AN
ACT Relating to in-home services; amending RCW 70.127.010, 70.127.020,
70.127.030, 70.127.040, 70.127.050, 70.127.080, 70.127.085, 70.127.090,
70.127.100, 70.127.120, 70.127.125, 70.127.140, 70.127.150, 70.127.170,
70.127.180, 70.127.190, 70.127.200, 70.127.210, and 70.38.025; adding new
sections to chapter 70.127 RCW; adding a new section to chapter 70.38 RCW;
repealing RCW 70.127.060, 70.127.070, 70.127.110, 70.127.220, 70.127.230,
70.127.240, 70.127.250, 70.127.260, and 70.127.270; prescribing penalties; and
providing an effective date.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
70.127.010 and 1999 c 190 s 1 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Administrator" means an individual responsible for managing the
operation of an agency.
(2)
"Department" means the department of health.
(((2)))
(3) "Director of clinical services" means an individual
responsible for nursing, therapy, nutritional, social, and related services
that support the plan of care provided in home health and hospice agencies.
(4)
"Family" means individuals who are important to, and designated by,
the patient or client and who need not be relatives.
(5)
"Home care agency" means a ((private or public agency or
organization that administers or provides)) person administering or
providing home care services directly or through a contract arrangement to
((ill, disabled, or infirm persons)) individuals in places of
temporary or permanent residence.
(((3)))
(6) "Home care services" means ((personal care services,
homemaker services, respite care services, or any other)) nonmedical
services and assistance provided to ill, disabled, ((or)) infirm
((persons which services enable these persons to remain in their own
residences consistent with their desires, abilities, and safety)), or
vulnerable individuals that enable them to remain in their residences. Home
care services include, but are not limited to: Personal care such as
assistance with dressing, feeding, and personal hygiene to facilitate
self-care; homemaker assistance with household tasks, such as housekeeping, shopping,
meal planning and preparation, and transportation; respite care assistance and
support provided to the family; or other nonmedical services.
(((4)))
(7) "Home health agency" means a ((private or public agency
or organization that administers or provides home health aide services or))
person administering or providing two or more home health services
directly or through a contract arrangement to ((ill, disabled, or infirm
persons)) individuals in places of temporary or permanent
residence. ((A private or public agency or organization that administers or
provides)) A person administering or providing nursing services only
may elect to be designated a home health agency for purposes of licensure.
(((5)))
(8) "Home health services" means ((health or medical))
services provided to ill, disabled, ((or)) infirm ((persons)),
or vulnerable individuals. These services ((may be of an acute or
maintenance care nature, and)) include but are not limited to nursing
services, home health aide services, physical therapy services, occupational
therapy services, speech therapy services, respiratory therapy services,
nutritional services, medical social services, and home medical supplies
or equipment services.
(((6)))
(9) "Home health aide services" means services provided by a
home health agency or a hospice agency under the supervision of a registered
nurse, physical therapist, occupational therapist, or speech therapist who
is employed by or under contract to a home health or hospice agency. Such
care includes ambulation and exercise, assistance with self-administered
medications, reporting changes in patients' conditions and needs, completing
appropriate records, and personal care or homemaker services.
(((7)
"Homemaker services" means services that assist ill, disabled, or
infirm persons with household tasks essential to achieving adequate household
and family management.
(8))) (10)
"Home medical supplies" or "equipment services" means
diagnostic, treatment, and monitoring equipment and supplies provided for the direct
care of individuals within a plan of care.
(11)
"Hospice agency" means a ((private or public agency or
organization)) person administering or providing hospice ((care))
services directly or through a contract arrangement to ((terminally
ill persons)) individuals in places of temporary or permanent
residence ((by using)) under the direction of an
interdisciplinary team composed of at least ((nursing)) a nurse,
social ((work)) worker, physician, ((and pastoral or))
spiritual ((counseling)) counselor, and a volunteer.
(((9)))
(12) "Hospice care center" means a homelike, noninstitutional
facility where hospice services are provided, and that meets the requirements
for operation under section 21 of this act.
(13)
"Hospice ((care)) services" means((: (a) Palliative
care)) symptom and pain management provided to a terminally ill ((person))
individual, and emotional, spiritual, and bereavement support for the
individual and family in a place of temporary or permanent residence ((that
alleviates physical symptoms, including pain, as well as alleviates the
emotional and spiritual discomfort associated with dying; and (b) bereavement
care provided to the family of a terminally ill person that alleviates the
emotional and spiritual discomfort associated with the death of a family
member. Hospice care)), and may include the provision of home
health and ((medical services and personal care, respite, or homemaker
services. Family means individuals who are important to and designated by the
patient, and who need not be relatives.
(10)
"Ill, disabled, or infirm persons" means persons who need home
health, hospice, or home care services in order to maintain themselves in their
places of temporary or permanent residence.
(11)
"Personal care services" means services that assist ill, disabled, or
infirm persons with dressing, feeding, and personal hygiene to facilitate
self-care.
(12)
"Public or private agency or organization" means an entity that
employs or contracts with two or more persons who provide care in the home.
(13)
"Respite care services" means services that assist or support the
primary care giver on a scheduled basis)) home care services for
the terminally ill individual.
(14)
"In-home services agency" means a person licensed to administer or
provide home health, home care, hospice services, or hospice care center
services directly or through a contract arrangement to individuals in a place
of temporary or permanent residence.
(15)
"Person" means any individual, business, firm, partnership, corporation,
company, association, joint stock association, public or private agency or
organization, or the legal successor thereof that employs or contracts with two
or more individuals.
