S-5416.3

SENATE BILL 6658

BySenators Braun, Brown, and Wagoner

AN ACT Relating to prioritizing services and financial relief for the disabled and elderly populations; amending RCW 43.88C.010, 74.39A.009, 74.39A.051, 74.39A.056, 74.39A.086, 74.39A.095, 74.39A.210, 74.39A.240, 74.39A.250, 74.39A.261, 74.39A.270, 74.39A.275, 74.39A.300, 74.39A.310, 74.39A.351, 74.39A.360, 41.56.026, 41.56.113, 82.08.0283, and 82.12.0277; adding a new section to chapter 43.88 RCW; creating a new section; repealing RCW 74.39A.500, 74.39A.505, 74.39A.510, 74.39A.515, 74.39A.520, 74.39A.525, and 74.39A.530; making an appropriation; providing an effective date; and declaring an emergency.

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

Sec. 1. RCW 43.88C.010 and 2019 c 406 s 24 are each amended to read as follows:

(1) The caseload forecast council is hereby created. The council shall consist of two individuals appointed by the governor and four individuals, one of whom is appointed by the chairperson of each of the two largest political caucuses in the senate and house of representatives. The chair of the council shall be selected from among the four caucus appointees. The council may select such other officers as the members deem necessary.

(2) The council shall employ a caseload forecast supervisor to supervise the preparation of all caseload forecasts. As used in this chapter, "supervisor" means the caseload forecast supervisor.

(3) Approval by an affirmative vote of at least five members of the council is required for any decisions regarding employment of the supervisor. Employment of the supervisor shall terminate after each term of three years. At the end of the first year of each three-year term the council shall consider extension of the supervisor's term by one year. The council may fix the compensation of the supervisor. The supervisor shall employ staff sufficient to accomplish the purposes of this section.

(4) The caseload forecast council shall oversee the preparation of and approve, by an affirmative vote of at least four members, the official state caseload forecasts prepared under RCW 43.88C.020. If the council is unable to approve a forecast before a date required in RCW 43.88C.020, the supervisor shall submit the forecast without approval and the forecast shall have the same effect as if approved by the council.

(5) A councilmember who does not cast an affirmative vote for approval of the official caseload forecast may request, and the supervisor shall provide, an alternative forecast based on assumptions specified by the member.

(6) Members of the caseload forecast council shall serve without additional compensation but shall be reimbursed for travel expenses in accordance with RCW 44.04.120 while attending sessions of the council or on official business authorized by the council. Nonlegislative members of the council shall be reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060.

(7) "Caseload," as used in this chapter, means:

(a) The number of persons expected to meet entitlement requirements and require the services of public assistance programs, state correctional institutions, state correctional noninstitutional supervision, state institutions for juvenile offenders, the common school system, long-term care, medical assistance, foster care, and adoption support;

(b) The number of students who are eligible for the Washington college bound scholarship program and are expected to attend an institution of higher education as defined in RCW 28B.92.030;

(c) The number of students who are eligible for the Washington college grant program under RCW 28B.92.200 and 28B.92.205 and are expected to attend an institution of higher education as defined in RCW 28B.92.030; and

(d) The number of children who are eligible, as defined in RCW 43.216.505, to participate in, and the number of children actually served by, the early childhood education and assistance program.

(8) The caseload forecast council shall forecast the temporary assistance for needy families and the working connections child care programs as a courtesy.

(9) The caseload forecast council shall forecast the individual and family services waiver and the basic plus waiver administered by the developmental disabilities administration as a courtesy.

(10) The caseload forecast council shall forecast youth participating in the extended foster care program pursuant to RCW 74.13.031 separately from other children who are residing in foster care and who are under eighteen years of age.

(((10)))(11) The caseload forecast council shall forecast the number of youth expected to receive behavioral rehabilitation services while involved in the foster care system and the number of screened in reports of child abuse or neglect.

(((11)))(12) Unless the context clearly requires otherwise, the definitions provided in RCW 43.88.020 apply to this chapter.

NEW SECTION.  Sec. 2. A new section is added to chapter 43.88 RCW to read as follows:

For the purposes of this chapter, expenditures for the individual and family services waiver and the basic plus waiver as referenced in RCW 43.88C.010 must be forecasted and budgeted as maintenance level costs.

Sec. 3. RCW 74.39A.009 and 2018 c 278 s 2 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Adult family home" means a home licensed under chapter 70.128 RCW.

(2) "Adult residential care" means services provided by an assisted living facility that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.020 to provide personal care services.

(3) "Assisted living facility" means a facility licensed under chapter 18.20 RCW.

(4) "Assisted living services" means services provided by an assisted living facility that has a contract with the department under RCW 74.39A.010 to provide personal care services, intermittent nursing services, and medication administration services; and the facility provides these services to residents who are living in private apartment-like units.

(5) "Community residential service business" means a business that:

(a) Is certified by the department of social and health services to provide to individuals who have a developmental disability as defined in RCW 71A.10.020(5):

(i) Group home services;

(ii) Group training home services;

(iii) Supported living services; or

(iv) Voluntary placement services provided in a licensed staff residential facility for children;

(b) Has a contract with the developmental disabilities administration to provide the services identified in (a) of this subsection; and

(c) All of the business's long-term care workers are subject to statutory or regulatory training requirements that are required to provide the services identified in (a) of this subsection.

