AN
ACT Relating to protection of vulnerable adults; amending RCW 74.34.020,
74.34.025, 74.34.050, 74.34.070, 74.34.080, 74.34.110, 74.34.130, 74.34.180,
74.34.200, 70.124.010, 70.124.020, 70.124.030, 70.124.060, 70.124.090,
70.124.100, 26.44.010, 26.44.015, 26.44.020, 26.44.030, 26.44.032, 26.44.040,
and 74.39A.060; reenacting and amending RCW 70.124.040 and 26.44.050; adding
new sections to chapter 74.34 RCW; creating new sections; and repealing RCW
74.34.010, 74.34.015, 74.34.030, 74.34.055, and 74.34.060.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds that the provisions for the protection of vulnerable adults
found in chapters 26.44, 70.124, and 74.34 RCW contain different definitions
for abandonment, abuse, exploitation, and neglect. The legislature finds that
combining the sections of these chapters that pertain to the protection of
vulnerable adults would better serve this state's population of vulnerable
adults. The purpose of chapter 74.34 RCW is to provide the department and law
enforcement agencies with the authority to investigate complaints of
abandonment, abuse, financial exploitation, or neglect of vulnerable adults and
to provide protective services and legal remedies to protect these vulnerable
adults.
NEW
SECTION. Sec. 2. A
new section is added to chapter 74.34 RCW to read as follows:
The
legislature finds and declares that:
(1)
Some adults are vulnerable and may be subjected to abuse, neglect, financial
exploitation, or abandonment by a family member, care provider, or other person
who has a relationship with the vulnerable adult;
(2)
A vulnerable adult may be home bound or otherwise unable to represent himself
or herself in court or to retain legal counsel in order to obtain the relief
available under this chapter or other protections offered through the courts;
(3)
A vulnerable adult may lack the ability to perform or obtain those services
necessary to maintain his or her well-being because he or she lacks the
capacity for consent;
(4)
A vulnerable adult may have health problems that place him or her in a
dependent position;
(5)
The department and appropriate agencies must be prepared to receive reports of
abandonment, abuse, financial exploitation, or neglect of vulnerable adults;
(6)
The department must provide protective services in the least restrictive
environment appropriate and available to the vulnerable adult.
Sec.
3. RCW
74.34.020 and 1997 c 392 s 523 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Abandonment" means action or inaction by a person or entity with a
duty of care for a ((frail elder or a)) vulnerable adult that leaves the
vulnerable person without the means or ability to obtain necessary food,
clothing, shelter, or health care.
(2)
"Abuse" means ((a nonaccidental act of physical or mental
mistreatment or injury, or sexual mistreatment, which harms a person through
action or inaction by another individual)) the willful action or
inaction that inflicts injury, unreasonable confinement, intimidation, or
punishment on a vulnerable adult. In instances of abuse of a vulnerable adult
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
vulnerable adult, 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 photographing, and sexual harassment.
Sexual abuse includes any sexual contact between a staff person, who is not
also a resident or client, of a facility or a staff person of a program
authorized under chapter 71A.12 RCW, and a vulnerable adult living in that
facility or receiving service from a program authorized under chapter 71A.12
RCW, 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 licensing requirements, 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 vulnerable adult from family, friends,
or regular activity, and verbal assault that includes ridiculing, intimidating,
yelling, or swearing.
(d)
"Exploitation" means an act of forcing, compelling, or exerting undue
influence over a vulnerable adult causing the vulnerable adult to act in a way
that is inconsistent with relevant past behavior, or causing the vulnerable
adult to perform services for the benefit of another.
(3)
"Consent" means express written consent granted after the ((person))
vulnerable adult or his or her legal representative has been fully
informed of the nature of the services to be offered and that the receipt of
services is voluntary.
(4)
"Department" means the department of social and health services.
(5)
(("Exploitation" means the illegal or improper use of a frail
elder or vulnerable adult or that person's income or resources, including trust
funds, for another person's profit or advantage.
(6)
"Neglect" means a pattern of conduct or inaction by a person or
entity with a duty of care for a frail elder or vulnerable adult that results
in the deprivation of care necessary to maintain the vulnerable person's
physical or mental health.
(7)
"Secretary" means the secretary of social and health services.
(8)
"Frail elder or vulnerable adult" means a person sixty years of age
or older who has the functional, mental, or physical inability to care for
himself or herself. "Frail elder or vulnerable adult" shall include
persons found incapacitated under chapter 11.88 RCW, or a person who has a
developmental disability under chapter 71A.10 RCW, and persons admitted to any
long-term care facility that is licensed or required to be licensed under
chapter 18.20, 18.51, 72.36, or 70.128 RCW, or persons receiving services from
home health, hospice, or home care agencies licensed or required to be licensed
under chapter 70.127 RCW.
(9)
No frail elder or vulnerable person who relies upon and is being provided
spiritual treatment in lieu of medical treatment in accordance with the tenets
and practices of a well-recognized religious denomination shall for that reason
alone be considered abandoned, abused, or neglected.)) "Facility"
means a residence licensed or required to be licensed under chapter 18.20 RCW,
boarding homes; chapter 18.51 RCW, nursing homes; chapter 70.128 RCW, adult
family homes; chapter 72.36 RCW, soldiers' homes; or chapter 71A.20 RCW,
residential habilitation centers; or any other facility licensed by the
department.
(6)
"Financial exploitation" means the illegal or improper use of the
property, income, resources, or trust funds of the vulnerable adult by any
person for any person's profit or advantage.
(7)
"Individual provider" means a person under contract with the
department to provide services in the home under chapter 74.09 or 74.39A RCW.
(8)
"Mandated reporter" is an employee of the department; law enforcement
officer; social worker; professional school personnel; individual provider; an
employee of a facility; an operator of a facility; an employee of a social
service, welfare, mental health, adult day health, adult day care, home health,
home care, or hospice agency; county coroner or medical examiner; Christian
Science practitioner; or health care provider subject to chapter 18.130 RCW.
(9)
"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 vulnerable adult, or that avoids or prevents
physical or mental harm or pain to a vulnerable adult; or (b) an act or
omission that demonstrates a serious disregard of consequences of such a
magnitude as to constitute a clear and present danger to the vulnerable adult's
health, welfare, or safety.
(10)
"Permissive reporter" means any person, employee of a financial
institution, attorney, or volunteer in a facility or program providing services
for vulnerable adults.
(11)
"Protective services" means any services provided by the department
to a vulnerable adult with the consent of the vulnerable adult, or the legal
representative of the vulnerable adult, who has been abandoned, abused,
financially exploited, neglected, or in a state of self-neglect. These
services may include, but are not limited to case management, social casework,
home care, placement, arranging for medical evaluations, psychological
evaluations, day care, or referral for legal assistance.