(16)
"Plan of care" means a written document based on assessment of
individual needs that identifies services to meet these needs.
(17)
"Quality improvement" means reviewing and evaluating appropriateness
and effectiveness of services provided under this chapter.
(18)
"Service area" means the geographic area in which the department has
given prior approval to a licensee to provide home health, hospice, or home
care services.
(19)
"Survey" means an inspection conducted by the department to evaluate
and monitor an agency's compliance with this chapter.
Sec.
2. RCW
70.127.020 and 1988 c 245 s 3 are each amended to read as follows:
(1)
After July 1, 1990, ((no private or public agency or organization may)) a
license is required for a person to advertise, operate, manage, conduct,
open, or maintain ((a home health agency without first obtaining a home
health agency license from the department)) an in-home services agency.
(2)
((After July 1, 1990, no private or public agency or organization may
advertise, operate, manage, conduct, open, or maintain a hospice agency without
first obtaining a hospice agency license from the department.
(3)
After July 1, 1990, no public or private agency or organization may advertise,
operate, manage, conduct, open, or maintain a home care agency without first
obtaining a home care agency license from the department.)) An
in-home services agency license is required for a nursing home, hospital, or
other person that functions as a home health, hospice, hospice care center, or
home care agency.
Sec.
3. RCW
70.127.030 and 1988 c 245 s 4 are each amended to read as follows:
It
is unlawful for any person to use the words:
(1)
((No person may use the words)) "Home health agency,"
"home health care services," ((or)) "visiting nurse
services," "home health," or "home health
services" in its corporate or business name, or advertise using such
words unless licensed ((as a home health agency)) to provide those
services under this chapter((.));
(2)
((No person may use the words)) "Hospice agency,"
((or)) "hospice," "hospice services,"
"hospice care," or "hospice care center" in
its corporate or business name, or advertise using such words unless licensed
((as a hospice agency)) to provide those services under this
chapter((.));
(3)
((No person may use the words)) "Home care agency,"
((or)) "home care services," or "home
care" in its corporate or business name, or advertise using such words
unless licensed ((as a home care agency)) to provide those services
under this chapter((.)); or
(4)
"In-home services agency," "in-home services," or any
similar term to indicate that a person is a home health, home care, hospice
care center, or hospice agency in its corporate or business name, or advertise
using such words unless licensed to provide those services under this chapter.
Sec.
4. RCW
70.127.040 and 1993 c 42 s 2 are each amended to read as follows:
The
following are not subject to regulation for the purposes of this chapter:
(1)
A family member providing home health, hospice, or home care services;
(2)
((An organization that)) A person who provides only meal services
in ((a person's)) an individual's permanent or temporary
residence;
(3)
((Entities)) An individual providing home care through a direct
agreement with a recipient of care in an individual's permanent or temporary
residence;
(4)
A person furnishing ((durable)) or delivering home medical supplies
or equipment that does not involve the ((delivery)) provision
of ((professional)) services beyond those necessary to deliver,
set up, and monitor the proper functioning of the equipment and educate
the user on its proper use;
(((4)))
(5) A person who provides services through a contract with a licensed
agency;
(((5)))
(6) An employee or volunteer of a licensed agency who provides services
only as an employee or volunteer;
(((6)))
(7) Facilities and institutions, including but not limited to nursing
homes under chapter 18.51 RCW, hospitals under chapter 70.41 RCW, adult
family homes under chapter 70.128 RCW, boarding homes under chapter 18.20
RCW, developmental disability residential programs under chapter 71.12 RCW, other
entities licensed under chapter 71.12 RCW, or other licensed
facilities and institutions, only when providing services to persons residing
within the facility or institution ((if the delivery of the services is
regulated by the state;
(7)
Persons));
(8)
Local and combined city-county health departments providing services under
chapters 70.05 and 70.08 RCW;
(9)
An individual providing care to ill, disabled ((persons)),
infirm, or vulnerable individuals through a contract with the department of
social and health services;
(((8)))
(10) Nursing homes, hospitals, or other institutions, agencies,
organizations, or persons that contract with licensed home health, hospice, or
home care agencies for the delivery of services;
(((9)))
(11) In-home assessments of an ill, disabled, vulnerable, or
infirm ((person's ability to adapt to the home environment)) individual
that does not result in regular ongoing care at home;
(((10)))
(12) Services conducted by and for the adherents of a church or
religious denomination that rely upon spiritual means alone through prayer for
healing in accordance with the tenets and practices of such church or religious
denomination and the bona fide religious beliefs genuinely held by such
adherents;
(((11)))
(13) A medicare-approved dialysis center operating a medicare-approved
home dialysis program;
(((12)))
(14) A person providing case management services ((which do not
include the direct delivery of home health, hospice, or home care services)).
For the purposes of this subsection, "case management" means the
assessment, coordination, authorization, planning, training, and monitoring of
home health, hospice, and home care, and does not include the direct provision
of care to an individual;
(((13)))
(15) Pharmacies licensed under RCW 18.64.043 that deliver prescription
drugs and durable medical equipment that does not involve the use of
professional services beyond those authorized to be performed by licensed
pharmacists pursuant to chapter 18.64 RCW and those necessary to set up and
monitor the proper functioning of the equipment and educate the person on its
proper use;
(16)
A volunteer hospice complying with the requirements of RCW 70.127.050; and
(17)
A person who provides home care services without compensation.
Sec.
