BILL REQ. #:  S-3747.1 

Read first time 01/14/2004.   Referred to Committee on Health & Long-Term Care.

     AN ACT Relating to fairness and accuracy in the distribution of risk; amending RCW 18.20.125, 74.39A.050, 70.129.105, and 18.20.110; adding new sections to chapter 18.20 RCW; adding a new section to chapter 18.51 RCW; adding a new section to chapter 74.42 RCW; creating a new section; and declaring an emergency.

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

NEW SECTION.  Sec. 1   The legislature finds that the inspection, reinspection, and complaint investigation procedures for licensed boarding homes must be strong, consistent, efficient, and fair. The legislature further finds that the inspection, reinspection, and complaint investigation process should facilitate open and candid communication between licensors and providers and assure that violations are accurate and based on verified facts so unsubstantiated violations are eliminated. The legislature further finds those modifications will promote compliance with regulations by providers and achieve the goal of providing high quality of care to citizens residing in licensed boarding homes.

Sec. 2   RCW 18.20.125 and 2003 c 231 s 5 are each amended to read as follows:
     (1) Inspections, including reinspections, complaint investigations, and inspections under RCW 74.39A.050, must be outcome based and responsive to resident complaints and based on a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to facilities. This includes that when conducting licensing inspections, reinspections, complaint investigations, and inspections under RCW 74.39A.050, the department shall interview an appropriate percentage of residents, family members, and advocates in addition to interviewing appropriate staff. All findings of a deficient practice contained in an inspection, reinspection, or complaint investigation report shall identify the specific statute or regulation violated including the relevant subsection, how the facts alleged by the licensors or investigators establish a violation of the cited statute or regulation, and what impact or outcome, if any, the alleged violation had on resident care or safety.
     (2) During the on-site licensing inspection process, including complaint and reinspections, the department personnel conducting the inspection or investigation shall provide periodic reports, at least daily, of potential concerns to the facility administrator or a designee, and the facility administrator or designee shall be given the opportunity to provide information related to these concerns for consideration by the licensors. At the conclusion of the inspection or investigation, the licensors shall conduct a face-to-face exit conference to review all the possible concerns found during the inspection including which residents were impacted. If the inspection is a complaint inspection, any resident wishing to remain anonymous shall not have his or her name or any identifying information disclosed. The facility shall have the opportunity to submit additional or supplemental information related to the concerns discussed at the exit conference for consideration by the licensors. If, after the exit conference, the licensors determine there are additional violations not discussed at the exit conference or significant changes to those violations discussed, the lead licensor shall telephone the administrator or a designee and discuss the additional violations or changes and the facility shall have the opportunity to provide additional information to be considered by the licensors.
     (3) Prompt and specific enforcement remedies shall also be implemented without delay, consistent with RCW 18.20.190, for facilities found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or uncorrected, or that create a hazard that is causing or likely to cause death or serious harm 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.
     (((3))) (4) 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))) (5) 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.

