S-4081

AN ACT Relating to technical and clarifying amendments to Initiative 775; amending RCW 74.39A.230, 74.39A.250, 74.39A.270, 74.39A.280, and 74.39A.300; and providing an effective date.

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

Sec. 1. RCW 74.39A.230 and 2002 c 3 s 2 (Initiative Measure No. 775) are each amended to read as follows:

(1) The home care quality authority is established to regulate and improve the quality of long-term in-home care services by recruiting, training, and stabilizing the work force of individual providers.

(2) The authority consists of a board of nine members appointed by the governor. Five board members shall be current and/or former consumers of long-term in-home care services provided for functionally disabled persons, at least one of whom shall be a person with a developmental disability; one board member shall be a representative of the developmental disabilities planning council; one board member shall be a representative of the governor's committee on disability issues and employment; one board member shall be a representative of the state council on aging; and one board member shall be a representative of the Washington state association of area agencies on aging. In making appointments, the governor shall consider any nominations or recommendations made by the groups or agencies represented.

(3) The initial appointments to the board will be as follows: Three board members will be appointed for a one-year term, three board members will be appointed for a two-year term, and three board members will be appointed to a three-year term. Thereafter, each board member ((~~serves~~)) will be appointed to serve a term of three years. If a vacancy occurs, the governor will make an appointment to become immediately effective for the unexpired term. Each board member is eligible for reappointment and may serve no more than two consecutive terms. ((~~In making appointments, the governor will take into consideration any nominations or recommendations made by the groups or agencies represented.~~)) A board member whose term has expired will continue to serve until his or her successor is appointed.

(4) Members of the home care quality authority board will be compensated in accordance with RCW 43.03.250, 43.03.050, and 43.03.060.

Sec. 2. RCW 74.39A.250 and 2002 c 3 s 4 (Initiative Measure No. 775) are each amended to read as follows:

(1) Within funds appropriated specifically for this purpose, the authority must carry out the following duties:

(a) Establish qualifications and reasonable standards for accountability for and investigate the background of individual providers and prospective individual providers, except in cases where, after the department has sought approval of any appropriate amendments or waivers under RCW 74.09.740, federal law or regulation requires that such qualifications and standards for accountability be established by another entity in order to preserve eligibility for federal funding. Qualifications established must include compliance with the minimum requirements for training and satisfactory criminal background checks as provided in RCW 74.39A.050 and confirmation that the individual provider or prospective individual provider is not currently listed on any long-term care abuse and neglect registry used by the department at the time of the investigation;

(b) Undertake recruiting activities to identify and recruit individual providers and prospective individual providers;

(c) Provide training opportunities, either directly or through contract, for individual providers, prospective individual providers, consumers, and prospective consumers;

(d) Provide assistance to consumers and prospective consumers in finding individual providers and prospective individual providers through the establishment of a referral registry of individual providers and prospective individual providers. Before placing an individual provider or prospective individual provider on the referral registry, the authority shall determine that:

(i) The individual provider or prospective individual provider has met the minimum requirements for training set forth in RCW 74.39A.050;

(ii) The individual provider or prospective individual provider has satisfactorily undergone a criminal background check conducted within the prior twelve months; and

(iii) The individual provider or prospective individual provider is not listed on any long-term care abuse and neglect registry used by the department;

(e) Remove from the referral registry any individual provider or prospective individual provider the authority determines not to meet the qualifications set forth in (d) of this subsection or to have committed misfeasance or malfeasance in the performance of his or her duties as an individual provider. The individual provider or prospective individual provider, or the consumer to which the individual provider is providing services, may request a fair hearing to contest the removal from the referral registry, as provided in chapter 34.05 RCW;

(f) Provide routine, emergency, and respite referrals of individual providers and prospective individual providers to consumers and prospective consumers who are authorized to receive long-term in-home care services through an individual provider;

(g) Give preference in the recruiting, training, referral, and employment of individual providers and prospective individual providers to recipients of public assistance or other low-income persons who would qualify for public assistance in the absence of such employment; and

(h) Cooperate with the department, area agencies on aging, and other federal, state, and local agencies to provide the services described and set forth in this section. If, in the course of carrying out its duties, the authority identifies concerns regarding the services being provided by an individual provider, the authority must notify the relevant area agency or department case manager regarding such concerns.

