BILL REQ. #:  H-1795.1 

READ FIRST TIME 02/17/11.   

     AN ACT Relating to elder placement referrals; adding a new chapter to Title 18 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that locating acceptable housing and appropriate care for vulnerable adults is an important aspect of providing an appropriate continuity of care for senior citizens.
     (2) The legislature further finds that locating appropriate and quality housing alternatives sometimes depends on elder and vulnerable adult referral agencies attempting to assist with information or referral.
     (3) The legislature further finds that vulnerable adult referral professionals should be required to meet certain minimum requirements to promote better integration of vulnerable adult housing choices.
     (4) The legislature further finds that the requirement that elder and vulnerable adult referral agencies meet minimum standards of conduct is in the interest of public health, safety, and welfare.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Care services" means any combination of services, including in-home care, private duty care, or private duty nursing designed for or with the goal of allowing vulnerable adults to receive care and services at home or in a home-like setting. Care service providers must include home health agencies and in-home service agencies licensed under chapter 70.127 RCW.
     (2) "Client" means an elder person or a vulnerable adult, and his or her representative if any, seeking information or entering into an arrangement for supportive housing or care services through an elder and vulnerable adult referral agency. For purposes of this chapter, the "client's representative" means the person authorized under RCW 7.70.065 or other laws to provide informed consent for an individual unable to do so.
     (3) "Elder and vulnerable adult referral agency" or "agency" means a business or person who receives a fee from or on behalf of a vulnerable adult seeking information about, or a referral to, care services or supportive housing, or who receives a fee from a care services provider or supportive housing provider because of any information or referral provided to or on behalf of a vulnerable adult.
     (4) "Fee" means anything of value. "Fee" includes money or other valuable consideration or services or the promise of money or other valuable consideration or services, received directly or indirectly by an elder and vulnerable adult referral agency.
     (5) "Information" means the provision of general information by an agency to a client about the types of supportive housing or care services available in the area that may meet the needs of the client identified in the intake form described in section 7 of this act without giving the client the names of specific providers of care services or supportive housing.
     (6) "Person" includes any individual, firm, corporation, partnership, association, company, society, manager, contractor, subcontractor, bureau, agency, organization, service, office, or an agent or any of their employees.
     (7) "Provider" means any entity or person that provides supportive housing or care services to a vulnerable adult for a fee.
     (8) "Referral" means the act of an agency giving a client the name or names of specific providers of care services or supportive housing that may meet the needs of the client identified in the intake form described in section 7 of this act, or the agency gives a provider the name of a client.
     (9) "Supportive housing" means any type of housing that includes services for care needs and is designed for prospective residents who are vulnerable adults. Supportive housing includes, but is not limited to, nursing homes licensed under chapter 18.51 RCW, boarding homes licensed under chapter 18.20 RCW, adult family homes licensed under chapter 70.128 RCW, and continuing care retirement communities under RCW 70.38.025.
     (10) "Vulnerable adult" has the same meaning as in RCW 74.34.020.

NEW SECTION.  Sec. 3   (1) After January 1, 2012, a business or person may not operate or maintain an agency in this state without complying with the provisions of this chapter. An agency must maintain liability insurance to cover the acts and services of the agency. The combined single limit liability insurance coverage required is one million dollars.
     (2) The agency may not create an exclusive agreement between the agency and the client, or between the agency and a provider. The agency cannot provide referral services to a client where the only names given to the client are of providers in which the agency or its personnel or immediate family members have an ownership interest in those providers. An agreement entered into between an agency and a provider must allow either the provider or the agency to cancel the agreement with specific payment terms regarding pending fees or commissions outlined in the agreement.

NEW SECTION.  Sec. 4   Nothing in this chapter may be construed to prohibit, restrict, or apply to:
     (1) Any home health or hospice agency while providing counseling to patients on placement options in the normal course of practice;
     (2) Government entities providing information and assistance to vulnerable adults;
     (3) Geriatric case or care managers, professional guardians, or individuals or agencies that charge a fee to the vulnerable adult, unless the individual or agency charges a commission or fee to a supportive housing or care services provider;
     (4) Supportive housing or care services providers who make referrals to other supportive housing or care services providers where no monetary value is exchanged; or
     (5) Social workers, discharge planners, or other social services staff assisting a vulnerable adult to define supportive housing or care services providers in the course of their employment responsibilities if they do not receive any monetary value from a provider.