5. RCW
70.127.050 and 1993 c 42 s 3 are each amended to read as follows:
(1)
An entity that provides hospice care without receiving compensation for delivery
of any of its services is exempt from licensure pursuant to RCW 70.127.020(((2)))
(1) if it notifies the department, on forms provided by the department,
of its name, address, name of owner, and a statement affirming that it provides
hospice care without receiving compensation for delivery of any of its
services. This form must be filed with the department ((within sixty days
after June 30, 1993, or)) within sixty days after being informed in writing
by the department of this requirement for obtaining exemption from licensure
under this chapter.
(2)
For the purposes of this section, it is not relevant if the entity compensates
its staff. For the purposes of this section, the word "compensation"
does not include donations.
(3)
Notwithstanding the provisions of RCW 70.127.030(2), an entity that provides
hospice care without receiving compensation for delivery of any of its services
is allowed to use the phrase "volunteer hospice."
(4)
Nothing in this chapter precludes an entity providing hospice care without
receiving compensation for delivery of any of its services from obtaining a
hospice license if it so chooses, but that entity would be exempt from the
requirements set forth in RCW 70.127.080(1)(d) ((and (e))).
Sec.
6. RCW
70.127.080 and 1999 c 190 s 2 are each amended to read as follows:
(1)
An applicant for ((a home health, hospice, or home care)) an in-home
services agency license shall:
(a)
File a written application on a form provided by the department;
(b)
Demonstrate ability to comply with this chapter and the rules adopted under
this chapter;
(c)
Cooperate with on-site ((review)) survey conducted by the
department ((prior to licensure or renewal)) except as provided in RCW
70.127.085;
(d)
Provide evidence of and maintain professional liability, public liability,
and property damage insurance ((in the amount of one hundred thousand
dollars per occurrence or adequate self-insurance as approved by the department))
in an amount established by the department, based on industry standards.
This subsection shall not apply to hospice agency applicants that provide
hospice care without receiving compensation for delivery of services;
(e)
((Provide evidence of and maintain public liability and property damage
insurance coverage in the sum of fifty thousand dollars for injury or damage to
property per occurrence and fifty thousand dollars for injury or damage,
including death, to any one person and one hundred thousand dollars for injury
or damage, including death, to more than one person, or evidence of adequate
self-insurance for public liability and property damage as approved by the
department. This subsection shall not apply to hospice agency applicants that
provide hospice care without receiving compensation for delivery of services;
(f)))
Provide ((such proof as the department may require concerning)) documentation
of an organizational structure, and the identity of the applicant,
officers, administrator, directors of clinical services,
partners, managing employees, or owners of ten percent or more of the
applicant's assets;
(((g)))
(f) File with the department for approval a description of the service
area in which the applicant will operate and a description of how the applicant
intends to provide management and supervision of services throughout the
service area. The department shall adopt rules necessary to establish criteria
for approval that are related to appropriate management and supervision of
services throughout the service area. In developing the rules, the department
may not establish criteria that:
(i)
Limit the number or type of agencies in any service area; or
(ii)
Limit the number of persons any agency may serve within its service area unless
the criteria are related to the need for trained and available staff to provide
services within the service area;
(((h)))
(g) File with the department a list of the home health, hospice, and
home care services ((offered)) provided directly and under
contract;
(((i)))
(h) Pay to the department a license fee as provided in RCW 70.127.090;
((and
(j))) (i)
Comply with RCW 43.43.830 through 43.43.842 for criminal background checks; and
(j)
Provide any other information that the department may reasonably require.
(2)
A certificate of need under chapter 70.38 RCW is not required for licensure except
for the operation of a hospice care center.
(((3)
A license or renewal shall not be granted pursuant to this chapter if the
applicant, officers, directors, partners, managing employees, or owners of ten
percent or more of the applicant's assets, within the last five years have been
found in a civil or criminal proceeding to have committed any act which
reasonably relates to the person's fitness to establish, maintain, or
administer an agency or to provide care in the home of another.))
Sec.
7. RCW
70.127.085 and 1993 c 42 s 11 are each amended to read as follows:
(1)
Notwithstanding the provisions of RCW 70.127.080(1)(c), ((a home health or
hospice agency)) an in-home services agency that is certified by the
federal medicare program, or accredited by the community health accreditation
program, or the joint commission on accreditation of health care organizations
as a home health or hospice agency ((shall be granted the applicable renewal
license, without necessity of)) is not subject to a state licensure
((on-site)) survey if:
(a)
The department determines that the applicable survey standards of the
certification or accreditation program are substantially equivalent to those
required by this chapter;
(b)
An on-site survey has been conducted for the purposes of certification or
accreditation during the previous twenty-four months; and
(c)
The department receives directly from the certifying or accrediting entity or
from the licensee applicant copies of the initial and subsequent survey reports
and other relevant reports or findings that indicate compliance with licensure
requirements.
(2)
Notwithstanding the provisions of RCW 70.127.080(1)(c), ((a home care agency))
an in-home services agency providing services under contract with the
department of social and health services or area agency on aging to provide
home care services and that is monitored by the department of social and health
services or area agency on aging ((shall be granted a renewal license,
without necessity of an on-site)) is not subject to a state licensure
survey by the department of health if:
(a)
The department determines that the department of social and health services or an
area agency on aging monitoring standards are substantially equivalent to those
required by this chapter;
(b)
An on-site monitoring has been conducted by the department of social and health
services or an area agency on aging during the previous twenty-four
months;
(c)
The department of social and health services or an area agency on aging
includes in its monitoring a sample of private pay clients, if applicable; and
(d)
The department receives directly from the department of social and health
services copies of monitoring reports and other relevant reports or findings
that indicate compliance with licensure requirements.