(12)
"Self-neglect" means the failure of a vulnerable adult, not living in
a facility, to provide for himself or herself the goods and services necessary
for the vulnerable adult's physical or mental health, and the absence of which
impairs or threatens the vulnerable adult's well-being. This definition may
include a vulnerable adult who is receiving services through home health,
hospice, or a home care agency, or an individual provider when the neglect is
not a result of inaction by that agency or individual provider.
(13)
"Vulnerable adult" includes a person:
(a)
Sixty years of age or older who has the functional, mental, or physical inability
to care for himself or herself; or
(b)
Found incapacitated under chapter 11.88 RCW; or
(c)
Who has a developmental disability as defined under RCW 71A.10.020; or
(d)
Admitted to any facility; or
(e)
Receiving services from home health, hospice, or home care agencies licensed or
required to be licensed under chapter 70.127 RCW; or
(f)
Receiving services from an individual provider.
Sec.
4. RCW
74.34.025 and 1997 c 392 s 304 are each amended to read as follows:
The
cost of benefits and services provided to a ((frail elder or))
vulnerable adult under this chapter with state funds only does not constitute
an obligation or lien and is not recoverable from the recipient of the services
or from the recipient's estate, whether by lien, adjustment, or any other means
of recovery.
NEW
SECTION. Sec. 5. A
new section is added to chapter 74.34 RCW to read as follows:
(1)
When there is reasonable cause to believe that abandonment, abuse, financial
exploitation, or neglect of a vulnerable adult 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 vulnerable adult is being or
has been abandoned, abused, financially exploited, or neglected.
(3)
No facility, as defined by this chapter, agency licensed or required to be
licensed under chapter 70.127 RCW, or facility or agency under contract with
the department to provide care for vulnerable adults may develop policies or
procedures that interfere with the reporting requirements of this chapter.
(4)
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 vulnerable adult and the name of the facility or
agency providing care for the vulnerable adult;
(c)
The name and address of the legal guardian or alternate decision maker;
(d)
The nature and extent of the abandonment, abuse, financial exploitation,
neglect, or self-neglect;
(e)
Any history of previous abandonment, abuse, financial exploitation, neglect, or
self-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 vulnerable adult.
(5)
Unless there is a judicial proceeding or the person consents, the identity of
the person making the report under this section is confidential.
Sec.
6. RCW
74.34.050 and 1997 c 386 s 34 are each amended to read as follows:
(1)
A person participating in good faith in making a report under this chapter or
testifying about alleged abuse, neglect, abandonment, ((or)) financial
exploitation, or self-neglect of a vulnerable adult in a judicial or
administrative proceeding under this chapter is immune from liability
resulting from the report or testimony. The making of permissive reports as
allowed in ((RCW 74.34.030)) this chapter does not create any
duty to report and no civil liability shall attach for any failure to make a
permissive report ((under RCW 74.34.030)) as allowed under this
chapter.
(2)
Conduct conforming with the reporting and testifying provisions of this chapter
shall not be deemed a violation of any confidential communication privilege.
Nothing in this chapter shall be construed as superseding or abridging remedies
provided in chapter 4.92 RCW.
NEW
SECTION. Sec. 7. A
new section is added to chapter 74.34 RCW to read as follows:
(1)
A person who is required to make a report under this chapter and who knowingly
fails to make the report is guilty of a gross misdemeanor.
(2)
A person who intentionally, maliciously, or in bad faith makes a false report
of alleged abandonment, abuse, financial exploitation, or neglect of a
vulnerable adult is guilty of a misdemeanor.
NEW
SECTION. Sec. 8. A
new section is added to chapter 74.34 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, neglect, or self-neglect of a vulnerable adult.
(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 will coordinate in investigating
reports made under this chapter. The department may provide protective
services and other remedies as specified in this chapter.
(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, and neglect of
vulnerable adults, consistent with RCW 74.04.060, 42.17.310, 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 vulnerable adult.
NEW
SECTION. Sec. 9. A
new section is added to chapter 74.34 RCW to read as follows:
(1)
Where appropriate, an investigation by the department may include a private
interview with the vulnerable adult regarding the alleged abandonment, abuse,
financial exploitation, neglect, or self-neglect.
(2)
In conducting the investigation, the department shall interview the
complainant, unless anonymous, and shall use its best efforts to interview the
vulnerable adult or adults harmed, and, consistent with the protection of the
vulnerable adult shall interview facility staff, any available independent sources
of relevant information, including if appropriate the family members of the
vulnerable adult.
(3)
The department may conduct ongoing case planning and consultation with: (a)
Those persons or agencies required to report under this chapter or submit a report
under this chapter; (b) consultants designated by the department; and (c)
designated representatives of Washington Indian tribes if client 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 must 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 the vulnerable adult has suffered from abuse,
neglect, self-neglect, abandonment, or financial exploitation, and 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)
When the investigation is completed and the department determines that an
incident of abandonment, abuse, financial exploitation, neglect, or
self-neglect has occurred, the department shall inform the vulnerable adult of
their right to refuse protective services, and ensure that, if necessary,
appropriate protective services are provided to the vulnerable adult, with the
consent of the vulnerable adult. The vulnerable adult has the right to
withdraw or refuse protective services.
(7)
The department may photograph a vulnerable adult or their environment for the
purpose of providing documentary evidence of the physical condition of the
vulnerable adult or his or her environment. When photographing the vulnerable
adult, the department shall obtain permission from the vulnerable adult or his
or her legal representative unless immediate photographing is necessary to
preserve evidence. However, if the legal representative is alleged to have
abused, neglected, abandoned, or exploited the vulnerable adult, consent from
the legal representative is not necessary. No such consent is necessary when
photographing the physical environment.
(8)
When the investigation is complete and the department determines that the
incident of abandonment, abuse, financial exploitation, or neglect has
occurred, the department shall inform the facility in which the incident
occurred, consistent with confidentiality requirements concerning the
vulnerable adult, witnesses, and complainants.
Sec.
10. RCW
74.34.070 and 1997 c 386 s 35 are each amended to read as follows:
((In
responding to reports of alleged abuse, exploitation, neglect, or abandonment
under this chapter, the department shall provide information to the frail elder
or vulnerable adult on protective services available to the person and inform
the person of the right to refuse such services.)) The department ((shall))
may develop cooperative agreements with community-based agencies ((servicing
the abused elderly and)) providing services for vulnerable adults.