(6) "Consumer" or "client" means a person who is receiving or has applied for services under this chapter, including a person who is receiving services from an individual provider.

(7) (("Consumer directed employer" is a private entity that contracts with the department to be the legal employer of individual providers for purposes of performing administrative functions. The consumer directed employer is patterned after the agency with choice model, recognized by the federal centers for medicare and medicaid services for financial management in consumer directed programs. The entity's responsibilities are described in RCW 74.39A.515 and throughout this chapter and include: (a) Coordination with the consumer, who is the individual provider's managing employer; (b) withholding, filing, and paying income and employment taxes, including workers' compensation premiums and unemployment taxes, for individual providers; (c) verifying an individual provider's qualifications; and (d) providing other administrative and employment-related supports. The consumer directed employer is a social service agency and its employees are mandated reporters as defined in RCW 74.34.020.

(8))) "Core competencies" means basic training topics, including but not limited to, communication skills, worker self-care, problem solving, maintaining dignity, consumer directed care, cultural sensitivity, body mechanics, fall prevention, skin and body care, long-term care worker roles and boundaries, supporting activities of daily living, and food preparation and handling.

(((9)))(8) "Cost-effective care" means care provided in a setting of an individual's choice that is necessary to promote the most appropriate level of physical, mental, and psychosocial well-being consistent with client choice, in an environment that is appropriate to the care and safety needs of the individual, and such care cannot be provided at a lower cost in any other setting. But this in no way precludes an individual from choosing a different residential setting to achieve his or her desired quality of life.

(((10)))(9) "Department" means the department of social and health services.

(((11)))(10) "Developmental disability" has the same meaning as defined in RCW 71A.10.020.

(((12)))(11) "Direct care worker" means a paid caregiver who provides direct, hands-on personal care services to persons with disabilities or the elderly requiring long-term care.

(((13)))(12) "Enhanced adult residential care" means services provided by an assisted living facility that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.010 to provide personal care services, intermittent nursing services, and medication administration services.

(((14)))(13) "Facility" means an adult family home, an assisted living facility, a nursing home, an enhanced services facility licensed under chapter 70.97 RCW, or a facility certified to provide medicare or medicaid services in nursing facilities or intermediate care facilities for individuals with intellectual disabilities under 42 C.F.R. Part 483.

(((15)))(14) "Home and community-based services" means services provided in adult family homes, in-home services, and other services administered or provided by contract by the department directly or through contract with area agencies on aging or similar services provided by facilities and agencies licensed or certified by the department.

(((16)))(15) "Home care aide" means a long-term care worker who is certified as a home care aide by the department of health under chapter 18.88B RCW.

(((17)))(16) "Individual provider" is defined according to RCW 74.39A.240.

(((18) "Legal employer" means the consumer directed employer, which along with the consumer, coemploys individual providers. The legal employer is responsible for setting wages and benefits for individual providers and must comply with applicable laws including, but not limited to, workers compensation and unemployment insurance laws.

(19)))(17) "Long-term care" means care and supports delivered indefinitely, intermittently, or over a sustained time to persons of any age who are functionally disabled due to chronic mental or physical illness, disease, chemical dependency, or a medical condition that is permanent, not curable, or is long-lasting and severely limits their mental or physical capacity for self-care. The use of this definition is not intended to expand the scope of services, care, or assistance provided by any individuals, groups, residential care settings, or professions unless otherwise required by law.

(((20)))(18)(a) "Long-term care workers" include all persons who provide paid, hands-on personal care services for the elderly or persons with disabilities, including but not limited to individual providers of home care services, direct care workers employed by home care agencies ((or a consumer directed employer)), providers of home care services to persons with developmental disabilities under Title 71A RCW, all direct care workers in state-licensed assisted living facilities, enhanced services facilities, and adult family homes, respite care providers, direct care workers employed by community residential service businesses, and any other direct care worker providing home or community-based services to the elderly or persons with functional disabilities or developmental disabilities.

(b) "Long-term care workers" do not include: (i) Persons employed by the following facilities or agencies: Nursing homes licensed under chapter 18.51 RCW, hospitals or other acute care settings, residential habilitation centers under chapter 71A.20 RCW, facilities certified under 42 C.F.R., Part 483, hospice agencies subject to chapter 70.127 RCW, adult day care centers, and adult day health care centers; or (ii) persons who are not paid by the state or by a private agency or facility licensed or certified by the state to provide personal care services.

(((21) "Managing employer" means a consumer who coemploys one or more individual providers and whose responsibilities include (a) choosing potential individual providers and referring them to the consumer directed employer; (b) overseeing the day-to-day management and scheduling of the individual provider's tasks consistent with the plan of care; and (c) dismissing the individual provider when desired.

(22)))(19) "Nursing home" or "nursing facility" means a facility licensed under chapter 18.51 RCW or certified as a medicaid nursing facility under 42 C.F.R. Part 483, or both.