(2) In determining how best to carry out its duties, the authority must identify existing individual provider recruitment, training, and referral resources made available to consumers by other state and local public, private, and nonprofit agencies. The authority may coordinate with the agencies to provide a local presence for the authority and to provide consumers greater access to individual provider recruitment, training, and referral resources in a cost-effective manner. Using requests for proposals or similar processes, the authority may contract with the agencies to provide recruitment, training, and referral services if the authority determines the agencies can provide the services according to reasonable standards of performance determined by the authority. The authority must provide an opportunity for consumer participation in the determination of the standards.

Sec. 3. RCW 74.39A.270 and 2002 c 3 s 6 (Initiative Measure No. 775) are each amended to read as follows:

(1) Solely for the purposes of collective bargaining, the authority is the public employer, as defined in chapter 41.56 RCW, of individual providers, who are public employees, as defined in chapter 41.56 RCW, of the authority.

(2) Chapter 41.56 RCW governs the employment relationship between the authority and individual providers, except as otherwise expressly provided in chapter 3, Laws of 2002 and except as follows:

(a) The only unit appropriate for the purpose of collective bargaining under RCW 41.56.060 is a statewide unit of all individual providers;

(b) The showing of interest required to request an election under RCW 41.56.060 is ten percent of the unit, and any intervener seeking to appear on the ballot must make the same showing of interest;

(d) Individual providers do not have the right to strike; and

(e) Individual providers who are related to, or family members of, consumers or prospective consumers are not, for that reason, exempt from chapter 3, Laws of 2002 or chapter 41.56 RCW.

(3) Individual providers who are employees of the authority under subsection (1) of this section are not, for that reason, employees of the state for any purpose.

(4) Consumers and prospective consumers retain the right to select, hire, supervise the work of, and terminate any individual provider providing services to them. Consumers may elect to receive long-term in-home care services from individual providers who are not referred to them by the authority.

(5) In implementing and administering chapter 3, Laws of 2002, neither the authority nor any of its contractors may reduce or increase the hours of service for any consumer below or above the amount determined to be necessary under any assessment prepared by the department or an area agency on aging.

(6)(a) The authority, the area agencies on aging, or their contractors under chapter 3, Laws of 2002 may not be held vicariously liable for the action or inaction of any individual provider or prospective individual provider, whether or not that individual provider or prospective individual provider was included on the authority's referral registry or referred to a consumer or prospective consumer.

(b) The members of the board are immune from any liability resulting from implementation of chapter 3, Laws of 2002.

(c) The authority, acting in good faith in recruiting providers, listing providers on the referral registry, referring providers, and training consumers and providers, is immune from civil or criminal liability for such action. However, this does not limit the rights of an exclusive bargaining representative as defined in chapter 41.56 RCW or the public employee relations commission to enforce the provisions of any collective bargaining agreement between an exclusive bargaining representative and the authority or to enforce chapter 41.56 RCW.

(7) Nothing in this section affects the state's responsibility with respect to the state payroll system or unemployment insurance for individual providers.

(8) The authority, in the course of performing its collective bargaining responsibilities under chapter 41.56 RCW, must cooperate with the director of the office of financial management to establish that the fiscal costs of any collective bargaining agreement are financially feasible for the state.