The agreements shall cover ((such subjects as)): (1) The
appropriate roles and responsibilities of the department and community-based
agencies in identifying and responding to reports of alleged abuse((,));
(2) the provision of case-management services((,)); (3)
standardized data collection procedures((,)); and (4)
related coordination activities.
Sec.
11. RCW
74.34.080 and 1984 c 97 s 14 are each amended to read as follows:
If
access is denied to an employee of the department seeking to investigate an
allegation of abandonment, abuse, ((neglect,)) financial
exploitation, or ((abandonment)) neglect of a vulnerable adult by
an individual, the department may seek an injunction to prevent interference
with the investigation. The court shall issue the injunction if the department
shows that:
(1)
There is reasonable cause to believe that the person is a vulnerable adult and
is or has been abandoned, abused, ((neglected,)) financially
exploited, or ((abandoned)) neglected; and
(2)
The employee of the department seeking to investigate the report has been
denied access.
Sec.
12. RCW
74.34.110 and 1986 c 187 s 5 are each amended to read as follows:
An
action known as a petition for an order for protection of a vulnerable adult in
cases of abandonment, abuse ((or)), financial exploitation,
or neglect is created.
(1)
A vulnerable adult may seek relief from abandonment, abuse ((or)),
financial exploitation, or neglect, or the threat thereof, by filing
a petition for an order for protection in superior court.
(2)
A petition shall allege that the petitioner is a vulnerable adult and that the
petitioner has been abandoned, abused ((or)), financially
exploited, or neglected, or is threatened with abandonment, abuse
((or)), financial exploitation, or neglect by respondent.
(3)
A petition shall be accompanied by affidavit made under oath stating the
specific facts and circumstances which demonstrate the need for the relief
sought.
(4)
A petition for an order may be made whether or not there is a pending lawsuit,
complaint, petition, or other action between the parties.
(5)
A petitioner is not required to post bond to obtain relief in any proceeding
under this section.
(6)
An action under this section shall be filed in the county where the petitioner
resides; except that if the petitioner has left the residence as a result of abandonment,
abuse ((or)), financial exploitation, or neglect, or in
order to avoid abandonment, abuse ((or)), financial
exploitation, or neglect, the petitioner may bring an action in the
county of either the previous or new residence.
(7)
The filing fee for the petition may be waived at the discretion of the court.
Sec.
13. RCW
74.34.130 and 1986 c 187 s 7 are each amended to read as follows:
The
court may order relief as it deems necessary for the protection of the
petitioner, including, but not limited to the following:
(1)
Restraining respondent from committing acts of abandonment, abuse ((or)),
neglect, or financial exploitation;
(2)
Excluding the respondent from petitioner's residence for a specified period or
until further order of the court;
(3)
Prohibiting contact by respondent for a specified period or until further order
of the court;
(4)
Requiring an accounting by respondent of the disposition of petitioner's income
or other resources;
(5)
Restraining the transfer of property for a specified period not exceeding
ninety days;
(6)
Requiring the respondent to pay the filing fee and court costs, including
service fees, and to reimburse the petitioner for costs incurred in bringing
the action, including a reasonable attorney's fee.
Any
relief granted by an order for protection, other than a judgment for costs,
shall be for a fixed period not to exceed one year.
Sec.
14. RCW
74.34.180 and 1997 c 392 s 202 are each amended to read as follows:
(1)
An employee or contractor 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 or the
department of health about suspected abandonment, abuse, ((neglect,))
financial exploitation, or ((abandonment)) neglect by any
person in a ((boarding home)) facility, licensed or required to
be licensed ((pursuant to chapter 18.20 RCW or a veterans' home pursuant to
chapter 72.36 RCW)), or care provided in a ((boarding home or a
veterans' home)) facility or in a home setting, by any person
associated with a hospice, home care, or home health agency licensed under
chapter 70.127 RCW or other in-home provider, 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 expel a resident from a ((boarding home or veterans' home))
facility, or any type of discriminatory treatment of a resident who is a
consumer of hospice, home health, home care services, or other in-home services
by whom, or upon whose behalf, a complaint substantiated by the department or
the department of health has been submitted to the department or the
department of health 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)) review
conducted by the department that shows that the resident or consumer'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 a person with a mandatory duty to
report under this chapter, or any person licensed under Title 18 RCW, who in
good faith reports alleged abandonment, abuse, ((neglect,)) financial
exploitation, or ((abandonment)) neglect to the department, or
the department of health, 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. The protections provided
to whistleblowers under this chapter shall not prevent a ((nursing home,
state hospital, boarding home, or adult family home)) facility or an
agency licensed under chapter 70.127 RCW from: (i) Terminating,
suspending, or disciplining a whistleblower for other lawful purposes; or (ii)
for facilities licensed under chapter 70.128 RCW, 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 in which a whistleblower has been terminated or
had hours of employment reduced because of the inability of a facility to meet
payroll; 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 ((boarding home or veterans' home)) facility
or an agency licensed under chapter 70.127 RCW from exercising its
authority to terminate, suspend, or discipline any employee who engages in
workplace reprisal or retaliatory action against a whistleblower.
(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
frail elder or)) (a) Any vulnerable ((person)) adult
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)) may not 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)).
(b)
Any vulnerable adult may not be considered abandoned, abused, or neglected
under this chapter by any health care provider, facility, facility employee,
agency, agency employee, or individual provider who participates in good faith
in the withholding or withdrawing of life-sustaining treatment from a
vulnerable adult under chapter 70.122 RCW, or who acts in accordance with
chapter 7.70 RCW or other state laws to withhold or withdraw treatment, goods,
or services.
(7)
The department, and the department of health for facilities, agencies, or
individuals it regulates, shall adopt rules designed to discourage
whistleblower complaints made in bad faith or for retaliatory purposes.
Sec.
15. RCW
74.34.200 and 1995 1st sp.s. c 18 s 85 are each amended to read as follows:
(1)
In addition to other remedies available under the law, a ((frail elder or))
vulnerable adult ((or a person age eighteen or older)) who has been
subjected to abandonment, abuse, ((neglect,)) financial
exploitation, or ((abandonment)) neglect either while residing in
a ((long-term care)) facility or in the case of a person ((in the))
residing at home who receives care ((of)) from a home
health, hospice, or home care agency, ((residing at home)) or an individual
provider, shall have a cause of action for damages on account of his or her
injuries, pain and suffering, and loss of property sustained thereby. This
action shall be available where the defendant is or was a corporation, trust,
unincorporated association, partnership, administrator, employee, agent,
officer, partner, or director of a ((long-term care)) facility, ((such
as a nursing home or boarding home, that is licensed or required to be licensed
under chapter 18.20, 18.51, 72.36, or 70.128 RCW,)) or of a home health,
hospice, or home care agency licensed or required to be licensed under chapter
70.127 RCW, as now or subsequently designated, or an individual provider.
(2)
It is the intent of the legislature, however, that where there is a dispute
about the care or treatment of a ((frail elder or)) vulnerable adult,
the parties should use the least formal means available to try to resolve the
dispute. Where feasible, parties are encouraged but not mandated to employ
direct discussion with the health care provider, use of the long-term care
ombudsman or other intermediaries, and, when necessary, recourse through
licensing or other regulatory authorities.
