BP BHEAD INT H [atlas:bill]

AN ACT Relating to the protection of patients in state hospitals; amending RCW 72.23.010, 72.23.020, 70.124.060, 70.124.070, 70.124.090, and 70.124.100; amending 1992 c 230 s 3 (uncodified); adding new sections to chapter 72.23 RCW; recodifying RCW 70.124.060, 70.124.070, 70.124.090, 70.124.100, and 70.124.900; and repealing RCW 70.124.010, 70.124.020, 70.124.030, 70.124.040, 70.124.050, and 70.124.080.

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

Sec. 1. RCW 72.23.010 and 1981 c 136 s 99 are each amended to read as follows:

((~~As used in this chapter, the following terms shall have the following meanings:~~)) Unless the context requires otherwise, the definitions in this section apply throughout this chapter.

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

(2) "Abuse" means a willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a patient. In instances of abuse of a patient who is unable to express or demonstrate physical harm, pain, or mental anguish, the abuse is presumed to cause physical harm, pain, or mental anguish. Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a patient, which have the following meanings:

(a) "Sexual abuse" means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photography, and sexual harassment. Sexual abuse includes any sexual contact between a staff person and a patient, whether or not it is consensual.

(b) "Physical abuse" means the willful action of inflicting bodily injury or physical mistreatment. Physical abuse includes, but is not limited to, striking with or without an object, slapping, pinching, choking, kicking, shoving, prodding, or the use of chemical restraints or physical restraints unless the restraints are consistent with this chapter, and includes restraints that are otherwise being used inappropriately.

(c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a patient from family, friends, or regular activity, and verbal abuse that includes ridiculing, intimidating, yelling, or swearing.

(d) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a patient causing the patient to act in a way that is inconsistent with relevant past behavior, or causing the patient to perform services for the benefit of another.

(3) "Court" means the superior court of the state of Washington.

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

(5) "Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the patient by any person for any person's profit or advantage.

(6) "Law enforcement agency" means the police department, the director of public safety, or the office of the sheriff.

(7) "Licensed physician" means an individual licensed to practice as a physician under chapter 18.57 or 18.71 RCW, or a medical officer, similarly qualified, of the government of the United States while in this state in performance of his or her official duties.

(8) "Mandated reporter" is an employee of the department or a hospital, a law enforcement officer, or any person who is professionally licensed, certified, or registered under Title 18 RCW.

(9) "Mentally ill person" ((~~shall~~)) means any person who, ((~~pursuant to the definitions contained in RCW 71.05.020,~~)) as a result of a mental disorder presents a likelihood of serious harm to others or himself or herself, or is gravely disabled, as these terms are defined in RCW 71.05.020.

(10) "Neglect" means (a) a pattern of conduct or inaction by a person or entity with a duty of care to provide the goods and services that maintain physical or mental health of a patient, or that avoids or prevents physical or mental harm or pain to a patient, or (b) an act or omission by such person or entity that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the patient's health, welfare, or safety.

(11) "Patient" ((~~shall~~)) means a person under observation, care, or treatment in a state hospital, or a person found mentally ill by the court, and not discharged from a state hospital, or other facility, to which such a person had been ordered hospitalized.

(("Licensed physician" shall mean an individual permitted to practice as a physician under the laws of the state, or a medical officer, similarly qualified, of the government of the United States while in this state in performance of his official duties.))

(12) "Permissive reporter" means any person, employee of a financial institution, attorney, or volunteer in a facility or program providing services for patients.

(13) "Protective mechanisms" means any interventions provided by the department to a patient with the consent of the patient, or the legal representative of the patient, who has been abandoned, abused, financially exploited, or neglected. These interventions may include, but are not limited to patient transfer, staff transfer, arranging for medical assessments or evaluations, psychological evaluations, or referral for legal assistance.

(14) "Restraint" means either a physical restraint or a drug that is being used as a restraint. A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to the patient's body. A drug used as a restraint is a prescribed medication used to control behavior or to restrict the patient's freedom of movement and is not a standard treatment for the patient's medical or psychiatric condition.

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

(16) "State hospital" ((~~shall~~)) means any hospital operated and maintained by the state of Washington for the care of the mentally ill.

(17) "Superintendent" ((~~shall~~)) means the superintendent or chief executive officer of a state hospital.

((~~"Court" shall mean the superior court of the state of Washington.~~

~~"Resident" shall mean a resident of the state of Washington.~~

~~Wherever used in this chapter, the masculine shall include the feminine and the singular shall include the plural.~~))

Sec. 2. RCW 72.23.020 and 1959 c 28 s 72.23.020 are each amended to read as follows:

There are hereby permanently located and established the following state hospitals: Western state hospital at Fort Steilacoom, Pierce county; and eastern state hospital at Medical Lake, Spokane county((~~; and northern state hospital near Sedro Woolley, Skagit county~~)).

