[atlas:bill]

AN ACT Relating to boarding homes; amending RCW 18.20.020, 18.20.110, 18.20.185, 18.20.190, and 74.39A.060; adding a new section to chapter 18.20 RCW; repealing RCW 74.39A.080; and declaring an emergency.

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

Sec. 1. RCW 18.20.020 and 2000 c 47 s 1 are each amended to read as follows:

As used in this chapter:

(1) "Aged person" means a person of the age sixty-five years or more, or a person of less than sixty-five years who by reason of infirmity requires domiciliary care.

(2) "Boarding home" means any home or other institution, however named, which is advertised, announced, or maintained for the express or implied purpose of providing board and domiciliary care to seven or more aged persons not related by blood or marriage to the operator. However, a boarding home that is licensed to provide board and domiciliary care to three to six persons on July 1, 2000, may maintain its boarding home license as long as it is continually licensed as a boarding home. "Boarding home" shall not include facilities certified as group training homes pursuant to RCW 71A.22.040, nor any home, institution or section thereof which is otherwise licensed and regulated under the provisions of state law providing specifically for the licensing and regulation of such home, institution or section thereof. Nor shall it include any independent senior housing, independent living units in continuing care retirement communities, or other similar living situations including those subsidized by the department of housing and urban development.

(3) "Person" means any individual, firm, partnership, corporation, company, association, or joint stock association, and the legal successor thereof.

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

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

(6) "Serious" means a violation of a licensing requirement contained in or adopted under this chapter, or a contract requirement contained in or adopted under chapter 74.39A RCW, as applicable, that: (a) Causes actual harm to a resident and the level of harm is more than minimal; or (b) indicates there are systemic factors underlying the violation which, if uncorrected, will with reasonable certainty cause significant harm to a resident or residents.

(7) "Recurring" means a violation of the same regulation on three consecutive licensing inspections or complaint investigations, or any combination thereof.

(8) "Imminent danger" means a violation of a licensing requirement contained in or adopted under this chapter, or a contract requirement contained in or adopted under chapter 74.39A RCW, as applicable, that causes significant physical harm to or death of a resident, or creates a significant and immediate threat to a resident's life, health, or safety.

Sec. 2. RCW 18.20.110 and 2000 c 47 s 4 are each amended to read as follows:

The department shall make or cause to be made at least a yearly inspection and investigation of all boarding homes. Every inspection shall focus primarily on actual or potential resident outcomes, and may include an inspection of every part of the premises and an examination of all records (other than financial records), methods of administration, the general and special dietary, and the stores and methods of supply.

(1) Inspections should be outcome based and responsive to resident complaints and a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to boarding homes. This includes that when conducting licensing inspections, the department shall interview an appropriate percentage of residents, family members, and advocates in addition to interviewing appropriate staff.

(2) Prompt and specific enforcement remedies shall also be implemented without delay, consistent with RCW 18.20.190, for boarding homes found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or uncorrected, or that create imminent danger to one or more residents. These enforcement remedies may also include, when appropriate, reasonable conditions on a license. In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance and consistent with RCW 18.20.190. Whenever appropriate, the department shall provide technical assistance to the facility.

(3) To the extent funding is available, the licensee, administrator, and their staff should be screened through background checks in a uniform and timely manner to ensure that they do not have a criminal history that would disqualify them from working with vulnerable adults. Employees may be provisionally hired pending the results of the background check if they have been given three positive references.

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

Following such an inspection or inspections, written notice of any violation of this law or the rules adopted hereunder shall be given to the applicant or licensee and the department. The department may prescribe by rule that any licensee or applicant desiring to make specified types of alterations or additions to its facilities or to construct new facilities shall, before commencing such alteration, addition, or new construction, submit plans and specifications therefor to the agencies responsible for plan reviews for preliminary inspection and approval or recommendations with respect to compliance with the rules and standards herein authorized.

Sec. 3. RCW 18.20.185 and 1997 c 392 s 214 are each amended to read as follows:

(1) The department shall establish and maintain a toll-free telephone number for receiving complaints regarding a ((~~facility~~)) boarding home that the department licenses.

(2) All ((~~facilities~~)) boarding homes that are licensed under this chapter 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 department 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 department 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 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 allegedly harmed by the violations, and, in addition to ((~~facility~~)) boarding home staff, any available independent sources of relevant information, including if appropriate the family members of the resident.

(d) Substantiated complaints involving harm to a resident, if an applicable law or regulation has been violated, shall be subject to one or more of the actions provided in RCW 18.20.190. Whenever appropriate, the department shall also give consultation and technical assistance to the facility.