Sec. 3   RCW 74.39A.050 and 2000 c 121 s 10 are each amended to read as follows:
     The department's system of quality improvement for long-term care services shall use the following principles, consistent with applicable federal laws and regulations:
     (1) The system shall be client-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for consumers consistent with chapter 392, Laws of 1997.
     (2) The goal of the system is continuous quality improvement with the focus on consumer satisfaction and outcomes for consumers. Except as provided in RCW 18.20.125, this includes that when conducting licensing inspections, the department shall interview an appropriate percentage of residents, family members, resident managers, and advocates in addition to interviewing providers and staff.
     (3) Providers should be supported in their efforts to improve quality and address identified problems initially through training, consultation, technical assistance, and case management.
     (4) The emphasis should be on problem prevention both in monitoring and in screening potential providers of service.
     (5) Except as provided in RCW 18.20.125, monitoring should be outcome based and responsive to consumer complaints and a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to providers.
     (6) Prompt and specific enforcement remedies shall also be implemented without delay, pursuant to RCW 74.39A.080, RCW 70.128.160, chapter 18.51 RCW, or chapter 74.42 RCW, for providers found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or uncorrected, or that create a hazard that is causing or likely to cause death or serious harm to one or more residents. These enforcement remedies may also include, when appropriate, reasonable conditions on a contract or license. In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance.
     (7) To the extent funding is available, all long-term care staff directly responsible for the care, supervision, or treatment of vulnerable persons 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 persons. Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis according to law and rules adopted by the department.
     (8) No provider or staff, or prospective provider or staff, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a 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.
     (9) The department shall establish, by rule, a state registry which contains identifying information about personal care aides identified under this chapter who have substantiated findings of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult as defined in RCW 74.34.020. The rule must include disclosure, disposition of findings, notification, findings of fact, appeal rights, and fair hearing requirements. The department shall disclose, upon request, substantiated findings of abuse, neglect, financial exploitation, or abandonment to any person so requesting this information.
     (10) The department shall by rule develop training requirements for individual providers and home care agency providers. Effective March 1, 2002, individual providers and home care agency providers must satisfactorily complete department-approved orientation, basic training, and continuing education within the time period specified by the department in rule. The department shall adopt rules by March 1, 2002, for the implementation of this section based on the recommendations of the community long-term care training and education steering committee established in RCW 74.39A.190. The department shall deny payment to an individual provider or a home care provider who does not complete the training requirements within the time limit specified by the department by rule.
     (11) In an effort to improve access to training and education and reduce costs, especially for rural communities, the coordinated system of long-term care training and education must include the use of innovative types of learning strategies such as internet resources, videotapes, and distance learning using satellite technology coordinated through community colleges or other entities, as defined by the department.
     (12) The department shall create an approval system by March 1, 2002, for those seeking to conduct department-approved training. In the rule-making process, the department shall adopt rules based on the recommendations of the community long-term care training and education steering committee established in RCW 74.39A.190.
     (13) The department shall establish, by rule, training, background checks, and other quality assurance requirements for personal aides who provide in-home services funded by medicaid personal care as described in RCW 74.09.520, community options program entry system waiver services as described in RCW 74.39A.030, or chore services as described in RCW 74.39A.110 that are equivalent to requirements for individual providers.
     (14) Under existing funds the department shall establish internally a quality improvement standards committee to monitor the development of standards and to suggest modifications.
     (15) Within existing funds, the department shall design, develop, and implement a long-term care training program that is flexible, relevant, and qualifies towards the requirements for a nursing assistant certificate as established under chapter 18.88A RCW. This subsection does not require completion of the nursing assistant certificate training program by providers or their staff. The long-term care teaching curriculum must consist of a fundamental module, or modules, and a range of other available relevant training modules that provide the caregiver with appropriate options that assist in meeting the resident's care needs. Some of the training modules may include, but are not limited to, specific training on the special care needs of persons with developmental disabilities, dementia, mental illness, and the care needs of the elderly. No less than one training module must be dedicated to workplace violence prevention. The nursing care quality assurance commission shall work together with the department to develop the curriculum modules. The nursing care quality assurance commission shall direct the nursing assistant training programs to accept some or all of the skills and competencies from the curriculum modules towards meeting the requirements for a nursing assistant certificate as defined in chapter 18.88A RCW. A process may be developed to test persons completing modules from a caregiver's class to verify that they have the transferable skills and competencies for entry into a nursing assistant training program. The department may review whether facilities can develop their own related long-term care training programs. The department may develop a review process for determining what previous experience and training may be used to waive some or all of the mandatory training. The department of social and health services and the nursing care quality assurance commission shall work together to develop an implementation plan by December 12, 1998.

Sec. 4   RCW 70.129.105 and 1997 c 392 s 211 are each amended to read as follows:
     (1) No long-term care facility or nursing facility licensed under chapter 18.51 RCW shall require or request residents to sign waivers of potential liability for losses of personal property or injury, or to sign waivers of residents' rights set forth in this chapter or in the applicable licensing or certification laws.
     (2) This section shall not be read as precluding the right of long-term care facilities, or nursing homes licensed under chapter 18.51 RCW, from requesting residents to enter into agreements to arbitrate any controversy pursuant to chapter 7.04 RCW. Resident rights include the freedom to contract.
     (3) This section shall not be read as meaning that a long-term care facility, or nursing homes licensed under chapter 18.51 RCW, is responsible for all loss or damage to resident property. The responsibility, and therefore liability, for any such loss or damage is to be determined based on a finding of negligence by the long-term care facility or nursing facility. Should a long-term care facility or nursing facility choose to replace lost or damaged personal property or compensate a resident for such loss or damage, such an action shall not be construed as an admission of liability.

NEW SECTION.  Sec. 5   A new section is added to chapter 18.20 RCW to read as follows:
     The following shall not be admitted into evidence in civil actions brought against a boarding home licensed under this chapter: Written findings or notices issued by the department of social and health services finding noncompliance with this chapter, chapter 70.129, 74.34, or 74.39A RCW, or the rules adopted thereunder, as well as the fact of penalties imposed by the department for the same, except where such findings, notices, or penalties involve the plaintiff in a civil action.

NEW SECTION.  Sec. 6   A new section is added to chapter 18.51 RCW to read as follows:
     The following shall not be admitted into evidence in civil actions brought against a nursing home licensed under this chapter: Written findings or notices issued by the department of social and health services finding noncompliance with the medicaid requirements of Title XIX of the social security act, this chapter, chapter 70.129, 74.34, or 74.39A RCW, or the rules and regulations adopted thereunder, as well as the fact of penalties imposed by the department for the same, except where such findings, notices, or penalties involve the plaintiff in a civil action.