Sec. 3. 1992 c 230 s 3 (uncodified) is amended to read as follows:

It is the intent of this ((~~act~~)) chapter to:

(1) Focus, restate, and emphasize the legislature's commitment to the mental health reform embodied in chapter ((~~111 [205]~~)) 205, Laws of 1989 ((~~(SB 5400)~~));

(2) Eliminate, or schedule for repeal, statutes that are no longer relevant to the regulation of the state's mental health program; ((~~and~~))

(3) Reaffirm the state's commitment to provide incentives that reduce reliance on inappropriate state hospital or other inpatient care; and

(4) Reaffirm the intent of the legislature to (a) provide a reporting system to protect patients from abuse, (b) make protective mechanisms available, and (c) maintain the strictest regard for the privacy of the subjects of the reports.

Sec. 4. RCW 70.124.060 and 1999 c 176 s 24 are each amended to read as follows:

(1) ((A person other than a person alleged to have committed the abuse or neglect participating in good faith in the making of a report pursuant to this chapter, or testifying as to alleged patient abuse or neglect in a judicial proceeding, is, in so doing, immune from any liability, civil or criminal, arising out of such reporting or testifying under any law of this state or its political subdivisions, and if such person is an employee of a state hospital it is an unfair practice under chapter 49.60 RCW for the employer to discharge, expel, or otherwise discriminate against the employee for such reporting activity.)) A person who makes a good faith report as required or permitted by this chapter is immune from any civil or criminal liability that could result from reporting or testifying about what they believe to be patient abandonment, abuse, financial exploitation, or neglect. If the person is a state employee it is an unfair practice under chapter 49.60 RCW for the employer to discharge, expel, or otherwise discriminate against the employee.

(2) Conduct conforming with the reporting requirements of this chapter is not a violation of the confidential communication privilege of RCW 5.60.060 (3) or (4) or 18.83.110. Nothing in this chapter supersedes or abridges remedies provided in chapter 4.92 RCW.

Sec. 5. RCW 70.124.070 and 1997 c 392 s 521 are each amended to read as follows:

A person who is required to make a report or ((to)) cause ((~~to be made~~)) a report ((~~pursuant to RCW 70.124.030 or 70.124.040~~)) to be made under this chapter and who knowingly fails to make such report or fails to cause such report to be made is guilty of a gross misdemeanor.

Sec. 6. RCW 70.124.090 and 1999 c 176 s 25 are each amended to read as follows:

((In the adoption of rules under the authority of this chapter, the department shall provide for the publication and dissemination to state hospitals and state hospital employees and the posting where appropriate by state hospitals of informational, educational, or training materials calculated to aid and assist in achieving the objectives of this chapter.)) The department shall aid and assist the achievement of the objectives of this chapter by publishing and distributing informational, educational, and training materials on preventing and reporting patient abandonment, abuse, financial exploitation, and neglect. These materials shall be made available to state hospitals and state hospital employees and posted where appropriate.

Sec. 7. RCW 70.124.100 and 1999 c 176 s 26 are each amended to read as follows:

(((1) An employee who is a whistleblower and who as a result of being a whistleblower has been subjected to workplace reprisal or retaliatory action, has the remedies provided under chapter 49.60 RCW. RCW 4.24.500 through 4.24.520, providing certain protection to persons who communicate to government agencies, apply to complaints made under this section. The identity of a whistleblower who complains, in good faith, to the department about suspected abuse, neglect, financial exploitation, or abandonment by any person in a state hospital may remain confidential if requested. The identity of the whistleblower shall subsequently remain confidential unless the department determines that the complaint was not made in good faith.

(2)(a) An attempt to discharge a resident from a state hospital or any type of discriminatory treatment of a resident by whom, or upon whose behalf, a complaint substantiated by the department has been submitted to the department or any proceeding instituted under or related to this chapter within one year of the filing of the complaint or the institution of the action, raises a rebuttable presumption that the action was in retaliation for the filing of the complaint.

~~(b) The presumption is rebutted by credible evidence establishing the alleged retaliatory action was initiated prior to the complaint.~~

(c) The presumption is rebutted by a functional assessment conducted by the department that shows that the resident's needs cannot be met by the reasonable accommodations of the facility due to the increased needs of the resident.