(3)
The department retains authority to survey those services areas not
addressed by the national accrediting body, department of social and health
services, or an area agency on aging.
(4)
In reviewing the federal, the joint commission on accreditation of health care
organizations, the community health accreditation program, or the department of
social and health services survey standards for substantial equivalency to those
set forth in this chapter, the department is directed to provide the most
liberal interpretation consistent with the intent of this chapter. In the
event the department determines at any time that the survey standards are not
substantially equivalent to those required by this chapter, the department is
directed to notify the affected licensees. The notification shall contain a
detailed description of the deficiencies in the alternative survey process, as
well as an explanation concerning the risk to the consumer. The determination
of substantial equivalency for alternative survey process and lack of
substantial equivalency are agency actions and subject to RCW 34.05.210 through
34.05.395 and 34.05.510 through ((34.05.680)) 34.05.675.
(((4)
Agencies receiving a license without necessity of an on-site survey by the
department under this chapter shall pay the same licensure or transfer fee as
other agencies in their licensure category. It is the intent of this section
that the licensure fees for all agencies will be lowered by the elimination of
the duplication that currently exists.))
(5)
((In order to avoid unnecessary costs,)) The department is ((not))
authorized to perform a validation survey ((if it is also the agency
performing the certification or accreditation survey. Where this is not the
case,)) on in-home services agencies who previously received a survey
through accreditation or contracts with the department of social and health
services or an area agency on aging under subsection (2) of this section. The
department is authorized to perform a validation survey on no greater than ((five))
ten percent of each type of certification or accreditation survey.
(6)
This section does not affect the department's enforcement authority for
licensed agencies.
Sec.
8. RCW
70.127.090 and 1999 c 190 s 3 are each amended to read as follows:
(1)
Application and renewal fee: An application for a license or any renewal
shall be accompanied by a fee as established by the department under RCW
43.70.250. The department shall adopt by rule licensure fees based on a
sliding scale using such factors as the number of agency full-time equivalents,
geographic area served, number of locations, or type and volume of services
provided. For agencies receiving a licensure survey that requires more than
two on-site ((reviews)) surveys by the department per licensure
period, an additional fee as determined by the department by rule shall be charged
for each additional on-site ((review)) survey. ((The
department shall charge a reasonable fee for processing changes in ownership.))
The department may set different licensure fees for each licensure category. Agencies
receiving a license without necessity of an on-site survey by the department
under this chapter shall pay the same licensure or transfer fee as other
agencies in their licensure category.
(2)
Change of ownership fee: The department shall charge a reasonable fee for
processing changes in ownership. The fee for transfer of ownership may not
exceed fifty percent of the base licensure fee.
(3)
Late fee: The department may establish a late fee for failure to apply for
licensure or renewal as required by this chapter.
Sec.
9. RCW
70.127.100 and 1993 c 42 s 6 are each amended to read as follows:
Upon
receipt of an application under RCW 70.127.080 for a license and the license
fee, the department shall issue a license if the applicant meets the
requirements established under this chapter. A license issued under this
chapter shall not be transferred or assigned without thirty days prior notice
to the department and the department's approval. A license, unless suspended
or revoked, is effective for a period of two years, however an initial license
is only effective for twelve months. The department shall conduct ((an
on-site review)) a survey within each licensure period((. The
department)) and may conduct a licensure survey after ownership
transfer. ((The fee for this survey may not exceed fifty percent of the
base licensure fee. The department may establish penalty fees for failure to
apply for licensure or renewal as required by this chapter.))
Sec.
10. RCW
70.127.120 and 1993 c 42 s 8 are each amended to read as follows:
The
department shall adopt rules consistent with RCW 70.127.005 necessary to
implement this chapter under chapter 34.05 RCW. In order to ensure safe and
adequate care, the rules shall address at a minimum the following:
(1)
Maintenance and preservation of all records relating directly to the care and
treatment of ((persons)) individuals by licensees;
(2)
Establishment and implementation of a procedure for the receipt,
investigation, and disposition of complaints ((by the department))
regarding services provided ((by licensees));
(3)
Establishment and implementation of a plan for ((on-going)) ongoing
care of ((persons)) individuals and preservation of records if
the licensee ceases operations;
(4)
Supervision of services;
(5)
((Maintenance)) Establishment and implementation of written
policies regarding response to referrals and access to services ((at all
times));
(6)
((Maintenance)) Establishment and implementation of written
personnel policies ((and)), procedures and personnel records for
paid staff that provide for ((rehire)) prehire screening, minimum
qualifications, regular performance evaluations, including observation in the
home, participation in orientation and in-service training, and involvement in
quality ((assurance)) improvement activities. The department may
not establish experience or other qualifications for agency personnel or
contractors beyond that required by state law;
(7)
((Maintenance)) Establishment and implementation of written
policies and procedures for volunteers ((that)) who have direct
patient/client contact and that provide for background and health
screening, orientation, and supervision; ((and))
(8)
((Maintenance)) Establishment and implementation of written
policies ((on)) for obtaining regular reports on patient
satisfaction;
(9)
Establishment and implementation of a quality improvement process; and
(10)
Establishment and implementation of policies related to the delivery of care
including:
(a)
Plan of care for each individual served;
(b)
Periodic review of the plan of care;
(c)
Supervision of care and clinical consultation as necessary;
(d)
Care consistent with the plan;
(e)
Admission, transfer, and discharge from care; and
(f)
For hospice services:
(i)
Availability of twenty-four hour seven days a week hospice registered nurse
consultation and in-home services as appropriate;
(ii)
Interdisciplinary team communication as appropriate and necessary; and
(iii)
The use and availability of volunteers to provide family support and respite
care.