(((23)))(20) "Person who is functionally disabled" means a person who because of a recognized chronic physical or mental condition or disease, including chemical dependency or developmental disability, is dependent upon others for direct care, support, supervision, or monitoring to perform activities of daily living. "Activities of daily living," in this context, means self-care abilities related to personal care such as bathing, eating, using the toilet, dressing, and transfer. Instrumental activities of daily living such as cooking, shopping, house cleaning, doing laundry, working, and managing personal finances may also be considered when assessing a person's functional ((abilities [ability]))ability to perform activities in the home and the community.

(((24)))(21) "Personal care services" means physical or verbal assistance with activities of daily living and instrumental activities of daily living provided because of a person's functional disability.

(((25)))(22) "Population specific competencies" means basic training topics unique to the care needs of the population the long-term care worker is serving, including but not limited to, mental health, dementia, developmental disabilities, young adults with physical disabilities, and older adults.

(((26)))(23) "Qualified instructor" means a registered nurse or other person with specific knowledge, training, and work experience in the provision of direct, hands-on personal care and other assistance services to the elderly or persons with disabilities requiring long-term care.

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

(((28)))(25) "Training partnership" means a joint partnership or trust that includes the office of the governor and the exclusive bargaining representative of individual providers under RCW 74.39A.270 with the capacity to provide training, peer mentoring, and workforce development, or other services to individual providers.

(((29)))(26) "Tribally licensed assisted living facility" means an assisted living facility licensed by a federally recognized Indian tribe in which a facility provides services similar to services provided by assisted living facilities licensed under chapter 18.20 RCW.

Sec. 4. RCW 74.39A.051 and 2018 c 278 s 7 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. This includes that when conducting licensing or contract inspections, the department shall interview an appropriate percentage of residents, family members, resident case 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) Monitoring should be outcome based and responsive to consumer 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 providers, residents, and other interested parties.

(6) Prompt and specific enforcement remedies shall also be implemented without delay, pursuant to RCW 70.97.110, 71A.12.300, 74.39A.080, or 70.128.160, or chapter 18.51 or 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) Background checks of long-term care workers must be conducted as provided in RCW 74.39A.056.

(8) Except as provided in RCW 74.39A.074 and 74.39A.076, 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 to implement this section. The department shall deny payment to ((a consumer directed employer))an individual provider or a home care agency for services provided by ((employees))an employee who ((have))does not ((completed))complete the training requirements within the time limit specified by department rules. The department shall deny payment to any individual providers who provide services under a contract with the department if they have been notified that they are no longer permitted to work because they have not completed the training requirements within the time period required by department rules.

(9) Under existing funds the department shall establish internally a quality improvement standards committee to monitor the development of standards and to suggest modifications.

Sec. 5. RCW 74.39A.056 and 2018 c 278 s 8 are each amended to read as follows:

(1)(a) All long-term care workers shall be screened through state and federal background checks in a uniform and timely manner to verify that they do not have a history that would disqualify them from working with vulnerable persons. The department must ((process))perform background checks for ((long-term care workers))individual providers and prospective individual providers and make the information available ((to employers, prospective employers, and others)) as ((authorized))provided by law.

(b)(i) Except as provided in (b)(ii) of this subsection, for long-term care workers hired on or after January 7, 2012, the background checks required under this section shall include checking against the federal bureau of investigation fingerprint identification records system and against the national sex offenders registry or their successor programs. The department shall require these long-term care workers to submit fingerprints for the purpose of investigating conviction records through both the Washington state patrol and the federal bureau of investigation. The department shall not pass on the cost of these criminal background checks to the workers or their employers.

(ii) This subsection does not apply to long-term care workers employed by community residential service businesses until January 1, 2016.

(c) The department shall share state and federal background check results with the department of health in accordance with RCW 18.88B.080.

(((d) Background check screening required under this section and department rules is not required for an employee of a consumer directed employer if all of the following circumstances apply:

(iv) The department's background check results have been shared with the consumer directed employer.))

(2) No provider, or its staff, or long-term care worker, or prospective provider or long-term care worker, 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 or a court of law or entered into a state registry with a final substantiated finding 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.

(3) The department shall establish, by rule, a state registry which contains identifying information about long-term care workers identified under this chapter who have final 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, final substantiated findings of abuse, neglect, financial exploitation, or abandonment to any person so requesting this information. This information must also be shared with the department of health to advance the purposes of chapter 18.88B RCW.

(4) The department shall adopt rules to implement this section.

Sec. 6. RCW 74.39A.086 and 2018 c 278 s 10 are each amended to read as follows:

(1) The department:

(2) The department shall take appropriate enforcement action related to the contract of a ((consumer directed employer or a licensed or certified)) private agency or facility that provides long-term care services, other than an individual provider, and knowingly employs a long-term care worker who is not a certified home care aide as required under chapter 18.88B RCW or whose certification is revoked or, if exempted from certification under RCW 18.88B.041, who has not completed his or her required training under RCW 74.39A.074.

(((2) The department shall deny payment to individual providers who provided services under a contract with the department if they have been notified that they are no longer permitted to work because they:

(4)))(3) Chapter 34.05 RCW shall govern actions by the department under this section.