NEW SECTION.  Sec. 5   (1) Each agency shall keep records of all services rendered to or on behalf of clients. These records must contain:
     (a) The name, address, and phone number of the client, including the vulnerable adult's representative, if any;
     (b) The kind of supportive housing or care services for which information or referral was sought;
     (c) The type of services provided to the client, including whether it was information or referral;
     (d) The location of the care services or supportive housing for the client and probable duration, if known;
     (e) The monthly or unit cost of the supportive housing or care services;
     (f) The amount of the agency's fee to the client or to the provider;
     (g) The dates and amounts of refund of the agency's fee, if any, and reason for such refund; and
     (h) The client's disclosure and intake forms described in sections 6 and 7 of this act.
     (2) Each agency shall also keep records of any contract or written agreement entered into with any provider for services rendered to or on behalf of a vulnerable adult, including any referrals to a provider.
     (3) The agency must maintain the records covered by this chapter for a period of six years. The agency's records concerning a client are considered "health care information" and the provisions of chapter 70.02 RCW apply. The client must have access upon request to the agency's records concerning the client and covered by this chapter.

NEW SECTION.  Sec. 6   (1) An agency must provide a disclosure statement to each client. The disclosure statement must be acknowledged by the client and the agency shall retain a copy of the disclosure statement and acknowledgment. Acknowledgment may be in the form of:
     (a) A signature of the client or legal representative on the exact disclosure statement;
     (b) An electronic signature that includes the date, time, internet provider address, and displaying the exact disclosure statement document;
     (c) A faxed confirmation that includes the date, time, and fax number and displaying the exact disclosure statement document; or
     (d) In instances where a vulnerable adult chooses not to sign acknowledgment of the disclosure statement, the referral professional or agency must document the client's refusal to sign.
     (2) The disclosure statement must be dated and must contain the following information:
     (a) The name, address, and telephone number of the agency;
     (b) The name of the client;
     (c) The amount of the fee to be charged or received from the client or the provider, the method of computation of the fee, and the time and method of payment;
     (d) A clear description of the services provided by the agency in general, and to be provided specifically for the client;
     (e) A clear description of the services not provided by the agency;
     (f) If the agency is providing referral services, a statement that the agency will be acting as a representative of the client seeking care services or residence in supportive housing;
     (g) A provision stating that the agency may not require or request clients to sign waivers of potential liability for losses of personal property or injury, or to sign waivers of any rights of the client established in state or federal law;
     (h) A provision stating that the agency works with both the client and the care services or supportive housing provider in the same transaction, and an explanation that the agency will need the client's authorization to obtain or disclose confidential health care information;
     (i) A listing of the qualifications of the agency personnel who will be working with the client, including their years of experience in the fields of supportive housing and care services, their experience working with vulnerable adults, and their education level and relevant certifications or licenses, if any;
     (j) A provision stating that the client is not required to use the services of the agency and may, without cause, stop using the agency or switch to another agency without penalty or cancellation fee to the client or the provider;
     (k) An explanation of the agency's refund of fees policy, which must be consistent with section 9 of this act;
     (l) An explanation of how to file a complaint with the attorney general's office, including the name, address, and telephone number of the consumer protection division of that office; and
     (m) A provision stating whether the agency or its personnel or immediate family members have an ownership interest in the supportive housing or care services to which the client is given referral services, and, if such ownership interest exists, an explanation of that interest.

NEW SECTION.  Sec. 7   (1) The agency shall use a standardized intake form for all clients. The intake form must, at a minimum, contain the following information regarding the vulnerable adult:
     (a) Recent medical history;
     (b) Known medications and medication management needs;
     (c) Known medical diagnoses, health concerns, and the reasons the client is seeking supportive housing or care services;
     (d) Significant known behaviors or symptoms that may cause concern or require special care;
     (e) Mental illness, dementia, or developmental disability diagnosis, if any;
     (f) Level and types of personal care needs;
     (g) Particular culture needs and accommodations;
     (h) Activities and service preferences;
     (i) Sleeping habits of the vulnerable adult, if known;
     (j) Notation of any unique personality traits that may be important to the supportive housing or care services provider;
     (k) Basic understanding of the financial situation of the vulnerable adult;
     (l) Knowledge of any long-term care insurance or financial assistance available from the vulnerable adult's family, friends, or others which may be helpful in defining supportive housing and care services options for the vulnerable adult; and
     (m) Preferences regarding other issues important to the client, such as food and daily routine.
     (2) The agency shall obtain the intake information from the best available sources, such as from the client, the client's representative, or a health care professional, and shall allow the vulnerable adult to participate to the maximum extent possible. The agency may not obtain or disclose health care information, as defined in RCW 70.02.010, without the authorization of the client or the client's representative.
     (3) The agency may provide information to a client about the types of supportive housing or care services available in the area that may meet the needs of the vulnerable adult identified in the intake form without giving the client the names of specific providers of care services or supportive housing, and without giving the client's name to specific providers. The information may contain the general recommendation by the agency as to the type of care services or supportive housing that may be appropriate for the vulnerable adult.