Sec.
11. RCW
70.127.125 and 1993 c 42 s 7 are each amended to read as follows:
The
department is directed to continue to develop, with opportunity for comment
from licensees, interpretive guidelines that are specific to each type of ((license))
service and consistent with legislative intent.
Sec.
12. RCW
70.127.140 and 1988 c 245 s 15 are each amended to read as follows:
(1)
((A licensee)) An in-home services agency shall provide each ((person))
individual or designated representative with a written bill of rights
affirming each ((person's)) individual's right to:
(a)
A listing of the in-home services offered by the in-home services
agency and those being provided;
(b)
The name of the ((person)) individual supervising the care and
the manner in which that ((person)) individual may be contacted;
(c)
A description of the process for submitting and addressing complaints;
(d)
Submit complaints without retaliation and to have the complaint addressed by
the agency;
(e)
Be informed of the state complaint hotline number;
(f)
A statement advising the ((person)) individual or representative
of the right to ((participate)) ongoing participation in the
development of the plan of care;
(((e)))
(g) A statement providing that the ((person)) individual
or representative is entitled to information regarding access to the
department's ((registry)) listing of providers and to select any
licensee to provide care, subject to the ((patient's)) individual's
reimbursement mechanism or other relevant contractual obligations;
(((f)))
(h) Be treated with courtesy, respect, privacy, and freedom from abuse
and discrimination;
(((g)))
(i) Refuse treatment or services;
(((h)
Have patient records be confidential; and
(i)
Have)) (j) Have property treated with respect;
(k)
Privacy of personal information and confidentiality of health care records;
(l)
Be cared for by properly trained staff ((and)) with
coordination of services;
(m)
A fully itemized billing statement upon request, including the date of each
service and the charge. Licensees providing services through a managed care
plan shall not be required to provide itemized billing statements; and
(n)
Be informed about advanced directives and the agency's responsibility to
implement them.
(2)
((Upon request, a licensee shall provide each person or designated
representative with a fully itemized billing statement at least monthly,
including the date of each service and the charge. Licensees providing
services through a managed care plan shall not be required to provide itemized
billing statements.)) An in-home services agency shall ensure rights
under this section are implemented and updated as appropriate.
Sec.
13. RCW
70.127.150 and 1988 c 245 s 16 are each amended to read as follows:
No
licensee, contractee, or employee may hold a durable power of attorney
on behalf of any ((person)) individual who is receiving care from
the licensee.
Sec.
14. RCW
70.127.170 and 1988 c 245 s 18 are each amended to read as follows:
Pursuant
to chapter 34.05 RCW and RCW 70.127.180(3), the department may deny, restrict,
condition, modify, suspend, or revoke a license under this chapter or, in
lieu thereof or in addition thereto, assess monetary penalties of a civil
nature not to exceed one thousand dollars per violation, or require a refund
of any amounts billed to, and collected from, the consumer or third-party payor
in any case in which it finds that the licensee, or any applicant, officer,
director, partner, managing employee, or owner of ten percent or more of the
applicant's or licensee's assets:
(1)
Failed or refused to comply with the requirements of this chapter or the
standards or rules adopted under this chapter;
(2)
Was the holder of a license issued pursuant to this chapter that was revoked
for cause and never reissued by the department, or that was suspended for cause
and the terms of the suspension have not been fulfilled and the licensee has
continued to operate;
(3)
Has knowingly or with reason to know made a misrepresentation of, false
statement of, or failed to disclose, a material fact to the
department in ((the)) an application for the license or any
data attached thereto or in any record required by this chapter or matter under
investigation by the department, or during a survey, or concerning
information requested by the department;
(4)
Refused to allow representatives of the department to inspect any book, record,
or file required by this chapter to be maintained or any portion of the
licensee's premises;
(5)
Willfully prevented, interfered with, or attempted to impede in any way
the work of any representative of the department and the lawful enforcement of
any provision of this chapter. This includes but is not limited to:
Willful misrepresentation of facts during a survey, investigation, or
administrative proceeding or any other legal action; or use of threats or
harassment against any patient, client, or witness, or use of financial
inducements to any patient, client, or witness to prevent or attempt to prevent
him or her from providing evidence during a survey or investigation, in an
administrative proceeding, or any other legal action involving the department;
(6)
Willfully prevented or interfered with any representative of the
department in the preservation of evidence of any violation of this chapter or
the rules adopted under this chapter;
(7)
Failed to pay any civil monetary penalty assessed by the department pursuant to
this chapter within ten days after the assessment becomes final;
(8)
Used advertising that is false, fraudulent, or misleading;
(9)
Has repeated incidents of personnel performing services beyond their authorized
scope of practice; ((or))
(10)
Misrepresented or was fraudulent in any aspect of the conduct of the licensee's
business;
(11)
Within the last five years, has been found in a civil or criminal proceeding to
have committed any act that reasonably relates to the person's fitness to
establish, maintain, or administer an agency or to provide care in the home of
another;
(12)
Was the holder of a license to provide care or treatment to ill, disabled,
infirm, or vulnerable individuals that was denied, restricted, not renewed,
surrendered, suspended, or revoked by a competent authority in any state,
federal, or foreign jurisdiction. A certified copy of the order, stipulation,
or agreement is conclusive evidence of the denial, restriction, nonrenewal,
surrender, suspension, or revocation;
(13)
Violated any state or federal statute, or administrative rule regulating the
operation of the agency;
(14)
Failed to comply with an order issued by the secretary or designee;
(15)
Aided or abetted the unlicensed operation of an in-home services agency;
(16)
Operated beyond the scope of the in-home services agency license;
(17)
Failed to adequately supervise staff to the extent that the health or safety of
a patient or client was at risk;
(18)
Compromised the health or safety of a patient or client, including, but not
limited to, the individual performing services beyond their authorized scope of
practice;
(19)
Continued to operate after license revocation, suspension, or expiration, or
operating outside the parameters of a modified, conditioned, or restricted
license;
(20)
Failed or refused to comply with chapter 70.02 RCW;
(21)
Abused, neglected, abandoned, or financially exploited a patient or client as
these terms are defined in RCW 74.34.020;
(22)
Misappropriated the property of an individual;
(23)
Is unqualified or unable to operate or direct the operation of the agency
according to this chapter and the rules adopted under this chapter;
(24)
Obtained or attempted to obtain a license by fraudulent means or
misrepresentation; or
(25)
Failed to report abuse or neglect of a patient or client in violation of
chapter 74.34 RCW.