(((5)))(4) The department shall adopt rules to implement this section.

Sec. 7. RCW 74.39A.095 and 2018 c 278 s 12 are each amended to read as follows:

(1) In carrying out case management responsibilities established under RCW 74.39A.090 for consumers who are receiving services under programs authorized through the medicaid state plan, medicaid waiver authorities, or similar state-funded in-home care programs, each area agency on aging shall provide oversight of the care provided to consumers receiving services under this section, to the extent of available funding((, each area agency on aging shall:

(e) Document the waiver of any case management services by the consumer)). Case management responsibilities incorporate this oversight, and include, but are not limited to:

(f) Conducting criminal background checks or verifying that criminal background checks have been conducted for any individual provider. Individual providers who are hired after January 7, 2012, are subject to background checks under RCW 74.39A.056.

(2) The area agency on aging case manager shall work with each consumer to develop a plan of care under this section that identifies and ensures coordination of health and long-term care services that meet the consumer's needs. In developing the plan, the case manager shall utilize, and modify as needed, any comprehensive community service plan developed by the department as provided in RCW 74.39A.040. The plan of care shall include, at a minimum:

(4) Each consumer has the right to direct and participate in the development of ((their))the consumer's plan of care to the maximum extent practicable, and to be provided with the time and support necessary to facilitate that participation.

(((3) As authorized by the consumer, a))(5) A copy of the plan of care ((may))must be distributed to((: (a) The))the consumer's primary care provider, individual provider ((contracted with the department; (b) the entity contracted with the department to provide personal care services; and (c))), and other relevant providers with whom the consumer has frequent contact, as authorized by the consumer.

(((4) If an individual provider is employed by a consumer directed employer, the department or area agency on aging must notify the consumer directed employer if:

(b) The individual provider's performance is jeopardizing the health, safety, or well-being of a consumer receiving services under this section.))(6) The consumer's plan of care must be an attachment to the contract between the department, or the department's designee, and the individual provider.

Sec. 8. RCW 74.39A.210 and 2018 c 278 s 15 are each amended to read as follows:

An employer providing home and community services, including facilities licensed under chapters 18.51, 18.20, 70.97, and 70.128 RCW, an employer of a program operating under RCW 71A.12.040(10), ((a consumer directed employer,)) or an in-home services agency employer licensed under chapter 70.127 RCW, who discloses information about a former or current employee to a prospective home and community services employer, nursing home employer, ((consumer directed employer,)) or an in-home services agency employer, is presumed to be acting in good faith and is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to: (1) The employee's ability to perform his or her job; (2) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (3) any illegal or wrongful act committed by the employee when related to his or her ability to care for a vulnerable adult. For purposes of this section, the presumption of good faith may only be rebutted upon a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false or made with reckless disregard for the truth of the information disclosed. If the employee successfully rebuts the presumption of good faith standard in a court of competent jurisdiction, as the prevailing party, the employee shall be entitled to recover reasonable attorneys' fees against the employer. Nothing in this section shall affect or limit any other state, federal, or constitutional right otherwise available.

Sec. 9. RCW 74.39A.240 and 2018 c 278 s 16 are each amended to read as follows:

The definitions in this section apply throughout RCW 74.39A.030, 74.39A.095, 74.39A.220 through 74.39A.300, and 41.56.026 unless the context clearly requires otherwise.

(1) "Consumer" means a person to whom an individual provider provides any such services.

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

(3) "Individual provider" means a person, including a personal aide, who((, under an individual provider contract with the department or as an employee of a consumer directed employer, provides))has contracted with the department to provide personal care or respite care services to persons who are functionally disabled or otherwise eligible under programs authorized and funded by the medicaid state plan, medicaid waiver programs(([,])), chapter 71A.12 RCW, RCW 74.13.270, or similar state-funded in-home care programs.

Sec. 10. RCW 74.39A.250 and 2018 c 278 s 17 are each amended to read as follows:

(1) ((If a consumer directed employer employs individual providers, the consumer directed employer))The department shall:

(a) Provide assistance to consumers and prospective consumers in finding individual providers and prospective individual providers through the operation of a referral registry of individual providers and prospective individual providers.

(b) Before placing an individual provider or prospective individual provider on the referral registry, determine that the individual provider or prospective individual provider:

(i) Has met the minimum requirements for training under RCW 74.39A.051 and 74.39A.074;

(ii) Has satisfactorily completed a background check within the prior twelve months; and

(iii) Is not listed on any state or federal registry described in RCW 74.39A.056 or on other registries maintained by the department.

(c) Remove from the referral registry any individual provider or prospective individual provider who does not meet the qualifications set forth in this subsection (1) ((or whose employment as an individual provider has been terminated based on good cause))or who has committed misfeasance or malfeasance in the performance of his or her duties. 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.

(d) 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.

(e) Not allow an individual provider to provide services to a consumer without the consumer's consent.

(2) The department shall ((perform the activities under subsection (1) of this section if the department has not transitioned the responsibilities under this section to a consumer directed employer))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.

