BILL REQ. #:  S-0628.2 

Read first time 01/28/13.   Referred to Committee on Health Care .

     AN ACT Relating to implementing the recommendation of the developmental disabilities service system task force relating to community living safeguards; amending RCW 71A.12.080 and 71A.12.270; adding new sections to chapter 71A.12 RCW; adding a new section to chapter 71A.20 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION.  Sec. 1   The legislature intends to certify community residential programs by providing requirements and oversight equivalent to that of adult family homes, assisted living facilities, and nursing homes by: (1) Establishing supported living certification requirements and fees; and (2) authorizing civil fines, stop placements, conditions on certifications, and specific plans of correction for supported living providers.

NEW SECTION.  Sec. 2   A new section is added to chapter 71A.12 RCW to read as follows:
     (1) The department must certify a community residential program if the department finds that the program is in compliance with this chapter and the rules adopted under this chapter. The department may not certify a program if: (a) The applicant or a person affiliated with the applicant has prior violations of this chapter relating to the community residential program, or of any other law regulating residential care facilities or programs within the past ten years that resulted in revocation, suspension, or nonrenewal of a certification, license, or contract with the department; or (b) the applicant or a person affiliated with the applicant has a history of significant noncompliance with federal, state, or local laws, rules, or regulations relating to the provision of care or services to vulnerable adults or to children. A person is considered affiliated with an applicant if the person is listed on the certification applications as a partner, officer, director, resident manager, or majority owner of the applying entity, or is the spouse of the applicant.
     (2) An applicant for community residential program certification must be made on forms provided by the department.
     (3) The department must adopt rules establishing community residential program application fees, renewal fees, and certification renewal dates. The rules must set the fees at a rate sufficient to cover the costs of regulating community residential programs under this chapter. Fees must be paid by the supported living provider.
     (4) Applicants must provide proof of financial solvency as requested by the department.
     (5) The department must grant or deny applications for community residential programs. A copy of the department's decision must be provided to the applicant who has the right to contest denial or his or her application for certification as provided in chapter 34.05 RCW by requesting a hearing in writing within twenty-eight days after receipt of the notice of denial.
     (6) The department must adopt rules establishing procedures for the transfer of certifications. Certification transfers may be permitted if the community residential program: Has a change in ownership or control of the program; has a change in the program's form of legal organization; or enters into a dissolution or merger of the program with another legal organization. A community residential program seeking transfer of certification must be in compliance with the other requirements of this chapter.
     (7) A community residential program that has had its certification denied, suspended, revoked, or not renewed may, in lieu of appealing the department's action, surrender the certification. The department may not issue a new certification to or contract with the provider, for the purposes of providing care to vulnerable adults or children, for a period of twenty years following the surrender of the certification. The department's records must indicate that the provider surrendered the community residential program certification without admitting the violations after receiving notice of the department's denial, suspension, revocation, or nonrenewal of the certification.

Sec. 3   RCW 71A.12.080 and 1988 c 176 s 208 are each amended to read as follows:
     (1) The secretary shall adopt rules concerning the eligibility of residents of residential habilitation centers for placement in community residential programs under this title, subject to section 2 of this act; determination of ability of such persons or their estates to pay all or a portion of the cost of care, support, and training; the manner and method of licensing or certification and inspection and approval of such community residential programs for placement under this title; and procedures for the payment of costs of care, maintenance, and training in community residential programs. The rules shall include standards for care, maintenance, and training to be met by such community residential programs, including standards providing that clients be free from abuse or neglect by program employees.
     (2) The secretary shall coordinate state activities and resources relating to placement in community residential programs to help efficiently expend state and local resources and, to the extent designated funds are available, create an effective community residential program.

NEW SECTION.  Sec. 4   A new section is added to chapter 71A.12 RCW to read as follows:
     A certified community residential program must have readily available for review by the department, residents, and the public:
     (1) A copy of its community residential program certification; and
     (2) A copy of each inspection report received by the community residential program from the department for the past six years.

