H-4646.1  _______________________________________________

                    SUBSTITUTE HOUSE BILL 2569

          _______________________________________________

State of Washington      56th Legislature     2000 Regular Session

By House Committee on Health Care (originally sponsored by Representatives Edmonds, Pflug, McDonald, Lovick, Veloria, Morris, Keiser, Rockefeller and Kagi; by request of Governor Locke)

Read first time 02/04/2000.  Referred to Committee on .

Protecting vulnerable adults.

    AN ACT Relating to protecting vulnerable adults; amending RCW 43.20A.710, 74.39A.050, 74.34.095, and 74.39A.095; adding new sections to chapter 74.34 RCW; creating new sections; and providing an effective date.

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

    Sec. 1.  RCW 43.20A.710 and 1999 c 336 s 7 are each amended to read as follows:

    (1) The secretary shall investigate the conviction records, pending charges or disciplinary board final decisions of:

    (a) Persons being considered for state employment in positions directly responsible for the supervision, care, or treatment of children or individuals with mental illness or developmental disabilities; and

    (b) Individual providers who are paid by the state ((for)) and providers who are paid by home care agencies to provide in-home services ((and hired by individuals)) involving unsupervised access to persons with physical ((disabilities)), mental, or developmental disabilities((,)) or mental illness, or ((mental impairment)) to vulnerable adults as defined in chapter 74.34 RCW, including but not limited to services provided under chapter 74.39 or 74.39A RCW.

    (2) The investigation may include an examination of state and national criminal identification data.  The secretary shall use the information solely for the purpose of determining the character, suitability, and competence of these applicants.

    (3) An individual provider or home care agency provider who has resided in the state less than three years before applying for employment involving unsupervised access to a vulnerable adult as defined in chapter 74.34 RCW must be fingerprinted for the purpose of investigating conviction records both through the Washington state patrol and the federal bureau of investigation.  This subsection applies only with respect to the provision of in-home services funded by medicaid personal care under RCW 74.09.520, community options program entry system waiver services under RCW 74.39A.030, or chore services under RCW 74.39A.110.  However, this subsection does not supersede RCW 74.15.030(2)(b).

(4) An individual provider or home care agency provider hired to provide in-home care for and having unsupervised access to a vulnerable adult as defined in chapter 74.34 RCW must have no conviction for a disqualifying crime under RCW 43.43.830 and 43.43.842.  An individual or home care agency provider must also have no conviction for a crime relating to drugs as defined in RCW 43.43.830.  This subsection applies only with respect to the provision of in-home services funded by medicaid personal care under RCW 74.09.520, community options program entry system waiver services under RCW 74.39A.030, or chore services under RCW 74.39A.110.

(5) The secretary shall provide the results of the ((state)) background check on individual providers to the ((individuals with physical disabilities, developmental disabilities, mental illness, or mental impairment)) persons hiring them or to their legal guardians, if any, for their determination of the character, suitability, and competence of the applicants.  If ((an individual)) the person elects to hire or retain an individual provider after receiving notice from the department that the applicant has a conviction for an offense that would disqualify the applicant from ((employment with the department)) having unsupervised access to persons with physical, mental, or developmental disabilities or mental illness, or to vulnerable adults as defined in chapter 74.34 RCW, then the secretary shall deny payment for any subsequent services rendered by the disqualified individual provider.

    (((4))) (6) Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose.

NEW SECTION. Sec. 2.  A new section is added to chapter 74.34 RCW to read as follows:

    (1) The department shall establish and maintain a state registry containing names of, and other identifying information about, individuals who have been found to have abandoned, abused, financially exploited, or neglected vulnerable adults.  The department shall remove from the registry the name of any individual who:  (a) Later is found by the board of appeals under chapter 34.05 RCW, or a court of law not to have abandoned, abused, financially exploited, or neglected vulnerable adults; or (b) was erroneously placed upon the registry.  The department shall adopt rules that are necessary to implement the registry.  At a minimum, the rules shall address disclosure, disposition, and notification of findings, appeal rights, fair hearing requirements, and the opportunity for the individual who is the subject of the investigation to provide information orally or in writing prior to the preliminary determination.