Sec. 11. RCW 74.39A.261 and 2018 c 278 s 18 are each amended to read as follows:

((If the department contracts with individual providers, the))The department must perform background checks for individual providers and prospective individual providers under RCW 74.39A.056.

Sec. 12. RCW 74.39A.270 and 2018 c 278 s 19 are each amended to read as follows:

The following provisions apply only to individual providers who are contracted with the department to provide personal care or respite care services:

(1) Solely for the purposes of collective bargaining and as expressly limited under subsections (2) and (3) of this section, the governor is the public employer, as defined in chapter 41.56 RCW, of individual providers, who, solely for the purposes of collective bargaining, are public employees as defined in chapter 41.56 RCW. To accommodate the role of the state as payor for the community-based services provided under this chapter and to ensure coordination with state employee collective bargaining under chapter 41.80 RCW and the coordination necessary to implement RCW 74.39A.300, the public employer shall be represented for bargaining purposes by the governor or the governor's designee appointed under chapter 41.80 RCW. The department shall solicit input from the developmental disabilities council, the governor's committee on disability issues and employment, the state council on aging, and other consumer advocacy organizations to obtain informed input from consumers on their interests, including impacts on consumer choice, for all issues proposed for collective bargaining under subsections (5) and (((7)))(15) of this section.

(2) Chapter 41.56 RCW governs the collective bargaining relationship between the governor and individual providers, except as otherwise expressly provided in this chapter 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;

(c) The mediation and interest arbitration provisions of RCW 41.56.430 through 41.56.470 and 41.56.480 apply, except that:

(i) With respect to commencement of negotiations between the governor and the bargaining representative of individual providers, negotiations shall be commenced by May 1st of any year prior to the year in which an existing collective bargaining agreement expires; and

(ii) The decision of the arbitrator is not binding on the legislature and, if the legislature does not approve the request for funds necessary to implement the compensation and fringe benefit provisions of the arbitrated collective bargaining agreement, is not binding on the authority or the state;

(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 this chapter or chapter 41.56 RCW.

(3) Individual providers who are public employees solely for the purposes of collective bargaining under subsection (1) of this section are not, for that reason, employees of the state, its political subdivisions, or an area agency on aging for any purpose. Chapter 41.56 RCW applies only to the governance of the collective bargaining relationship between the employer and individual providers as provided in subsections (1) and (2) of this section.

(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 department or a department contractor.

(5) Except as expressly limited in this section and RCW 74.39A.300, the wages, hours, and working conditions of individual providers are determined solely through collective bargaining as provided in this chapter. ((Except as described in RCW 74.39A.525, no agency or department of the state may establish policies or rules governing the wages or hours of individual providers.))

(6) The department shall adopt rules describing criteria under which a consumer may be permitted to use a single individual provider for more than forty hours per week. At a minimum, the criteria shall limit the state's exposure to exceeding the expenditure limits established in this section, require consumers to use good faith efforts to locate additional providers, address travel time from worksite to worksite, and address the following needs of consumers:

(14) Nothing in this section modifies:

(a) The department's authority to deny individual provider contracts to individuals who will not be able to meet the needs of a consumer or to terminate contracts of individual providers who are not adequately meeting the needs of a particular consumer; or

(b) The consumer's right to: (i) Assign hours to one or more individual providers consistent with the rules adopted under this chapter and his or her plan of care; and (ii) select, hire, terminate, supervise the work of, and determine the conditions of employment for each individual provider providing services to the consumer under this chapter.

(((7)))(15) At the request of the exclusive bargaining representative, the governor or the governor's designee appointed under chapter 41.80 RCW shall engage in collective bargaining, as defined in RCW 41.56.030(4), with the exclusive bargaining representative over the following subjects:

(a) Employer contributions to the training partnership for the costs of: (i) Meeting all training and peer mentoring requirements under this chapter; and (ii) other training intended to promote the career development of individual providers; and

(b) How the department's core responsibility affects hours of work for individual providers; this subsection shall not be interpreted to require collective bargaining over an individual consumer's plan of care.

(((8)))(16) The state, the department, the area agencies on aging, or their contractors under this chapter may not be held vicariously or jointly 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 referral registry or referred to a consumer or prospective consumer. The existence of a collective bargaining agreement, the placement of an individual provider on the referral registry, or the development or approval of a plan of care for a consumer who chooses to use the services of an individual provider and the provision of case management services to that consumer, by the department or an area agency on aging, does not constitute a special relationship with the consumer.

(((9)))(17) Nothing in this section affects the state's responsibility with respect to unemployment insurance for individual providers. However, individual providers are not to be considered, as a result of the state assuming this responsibility, employees of the state.

Sec. 13. RCW 74.39A.275 and 2018 c 278 s 21 are each amended to read as follows:

In order to monitor quality of care and safety of consumers, employment conditions of individual providers, and compliance with the provisions of payment of hours in excess of forty hours each workweek for any single individual provider, the department must provide annual expenditure reports to the legislative fiscal committees and joint legislative-executive overtime oversight task force created under RCW ((74.39A.525))74.39A.270(11). The report must contain the following information:

(1) The number of individual providers receiving payment for more than forty hours in a workweek, specifying how many of those individual providers were eligible for those hours due to meeting the conditions of RCW ((74.39A.525))74.39A.270(6).