NEW SECTION.  Sec. 8   (1) The agency may choose to provide a referral for the client by either giving the client the name or names of specific providers who may meet the needs of the vulnerable adult identified in the intake form or by giving a provider or providers the name of the client after obtaining the written consent of the client or the client's representative.
     (2) Prior to making a referral to a specific provider, the agency shall speak with a representative of the provider and obtain, at a minimum, the following general information, which must be dated and retained in the agency's records:
     (a) The type of license held by the provider and license number;
     (b) Whether the provider is authorized to provide care to individuals with a mental illness, dementia, or developmental disability;
     (c) Sources of payment accepted, including whether medicaid is accepted;
     (d) Level of medication management services provided;
     (e) Level and types of personal care services provided;
     (f) Particular cultural needs that may be accommodated;
     (g) Activities typically provided;
     (h) Behavioral problems or symptoms that can or cannot be met;
     (i) Food preferences and special diets that can be accommodated; and
     (j) Other special care or services available.
     The agency shall update this information regarding the provider at least annually. Referrals made by the agency shall be to providers who appear able to meet the vulnerable adult's identified needs.
     (3) Prior to making a referral of a supportive housing provider, the agency shall conduct a search of the department of social and health service's web site to see if the provider is in enforcement status for violation of its licensing regulations. Prior to making a referral of a care services provider, the agency shall conduct a search of the department of health's web site to determine if the provider is in enforcement status for violation of its licensing regulations. The searches required by this subsection must be considered timely if done within thirty days before the referral. The information obtained by the agency from the searches must be disclosed in writing to the client if the referral includes that provider.

NEW SECTION.  Sec. 9   (1) The agency shall clearly disclose its fees and refund policies to clients and providers. The refund policy applicable to referral or placement services for supportive housing must be consistent with the following requirements:
     (a) If the agency receives a fee regarding a client who was provided referral or placement services for supportive housing, and the vulnerable adult dies, is hospitalized, or is transferred to another supportive housing setting for more appropriate care within the first thirty days of admission, then the agency shall refund a portion of its fee to the person who paid it, whether that is the client or the supportive housing provider;
     (b) If the agency fees are based on the monthly charges by the supportive housing provider, then the amount refunded must be equal to half of the amount the supportive housing provider is required to refund to the client under RCW 70.129.150 or other applicable law; and
     (c) If the agency fees are a flat fee or based on a per diem calculation, the amount refunded must be a prorated portion of the agency's fees.
     (2) A refund policy inconsistent with this section is void and unenforceable.
     (3) This section does not limit the application of other remedies, including the consumer protection act, chapter 19.86 RCW.

NEW SECTION.  Sec. 10   An employee of an agency must pass a criminal background check every twenty-four months and not have been convicted of any crime that is disqualifying under RCW 43.43.830 or 43.43.842, or been found by a court of law or disciplinary authority to have abused, neglected, financially exploited, or abandoned a minor or vulnerable adult.

NEW SECTION.  Sec. 11   An agency may not charge or accept a fee or other consideration from a client, care services provider, or supportive housing provider unless the agency complies with the terms of this chapter.

NEW SECTION.  Sec. 12   (1) The provisions of this chapter relating to the regulation of private elder and vulnerable adult referral agencies are exclusive.
     (2) This chapter may not be construed to affect or reduce the authority of any political subdivision of the state of Washington to provide for the licensing of private elder and vulnerable adult referral agencies solely for revenue purposes.

NEW SECTION.  Sec. 13   In accordance with RCW 74.09.240, the agency may not solicit or receive any remuneration directly or indirectly, overtly or covertly, in cash or in kind, in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under chapter 74.09 RCW.

NEW SECTION.  Sec. 14   The legislature finds that the operation of an agency in violation of this chapter is a matter vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. Such a violation is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION.  Sec. 15   This chapter may be known and cited as the "elder and vulnerable adult referral agency act."

NEW SECTION.  Sec. 16   Sections 1 through 15 of this act constitute a new chapter in Title 18 RCW.

NEW SECTION.  Sec. 17   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.