    (2) A nursing home, boarding home, or adult family home employer shall be immune from liability for an employment decision made in reasonable reliance upon information obtained directly from the registry.

NEW SECTION. Sec. 3.  A new section is added to chapter 74.34 RCW to read as follows:

    If following an investigation into allegations that an individual abandoned, abused, financially exploited, or neglected a vulnerable adult, the department determines that a preponderance of evidence exists to support the allegation, the department shall make a preliminary determination of abandonment, abuse, financial exploitation, or neglect.  The department shall not make a finding of neglect if the individual demonstrates that the neglect was caused by factors beyond his or her control.  The individual shall be notified of the preliminary determination and shall be entitled to appeal the finding in an adjudicative proceeding under chapter 34.05 RCW.  If the individual does not request an adjudicative proceeding within the time allowed for appeal, or if the department's preliminary determination is upheld following an adjudicative proceeding, the preliminary determination shall be considered a finding and the department shall place such finding on the state registry described in section 2 of this act.  This section does not apply to findings of abandonment, abuse, financial exploitation, or neglect by an individual who is a vulnerable adult and who has the functional, mental, or physical inability to care for himself or herself or who has been found incapacitated under chapter 11.88 RCW.

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

    In the case of a single finding of neglect, at least one year after an individual's name has been placed on the registry, the individual may petition the department for removal of his or her name from the registry, or the individual may petition the department to be allowed to work in a licensed nursing home, boarding home, or adult family home.  The rules developed by the department shall describe how the petition can be filed, and shall identify factors that the department will consider before rendering a decision on the petition.  If the department acted in good faith and in accordance with established procedures when it removed an individual's name from the registry, or when it allowed an individual whose name is on the registry to work in a nursing home, boarding home, or adult family home setting, it shall be immune from liability for the future actions of the individual.

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

    A preliminary determination of abandonment, abuse, financial exploitation, or neglect shall be sustained in an adjudicative proceeding if the presiding officer finds it is supported by a preponderance of the evidence.  The presiding officer's decision must be rendered within one hundred twenty days of the date the individual's hearing request was received by the office of administrative hearings.  However, if the presiding officer finds that extenuating circumstances exist that will prevent the decision from being made within the one hundred twenty-day time period, the presiding officer may extend the deadline only as long as is reasonably necessary.

NEW SECTION. Sec. 6.  A new section is added to chapter 74.34 RCW to read as follows:

    When the department learns that any in-state or out-of-state agency, disciplining authority, or court has taken an action that would prevent the individual from being employed in the care of and having unsupervised access to vulnerable adults in accordance with RCW 74.39A.050(8), the department shall place identifying information about the individual on the state registry.

NEW SECTION. Sec. 7.  A new section is added to chapter 74.34 RCW to read as follows:

    The department shall disclose, upon request from any person, findings of abuse, neglect, financial exploitation or abandonment, and other information entered on the state registry except an individual's social security number, home telephone number, and home address shall not be disclosed.

    Sec. 8.  RCW 74.39A.050 and 1999 c 336 s 5 are each amended to read as follows:

    The department's system of quality improvement for long-term care services shall use the following principles, consistent with applicable federal laws and regulations:

    (1) The system shall be client-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for consumers consistent with chapter 392, Laws of 1997.

    (2) The goal of the system is continuous quality improvement with the focus on consumer satisfaction and outcomes for consumers.  This includes that when conducting licensing inspections, the department shall interview an appropriate percentage of residents, family members, resident managers, and advocates in addition to interviewing providers and staff.

    (3) Providers should be supported in their efforts to improve quality and address identified problems initially through training, consultation, technical assistance, and case management.

    (4) The emphasis should be on problem prevention both in monitoring and in screening potential providers of service.

    (5) Monitoring should be outcome based and responsive to consumer complaints and a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to providers.

    (6) Prompt and specific enforcement remedies shall also be implemented without delay, pursuant to RCW 74.39A.080, RCW 70.128.160, chapter 18.51 RCW, or chapter 74.42 RCW, for providers found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or uncorrected, or that create a hazard that is causing or likely to cause death or serious harm to one or more residents.  These enforcement remedies may also include, when appropriate, reasonable conditions on a contract or license.  In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance.