Sec.
15. RCW
70.127.180 and 1988 c 245 s 19 are each amended to read as follows:
(1)
The department may at any time conduct ((an on-site review)) a survey
of all records and operations of a licensee ((or conduct in-home visits))
in order to determine compliance with this chapter. The department may ((also
examine and audit records necessary to determine compliance with this chapter))
conduct in-home visits to observe patient/client care and services. The
right to conduct ((an on-site review and audit and examination of records))
a survey shall extend to any premises and records of persons whom the
department has reason to believe are providing home health, hospice, or home
care services without a license.
(2)
Following ((an on-site review, in-home visit, or audit)) a survey,
the department shall give written notice of any violation of this chapter or
the rules adopted under this chapter. The notice shall describe the reasons
for noncompliance ((and inform the licensee that it must comply within a
specified reasonable time, not to exceed sixty days. If the licensee fails to
comply, the licensee is subject to disciplinary action under RCW 70.127.170)).
(3)
The licensee may be subject to formal enforcement action under RCW 70.127.170
if the department determines: (a) The licensee has previously been subject to
a formal enforcement action for the same or similar type of violation of the
same statute or rule, or has been given previous notice of the same or similar
type of violation of the same statute or rule; (b) the licensee failed to
achieve compliance with a statute, rule, or order by the date established in a
previously issued notice or order; (c) the violation resulted in actual serious
physical or emotional harm or immediate threat to the health, safety, welfare,
or rights of one or more individuals; or (d) the violation has a potential for
serious physical or emotional harm or immediate threat to the health, safety,
welfare, or rights of one or more individuals.
Sec.
16. RCW
70.127.190 and 1988 c 245 s 20 are each amended to read as follows:
All
information received by the department through filed reports, ((audits,
on-site reviews,)) surveys, and in-home visits((, or as otherwise
authorized)) conducted under this chapter shall not be disclosed
publicly in any manner that would identify ((persons)) individuals
receiving care under this chapter.
Sec.
17. RCW
70.127.200 and 1988 c 245 s 21 are each amended to read as follows:
(1)
Notwithstanding the existence or use of any other remedy, the department may,
in the manner provided by law and upon the advice of the attorney general, who
shall represent the department in the proceedings, maintain an action in the
name of the state for an injunction or other process against any person to
restrain or prevent the advertising, operating, maintaining, managing, or
opening of a home health, hospice, hospice care center, or home care
agency without ((a)) an in-home services agency license under
this chapter.
(2)
The injunction shall not relieve the person operating an in-home services
agency without a license from criminal prosecution, or the imposition of a
civil fine under section 19(2) of this act, but the remedy by injunction shall
be in addition to any criminal liability or civil fine. A person that violates
an injunction issued under this chapter shall pay a civil penalty, as
determined by the court, of not more than twenty-five thousand dollars, which
shall be deposited in the department's local fee account. For the purpose of
this section, the superior court issuing any injunction shall retain
jurisdiction and the cause shall be continued, and in such cases the attorney
general acting in the name of the state may petition for the recovery of civil
penalties. All fines, forfeitures, and penalties collected or assessed by a
court because of a violation of RCW 70.127.020 shall be deposited in the
department's local fee account.
Sec.
18. RCW
70.127.210 and 1988 c 245 s 22 are each amended to read as follows:
(1)
Any person violating RCW 70.127.020 is guilty of a misdemeanor. Each day of a
continuing violation is a separate violation.
(2)
If any corporation conducts any activity for which a license is required by
this chapter without the required license, it may be punished by forfeiture of
its corporate charter. All fines, forfeitures, and penalties collected or
assessed by a court because of a violation of RCW 70.127.020 shall be deposited
in the department's local fee account.
NEW
SECTION. Sec. 19. A
new section is added to chapter 70.127 RCW to read as follows:
(1)
The department may issue a notice of intention to issue a cease and desist
order to any person whom the department has reason to believe is engaged in the
unlicensed operation of an in-home services agency. The person to whom the
notice of intent is issued may request an adjudicative proceeding to contest
the charges. The request for hearing must be filed within twenty days after
service of the notice of intent to issue a cease and desist order. The failure
to request a hearing constitutes a default, whereupon the department may enter
a permanent cease and desist order, which may include a civil fine. All
proceedings shall be conducted in accordance with chapter 34.05 RCW.