(e) ((~~In the best practices of total quality management and continuous quality improvement,~~)) After a department finding of a violation that is serious or causes or creates imminent danger to one or more residents, ((~~recurring, or uncorrected following a previous citation,~~)) the department shall make an on-site revisit of the ((~~facility~~)) boarding home, within five working days from the date of the request for revisit, to ensure correction of the violation. For other violations that are not serious or do not cause or create imminent changer to one or more residents, the department may make an on-site revisit to ensure correction of the violation, or accept the licensee's written statement demonstrating correction of the violation or violations if the department finds the written statement credible. This subsection does not prevent the department from enforcing license 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 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 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~~)) boarding home in exercising his or her rights, including the right to voice grievances about treatment furnished or not furnished. A ((~~facility~~)) boarding home licensed under this chapter 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~~)) boarding home licensed under this chapter 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.

Sec. 4. RCW 18.20.190 and 2000 c 47 s 7 are each amended to read as follows:

(1) The department of social and health services is authorized to take one or more of the actions listed in subsection (2) of this section in any case in which the department finds that a boarding home provider has:

(a) Failed or refused to comply with the requirements of this chapter or the rules adopted under this chapter or chapter 74.39A RCW, as applicable, except for one or more violations that (i) are not serious or do not cause or create imminent danger to one or more residents, unless such violations are recurring, and (ii) are corrected prior to the last day of the department's on-site visit;

(b) Operated a boarding home without a license or under a revoked license;

(c) Knowingly, or with reason to know, made a false statement of material fact on his or her application for license or any data attached thereto, or in any matter under investigation by the department; or

(d) Willfully prevented or interfered with any inspection or investigation by the department.

(2) When authorized by subsection (1) of this section, the department may take one or more of the following actions:

(a) Refuse to issue a license under this chapter or a contract under chapter 74.39A RCW;

(b) Impose reasonable conditions on a license or a contract, as applicable, such as correction within a specified time, training, and limits on the type of clients the provider may admit or serve;

(d) Suspend, revoke, or refuse to renew a license under this chapter, or a contract under chapter 74.39A RCW, for one or more violations that are serious and recurring or that cause or create imminent danger to one or more residents, and the licensee either refuses to correct the violation or violations or is unable to demonstrate good faith progress to correct; or

(e) Suspend admissions to the boarding home by imposing stop placement for one or more violations that are serious, whether or not they are also recurring, or for a violation that causes or creates imminent danger to one or more residents.

(3) When the department orders stop placement, the facility shall not admit any new resident until the stop placement order is terminated. The department may approve readmission of a resident to the facility from a hospital or nursing home during the stop placement. The department shall terminate the stop placement when: (a) The violations necessitating the stop placement have been corrected; and (b) the provider exhibits the capacity to maintain ((~~adequate care and service~~)) compliance with the particular law or regulation which necessitated the stop placement.

(4) After a department finding of a violation that is serious or causes or creates imminent danger to one or more residents, the department shall make an on-site revisit of the boarding home, within five working days from the date of the request for revisit, to ensure correction of the violation. For other violations that are not serious or do not cause or create imminent danger to one or more residents, the department may make an on-site revisit to ensure correction of the violation, or accept the licensee's written statement demonstrating correction of the violation or violations, if the department finds the written statement is credible.

(5) RCW 43.20A.205 governs notice of a license denial, revocation, suspension, or modification. Chapter 34.05 RCW ((~~applies~~)) and section 5 of this act apply to department actions under this section, except that orders of the department imposing license suspension, stop placement, or conditions for continuation of a license are effective immediately upon notice and shall continue pending any hearing.

(6) In addition to the rights granted under subsection (5) of this section, the licensee shall have the right to contest any department finding of noncompliance with any laws and regulations that govern boarding homes, using the informal dispute resolution process described in section 5 of this act.

NEW SECTION. Sec. 5. A new section is added to chapter 18.20 RCW to read as follows:

(1) The department shall develop, to the extent necessary, and make available to a boarding home licensee or its designee at least two optional processes from which the licensee or designee may choose to dispute any violation found or enforcement remedy imposed by the department during a licensing inspection or complaint investigation. The purpose of each of the informal dispute resolution processes is to give the licensee, or its designee, an opportunity to present information that may lead to the modification, deletion, or removal of a violation, or parts of a violation, or enforcement remedy imposed.

(2) The two processes from which the licensee, or its designee, may choose to informally dispute any violation found during, or enforcement remedy imposed as a result of, a complaint or licensing inspection must, at a minimum, include the following options:

(a) Review by a field manager or regional administrator, or however they may later be designated, to determine the validity or appropriateness, in whole or in part, of the violation or violations, or enforcement remedy or remedies. The field manager or regional manager who reviews the validity or appropriateness of any disputed violation cited or enforcement remedy imposed must be selected by the licensee, or its designee.