    (7) To the extent funding is available, all long-term care staff directly responsible for the care, supervision, or treatment of vulnerable persons should be screened through background checks in a uniform and timely manner to ensure that they do not have a criminal history that would disqualify them from working with vulnerable persons.  Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis according to law and rules adopted by the department.

    (8) No provider or staff, or prospective provider or staff, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry finding him or her guilty of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults except as permitted in section 4 of this act.

    (9) ((The department shall establish, by rule, a state registry which contains identifying information about personal care aides identified under this chapter who have substantiated findings of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult as defined in RCW 74.34.020.  The rule must include disclosure, disposition of findings, notification, findings of fact, appeal rights, and fair hearing requirements.  The department shall disclose, upon request, substantiated findings of abuse, neglect, financial exploitation, or abandonment to any person so requesting this information.

    (10))) The department shall by rule develop training requirements for individual providers and home care agency providers.  The department shall deny payment to an individual provider or a home care provider who does not complete the training requirement within the time limit specified by the department by rule.

    (((11))) (10) The department shall establish, by rule, training, background checks, and other quality assurance requirements for personal aides who provide in-home services funded by medicaid personal care as described in RCW 74.09.520, community options program entry system waiver services as described in RCW 74.39A.030, or chore services as described in RCW 74.39A.110 that are equivalent to requirements for individual providers.

    (((12))) (11) Under existing funds the department shall establish internally a quality improvement standards committee to monitor the development of standards and to suggest modifications.

    (((13))) (12) Within existing funds, the department shall design, develop, and implement a long-term care training program that is flexible, relevant, and qualifies towards the requirements for a nursing assistant certificate as established under chapter 18.88A RCW.  This subsection does not require completion of the nursing assistant certificate training program by providers or their staff.  The long-term care teaching curriculum must consist of a fundamental module, or modules, and a range of other available relevant training modules that provide the caregiver with appropriate options that assist in meeting the resident's care needs.  Some of the training modules may include, but are not limited to, specific training on the special care needs of persons with developmental disabilities, dementia, mental illness, and the care needs of the elderly.  No less than one training module must be dedicated to workplace violence prevention.  The nursing care quality assurance commission shall work together with the department to develop the curriculum modules.  The nursing care quality assurance commission shall direct the nursing assistant training programs to accept some or all of the skills and competencies from the curriculum modules towards meeting the requirements for a nursing assistant certificate as defined in chapter 18.88A RCW.  A process may be developed to test persons completing modules from a caregiver's class to verify that they have the transferable skills and competencies for entry into a nursing assistant training program.  The department may review whether facilities can develop their own related long-term care training programs.  The department may develop a review process for determining what previous experience and training may be used to waive some or all of the mandatory training.  The department of social and health services and the nursing care quality assurance commission shall work together to develop an implementation plan by December 12, 1998.

    Sec. 9.  RCW 74.34.095 and 1999 c 176 s 17 are each amended to read as follows:

    (1) The following information is confidential and not subject to disclosure, except as provided in this section:

    (a) A report of abandonment, abuse, financial exploitation, or neglect made under this chapter;

    (b) The identity of the person making the report; and

    (c) All files, reports, records, communications, and working papers used or developed in the investigation or provision of protective services.

    (2) Information considered confidential may be disclosed only for a purpose consistent with this chapter or as authorized by chapter 18.20, 18.51, or 74.39A RCW, or as authorized by the long-term care ombudsman programs under federal law or state law, chapter 43.190 RCW.

    (3) A court or presiding officer in an administrative proceeding may order disclosure of confidential information only if the court, or presiding officer in an administrative proceeding, determines that disclosure is essential to the administration of justice and will not endanger the life or safety of the vulnerable adult or individual who made the report.  The court or presiding officer in an administrative hearing may place restrictions on such disclosure as the court or presiding officer deems proper.

(4) Findings and other information entered into a state registry as authorized by this act are not considered confidential.  However, the individual's social security number, home telephone number, and home address shall not be disclosed.