(3)
In an action brought under this section, a prevailing plaintiff shall be
awarded his or her actual damages, together with the costs of the suit,
including a reasonable attorney's fee. The term "costs" includes,
but is not limited to, the reasonable fees for a guardian, guardian ad litem,
and experts, if any, that may be necessary to the litigation of a claim brought
under this section.
NEW
SECTION. Sec. 16. A
new section is added to chapter 74.34 RCW to read as follows:
(1)
Any vulnerable adult 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 may not for that reason alone be
considered abandoned, abused, or neglected.
(2)
Any vulnerable adult may not be considered abandoned, abused, or neglected
under this chapter by any health care provider, facility, facility employee,
agency, agency employee, or individual provider who participates in good faith
in the withholding or withdrawing of life-sustaining treatment from a
vulnerable adult under chapter 70.122 RCW, or who acts in accordance with
chapter 7.70 RCW or other state laws to withhold or withdraw treatment, goods,
or services.
NEW
SECTION. Sec. 17. A
new section is added to chapter 74.34 RCW 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 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.
NEW
SECTION. Sec. 18. A
new section is added to chapter 74.34 RCW to read as follows:
The
department may adopt rules relating to the reporting, investigation, and
provision of protective services in in-home settings, consistent with the
objectives of this chapter.
NEW
SECTION. Sec. 19. The
department of social and health services shall conduct a feasibility study to
determine the need, use, role of due process, and cost of developing and maintaining
a registry relating to incidents of abuse, neglect, abandonment, and financial
exploitation of vulnerable adults. The results of the study are due by
November 30, 1999.
Sec.
20. RCW
70.124.010 and 1981 c 174 s 1 are each amended to read as follows:
(1)
The Washington state legislature finds and declares that a reporting system is
needed to protect ((nursing home and)) state hospital patients from
abuse. Instances of nonaccidental injury, neglect, death, sexual abuse, and
cruelty to such patients have occurred, and in the instance where such a
patient is deprived of his or her right to conditions of minimal health and
safety, the state is justified in emergency intervention based upon verified
information. Therefore the Washington state legislature hereby provides for
the reporting of such cases to the appropriate public authorities.
(2)
It is the intent of the legislature that: (a) As a result of such reports,
protective services shall be made available in an effort to prevent further
abuses, and to safeguard the general welfare of the patients; and (b) such
reports shall be maintained and disseminated with strictest regard for the
privacy of the subjects of such reports and so as to safeguard against
arbitrary, malicious, or erroneous information or actions.
Sec.
21. RCW
70.124.020 and 1997 c 392 s 519 are each amended to read as follows:
Unless
the context requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Court" means the superior court of the state of Washington.
(2)
"Law enforcement agency" means the police department, the director of
public safety, or the office of the sheriff.
(3)
"Practitioner of the healing arts" or "practitioner" means
a person licensed by this state to practice podiatric medicine and surgery,
optometry, pharmacy, physical therapy, chiropractic, nursing, dentistry,
osteopathic medicine and surgery, or medicine and surgery. The term
"practitioner" ((shall)) includes a nurse's
aide((, a nursing home administrator licensed under chapter 18.52 RCW,))
and a duly accredited Christian Science practitioner((: PROVIDED, HOWEVER,
That a nursing home patient who is being furnished Christian Science treatment
by a duly accredited Christian Science practitioner shall not be considered,
for that reason alone, a neglected patient for the purposes of this chapter)).
(4)
"Department" means the state department of social and health
services.
(5)
(("Nursing home" has the meaning prescribed by RCW 18.51.010.
(6)))
"Social worker" means anyone engaged in a professional capacity
during the regular course of employment in encouraging or promoting the health,
welfare, support, or education of ((nursing home)) patients, or
providing social services to ((nursing home)) patients, whether in an
individual capacity or as an employee or agent of any public or private
organization or institution.
(((7)))
(6) "Psychologist" means any person licensed to practice
psychology under chapter 18.83 RCW, whether acting in an individual capacity or
as an employee or agent of any public or private organization or institution.
(((8)))
(7) "Pharmacist" means any registered pharmacist under chapter
18.64 RCW, whether acting in an individual capacity or as an employee or agent
of any public or private organization or institution.
(((9)))
(8) "Abuse or neglect" or "patient abuse or neglect"
means the nonaccidental physical injury or condition, sexual abuse, or
negligent treatment of a ((nursing home or)) state hospital patient
under circumstances which indicate that the patient's health, welfare, or
safety is harmed thereby.
(((10)))
(9) "Negligent treatment" means an act or omission which
evinces a serious disregard of consequences of such magnitude as to constitute
a clear and present danger to the patient's health, welfare, or safety.
(((11)))
(10) "State hospital" means any hospital operated and
maintained by the state for the care of the mentally ill under chapter 72.23
RCW.
Sec.
22. RCW
70.124.030 and 1981 c 174 s 3 are each amended to read as follows:
(1)
When any practitioner, social worker, psychologist, pharmacist, ((employee
of a nursing home,)) employee of a state hospital, or employee of the
department has reasonable cause to believe that a ((nursing home or))
state hospital patient has suffered abuse or neglect, the person shall report
such incident, or cause a report to be made, to either a law enforcement agency
or to the department as provided in RCW 70.124.040.
(2)
Any other person who has reasonable cause to believe that a ((nursing home
or)) state hospital patient has suffered abuse or neglect may report such
incident to either a law enforcement agency or to the department as provided in
RCW 70.124.040.
(3)
The department or any law enforcement agency receiving a report of an incident
of abuse or neglect involving a ((nursing home or)) state hospital
patient who has died or has had physical injury or injuries inflicted other
than by accidental means or who has been subjected to sexual abuse shall report
the incident to the proper county prosecutor for appropriate action.
Sec.