(2) The number of hours paid and the amount paid for hours in excess of forty hours in a workweek, specifying how many of those hours and payments were for individual providers eligible for those hours and payments due to meeting the conditions of RCW ((74.39A.525 (1) or (2)))74.39A.270(6).

(3) In reporting the information required in subsections (1) and (2) of this section, the department must provide total amounts, averages, and a display of the distribution of the amounts.

(4) The information required must be provided by department region and county of client, department program, and must be specified for individual providers by the number of clients they serve.

(5) Any personally identifiable information of consumers and individual providers used to develop this report is confidential under RCW 43.17.410 and exempt from public disclosure, inspection, or copying in accordance with chapter 42.56RCW. However, information may be released in aggregate form, with any personally identifiable information redacted, for the purpose of statistical analysis and oversight of agency performance and actions.

Sec. 14. RCW 74.39A.300 and 2018 c 278 s 22 are each amended to read as follows:

((If the department contracts with any individual providers for personal care services, funding will be determined in accordance with the following process:))

(1) Upon meeting the requirements of subsection (2) of this section, the governor must submit, as a part of the proposed biennial or supplemental operating budget submitted to the legislature under RCW 43.88.030, a request for funds necessary to administer in-home care programs under this chapter and to implement the compensation and fringe benefits provisions of a collective bargaining agreement entered into under RCW 74.39A.270 or for legislation necessary to implement such agreement.

(2) A request for funds necessary to implement the compensation and fringe benefits provisions of a collective bargaining agreement entered into under RCW 74.39A.270 shall not be submitted by the governor to the legislature unless such request:

(a) Has been submitted to the director of financial management by October 1st prior to the legislative session at which the request is to be considered; and

(b) Has been certified by the director of financial management as being feasible financially for the state or reflects the binding decision of an arbitrator reached under RCW 74.39A.270(2)(c).

(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.

(4) When any increase in individual provider wages or benefits is negotiated or agreed to, no increase in wages or benefits negotiated or agreed to under this chapter 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.

(5) The governor shall periodically consult with the joint committee on employment relations established by RCW 41.80.010 regarding appropriations necessary to implement the compensation and fringe benefits provisions of any collective bargaining agreement and, upon completion of negotiations, advise the committee on the elements of the agreement and on any legislation necessary to implement such agreement.

(6) 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, except as provided in RCW 74.39A.270.

(7) If, after the compensation and benefit provisions of an agreement are approved by the legislature, a significant revenue shortfall occurs resulting in reduced appropriations, as declared by proclamation of the governor or by resolution of the legislature, both parties shall immediately enter into collective bargaining for a mutually agreed upon modification of the agreement.

Sec. 15. RCW 74.39A.310 and 2018 c 278 s 23 are each amended to read as follows:

(1) The department shall create a formula that converts into a per-hour amount, excluding those benefits defined in subsection (3) of this section, the cost of the increase in((:

(a) Wages))wages and benefits negotiated and funded in the contract for individual providers of home care services pursuant to RCW 74.39A.270 and 74.39A.300((; or

(b) The labor rates established under RCW 74.39A.530)).

(2) The per-hour amount from subsection (1) of this section shall be added to the statewide home care agency vendor rate and shall be used exclusively for improving the wages and benefits of home care agency workers who provide direct care. The formula shall account for:

(a) All types of wages, benefits, and compensation negotiated and funded each biennium, including but not limited to:

(i) Regular wages;

(ii) Benefit pay, such as vacation, sick, and holiday pay;

(iii) Taxes on wages/benefit pay;

(iv) Mileage; and

(v) Contributions to a training partnership; and

(b) The increase in the average cost of worker's compensation for home care agencies and application of the increases identified in (a) of this subsection to all hours required to be paid, including travel time, of direct service workers under the wage and hour laws and associated employer taxes.

(3) The contribution rate for health care benefits, including but not limited to medical, dental, and vision benefits, for eligible agency home care workers shall be paid by the department to home care agencies at the same rate as negotiated and funded in the collective bargaining agreement for individual providers of home care services.

Sec. 16. RCW 74.39A.351 and 2018 c 278 s 24 are each amended to read as follows:

(1) The department shall offer, directly or through contract, training opportunities sufficient for a long-term care worker to accumulate seventy hours of training within a reasonable time period. For individual providers represented by an exclusive bargaining representative under RCW 74.39A.270, the training opportunities shall be offered through the training partnership established under RCW 74.39A.360.

(2) Training topics offered under this section shall include, but are not limited to: Client rights; personal care; mental illness; dementia; developmental disabilities; depression; medication assistance; advanced communication skills; positive client behavior support; developing or improving client-centered activities; dealing with wandering or aggressive client behaviors; medical conditions; nurse delegation core training; peer mentor training; and advocacy for quality care training.

(3) The department may not require long-term care workers to obtain the training described in this section.