(2)
If the department makes a final determination that a person has engaged or is
engaging in unlicensed operation of an in-home services agency, the department
may issue a cease and desist order. In addition, the department may impose a
civil fine in an amount not exceeding one thousand dollars for each day upon
which the person engaged in unlicensed operation of an in-home services
agency. The proceeds of such fines shall be deposited in the department's
local fee account.
(3)
If the department makes a written finding of fact that the public interest will
be irreparably harmed by delay in issuing an order, the department may issue a
temporary cease and desist order. The person receiving a temporary cease and
desist order shall be provided an opportunity for a prompt hearing. The
temporary cease and desist order shall remain in effect until further order of
the department. The failure to request a prompt or regularly scheduled hearing
constitutes a default, whereupon the department may enter a permanent cease and
desist order, which may include a civil fine.
(4)
Neither the issuance of a cease and desist order nor payment of a civil fine
shall relieve the person so operating an in-home services agency without a
license from criminal prosecution, but the remedy of a cease and desist order
or civil fine shall be in addition to any criminal liability. The cease and
desist order is conclusive proof of unlicensed operation and may be enforced
under RCW 7.21.060. This method of enforcement of the cease and desist order
or civil fine may be used in addition to, or as an alternative to, any
provisions for enforcement of agency orders set out in chapter 34.05 RCW.
NEW
SECTION. Sec. 20. A
new section is added to chapter 70.127 RCW to read as follows:
The
legislature finds that the operation of an in-home services agency without a
license in violation of this chapter is a matter vitally affecting the public
interest for the purpose of applying the consumer protection act, chapter 19.86
RCW. Operation of an in-home services agency without a license in violation of
this chapter is not reasonable in relation to the development and preservation
of business. Such a violation is an unfair or deceptive act in trade or
commerce and an unfair method of competition for the purpose of applying the
consumer protection act, chapter 19.86 RCW.
NEW
SECTION. Sec. 21. A
new section is added to chapter 70.127 RCW to read as follows:
(1)
Applicants desiring to operate a hospice care center are subject to the
following:
(a)
The application may only be made by a licensed hospice agency. The agency
shall list which of the following service categories will be provided:
(i)
General inpatient care;
(ii)
Continuous home care;
(iii)
Routine home care; or
(iv)
Inpatient respite care;
(b)
A certificate of need is required under chapter 70.38 RCW;
(c)
A hospice agency may operate more than one hospice care center in its service
area;
(d)
For hospice agencies that operate a hospice care center, no more than
forty-nine percent of patient care days, in the aggregate on a biennial basis,
may be provided in the hospice care center;
(e)
The maximum number of beds in a hospice care center is twenty;
(f)
The maximum number of individuals per room is one, unless the individual
requests a roommate;
(g)
A hospice care center may either be owned or leased by a hospice agency. If
the agency leases space, all delivery of interdisciplinary services, to include
staffing and management, shall be done by the hospice agency; and
(h)
A hospice care center may either be freestanding or a separate portion of another
building.
(2)
The department is authorized to develop rules to implement this section. The
rules shall be specific to each hospice care center service category provided.
The rules shall at least specifically address the following:
(a)
Adequate space for family members to visit, meet, cook, share meals, and stay
overnight with patients or clients;
(b)
A separate external entrance, clearly identifiable to the public when part of
an existing structure;
(c)
Construction, maintenance, and operation of a hospice care center;
(d)
Means to inform the public which hospice care center service categories are
provided; and
(e)
A registered nurse present twenty-four hours a day, seven days a week for
hospice care centers delivering general inpatient services.
(3)
Hospice agencies which as of January 1, 2000, operate the functional equivalent
of a hospice care center through licensure as a hospital, under chapter 70.41
RCW, shall be exempt from the certificate of need requirement for hospice care
centers if they apply for and receive a license as an in-home services agency
to operate a hospice home care center by July 1, 2002.
Sec.
22. RCW
70.38.025 and 1997 c 210 s 2 are each amended to read as follows:
When
used in this chapter, the terms defined in this section shall have the meanings
indicated.
(1)
"Board of health" means the state board of health created pursuant to
chapter 43.20 RCW.
(2)
"Capital expenditure" is an expenditure, including a force account
expenditure (i.e., an expenditure for a construction project undertaken by a
nursing home facility as its own contractor) which, under generally accepted
accounting principles, is not properly chargeable as an expense of operation or
maintenance. Where a person makes an acquisition under lease or comparable
arrangement, or through donation, which would have required review if the
acquisition had been made by purchase, such expenditure shall be deemed a
capital expenditure. Capital expenditures include donations of equipment or
facilities to a nursing home facility which if acquired directly by such
facility would be subject to certificate of need review under the provisions of
this chapter and transfer of equipment or facilities for less than fair market
value if a transfer of the equipment or facilities at fair market value would
be subject to such review. The cost of any studies, surveys, designs, plans,
working drawings, specifications, and other activities essential to the
acquisition, improvement, expansion, or replacement of any plant or equipment
with respect to which such expenditure is made shall be included in determining
the amount of the expenditure.