23. RCW
70.124.040 and 1997 c 392 s 520 and 1997 c 386 s 30 are each reenacted and
amended to read as follows:
(1)
Where a report is required under RCW 70.124.030, an immediate oral report ((shall))
must be made by telephone or otherwise to either a law enforcement
agency or to the department and, upon request, ((shall)) must be
followed by a report in writing. The reports ((shall)) must
contain the following information, if known:
(a)
The name and address of the person making the report;
(b)
The name and address of the ((nursing home or)) state hospital patient;
(c)
The name and address of the patient's relatives having responsibility for the
patient;
(d)
The nature and extent of the alleged injury or injuries;
(e)
The nature and extent of the alleged neglect;
(f)
The nature and extent of the alleged sexual abuse;
(g)
Any evidence of previous injuries, including their nature and extent; and
(h)
Any other information ((which)) that may be helpful in
establishing the cause of the patient's death, injury, or injuries, and the
identity of the perpetrator or perpetrators.
(2)
Each law enforcement agency receiving such a report shall, in addition to
taking the action required by RCW 70.124.050, immediately relay the report to
the department, and to other law enforcement agencies, including the medicaid
fraud control unit of the office of the attorney general, as appropriate. For
any report it receives, the department shall likewise take the required action
and in addition relay the report to the appropriate law enforcement agency or
agencies. The appropriate law enforcement agency or agencies ((shall)) must
receive immediate notification when the department, upon receipt of such
report, has reasonable cause to believe that a criminal act has been committed.
Sec.
24. RCW
70.124.060 and 1993 c 510 s 25 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,
((shall)) is, in so doing, ((be)) 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 ((nursing home or)) state hospital it ((shall be)) 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.
(2)
Conduct conforming with the reporting requirements of this chapter ((shall))
is not ((be deemed)) a violation of the confidential
communication privilege of RCW 5.60.060 (3) or (4) or 18.83.110. Nothing in
this chapter ((shall be construed as to)) supersedes or abridges
remedies provided in chapter 4.92 RCW.
Sec.
25. RCW
70.124.090 and 1981 c 174 s 6 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 ((nursing homes,))
state hospitals((, and nursing home)) and state hospital employees and
the posting where appropriate by ((nursing homes and)) state hospitals
of informational, educational, or training materials calculated to aid and
assist in achieving the objectives of this chapter.
Sec.
26. RCW
70.124.100 and 1997 c 392 s 201 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 ((nursing home,))
state hospital((, or adult family home)) 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 ((nursing home,)) state
hospital((, adult family home,)) 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 ((nursing home,))
state hospital((, or adult family home,)) 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 ((nursing home,)) state hospital((,
or adult family home)) 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 ((nursing home,)) state
hospital((, or adult family home)) 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 ((frail elder or vulnerable person)) 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.
Sec.
27. RCW
26.44.010 and 1987 c 206 s 1 are each amended to read as follows:
The
Washington state legislature finds and declares: The bond between a child and
his or her parent, custodian, or guardian is of paramount importance, and any
intervention into the life of a child is also an intervention into the life of
the parent, custodian, or guardian; however, instances of nonaccidental injury,
neglect, death, sexual abuse and cruelty to children by their parents,
custodians or guardians have occurred, and in the instance where a child is
deprived of his or her right to conditions of minimal nurture, health, and
safety, the state is justified in emergency intervention based upon verified
information; and therefore the Washington state legislature hereby provides for
the reporting of such cases to the appropriate public authorities. It is the
intent of the legislature that, as a result of such reports, protective
services shall be made available in an effort to prevent further abuses, and to
safeguard the general welfare of such children: PROVIDED, That such reports
shall be maintained and disseminated with strictest regard for the privacy of
the subjects of such reports and so as to safeguard against arbitrary,
malicious or erroneous information or actions: PROVIDED FURTHER, That this
chapter shall not be construed to authorize interference with child-raising
practices, including reasonable parental discipline, which are not proved to be
injurious to the child's health, welfare and safety.
((Adult
dependent or developmentally disabled persons not able to provide for their own
protection through the criminal justice system shall also be afforded the
protection offered children through the reporting and investigation
requirements mandated in this chapter.))
Sec.
28. RCW
26.44.015 and 1997 c 386 s 23 are each amended to read as follows:
(1)
This chapter shall not be construed to authorize interference with
child-raising practices, including reasonable parental discipline, which are
not injurious to the child's health, welfare, and safety.
(2)
Nothing in this chapter may be used to prohibit the reasonable use of corporal
punishment as a means of discipline.
(3)
No parent or guardian may be deemed abusive or neglectful solely by reason of
the parent's or child's blindness, deafness, developmental disability, or other
handicap.
(((4)
A person reporting alleged injury, abuse, or neglect to an adult dependent
person shall not suffer negative consequences if the person reporting believes
in good faith that the adult dependent person has been found legally
incompetent or disabled.))
Sec.
29. RCW
26.44.020 and 1998 c 314 s 7 are each amended to read as follows:
((For
the purpose of and as used in)) The definitions in this section apply
throughout this chapter((:)) unless the context clearly requires
otherwise.
(1)
"Court" means the superior court of the state of Washington, juvenile
department.
(2)
"Law enforcement agency" means the police department, the prosecuting
attorney, the state patrol, the director of public safety, or the office of the
sheriff.
(3)
"Practitioner of the healing arts" or "practitioner" means
a person licensed by this state to practice podiatric medicine and surgery,
optometry, chiropractic, nursing, dentistry, osteopathic medicine and surgery,
or medicine and surgery or to provide other health services. The term
"practitioner" ((shall)) includes a duly accredited
Christian Science practitioner: PROVIDED, HOWEVER, That a person who is being
furnished Christian Science treatment by a duly accredited Christian Science
practitioner ((shall)) will not be considered, for that reason
alone, a neglected person for the purposes of this chapter.
(4)
"Institution" means a private or public hospital or any other
facility providing medical diagnosis, treatment or care.
(5)
"Department" means the state department of social and health
services.
(6)
"Child" or "children" means any person under the age of
eighteen years of age.
(7)
"Professional school personnel" ((shall)) include, but are
not ((be)) limited to, teachers, counselors, administrators, child care
facility personnel, and school nurses.
(8)
"Social service counselor" ((shall)) means anyone
engaged in a professional capacity during the regular course of employment in
encouraging or promoting the health, welfare, support or education of children,
or providing social services to adults or families, including mental health,
drug and alcohol treatment, and domestic violence programs, whether in an
individual capacity, or as an employee or agent of any public or private
organization or institution.
(9)
"Psychologist" ((shall)) means any person licensed to
practice psychology under chapter 18.83 RCW, whether acting in an individual
capacity or as an employee or agent of any public or private organization or
institution.
(10)
"Pharmacist" ((shall)) means any registered pharmacist
under ((the provisions of)) chapter 18.64 RCW, whether acting in an
individual capacity or as an employee or agent of any public or private
organization or institution.