~~(3) For the purposes of this section:~~

(a) "Whistleblower" means a resident or employee of a state hospital or any person licensed under Title 18 RCW, who in good faith reports alleged abuse, neglect, financial exploitation, or abandonment to the department or to a law enforcement agency;

(b) "Workplace reprisal or retaliatory action" means, but is not limited to: Denial of adequate staff to perform duties; frequent staff changes; frequent and undesirable office changes; refusal to assign meaningful work; unwarranted and unsubstantiated report of misconduct under Title 18 RCW; letters of reprimand or unsatisfactory performance evaluations; demotion; denial of employment; or a supervisor or superior encouraging coworkers to behave in a hostile manner toward the whistleblower; and

(c) "Reasonable accommodation" by a facility to the needs of a prospective or current resident has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

(4) This section does not prohibit a state hospital from exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. The protections provided to whistleblowers under this chapter shall not prevent a state hospital from: (a) Terminating, suspending, or disciplining a whistleblower for other lawful purposes; or (b) for facilities with six or fewer residents, reducing the hours of employment or terminating employment as a result of the demonstrated inability to meet payroll requirements. The department shall determine if the facility cannot meet payroll in cases where a whistleblower has been terminated or had hours of employment reduced due to the inability of a facility to meet payroll.

~~(5) The department shall adopt rules to implement procedures for filing, investigation, and resolution of whistleblower complaints that are integrated with complaint procedures under this chapter.~~

(6) No resident who relies upon and is being provided spiritual treatment in lieu of medical treatment in accordance with the tenets and practices 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 authorize, permit, or require medical treatment contrary to the stated or clearly implied objection of such a person.

~~(7) The department shall adopt rules designed to discourage whistleblower complaints made in bad faith or for retaliatory purposes.~~)) (1) An employee who is subjected to workplace reprisal or retaliatory action as the result of making a report under this chapter has remedies under chapter 49.60 RCW. The protections provided in RCW 4.24.500 through 4.24.520 apply to complaints made under this section.

(2) The identity of an employee who makes a report in good faith may remain confidential if requested. It will remain confidential unless the department determines the complaint was not made in good faith.

(3) An attempt to discharge a patient, move them to a more restrictive environment, or any type of discriminatory treatment of a patient by whom, or on behalf of whom a complaint was filed, raises a rebuttable presumption that the action was in retaliation for the filing of the complaint. The attempt or discriminatory action must take place within one year of the filing of the complaint or the institution of the action to raise the presumption.

(4) The presumption of retaliatory action is rebutted by:

(a) Credible evidence establishing that the alleged retaliatory action was initiated prior to the complaint;

(b) A functional assessment conducted by the department that shows that the patient's needs cannot be met by reasonable accommodations of the less restrictive environment due to the increased needs of the patient; or

(5) For the purposes of this section:

(a) "Workplace reprisal or retaliatory action" means, but is not limited to:

(i) Denial of adequate staff to perform duties;

(ii) Frequent staff changes;

(iii) Frequent and undesirable office changes;

(iv) Refusal to assign meaningful work;

(v) Unwarranted and unsubstantiated report of misconduct under Title 18 RCW;

(vi) Letter of reprimand or an unsatisfactory performance evaluation;

(vii) Demotion;

(viii) Denial of employment; or

(ix) A supervisor encouraging a coworker to behave in a hostile manner to the employee.

(b) "Reasonable accommodation" by a state hospital to the needs of a prospective or current patient has the meaning given to this term under the federal Americans with disabilities act of 1990, 42 U.S.C. Sec. 12101 et seq. and other applicable federal or state antidiscrimination laws and regulations.

(6) This section does not prohibit a state hospital from exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a state employee.

(7) The protection provided to reporters under this chapter does not prevent the state hospital from terminating, suspending, or disciplining a reporter for other lawful purposes.

(8) A patient who relies upon and is provided spiritual treatment in lieu of medical treatment in accordance with the tenets and practices of a well-recognized religious denomination is not for that reason alone considered abandoned, abused, or neglected. This chapter does not authorize, permit, or require medical treatment contrary to the stated or clearly implied objection of such a person.

(9) The department shall maintain a policy and procedure to protect state employees who in good faith report suspected abandonment, abuse, financial exploitation, or neglect as defined in this chapter. It shall also have a policy and procedure that discourages complaints made in bad faith or for retaliatory purposes.

NEW SECTION. Sec. 8. A new section is added to chapter 72.23 RCW to read as follows:

(1) When there is reasonable cause to believe that abandonment, abuse, financial exploitation, or neglect of a patient has occurred, mandated reporters shall immediately report to the department. If there is reason to suspect that sexual or physical assault has occurred, mandated reporters shall immediately report to the appropriate law enforcement agency and to the department.

(2) Permissive reporters may report to the department or a law enforcement agency when there is reasonable cause to believe that a patient is being or has been abandoned, abused, financially exploited, or neglected.