(b) Review by a person who acts as a mediator to assist in determining the validity or appropriateness, in whole or in part, of the violation or violations or enforcement remedy or remedies. The mediator must be chosen through mutual agreement by the boarding home licensee, or its designee, and the department. The licensee shall bear the cost, if any, of obtaining the services of the mediator.

(3) The licensee's field manager shall review and send to the licensee, within ten working days, commencing from the completion date of the licensing inspection or complaint investigation, a written description of the violations found and a written notice of any enforcement remedy or remedies that may be imposed under RCW 18.20.190. At the same time, the department shall, in writing, inform the licensee of the informal dispute resolution processes that are available to it, under subsection (2) of this section, to contest any violation cited or enforcement remedy imposed.

(4) The licensee, or its designee, shall, within ten working days of the date on which the statement of violations and any enforcement notice is mailed, send its written request for informal dispute resolution. In the written request for informal dispute resolution, the licensee, or its designee, shall identify the process chosen and identify the violation or violations or enforcement remedy or remedies that are being disputed. The written request for informal dispute resolution must be sent to the department. Within this same time period, the licensee, or its designee, shall submit to the department a plan of correction to address the undisputed violations.

(5) If the licensee, or its designee, requests the informal dispute resolution process described under subsection (2)(a) of this section, the department shall convene the meeting within ten working days of the receipt of the request for informal dispute resolution, unless a later date is agreed upon by both the licensee, or its designee, and the department.

(6) If the licensee, or its designee, requests the informal dispute resolution process described under subsection (2)(b) of this section, the department and the licensee, or its designee, shall, within five working days of the receipt of the request for informal dispute resolution, mutually agree upon a person to serve as a mediator. The meeting must be scheduled as soon as possible and at a time that is mutually agreed to by the department, the mediator, and the licensee, or its designee.

(7) The licensee, or its designee, shall submit to the department or the mediator documents or other material that the licensee, or its designee, believes will support its contention that the violation or violations or enforcement remedy or remedies should not have been cited or imposed. The documents or other material that the licensee chooses to submit must be submitted in advance of the scheduled meeting date and must be considered by the department or the mediator prior to a determination being rendered.

(8) When the informal dispute resolution under subsection (2) of this section has been requested by the licensee, or its designee, the field manager or the regional administrator, whoever participated in the informal dispute resolution meeting, shall submit a written decision to the licensee, or its designee, within ten working days following the conclusion of the informal dispute resolution meeting.

(9) If the field manager or the regional administrator determines that a violation or enforcement remedy should not be cited or imposed, the field manager or regional administrator shall mark the violation deleted, make the necessary change, or immediately rescind or modify the enforcement remedy imposed. The document must be signed and dated by the field manager or the regional administrator.

(a) If the violation or enforcement remedy is modified, deleted, or rescinded, the licensee, or its designee, may request from the department a clean copy of the revised report or notice of enforcement action.

(b) If the licensee, or its designee, requests a clean copy of the report, the licensee, or its designee, shall complete a plan of correction, if required by the department, based on the clean or revised report and submit it to the department within five days of receipt of the revised or clean report. The plan of correction, if required by the department, must address all violations that still remain following informal dispute resolution even though the licensee, or its designee, may wish to seek redress under chapter 34.05 RCW.

(10) If, after the informal dispute meeting, the licensee, or its designee, still disagrees with the violation cited or enforcement remedy imposed, the licensee, or its designee, may request a formal hearing pursuant to chapter 34.05 RCW, within twenty‑eight calendar days following receipt of the notice of the written decision under subsection (8) of this section.

(11) The request for informal dispute resolution under this chapter, or the request for a formal hearing under chapter 34.05 RCW, does not delay the effective date of any enforcement remedy imposed against the licensee, except that civil monetary fines are not payable until the licensee exhausts his or her appeal rights provided under this chapter.

Sec. 6. RCW 74.39A.060 and 1999 c 176 s 34 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:

(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 vulnerable adult or adults allegedly 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.

(d) Substantiated complaints involving harm to a resident, if an applicable law or 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.

(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.

(8) This section does not apply to boarding homes. Complaints against boarding homes must be investigated pursuant to the procedures and protocols specified in chapter 18.20 RCW.

NEW SECTION. Sec. 7. RCW 74.39A.080 (Department authority to take actions in response to noncompliance or violations) and 1996 c 193 s 1 & 1995 1st sp.s. c 18 s 17 are each repealed.

NEW SECTION. Sec. 8. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.