(11)
"Clergy" ((shall)) means any regularly licensed or
ordained minister, priest, or rabbi of any church or religious
denomination, whether acting in an individual capacity or as an employee or
agent of any public or private organization or institution.
(12)
"Abuse or neglect" ((shall)) means the injury, sexual
abuse, sexual exploitation, negligent treatment, or maltreatment of a child((,
adult dependent, or developmentally disabled person)) by any person under
circumstances which indicate that the child's ((or adult's)) health,
welfare, and safety is harmed, excluding conduct permitted under RCW
9A.16.100. An abused child is a child who has been subjected to child abuse or
neglect as defined ((herein)) in this section.
(13)
"Child protective services section" ((shall)) means the
child protective services section of the department.
(14)
(("Adult dependent persons" shall be defined as those persons over
the age of eighteen years who have been found to be legally incompetent or
disabled pursuant to chapter 11.88 RCW.
(15)))
"Sexual exploitation" includes: (a) Allowing, permitting, or
encouraging a child to engage in prostitution by any person; or (b) allowing,
permitting, encouraging, or engaging in the obscene or pornographic
photographing, filming, or depicting of a child by any person.
(((16)))
(15) "Negligent treatment or maltreatment" means an act or
omission ((which)) that evidences a serious disregard of
consequences of such magnitude as to constitute a clear and present danger to
the child's health, welfare, and safety. The fact that siblings share a
bedroom is not, in and of itself, (("))negligent treatment or
maltreatment.(("
(17)
"Developmentally disabled person" means a person who has a disability
defined in RCW 71A.10.020.
(18))) (16)
"Child protective services" means those services provided by the
department designed to protect children from child abuse and neglect and
safeguard such children from future abuse and neglect, and conduct
investigations of child abuse and neglect reports. Investigations may be
conducted regardless of the location of the alleged abuse or neglect. Child
protective services includes referral to services to ameliorate conditions ((which))
that endanger the welfare of children, the coordination of necessary
programs and services relevant to the prevention, intervention, and treatment
of child abuse and neglect, and services to children to ensure that each child
has a permanent home. In determining whether protective services should be
provided, the department shall not decline to provide such services solely
because of the child's unwillingness or developmental inability to describe the
nature and severity of the abuse or neglect.
(((19)))
(17) "Malice" or "maliciously" means an evil intent,
wish, or design to vex, annoy, or injure another person. Such malice may be
inferred from an act done in willful disregard of the rights of another,
or an act wrongfully done without just cause or excuse, or an act or omission
of duty betraying a willful disregard of social duty.
(((20)))
(18) "Sexually aggressive youth" means a child who is defined
in RCW 74.13.075(1)(b) as being a (("))sexually aggressive youth.(("
(21))) (19)
"Unfounded" means available information indicates that, more likely
than not, child abuse or neglect did not occur.
Sec.
30. RCW
26.44.030 and 1998 c 328 s 5 are each amended to read as follows:
(1)(a)
When any practitioner, county coroner or medical examiner, law enforcement
officer, professional school personnel, registered or licensed nurse, social
service counselor, psychologist, pharmacist, licensed or certified child care
providers or their employees, employee of the department, juvenile probation
officer, or state family and children's ombudsman or any volunteer in the
ombudsman's office has reasonable cause to believe that a child ((or adult
dependent or developmentally disabled person,)) has suffered abuse or
neglect, he or she shall report such incident, or cause a report to be made, to
the proper law enforcement agency or to the department as provided in RCW
26.44.040.
(b)
The reporting requirement ((shall)) also ((apply)) applies
to department of corrections personnel who, in the course of their employment,
observe offenders or the children with whom the offenders are in contact. If,
as a result of observations or information received in the course of his or her
employment, any department of corrections personnel has reasonable cause to
believe that a child ((or adult dependent or developmentally disabled person))
has suffered abuse or neglect, he or she shall report the incident, or cause a
report to be made, to the proper law enforcement agency or to the department as
provided in RCW 26.44.040.
(c)
The reporting requirement shall also apply to any adult who has reasonable
cause to believe that a child ((or adult dependent or developmentally
disabled person,)) who resides with them, has suffered severe abuse, and is
able or capable of making a report. For the purposes of this subsection,
"severe abuse" means any of the following: Any single act of abuse
that causes physical trauma of sufficient severity that, if left untreated,
could cause death; any single act of sexual abuse that causes significant
bleeding, deep bruising, or significant external or internal swelling; or more
than one act of physical abuse, each of which causes bleeding, deep bruising,
significant external or internal swelling, bone fracture, or unconsciousness.
(d)
The report ((shall)) must be made at the first opportunity, but
in no case longer than forty-eight hours after there is reasonable cause to
believe that the child ((or adult)) has suffered abuse or neglect. The
report ((shall)) must include the identity of the accused if
known.
(2)
The reporting requirement of subsection (1) of this section does not apply to
the discovery of abuse or neglect that occurred during childhood if it is
discovered after the child has become an adult. However, if there is
reasonable cause to believe other children((, dependent adults, or
developmentally disabled persons)) are or may be at risk of abuse or neglect
by the accused, the reporting requirement of subsection (1) of this section ((shall))
does apply.
(3)
Any other person who has reasonable cause to believe that a child ((or adult
dependent or developmentally disabled person)) has suffered abuse or neglect
may report such incident to the proper law enforcement agency or to the
department of social and health services as provided in RCW 26.44.040.
(4)
The department, upon receiving a report of an incident of alleged abuse or
neglect pursuant to this chapter, involving a child ((or adult dependent or
developmentally disabled person)) who has died or has had physical injury
or injuries inflicted upon him or her other than by accidental means or who has
been subjected to alleged sexual abuse, shall report such incident to the
proper law enforcement agency. In emergency cases, where the ((child, adult
dependent, or developmentally disabled person's)) child's welfare is
endangered, the department shall notify the proper law enforcement agency
within twenty-four hours after a report is received by the department. In all
other cases, the department shall notify the law enforcement agency within
seventy-two hours after a report is received by the department. If the
department makes an oral report, a written report ((shall)) must
also be made to the proper law enforcement agency within five days thereafter.
(5)
Any law enforcement agency receiving a report of an incident of alleged abuse
or neglect pursuant to this chapter, involving a child ((or adult dependent
or developmentally disabled person)) who has died or has had physical
injury or injuries inflicted upon him or her other than by accidental means, or
who has been subjected to alleged sexual abuse, shall report such incident in
writing as provided in RCW 26.44.040 to the proper county prosecutor or city
attorney for appropriate action whenever the law enforcement agency's
investigation reveals that a crime may have been committed. The law
enforcement agency shall also notify the department of all reports received and
the law enforcement agency's disposition of them. In emergency cases, where
the ((child, adult dependent, or developmentally disabled person's)) child's
welfare is endangered, the law enforcement agency shall notify the department
within twenty-four hours. In all other cases, the law enforcement agency shall
notify the department within seventy-two hours after a report is received by
the law enforcement agency.