(3)
"Continuing care retirement community" means an entity which provides
shelter and services under continuing care contracts with its members and which
sponsors or includes a health care facility or a health service. A
"continuing care contract" means a contract to provide a person, for
the duration of that person's life or for a term in excess of one year, shelter
along with nursing, medical, health-related, or personal care services, which
is conditioned upon the transfer of property, the payment of an entrance fee to
the provider of such services, or the payment of periodic charges for the care and
services involved. A continuing care contract is not excluded from this
definition because the contract is mutually terminable or because shelter and
services are not provided at the same location.
(4)
"Department" means the department of health.
(5)
"Expenditure minimum" means, for the purposes of the certificate of
need program, one million dollars adjusted by the department by rule to reflect
changes in the United States department of commerce composite construction cost
index; or a lesser amount required by federal law and established by the
department by rule.
(6)
"Health care facility" means hospices, hospice care centers,
hospitals, psychiatric hospitals, nursing homes, kidney disease treatment
centers, ambulatory surgical facilities, and home health agencies, and includes
such facilities when owned and operated by a political subdivision or
instrumentality of the state and such other facilities as required by federal
law and implementing regulations, but does not include any health facility or
institution conducted by and for those who rely exclusively upon treatment by
prayer or spiritual means in accordance with the creed or tenets of any
well-recognized church or religious denomination, or any health facility or
institution operated for the exclusive care of members of a convent as defined
in RCW 84.36.800 or rectory, monastery, or other institution operated for the
care of members of the clergy. In addition, the term does not include any nonprofit
hospital: (a) Which is operated exclusively to provide health care services
for children; (b) which does not charge fees for such services; and (c) if not
contrary to federal law as necessary to the receipt of federal funds by the
state.
(7)
"Health maintenance organization" means a public or private
organization, organized under the laws of the state, which:
(a)
Is a qualified health maintenance organization under Title XIII, section
1310(d) of the Public Health Services Act; or
(b)(i)
Provides or otherwise makes available to enrolled participants health care
services, including at least the following basic health care services: Usual
physician services, hospitalization, laboratory, x-ray, emergency, and
preventive services, and out-of-area coverage; (ii) is compensated (except for
copayments) for the provision of the basic health care services listed in
(b)(i) to enrolled participants by a payment which is paid on a periodic basis
without regard to the date the health care services are provided and which is
fixed without regard to the frequency, extent, or kind of health service
actually provided; and (iii) provides physicians' services primarily (A)
directly through physicians who are either employees or partners of such
organization, or (B) through arrangements with individual physicians or one or
more groups of physicians (organized on a group practice or individual practice
basis).
(8)
"Health services" means clinically related (i.e., preventive,
diagnostic, curative, rehabilitative, or palliative) services and includes
alcoholism, drug abuse, and mental health services and as defined in federal
law.
(9)
"Health service area" means a geographic region appropriate for
effective health planning which includes a broad range of health services.
(10)
"Person" means an individual, a trust or estate, a partnership, a
corporation (including associations, joint stock companies, and insurance
companies), the state, or a political subdivision or instrumentality of the
state, including a municipal corporation or a hospital district.
(11)
"Provider" generally means a health care professional or an
organization, institution, or other entity providing health care but the
precise definition for this term shall be established by rule of the
department, consistent with federal law.
(12)
"Public health" means the level of well-being of the general
population; those actions in a community necessary to preserve, protect, and
promote the health of the people for which government is responsible; and the
governmental system developed to guarantee the preservation of the health of
the people.
(13)
"Secretary" means the secretary of health or the secretary's
designee.
(14)
"Tertiary health service" means a specialized service that meets
complicated medical needs of people and requires sufficient patient volume to
optimize provider effectiveness, quality of service, and improved outcomes of
care.
(15)
"Hospital" means any health care institution which is required to
qualify for a license under RCW 70.41.020(2); or as a psychiatric hospital
under chapter 71.12 RCW.
NEW
SECTION. Sec. 23. A
new section is added to chapter 70.38 RCW to read as follows:
All
certificate of need applications submitted by hospice agencies for the
construction, development, or other establishment of a facility to be licensed
as either a hospital under chapter 70.41 RCW or as a nursing home under chapter
18.51 RCW, for the purpose of operating the functional equivalent of a hospice
care center shall not require a separate certificate of need for a hospice care
center provided the certificate of need application was declared complete prior
to July 1, 2001, the applicant has been issued a certificate of need, and has
applied for and received an in-home services agency license by July 1, 2002.
NEW
SECTION. Sec. 24. This
act takes effect January 1, 2002.
NEW
SECTION. Sec. 25. The
following acts or parts of acts are each repealed:
(1) RCW
70.127.060 (Nursing homes--Application of chapter) and 1988 c 245
s 7;
(2) RCW
70.127.070 (Hospitals--Application of chapter) and 1988 c 245 s 8;
(3) RCW
70.127.110 (Licenses--Combination--Rules--Fees) and 1999 c 190 s 4
& 1988 c 245 s 12;
(4) RCW
70.127.220 (Agency registry) and 1988 c 245 s 23;
(5) RCW
70.127.230 (Hospice agencies--Exemption for certain activities)
and 1988 c 245 s 24;
(6) RCW
70.127.240 (Home health or hospice agencies--Exemption for certain
activities) and 1988 c 245 s 27;
(7) RCW
70.127.250 (Home health agencies--Patient care and
treatment--Rules--Definitions) and 1994 sp.s. c 9 s 745, 1993 c 42 s 10, &
1988 c 245 s 25;
(8) RCW
70.127.260 (Hospice agencies--Rules) and 1988 c 245 s 26; and
(9) RCW
70.127.270 (Home care agencies--Rules) and 1988 c 245 s 28.