NEW SECTION.  Sec. 7   A new section is added to chapter 74.42 RCW to read as follows:
     (1) To ensure the proper delivery of services and the maintenance and improvement in quality of care through self-review, each medicaid-certified nursing home must, and any nursing home may, maintain a quality assurance committee that, at a minimum, includes:
     (a) The director of nursing services;
     (b) A physician designated by the facility; and
     (c) Three other members from the staff of the nursing home.
     (2) When established, the quality assurance committee shall meet at least quarterly to identify issues that may adversely affect quality of care and services to residents and to develop and implement plans of action to correct identified quality concerns or deficiencies in the quality of care provided to residents.
     (3) To promote quality of care through self-review without the fear of reprisal, and to enhance the objectivity of the review process, the department shall not require, and the long-term care ombudsman program shall not request, disclosure of any records or reports if:
     (a) The records or reports are not maintained pursuant to statutory or regulatory mandate; and
     (b) The records or reports are compiled, completed, created, or generated at the request of, or by, the committee.
     (4) The department may request only information that may be necessary to determine whether a medicaid-certified nursing home has a quality assurance committee and that it is operating in compliance with this section.
     (5) If a nursing home refuses to release records or reports that would otherwise be protected under this section, the department may then request only that information that is necessary to determine whether the boarding home has a quality assurance committee and to determine that it is operating in compliance with this section.
     (6) Good faith attempts by the committee to identify and correct quality deficiencies shall not be used as a basis for a deficiency citation or as the basis for imposing sanctions.

NEW SECTION.  Sec. 8   A new section is added to chapter 18.20 RCW to read as follows:
     (1) To ensure the proper delivery of services and the maintenance and improvement in quality of care through self-review, any boarding home licensed under this chapter may maintain a quality assurance committee that, at a minimum, includes:
     (a) A licensed registered nurse under chapter 18.79 RCW;
     (b) The administrator; and
     (c) Three other members from the staff of the boarding home.
     (2) When established, the quality assurance committee shall meet at least quarterly to identify issues that may adversely affect quality of care and services to residents and to develop and implement plans of action to correct identified quality concerns or deficiencies in the quality of care provided to residents.
     (3) To promote quality of care through self-review without the fear of reprisal, and to enhance the objectivity of the review process, the department shall not require, and the long-term care ombudsman program shall not request, disclosure of any records or reports if:
     (a) The records or reports are not maintained pursuant to statutory or regulatory mandate; and
     (b) The records or reports are compiled, completed, created, or generated at the request of, or by, the committee.
     (4) If the boarding home refuses to release records or reports that would otherwise be protected under this section, the department may then request only that information that is necessary to determine whether the boarding home has a quality assurance committee and to determine that it is operating in compliance with this section.
     (5) Good faith attempts by the committee to identify and correct quality deficiencies shall not be used as a basis for a deficiency citation or as the basis for imposing sanctions.

Sec. 9   RCW 18.20.110 and 2003 c 280 s 1 are each amended to read as follows:
     The department shall make or cause to be made, at least every eighteen months with an annual average of fifteen months, an inspection and investigation of all boarding homes. However, the department may delay an inspection to twenty-four months if the boarding home has had three consecutive inspections with no written notice of violations and has received no written notice of violations resulting from complaint investigation during that same time period. The department may at anytime make an unannounced inspection of a licensed home to assure that the licensee is in compliance with this chapter and the rules adopted under this chapter. 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; however, the department shall not have access to financial records or to other records or reports pursuant to section 7 of this act. 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.

NEW SECTION.  Sec. 10   A new section is added to chapter 18.20 RCW to read as follows:
     A boarding home shall have the right to appeal any deficiency or violation cited by the department during an inspection or complaint investigation, whether or not an enforcement remedy is imposed, to the office of administrative hearings. Such an appeal shall be governed by chapter 34.05 RCW and chapter 388-02 WAC.

NEW SECTION.  Sec. 11   A new section is added to chapter 18.20 RCW to read as follows:
     If during an inspection, reinspection, or complaint investigation by the department, a boarding home corrects a violation or deficiency that either the boarding home or the department discovers, the licensor or complaint investigator shall not cite the boarding home for the violation or deficiency if the violation or deficiency:
     (1) Is corrected prior to the exit conference;
     (2) Is not recurring; and
     (3) Did not pose a significant risk of harm or actual harm to a resident.
     For the purposes of this section, "recurring" means that the violation or deficiency was cited under the same regulation or statute as a deficiency against the boarding home in one of the two most recent preceding inspections, reinspections, or complaint investigations.

NEW SECTION.  Sec. 12   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.