Sec. 5   RCW 71A.12.270 and 2006 c 303 s 8 are each amended to read as follows:
     (1) The department is authorized to take one or more of the enforcement actions listed in subsection (2) of this section when the department finds that a provider of residential services and support with whom the department entered into an agreement under this chapter has:
     (a) Failed or refused to comply with the requirements of this chapter or the rules adopted under it;
     (b) Failed or refused to cooperate with the certification process;
     (c) Prevented or interfered with a certification, inspection, or investigation by the department;
     (d) Failed to comply with any applicable requirements regarding vulnerable adults under chapter 74.34 RCW; ((or))
     (e) Knowingly, or with reason to know, made a false statement of material fact related to certification or contracting with the department, or in any matter under investigation by the department; or
     (f) Operated a community residential program without a certification or under a suspended or revoked certification.
     (2) The department may:
     (a) ((Decertify)) Suspend, revoke, or refuse to renew the certification of a provider if the department has made a finding of fraud, abuse, or neglect or that the community residential program is otherwise not in compliance with this chapter;
     (b) Impose conditions on a provider's certification status such as correction within a specified time, training, and limits on the type of clients the provider may admit or serve;
     (c) Suspend department referrals to the provider by imposing stop placement; or
     (d) Require a provider to implement a plan of correction developed by the department and to cooperate with subsequent monitoring of the provider's progress((. In the event a provider fails to implement the plan of correction or fails to cooperate with subsequent monitoring, the department may impose civil penalties of not more than one hundred fifty dollars per day per violation. Each day during which the same or similar action or inaction occurs constitutes a separate violation));
     (e) Impose civil penalties of at least one hundred dollars per day per violation;
     (f) Impose civil penalties of up to three thousand dollars for each incident that violates community residential program laws or rules. Each day upon which the same or substantially similar action occurs is a separate violation subject to the assessment or a separate penalty; or
     (g) Impose civil penalties of up to ten thousand dollars for a current or former licensed provider who is operating an uncertified program.
     (3) When the department orders stop placement, the community residential program may not begin providing services to any person until the stop placement order is terminated. The department may approve readmission of a client to the program from a hospital, nursing home, correctional facility, or residential habilitation center during the stop placement. The department must terminate the stop placement when: (a) The violations necessitating the stop placement have been corrected; and (b) the program exhibits the capacity to maintain the correction of the violations previously found deficient. If upon a revisit the department finds new violations that the department reasonably believes will result in a new stop placement, the previous stop placement remains in effect until the new stop placement is imposed.
     (4) After a department finding of a violation for which a stop placement has been imposed, the department must make an on-site revisit within fifteen working days from the request for revisit, to ensure correction of the violation. For violations that are serious or recurring or uncorrected following a previous citation, and create actual or threatened harm to one or more residents' well-being, including violations of clients' rights, the department must make an on-site revisit as soon as appropriate to ensure correction of the violation. Verification of correction of all other violations may be made by either a department on-site revisit or by written or photographic documentation found by the department to be credible. This subsection does not prevent the department from enforcing license suspensions or revocations. Nothing in this subsection interferes with or diminishes the department's authority and duty to ensure that the provider adequately cares for residents, including to make departmental on-site revisits as needed to ensure that the provider protects clients, and to enforce compliance with this chapter.
     (5) When determining the appropriate enforcement action or actions under subsection (2) of this section, the department must select actions commensurate with the seriousness of the harm or threat of harm to the persons being served by the provider. Further, the department may take enforcement actions that are more severe for violations that are uncorrected, repeated, pervasive, or which present a serious threat of harm to the health, safety, or welfare of persons served by the provider. The department shall by rule develop criteria for the selection and implementation of enforcement actions authorized in subsection (2) of this section. Rules adopted under this section shall include a process for an informal review upon request by a provider.
     (((4))) (6) The provisions of chapter 34.05 RCW apply to enforcement actions under this section((. Except for the imposition of civil penalties)), except that: Orders of the department imposing certification suspension, stop placement, or conditions for continuation of a certification are effective immediately upon notice and continue in effect pending a hearing; and the effective date of enforcement actions shall not be delayed or suspended pending any hearing or informal review for orders of the department imposing civil penalties.
     (((5))) (7) The enforcement actions and penalties authorized in this section are not exclusive or exhaustive and nothing in this section prohibits the department from taking any other action authorized in statute or rule or under the terms of a contract with the provider. Whenever possible, the department must assign a higher priority to investigations of abuse and neglect stemming from alleged employee misconduct.

NEW SECTION.  Sec. 6   A new section is added to chapter 71A.12 RCW to read as follows:
     A community residential program account is created in the custody of the state treasurer. All receipts from fees and civil penalties imposed under this chapter must be deposited into the account. Only the director or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures. The department shall use the community residential program account to administer this chapter and to promote the quality of life and care of clients receiving community residential services.

NEW SECTION.  Sec. 7   A new section is added to chapter 71A.20 RCW to read as follows:
     (1) When a person is admitted to a residential habilitation center, the department shall, within sixty days of that resident's admission, develop an individual habilitation plan that includes a plan for discharge of that resident back to the community.      
     (2) The department must use a person-centered approach in developing a resident's discharge plan to assess the resident's needs and identify services the resident requires to successfully transition to the community. This approach must provide an opportunity for:
     (a) Family-to-family mentoring provided by people who themselves experienced moving a family member with developmental disabilities from a residential habilitation center to the community;
     (b) Participation by employees of the residential habilitation centers. To strengthen continuity of care for residents leaving residential habilitation centers, the department shall provide opportunities for residential habilitation center employees to obtain employment in state-operated living alternatives when appropriate for a specific resident or residents and pursuant to appropriate collective bargaining agreement;
     (c) A choice of community living options and providers, consistent with federal requirements, including offering to place, with the consent of the resident or the resident's guardian, the resident on the appropriate home and community-based waiver, as authorized under 42 U.S.C. Sec. 1396n, and provide continued access to services that meet his or her assessed needs as authorized on the person's waiver;
     (d) Residents and their families or guardians to visit state-operated living alternatives and supported living options in the community;
     (e) A right of return to a residential habilitation center for residents leaving residential habilitation centers. This right must be exercised within one year of the resident's move from the residential habilitation center; and
     (f) A plan for the provision of services that are in addition to those that are provided by residential services providers and that are necessary to meet the resident's assessed needs. These additional services include:
     (i) Medical services;
     (ii) Nursing services;
     (iii) Dental care;
     (iv) Behavioral and mental health supports;
     (v) Habilitation services; and
     (vi) Employment or other day support.
     (3) After discharge from a residential habilitation center, residents continue to be eligible for services for which they have an assessed need.
     (4) The department must maximize federal funding for transitioning residents using any federal grants available for this purpose.
     (5) The department shall limit the ability of a state-operated living alternative to reject clients.
     (6) Savings achieved through efficiencies must be used to extend services, including state-staffed crisis stabilization services and respite services, to people with developmental disabilities living in the community.