Sec. 17. RCW 74.39A.360 and 2018 c 278 s 25 are each amended to read as follows:

(((1))) If the department has any contracts for personal care services with any individual providers represented by an exclusive bargaining representative under RCW 74.39A.270:

(((a)))(1) All training and peer mentoring required under this chapter shall be provided by a training partnership;

(((b)))(2) Contributions to the partnership shall be made under a collective bargaining agreement negotiated under this chapter;

(((c)))(3) The training partnership shall provide reports as required by the department verifying that all individual providers have complied with all training requirements; and

(((d)))(4) The exclusive bargaining representative shall designate the training partnership.

(((2) When individual providers are employed by a consumer directed employer, funding for training shall be included in the labor rate component paid to the consumer directed employer as determined and funded under RCW 74.39A.530.))

Sec. 18. RCW 41.56.026 and 2018 c 278 s 28 are each amended to read as follows:

In addition to the entities listed in RCW 41.56.020, this chapter applies to individual providers ((who have contracts with the department)) under chapter 74.39A RCW.

Sec. 19. RCW 41.56.113 and 2019 c 230 s 10 are each amended to read as follows:

(1) This subsection (1) applies only if the state makes the payments directly to a provider.

(a) Upon the authorization of an individual provider ((who contracts with the department of social and health services)), a family child care provider, an adult family home provider, or a language access provider within the bargaining unit and after the certification or recognition of the bargaining unit's exclusive bargaining representative, the state as payor, but not as the employer, shall, subject to (c) of this subsection, deduct from the payments to an individual provider ((who contracts with the department of social and health services)), a family child care provider, an adult family home provider, or a language access provider the monthly amount of dues as certified by the secretary of the exclusive bargaining representative and shall transmit the same to the treasurer of the exclusive bargaining representative.

(b)(i) An employee's written, electronic, or recorded voice authorization to have the employer deduct membership dues from the employee's salary must be made by the employee to the exclusive bargaining representative. If the employer receives a request for authorization of deductions, the employer shall as soon as practicable forward the request to the exclusive bargaining representative.

(ii) Upon receiving notice of the employee's authorization from the exclusive bargaining representative, the employer shall deduct from the employee's salary membership dues and remit the amounts to the exclusive bargaining representative.

(iii) The employee's authorization remains in effect until expressly revoked by the employee in accordance with the terms and conditions of the authorization.

(iv) An employee's request to revoke authorization for payroll deductions must be in writing and submitted by the employee to the exclusive bargaining representative in accordance with the terms and conditions of the authorization.

(v) After the employer receives confirmation from the exclusive bargaining representative that the employee has revoked authorization for deductions, the employer shall end the deduction no later than the second payroll after receipt of the confirmation.

(vi) The employer shall rely on information provided by the exclusive bargaining representative regarding the authorization and revocation of deductions.

(vii) If the governor and the exclusive bargaining representative of a bargaining unit of individual providers who contract with the department of social and health services, family child care providers, adult family home providers, or language access providers enter into a collective bargaining agreement that includes requirements for deductions of other payments, the state, as payor, but not as the employer, shall, subject to (c) of this subsection, make such deductions upon authorization of the individual provider, family child care provider, adult family home provider, or language access provider.

(c)(i) The initial additional costs to the state in making deductions from the payments to individual providers, family child care providers, adult family home providers, and language access providers under this section shall be negotiated, agreed upon in advance, and reimbursed to the state by the exclusive bargaining representative.

(ii) The allocation of ongoing additional costs to the state in making deductions from the payments to individual providers, family child care providers, adult family home providers, or language access providers under this section shall be an appropriate subject of collective bargaining between the exclusive bargaining representative and the governor unless prohibited by another statute. If no collective bargaining agreement containing a provision allocating the ongoing additional cost is entered into between the exclusive bargaining representative and the governor, or if the legislature does not approve funding for the collective bargaining agreement as provided in RCW 74.39A.300, 41.56.028, 41.56.029, or 41.56.510, as applicable, the ongoing additional costs to the state in making deductions from the payments to individual providers, family child care providers, adult family home providers, or language access providers under this section shall be negotiated, agreed upon in advance, and reimbursed to the state by the exclusive bargaining representative.

(2) This subsection (2) applies only if the state does not make the payments directly to a language access provider. Upon the authorization of a language access provider within the bargaining unit and after the certification or recognition of the bargaining unit's exclusive bargaining representative, the state shall require through its contracts with third parties that:

(a) The monthly amount of dues as certified by the secretary of the exclusive bargaining representative be deducted from the payments to the language access provider and transmitted to the treasurer of the exclusive bargaining representative; and

(b) A record showing that dues have been deducted as specified in (a) of this subsection be provided to the state.

(3) ((This subsection (3) applies only to individual providers who contract with the department of social and health services.)) The exclusive bargaining representative of individual providers may designate a third-party entity to act as the individual provider's agent in receiving payments from the state to the individual provider, so long as the individual provider has entered into an agency agreement with a third-party entity for the purposes of deducting and remitting voluntary payments to the exclusive bargaining representative. A third-party entity that receives such payments is responsible for making and remitting deductions authorized by the individual provider. The costs of such deductions must be paid by the exclusive bargaining representative.