(6)
Any county prosecutor or city attorney receiving a report under subsection (5)
of this section shall notify the victim, any persons the victim requests, and
the local office of the department, of the decision to charge or decline to
charge a crime, within five days of making the decision.
(7)
The department may conduct ongoing case planning and consultation with those
persons or agencies required to report under this section, with consultants
designated by the department, and with designated representatives of Washington
Indian tribes if the client information exchanged is pertinent to cases
currently receiving child protective services ((or department case services
for the developmentally disabled)). Upon request, the department shall
conduct such planning and consultation with those persons required to report
under this section if the department determines it is in the best interests of
the child ((or developmentally disabled person)). Information
considered privileged by statute and not directly related to reports required
by this section ((shall)) must not be divulged without a valid
written waiver of the privilege.
(8)
Any case referred to the department by a physician licensed under chapter 18.57
or 18.71 RCW on the basis of an expert medical opinion that child abuse,
neglect, or sexual assault has occurred and that the child's safety will be
seriously endangered if returned home, the department shall file a dependency
petition unless a second licensed physician of the parents' choice believes
that such expert medical opinion is incorrect. If the parents fail to designate
a second physician, the department may make the selection. If a physician
finds that a child has suffered abuse or neglect but that such abuse or neglect
does not constitute imminent danger to the child's health or safety, and the
department agrees with the physician's assessment, the child may be left in the
parents' home while the department proceeds with reasonable efforts to remedy
parenting deficiencies.
(9)
Persons or agencies exchanging information under subsection (7) of this section
shall not further disseminate or release the information except as authorized
by state or federal statute. Violation of this subsection is a misdemeanor.
(10)
Upon receiving reports of alleged abuse or neglect, the department or law
enforcement agency may interview children. The interviews may be conducted on
school premises, at day-care facilities, at the child's home, or at other
suitable locations outside of the presence of parents. Parental notification
of the interview ((shall)) must occur at the earliest possible
point in the investigation that will not jeopardize the safety or protection of
the child or the course of the investigation. Prior to commencing the
interview the department or law enforcement agency shall determine whether the
child wishes a third party to be present for the interview and, if so, shall
make reasonable efforts to accommodate the child's wishes. Unless the child
objects, the department or law enforcement agency shall make reasonable efforts
to include a third party in any interview so long as the presence of the third
party will not jeopardize the course of the investigation.
(11)
Upon receiving a report of alleged child abuse and neglect, the department or
investigating law enforcement agency shall have access to all relevant records
of the child in the possession of mandated reporters and their employees.
(12)
The department shall maintain investigation records and conduct timely and
periodic reviews of all cases constituting abuse and neglect. The department
shall maintain a log of screened-out nonabusive cases.
(13)
The department shall use a risk assessment process when investigating alleged
child abuse and neglect referrals. The department shall present the risk
factors at all hearings in which the placement of a dependent child is an
issue. Substance abuse must be a risk factor. The department shall, within
funds appropriated for this purpose, offer enhanced community-based services to
persons who are determined not to require further state intervention.
The
department shall provide annual reports to the legislature on the effectiveness
of the risk assessment process.
(14)
Upon receipt of a report of alleged abuse or neglect the law enforcement agency
may arrange to interview the person making the report and any collateral sources
to determine if any malice is involved in the reporting.
(15) The department shall make reasonable efforts to learn the
name, address, and telephone number of each person making a report of abuse or
neglect under this section. The department shall provide assurances of
appropriate confidentiality of the identification of persons reporting under
this section. If the department is unable to learn the information required
under this subsection, the department shall only investigate cases in which: (a)
The department believes there is a serious threat of substantial harm to the
child; (b) the report indicates conduct involving a criminal offense that has,
or is about to occur, in which the child is the victim; or (c) the department
has, after investigation, a report of abuse or neglect that has been founded
with regard to a member of the household within three years of receipt of the
referral.
Sec.
31. RCW
26.44.032 and 1988 c 87 s 1 are each amended to read as follows:
In
cases in which a public employee subject to RCW 26.44.030 acts in good faith
and without gross negligence in his or her reporting duty, and if the
employee's judgment as to what constitutes reasonable cause to believe that a
child ((or adult dependent or developmentally disabled person)) has
suffered abuse or neglect is being challenged, the public employer shall
provide for the legal defense of the employee.
Sec.
32. RCW
26.44.040 and 1997 c 386 s 27 are each amended to read as follows:
An
immediate oral report ((shall)) must be made by telephone or
otherwise to the proper law enforcement agency or the department of social and
health services and, upon request, ((shall)) must be followed by
a report in writing. Such reports ((shall)) must contain the
following information, if known:
(1)
The name, address, and age of the child ((or adult dependent or
developmentally disabled person));
(2)
The name and address of the child's parents, stepparents, guardians, or other
persons having custody of the child ((or the residence of the adult
dependent or developmentally disabled person));
(3)
The nature and extent of the alleged injury or injuries;
(4)
The nature and extent of the alleged neglect;
(5)
The nature and extent of the alleged sexual abuse;
(6)
Any evidence of previous injuries, including their nature and extent; and
(7)
Any other information ((which)) that may be helpful in
establishing the cause of the child's ((or adult dependent or
developmentally disabled person's)) death, injury, or injuries and the
identity of the alleged perpetrator or perpetrators.
Sec.
33. RCW
26.44.050 and 1987 c 450 s 7 and 1987 c 206 s 5 are each reenacted and amended
to read as follows:
Upon
the receipt of a report concerning the possible occurrence of abuse or neglect,
((it shall be the duty of)) the law enforcement agency or the department
of social and health services ((to)) must investigate and provide
the protective services section with a report in accordance with ((the
provision of)) chapter 74.13 RCW, and where necessary to refer such report
to the court.
A
law enforcement officer may take, or cause to be taken, a child into custody
without a court order if there is probable cause to believe that the child is
abused or neglected and that the child would be injured or could not be taken
into custody if it were necessary to first obtain a court order pursuant to RCW
13.34.050. The law enforcement agency or the department of social and health
services investigating such a report is hereby authorized to photograph such a
child ((or adult dependent or developmentally disabled person)) for the
purpose of providing documentary evidence of the physical condition of the
child((, adult dependent or developmentally disabled person)).
Sec.