    Sec. 10.  RCW 74.39A.095 and 1999 c 175 s 3 are each amended to read as follows:

    (1) In carrying out case management responsibilities established under RCW 74.39A.090 for consumers who are receiving services under the medicaid personal care, community options programs entry system or chore services program through an individual provider, each area agency on aging shall provide adequate oversight of the care being provided to consumers receiving services under this section.  Such oversight shall include, but is not limited to:

    (a) Verification that the individual provider has met any training requirements established by the department;

    (b) Verification of a sample of worker time sheets;

    (c) Home visits or telephone contacts sufficient to ensure that the plan of care is being appropriately implemented;

    (d) Reassessment and reauthorization of services;

    (e) Monitoring of individual provider performance; and

    (f) Conducting criminal background checks or verifying that criminal background checks have been conducted.

    (2) The area agency on aging case manager shall work with each consumer to develop a plan of care under this section that identifies and ensures coordination of health and long-term care services that meet the consumer's needs.  In developing the plan, they shall utilize, and modify as needed, any comprehensive community service plan developed by the department as provided in RCW 74.39A.040.  The plan of care shall include, at a minimum:

    (a) The name and telephone number of the consumer's area agency on aging case manager, and a statement as to how the case manager can be contacted about any concerns related to the consumer's well-being or the adequacy of care provided;

    (b) The name and telephone numbers of the consumer's primary health care provider, and other health or long-term care providers with whom the consumer has frequent contacts;

    (c) A clear description of the roles and responsibilities of the area agency on aging case manager and the consumer receiving services under this section;

    (d) The duties and tasks to be performed by the area agency on aging case manager and the consumer receiving services under this section;

    (e) The type of in-home services authorized, and the number of hours of services to be provided;

    (f) The terms of compensation of the individual provider;

    (g) A statement that the individual provider has the ability and willingness to carry out his or her responsibilities relative to the plan of care; and

    (h)(i) Except as provided in (h)(ii) of this subsection, a clear statement indicating that a consumer receiving services under this section has the right to waive any of the case management services offered by the area agency on aging under this section, and a clear indication of whether the consumer has, in fact, waived any of these services.

    (ii) The consumer's right to waive case management services does not include the right to waive reassessment or reauthorization of services, or verification that services are being provided in accordance with the plan of care.

    (3) Each area agency on aging shall retain a record of each waiver of services included in a plan of care under this section.

    (4) Each consumer has the right to direct and participate in the development of their plan of care to the maximum practicable extent of their abilities and desires, and to be provided with the time and support necessary to facilitate that participation.

    (5) A copy of the plan of care must be distributed to the consumer's primary care provider, individual provider, and other relevant providers with whom the consumer has frequent contact, as authorized by the consumer.

    (6) The consumer's plan of care shall be an attachment to the contract between the department, or their designee, and the individual provider.

    (7) If the department or area agency on aging case manager finds that an individual provider's inadequate performance or inability to deliver quality care is jeopardizing the health, safety, or well-being of a consumer receiving service under this section, the department or the area agency on aging may take action to terminate the contract between the department and the individual provider.  If the department or the area agency on aging has a reasonable, good faith belief that the health, safety, or well-being of a consumer is in imminent jeopardy, the department or area agency on aging may summarily suspend the contract pending a fair hearing.  The consumer may request a fair hearing to contest the planned action of the case manager, as provided in chapter 34.05 RCW.  The department may by rule adopt guidelines for implementing this subsection.

    (8) The department or area agency on aging may reject a request by ((an [a])) a consumer receiving services under this section to have a family member or other person serve as his or her individual provider if the case manager has a reasonable, good faith belief that the family member or other person will be unable to appropriately meet the care needs of the consumer.  The consumer may request a fair hearing to contest the decision of the case manager, as provided in chapter 34.05 RCW.  The department may by rule adopt guidelines for implementing this subsection.

NEW SECTION. Sec. 11.  STATE REGISTRY--TERMINATION.  The state registry established in section 2 of this act shall be terminated on June 30, 2004, as provided in section 12 of this act.

NEW SECTION. Sec. 12.  STATE REGISTRY--REPEAL.  Section 2 of this act, as now existing or hereafter amended, is repealed effective June 30, 2005.

NEW SECTION. Sec. 13.  Captions used in this act are not any part of the law.

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