Sec. 4. RCW 74.39A.280 and 2002 c 3 s 7 (Initiative Measure No. 775) are each amended to read as follows:

In carrying out its duties under chapter 3, Laws of 2002, the authority may:

(1) Make and execute contracts and all other instruments necessary or convenient for the performance of its duties or exercise of its powers, including contracts with public and private agencies, organizations, corporations, and individuals to pay them for services rendered or furnished;

(2) Offer and provide recruitment, training, and referral services to providers of long-term in-home care services other than individual providers and prospective individual providers, for a fee to be determined by the authority;

(3) Issue rules under the administrative procedure act, chapter 34.05 RCW, as necessary for the purpose and policies of chapter 3, Laws of 2002;

(4) Establish offices, employ and discharge employees, agents, and contractors as necessary, and prescribe their duties and powers and fix their compensation, incur expenses, and create such liabilities as are reasonable and proper for the administration of chapter 3, Laws of 2002;

(5)(a) Appoint an executive director of the home care quality authority who is exempt from chapter 41.06 RCW, and who will be appointed by and serve at the pleasure of the home care quality authority board. The salary of the executive director will be fixed by the board in accordance with RCW 43.03.040.

(b) The executive director may appoint and discharge other personnel who are exempt from chapter 41.06 RCW. Such personnel will serve at the pleasure of the executive director who will prescribe their duties and powers and fix their compensation;

(6) Solicit and accept for use any grant of money, services, or property from the federal government, the state, or any political subdivision or agency thereof, including federal matching funds under Title XIX of the federal social security act, and do all things necessary to cooperate with the federal government, the state, or any political subdivision or agency thereof in making an application for any grant;

((~~(6)~~)) (7) Coordinate its activities and cooperate with similar agencies in other states;

((~~(7)~~)) (8) Establish technical advisory committees to assist the board;

((~~(8)~~)) (9) Keep records and engage in research and the gathering of relevant statistics;

((~~(9)~~)) (10) Acquire, hold, or dispose of real or personal property or any interest therein, and construct, lease, or otherwise provide facilities for the activities conducted under this chapter, provided that the authority may not exercise any power of eminent domain;

((~~(10)~~)) (11) Sue and be sued in its own name;

((~~(11)~~)) (12) Delegate to the appropriate persons the power to execute contracts and other instruments on its behalf and delegate any of its powers and duties if consistent with the purposes of this chapter; and

((~~(12)~~)) (13) Do other acts necessary or convenient to execute the powers expressly granted to it.

Sec. 5. RCW 74.39A.300 and 2002 c 3 s 9 (Initiative Measure No. 775) are each amended to read as follows:

(1) The governor must submit a request for funds necessary to administer chapter 3, Laws of 2002 ((~~and~~)).

(2) The governor must also submit a biennial request for funds necessary to implement any collective bargaining agreement entered into under RCW 74.39A.270 or for legislation necessary to implement any such agreement within ten days of the date on which the agreement is ratified or, if the legislature is not in session, within ten days after the next legislative session convenes. Requests for funds necessary to implement bargaining agreements will not be submitted to the legislature by the governor unless such requests have been submitted to the director of financial management on or before October 1st of the year preceding the next ensuing biennium.

(3) The legislature must approve or reject the submission of the request for funds as a whole. If the legislature rejects or fails to act on the submission, any such agreement will be reopened solely for the purpose of renegotiating the funds necessary to implement the agreement.

((~~(2)~~)) (4) When any increase in individual provider wages or benefits is negotiated or agreed to by the authority, no increase in wages or benefits negotiated or agreed to under chapter 3, Laws of 2002 will take effect unless and until, before its implementation, the department has determined that the increase is consistent with federal law and federal financial participation in the provision of services under Title XIX of the federal social security act.

((~~(3)~~)) (5) After the expiration date of any collective bargaining agreement entered into under RCW 74.39A.270, all of the terms and conditions specified in any such agreement remain in effect until the effective date of a subsequent agreement, not to exceed one year from the expiration date stated in the agreement.

NEW SECTION. Sec. 6. Section 5 of this act takes effect July 1, 2003.