34. RCW
74.39A.060 and 1997 c 392 s 210 are each amended to read as follows:
(1)
The aging and adult services administration of the department shall establish
and maintain a toll-free telephone number for receiving complaints regarding a
facility that the administration licenses or with which it contracts for
long-term care services.
(2)
All facilities that are licensed by, or that contract with the aging and adult
services administration to provide chronic long-term care services shall post
in a place and manner clearly visible to residents and visitors the
department's toll-free complaint telephone number and the toll-free number and
program description of the long-term care ombudsman as provided by RCW
43.190.050.
(3)
The aging and adult services administration shall investigate complaints if the
subject of the complaint is within its authority unless the department
determines that: (a) The complaint is intended to willfully harass a licensee
or employee of the licensee; or (b) there is no reasonable basis for
investigation; or (c) corrective action has been taken as determined by the
ombudsman or the department.
(4)
The aging and adult services administration shall refer complaints to
appropriate state agencies, law enforcement agencies, the attorney general, the
long-term care ombudsman, or other entities if the department lacks authority
to investigate or if its investigation reveals that a follow-up referral to one
or more of these entities is appropriate.
(5)
The department shall adopt rules that include the following complaint
investigation protocols:
(a)
Upon receipt of a complaint, the department shall make a preliminary review of
the complaint, assess the severity of the complaint, and assign an appropriate
response time. Complaints involving imminent danger to the health, safety, or
well-being of a resident must be responded to within two days. When
appropriate, the department shall make an on-site investigation within a
reasonable time after receipt of the complaint or otherwise ensure that
complaints are responded to.
(b)
The complainant must be: Promptly contacted by the department, unless
anonymous or unavailable despite several attempts by the department, and
informed of the right to discuss the alleged violations with the inspector and
to provide other information the complainant believes will assist the
inspector; informed of the department's course of action; and informed of the
right to receive a written copy of the investigation report.
(c)
In conducting the investigation, the department shall interview the
complainant, unless anonymous, and shall use its best efforts to interview the
((resident or residents)) vulnerable adult or adults allegedly
harmed ((by the violations)), and, ((in addition to)) consistent
with the protection of the vulnerable adult shall interview facility staff,
any available independent sources of relevant information, including if
appropriate the family members of the ((resident)) vulnerable adult.
(d)
Substantiated complaints involving harm to a resident, if an applicable law or
((regulation)) rule has been violated, shall be subject to one or
more of the actions provided in RCW 74.39A.080 or 70.128.160. Whenever
appropriate, the department shall also give consultation and technical
assistance to the provider.
(e)
In the best practices of total quality management and continuous quality
improvement, after a department finding of a violation that is serious,
recurring, or uncorrected following a previous citation, the department shall
make an on-site revisit of the facility to ensure correction of the violation,
except for license or contract suspensions or revocations.
(f)
Substantiated complaints of neglect, abuse, exploitation, or abandonment of
residents, or suspected criminal violations, shall also be referred by the
department to the appropriate law enforcement agencies, the attorney general,
and appropriate professional disciplining authority.
(6)
The department may provide the substance of the complaint to the licensee or
contractor before the completion of the investigation by the department unless such
disclosure would reveal the identity of a complainant, witness, or resident who
chooses to remain anonymous. Neither the substance of the complaint provided
to the licensee or contractor nor any copy of the complaint or related report
published, released, or made otherwise available shall disclose, or reasonably
lead to the disclosure of, the name, title, or identity of any complainant, or
other person mentioned in the complaint, except that the name of the provider
and the name or names of any officer, employee, or agent of the department
conducting the investigation shall be disclosed after the investigation has
been closed and the complaint has been substantiated. The department may
disclose the identity of the complainant if such disclosure is requested in
writing by the complainant. Nothing in this subsection shall be construed to
interfere with the obligation of the long-term care ombudsman program or
department staff to monitor the department's licensing, contract, and complaint
investigation files for long-term care facilities.
(7)
The resident has the right to be free of interference, coercion,
discrimination, and reprisal from a facility in exercising his or her rights,
including the right to voice grievances about treatment furnished or not
furnished. A facility that provides long-term care services shall not
discriminate or retaliate in any manner against a resident, employee, or any
other person on the basis or for the reason that such resident or any other
person made a complaint to the department, the attorney general, law
enforcement agencies, or the long-term care ombudsman, provided information, or
otherwise cooperated with the investigation of such a complaint. Any attempt
to discharge a resident against the resident's wishes, or any type of
retaliatory treatment of a resident by whom or upon whose behalf a complaint
substantiated by the department has been made to the department, the attorney
general, law enforcement agencies, or the long-term care ombudsman, within one
year of the filing of the complaint, raises a rebuttable presumption that such
action was in retaliation for the filing of the complaint. "Retaliatory
treatment" means, but is not limited to, monitoring a resident's phone,
mail, or visits; involuntary seclusion or isolation; transferring a resident to
a different room unless requested or based upon legitimate management reasons;
withholding or threatening to withhold food or treatment unless authorized by a
terminally ill resident or his or her representative pursuant to law; or
persistently delaying responses to a resident's request for service or
assistance. A facility that provides long-term care services shall not
willfully interfere with the performance of official duties by a long-term care
ombudsman. The department shall sanction and may impose a civil penalty of not
more than three thousand dollars for a violation of this subsection.
NEW
SECTION. Sec. 35. The
following acts or parts of acts are each repealed:
(1) RCW
74.34.010 (Legislative findings--Intent) and 1997 c 392 s 303,
1995 1st sp.s. c 18 s 82, & 1984 c 97 s 7;
(2) RCW
74.34.015 (Protection of frail elders and vulnerable
adults--Legislative findings and intent) and 1995 1st sp.s. c 18 s 83 &
1986 c 187 s 4;
(3) RCW
74.34.030 (Reports--Duty to make) and 1995 1st sp.s. c 18 s 88,
1986 c 187 s 1, & 1984 c 97 s 9;
(4) RCW
74.34.055 (Failure to report is gross misdemeanor) and 1997 c 392
s 522; and
(5) RCW
74.34.060 (Response to reports--Services--Consent) and 1984 c 97
s 12.
NEW
SECTION. Sec. 36. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW
SECTION. Sec. 37. If
any part of this act is found to be in conflict with federal requirements that
are a prescribed condition to the allocation of federal funds to the state, the
conflicting part of this act is inoperative solely to the extent of the
conflict and with respect to the agencies directly affected, and this finding
does not affect the operation of the remainder of this act in its application
to the agencies concerned. Rules adopted under this act must meet federal
requirements that are a necessary condition to the receipt of federal funds by
the state.
