for use by the office of developmental disabilities ombudsman shall be awarded to the office of developmental disabilities ombudsman and shall not be diverted to any other provider, person, or agency by any state agency or entity, except by action of the legislature.

NEW SECTION. Sec. 7. DUTIES OF THE DEPARTMENT RELATED TO THE SEPARATE DEVELOPMENTAL DISABILITIES OMBUDSMAN PROGRAM. The department of community, trade, and economic development shall, consistent with state and federal laws:

(1) Monitor the expenditure of state funds under the contract for appropriate utilization of funds and the fulfillment of state and federal laws;

(2) Facilitate the exchange of information among appropriate state agencies and organizations regarding issues relating to the office of developmental disabilities ombudsman;

(3) Ensure that the office of developmental disabilities ombudsman has direct access to the directors of state governmental entities with responsibilities that impact on persons with developmental disaffiliate;

(4) Provide all program and staff support necessary to carry out the functions provided in subsections (1) through (3) of this section.

NEW SECTION. Sec. 8. OFFICE OF DEVELOPMENTAL DISABILITIES OMBUDSMAN‑-SERVICES TO BE PROVIDED. The office of developmental disabilities ombudsman shall maintain a state-wide presence and shall be responsible for protecting the rights and interest of individuals with developmental disabilities as they relate to the provision of services by the state of Washington or by individuals and entities contracting with the state of Washington. The office shall, to the extent that sufficient funds are available:

(1) Investigate, provide advocacy, and assist in the resolution of complaints at the lowest possible intervention level. The developmental disabilities ombudsman shall follow the expressed wishes of the individual with developmental disabilities in providing all services;

(2) Recruit, train, and supervise volunteer ombudsmen to perform the functions of the office of developmental disabilities ombudsman, develop procedures for the certification of volunteer ombudsmen, and develop standards that define the permissible scope of duties of volunteer ombudsmen.

NEW SECTION. Sec. 9. REPORT TO THE LEGISLATURE. The office of developmental disabilities ombudsman shall provide the legislature with an annual report that includes:

(1) Demographics describing access to the ombudsman program by people with developmental disabilities and their families;

(2) A description of the issues identified as frequent in the complaint data;

(3) An identification of deficiencies on the part of service providers and systems and recommendations for remedial action;

(4) Recommendations for regulatory action by agencies that would improve the quality of life for individuals with developmental disabilities;

(5) Recommendations for legislative action that would improve the quality of life for individuals with developmental disabilities.

NEW SECTION. Sec. 10. DEVELOPMENT OF RULES PROVIDING FOR RIGHT OF ENTRY TO FACILITIES BY DEVELOPMENTAL DISABILITIES OMBUDSMEN‑-ACCESS TO RESIDENTS AND RECORDS. (1) The department of community, trade, and economic development shall adopt such rules as are necessary to establish a right of entry on behalf of developmental disabilities ombudsmen to the residential care facilities identified in this chapter and for reasonable access to residents with developmental disabilities at any time deemed necessary and reasonable by the office of developmental disabilities state ombudsman to effectively carry out the provisions of this chapter. Such rules shall make adequate provision for privacy for the purpose of hearing, investigating, resolving complaints, and rendering advice to residents.

(2) The department, in cooperation with the department of social and health services, shall in addition adopt rules to ensure reasonable access by ombudsmen to the records of clients of the division of developmental disabilities and to ensure that such access will require the consent of the client or his or her guardian or legal representative.

NEW SECTION. Sec. 11. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 12. 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 July 1, 1997.

NEW SECTION. Sec. 13. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1997, in the omnibus appropriations act, this act is null and void.