(3) Each report, oral or written, must contain as much as possible of the following information:

(a) The name and address of the person making the report;

(b) The name and address of the patient and the name of the state hospital providing care;

(d) The nature and extent of the abandonment, abuse, financial exploitation, or neglect;

(e) Any history of previous abandonment, abuse, financial exploitation, or neglect;

(f) The identity of the alleged perpetrator, if known; and

(g) Other information that may be helpful in establishing the extent of abandonment, abuse, financial exploitation, neglect, or the cause of death of the deceased patient.

(4) Unless there is a judicial proceeding or the person consents, the identity of the person making the report under this section is confidential.

NEW SECTION. Sec. 9. A new section is added to chapter 72.23 RCW to read as follows:

(1) The department shall initiate a response to a report, no later than twenty-four hours after knowledge of the report, of suspected abandonment, abuse, financial exploitation, or neglect of a patient.

(2) When the initial report or investigation by the department indicates that the alleged abandonment, abuse, financial exploitation, or neglect may be criminal, the department shall make an immediate report to the appropriate law enforcement agency. The department and law enforcement shall coordinate in investigating reports made under this chapter. The department may provide protective mechanisms as needed.

(3) The law enforcement agency or the department shall report the incident in writing to the proper county prosecutor or city attorney for appropriate action whenever the investigation reveals that a crime may have been committed.

(4) The department and law enforcement may share information contained in reports and findings of abandonment, abuse, financial exploitation, or neglect of a patient, consistent with RCW 74.04.060 and 42.17.310 and chapters 71.05, 71.34, and 70.02 RCW and other applicable confidentiality laws.

(5) The department shall notify the proper licensing authority concerning any report received under this chapter that alleges that a person who is professionally licensed, certified, or registered under Title 18 RCW has abandoned, abused, financially exploited, or neglected a patient.

NEW SECTION. Sec. 10. A new section is added to chapter 72.23 RCW to read as follows:

(1) Where appropriate, an investigation by the department may include a private interview with the patient regarding the alleged abandonment, abuse, financial exploitation, or neglect of the patient.

(2) In conducting the investigation, the department shall interview the person who complained, unless anonymous, and shall use its best efforts to interview the patient or patients harmed. The department shall also interview hospital staff and any available independent sources including appropriate family members of the patient.

(3) The department may conduct ongoing case planning and consultation with:

(a) Designated regional support network staff;

(b) Consultants designated by the department;

(c) Designated representatives of Washington Indian tribes if patient information exchanged is pertinent to cases under investigation or the provision of protective services.

Information considered privileged by statute and not directly related to reports required by this chapter may not be divulged without a valid written waiver of the privilege.

(4) The department shall prepare and keep on file a report of each investigation conducted by the department for a period of time in accordance with policies established by the department.

(5) If the department determines that a patient has suffered from abuse, neglect, abandonment, or financial exploitation; lacks the ability or capacity to consent; and needs the protection of a guardian, the department may bring a guardianship action under chapter 11.88 RCW as an interested person.

(6) The department may photograph a patient or their environment to provide documentary evidence, if the patient or their legal representative agrees. Consent from the legal representative is not necessary if he or she is the alleged abuser.

NEW SECTION. Sec. 11. RCW 70.124.060 (as amended by this act), 70.124.070 (as amended by this act), 70.124.090 (as amended by this act), 70.124.100 (as amended by this act), and 70.124.900 are each recodified as sections in chapter 72.23 RCW.

NEW SECTION. Sec. 12. Section 3 of this act is added to chapter 72.23 RCW.

NEW SECTION. Sec. 13. The following acts or parts of acts are each repealed:

(1) RCW 70.124.010 (Legislative findings) and 1999 c 176 s 20, 1981 c 174 s 1, & 1979 ex.s. c 228 s 1;

(2) RCW 70.124.020 (Definitions) and 1999 c 176 s 21, 1997 c 392 s 519, 1996 c 178 s 24, 1981 c 174 s 2, & 1979 ex.s. c 228 s 2;

(3) RCW 70.124.030 (Reports of abuse or neglect) and 1999 c 176 s 22, 1981 c 174 s 3, & 1979 ex.s. c 228 s 3;

(4) RCW 70.124.040 (Reports to department or law enforcement agency--Action required) and 1999 c 176 s 23;

(5) RCW 70.124.050 (Investigations required--Seeking restraining orders authorized) and 1983 1st ex.s. c 41 s 24 & 1979 ex.s. c 228 s 5; and

(6) RCW 70.124.080 (Department reports of abused or neglected patients) and 1979 ex.s. c 228 s 8.

NEW SECTION. Sec. 14. 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.