(1) RCW 74.39A.500 (Consumer directed employer program—Establishment—Structure—Vendor qualifications—Transition—Department duties) and 2018 c 278 s 3;

(2) RCW 74.39A.505 (Consumer directed employer program—Rule-making authority—2018 c 278) and 2018 c 278 s 4;

(3) RCW 74.39A.510 (Consumer directed employer program—Limitations) and 2018 c 278 s 5;

(4) RCW 74.39A.515 (Duties of consumer directed employers that employ individual providers—Duties of area agencies on aging with respect to individual providers contracted with the department—Rule making) and 2018 c 278 s 13;

(5) RCW 74.39A.520 (Individual providers employed by a consumer directed employer—Consumer's right to select, schedule, supervise, or dismiss individual providers) and 2018 c 278 s 20;

(6) RCW 74.39A.525 (Overtime criteria—Department-contracted individual providers—Individual providers employed by a consumer directed employer—Rule making—Expenditure reports—Joint legislative-executive overtime oversight task force) and 2018 c 278 s 26; and

(7) RCW 74.39A.530 (Consumer directed employer program—Labor and administrative rates—Rate-setting board—Funding process) and 2018 c 278 s 27.

Sec. 22. RCW 82.08.0283 and 2007 c 6 s 1101 are each amended to read as follows:

(1) The tax levied by RCW 82.08.020 ((shall))does not apply to sales of:

(a) Prosthetic devices prescribed, fitted, or furnished for an individual by a person licensed under the laws of this state to prescribe, fit, or furnish prosthetic devices, and the components of such prosthetic devices;

(b) Medicines of mineral, animal, and botanical origin prescribed, administered, dispensed, or used in the treatment of an individual by a person licensed under chapter 18.36A RCW; ((and))

(c) Medically prescribed oxygen, including, but not limited to, oxygen concentrator systems, oxygen enricher systems, liquid oxygen systems, and gaseous, bottled oxygen systems prescribed for an individual by a person licensed under chapter 18.57 or 18.71 RCW for use in the medical treatment of that individual; and

(d) Mobility enhancing equipment, and the components of mobility enhancing equipment, prescribed by a person licensed under the laws of this state to prescribe such equipment.

(2) In addition, the tax levied by RCW 82.08.020 ((shall))does not apply to charges made for labor and services rendered in respect to the repairing, cleaning, altering, or improving of any of the items exempted under subsection (1) of this section.

(3) The exemption in subsection (1) of this section ((shall))does not apply to sales of durable medical equipment, other than as specified in subsection (1)(c) of this section((, or mobility enhancing equipment)).

(4) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) "Prosthetic device" means a replacement, corrective, or supportive device, including repair and replacement parts for a prosthetic device, worn on or in the body to:

(i) Artificially replace a missing portion of the body;

(ii) Prevent or correct a physical deformity or malfunction; or

(iii) Support a weak or deformed portion of the body.

(b) "Durable medical equipment" means equipment, including repair and replacement parts for durable medical equipment that:

(i) Can withstand repeated use;

(ii) Is primarily and customarily used to serve a medical purpose;

(iii) Generally is not useful to a person in the absence of illness or injury; and

(iv) Is not worn in or on the body.

(c) "Mobility enhancing equipment" means equipment, including repair and replacement parts for mobility enhancing equipment that:

(i) Is primarily and customarily used to provide or increase the ability to move from one place to another and that is appropriate for use either in a home or a motor vehicle;

(ii) Is not generally used by persons with normal mobility; and

(iii) Does not include any motor vehicle or equipment on a motor vehicle normally provided by a motor vehicle manufacturer.

(d) The terms "durable medical equipment" and "mobility enhancing equipment" are mutually exclusive.

Sec. 23. RCW 82.12.0277 and 2007 c 6 s 1102 are each amended to read as follows:

(1) The provisions of this chapter ((shall))do not apply in respect to the use of:

(a) Prosthetic devices prescribed, fitted, or furnished for an individual by a person licensed under the laws of this state to prescribe, fit, or furnish prosthetic devices, and the components of such prosthetic devices;

(b) Medicines of mineral, animal, and botanical origin prescribed, administered, dispensed, or used in the treatment of an individual by a person licensed under chapter 18.36A RCW; ((and))

(c) Medically prescribed oxygen, including, but not limited to, oxygen concentrator systems, oxygen enricher systems, liquid oxygen systems, and gaseous, bottled oxygen systems prescribed for an individual by a person licensed under chapter 18.57 or 18.71 RCW for use in the medical treatment of that individual; and

(d) Mobility enhancing equipment, and the components of mobility enhancing equipment, prescribed by a person licensed under the laws of this state to prescribe such equipment.

(2) In addition, the provisions of this chapter ((shall))do not apply in respect to the use of labor and services rendered in respect to the repairing, cleaning, altering, or improving of any of the items exempted under subsection (1) of this section.

(3) The exemption provided by subsection (1) of this section ((shall))does not apply to the use of durable medical equipment, other than as specified in subsection (1)(c) of this section((, or mobility enhancing equipment)).

(4) "Prosthetic device," "durable medical equipment," and "mobility enhancing equipment" have the same meanings as in RCW 82.08.0283.

(2) Sections 22 and 23 of this act take effect July 1, 2020.

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